Background

The Oriental fruit fly, Bactrocera dorsalis (Hendel), is a destructive pest of citrus and other types of fruits, nuts, and vegetables. The short life cycle of the Oriental fruit fly allows rapid development of serious outbreaks that can cause severe economic losses. Heavy infestations can cause complete loss of crops.

The Oriental fruit fly regulations, contained in 7 CFR 301.93 through 301.93-10 (referred to below as the regulations), restrict the interstate movement of regulated articles from quarantined areas to prevent the spread of the Oriental fruit fly to noninfested areas of the United States. The regulations also designate soil and a large number of fruits, nuts, vegetables, and berries as regulated articles.

In an interim rule effective on September 14, 2004, and published in the Federal Register on September 20, 2004 (69 FR 56157-56159, Docket No. 02-096-3), we quarantined a portion of Orange County, CA, and restricted the interstate movement of regulated articles from the quarantined area.

Based on trapping surveys conducted by inspectors of California State and county agencies and by inspectors of the Animal and Plant Health Inspection Service, we have determined that the Oriental fruit fly has been eradicated from the quarantined portion of this county. The last finding of Oriental fruit fly in the Orange County quarantined area was September 29, 2004.

Since then, no evidence of Oriental fruit fly infestation has been found in this area. Based on our experience, we have determined that sufficient time has passed without finding additional flies or other evidence of infestation to conclude that the Oriental fruit fly no longer exists in Orange County, CA. Therefore, we are removing the county from the list of quarantined areas in § 301.93-3(c). With the removal of Orange County, CA, from that list, there are no longer any areas in the continental United States quarantined for the Oriental fruit fly.

Immediate action is warranted to relieve restrictions that are no longer necessary. A portion of Orange County, CA, was quarantined due to the possibility that the Oriental fruit fly could be spread from that area to noninfested areas of the United States. Since we have concluded that the Oriental fruit fly no longer exists in that area, immediate action is warranted to remove the quarantine on Orange County, CA, and to relieve the restrictions on the interstate movement of regulated articles from that area. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this action effective less than 30 days after publication in the Federal Register .

We will consider comments we receive during the comment period for this interim rule (see DATES above). After the comment period closes, we will publish another document in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the rule.

This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.

This action amends the Oriental fruit fly regulations by removing a portion of Orange County, CA, from the list of quarantined areas.

County records indicated there are 9 growers, 4 nurseries, 24 mobile vendors, 3 farmers markets, 8 fruit sellers, 1 distributor, 2 haulers, 2 processors, 1 swap meet, and 34 yard and tree maintenance firms within the quarantined portion of Orange County that could be affected by the lifting of the quarantine in this interim rule.

We expect that the effect of this interim rule on the small entities referred to above will be minimal. Small entities located within the quarantined area that sell regulated articles do so primarily for local intrastate, not interstate, movement, so the effect, if any, of this rule on these entities appears likely to be minimal. In addition, the effect on any small entities that may move regulated articles interstate has been minimized during the quarantine period by the availability of various treatments that allow these small entities, in most cases, to move regulated articles interstate with very little additional cost. Thus, just as the previous interim rule establishing the quarantined area in Orange County, CA, had little effect on the small entities in the area, the lifting of the quarantine in the current interim rule will also have little effect.

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

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

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

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

This rule is issued under Marketing Agreement and Order No. 925, both as amended (7 CFR part 925), regulating the handling of grapes grown in a designated area of southeastern California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California grape handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable grapes beginning on January 1, 2005, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

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

This rule increases the assessment rate established for the committee for the 2005 and subsequent fiscal periods from $0.015 to $0.0175 per 18-pound lug of grapes handled.

The grape marketing order provides authority for the committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the committee are producers and handlers of California grapes. They are familiar with the committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2002 and subsequent fiscal periods, the committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the committee or other information available to USDA.

The committee met on November 9, 2004, and unanimously recommended expenditures of $210,691 and an assessment rate of $0.0175 per 18-pound lug of grapes for the 2005 fiscal period. In comparison, last year's budgeted expenditures were $188,091. The assessment rate of $0.0175 is $0.0025 higher than the rate in effect during the 2004 fiscal period. The income from the increased assessment rate, together with interest income and reserve funds is necessary to ensure that sufficient funds are available to offset an increase in salaries and research programs in 2005, and ensure that an adequate carryover of reserve funds is available for the 2006 fiscal period.

The expenditures recommended by the committee for the 2005 fiscal period include $125,000 for research, $5,000 for compliance activities, $45,500 for salaries and payroll expenses, and $32,191 for other expenses. Budgeted expenses for these items in 2004 were $100,000 for research, $10,000 for compliance activities, $43,500 for salaries, and $34,591 for other expenses.

The assessment rate recommended by the committee was derived using the following formula: Total shipments (8.5 million 18-pound lugs) times the recommended assessment rate ($0.0175 per 18-pound lug), plus anticipated interest income ($300) and the 2005 beginning reserve ($78,000), minus the anticipated expenses ($210,691), leaving a 2005 ending reserve of $16,359.

Based on this calculation, assessment income, interest income, and funds from the committee's reserve will provide sufficient income to meet the 2005 anticipated expenses of $210,691, and will also leave an adequate December 2005 ending reserve of $16,359. At this level, the December 2005 ending reserve will be within the maximum permitted by the order of one fiscal period's expenses (§ 925.41).

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the committee or other available information.

Although this assessment rate will be in effect for an indefinite period, the committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of committee meetings are available from the committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The committee's 2005 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by USDA.

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

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

There are approximately 50 producers of grapes in the production area and approximately 20 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000 and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.

Last year, 8 of the 20 handlers subject to regulation had annual grape sales of at least $5,000,000. In addition, 10 of the 50 producers had annual sales of at least $750,000. Therefore, a majority of handlers and producers may be classified as small entities.

This rule increases the assessment rate established for the committee and collected from handlers for the 2005 and subsequent fiscal periods from $0.015 to $0.0175 per 18-pound lug of grapes. The committee unanimously recommended expenditures of $210,691 and an assessment rate of $0.0175 per 18-pound lug of grapes for the 2005 fiscal period. The assessment rate of $0.0175 is $0.0025 higher than the 2004 rate. The number of assessable grapes is estimated at 8.5 million 18-pound lugs. Thus, the $0.0175 rate should provide $148,750 in assessment income. Income derived from handler assessments, along with interest income and funds from the committee's authorized carry-in reserves should be adequate to cover budgeted expenses in 2005.

The expenditures recommended by the committee for the 2005 fiscal period include $125,000 for research, $5,000 for compliance activities, $45,500 for salaries and payroll expenses, and $32,191 for other expenses. Budgeted expenses for these items in 2004 were $100,000 for research, $10,000 for compliance activities, $43,500 for salaries, and $34,591 for other expenses.

The committee reviewed and unanimously recommended 2005 expenditures of $210,691 which included increases in salaries and research programs. Prior to arriving at this budget, the committee considered alternative expenditure and assessment rate levels, but ultimately decided that the recommended levels were reasonable to properly administer the order.

The assessment rate recommended by the committee was derived by the following formula: Total shipments (8.5 million 18-pound lugs) times the recommended assessment rate ($0.0175 per 18-pound lug), plus the anticipated interest income ($300) and the 2005 beginning reserve ($78,000), minus the anticipated expenses ($210,691), results in a 2005 ending reserve of $16,359.

This increased assessment rate will provide sufficient funds in combination with interest and reserve funds to meet the anticipated expenses of $210,691 and result in a December 2005 ending reserve of $16,359, which is acceptable to the committee. This reserve fund level is within the maximum permitted by the order of approximately one fiscal period's expenses.

A review of historical information and preliminary information pertaining to the upcoming fiscal period indicates that the on-vine grower price for the 2005 season could range between $5.00 and $9.00 per 18-pound lug of grapes. Therefore, the estimated assessment revenue for the 2005 fiscal period as a percentage of total grower revenue could range between approximately 0.2 and 0.4 percent.

This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the marketing order. In addition, the committee's meeting was widely publicized throughout the California grape industry and all interested persons were invited to attend the meeting and participate in committee deliberations on all issues. Like all committee meetings, the November 9, 2004, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

This rule imposes no additional reporting or recordkeeping requirements on either small or large desert grape handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

A proposed rule concerning this action was published in the Federal Register on January 11, 2005 (70 FR 1837). Copies of the proposed rule were also mailed or sent via facsimile to all desert grape handlers. Finally, the proposal was made available through the Internet by USDA and the Office of the Federal Register. A 30-day comment period ending on February 10, 2005, was provided for interested persons to respond to the proposal. No comments were received.

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

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

Pursuant to 5 U.S.C. 553, it also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The committee needs to have sufficient funds to pay its expenses which are incurred on a continuous basis; (2) the 2005 fiscal period began on January 1, 2005, and the order requires that the rate of assessment for each fiscal period apply to all assessable desert grapes handled during such fiscal period; (3) handlers are aware of this action which was unanimously recommended by the committee at a public meeting; and (4) a 30-day comment period was provided for in the proposed rule, and no comments were received.

This rule is issued under Marketing Agreement and Marketing Order No. 955, both as amended (7 CFR part 955), regulating the handling of Vidalia onions grown in Georgia, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, Vidalia onion handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable Vidalia onions beginning January 1, 2005, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

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

This rule increases the assessment rate and changes the assessable unit established for the Vidalia Onion Committee (Committee) for the 2005 and subsequent fiscal periods from $0.12 per 50-pound bag or equivalent to $0.10 per 40-pound carton of Vidalia onions. The assessment rate of $0.10 per 40-pound carton is $0.0001 per pound more than the assessment rate previously in effect.

The Vidalia onion order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of Vidalia onions. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2001-02 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate of $0.12 per 50-pound bag or equivalent that would continue in effect from 2001 and subsequent fiscal periods unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.

The Committee met December 15, 2004, and unanimously recommended 2005 expenditures of $450,300 and an assessment rate of $0.10 per 40-pound carton of Vidalia onions. In comparison, last year's budgeted expenditures were $312,215.

The assessment rate of $0.10 per 40-pound carton is $0.0001 per pound more than the rate currently in effect. The increase in the assessment rate is based on the reduction in size of the assessable unit from 50-pounds to 40-pounds. Although the reduction in size of the assessable unit increases the number of assessable cartons, it only slightly increases the actual assessment per pound of Vidalia onion handled from $0.0024 per pound to $0.0025 per pound.

The major expenditures recommended by the Committee for the 2005 year include $92,500 for salaries and benefits, $59,800 for administrative expenses, $290,000 for marketing expenses, $5,000 for research expenses, and $3,000 for compliance. Budgeted expenses for these items in 2004 were $66,280, $237,435, $7,500, $1000, and $0 respectively.

The assessment rate recommended by the Committee was derived by multiplying the assessment rate by the number of 40-pound cartons of Vidalia onions the industry is expected to ship for the 2005 fiscal period, and took into consideration the availability of matching funds for research and promotion from the State of Georgia. Vidalia onion shipments for the 2005 fiscal period are estimated at 3,350,000 40-pound cartons which should provide $335,000 in assessment income. Income derived from handler assessments, interest income ($3,000), contributions from the Georgia Department of Agriculture ($150,000), and income from the sale of Point-of-Sale advertisement material ($6,000) should be adequate to cover budgeted expenses. Funds in the reserve (currently $67,331) will be kept within the maximum permitted by the order, which is three fiscal periods' budgeted expenses (§ 955.44).

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate is effective for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2005 budget and those for subsequent fiscal periods will be reviewed and, as appropriate, approved by USDA.

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

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

There are approximately 145 producers of Vidalia onions in the production area and approximately 110 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms, which include handlers, are defined as those whose annual receipts are less than $5,000,000.

Based on information from the Georgia Agricultural Statistical Service and Committee data, around 90 percent of Vidalia onion handlers ship under $5,000,000 worth of onions on an annual basis. In addition, based on acreage, production, grower prices reported by the National Agricultural Statistics Service, and the total number of Vidalia onion growers, the average annual grower revenue is approximately $489,000. Thus, the majority of handlers and producers of Vidalia onions may be classified as small entities.

This rule increases the assessment rate and changes the assessable unit from $0.12 per 50-pound bag or equivalent to $0.10 per 40-pound carton of Vidalia onions for the 2005 and subsequent fiscal periods. The Committee unanimously recommended 2005 expenditures of $450,300 and an assessment rate of $0.10 per 40-pound carton of Vidalia onions. The assessment rate of $0.10 per 40-pound carton is $0.0001 per pound higher than the $0.12 per 50-pound bag or equivalent assessment rate in effect during 2004. The quantity of assessable Vidalia onions for the 2005 season is estimated at 3,350,000 40-pound cartons. Thus, the $0.10 per 40-pound carton rate should provide $335,000 in assessment income. Income derived from handler assessments, interest income ($3,000), contributions from the Georgia Department of Agriculture ($150,000), and income from the sale of Point-of-Sale advertisement material ($6,000) should be adequate to cover budgeted expenses.

The major expenditures recommended by the Committee for the 2005 year include $92,500 for salaries, $59,800 for administrative expenses, $290,000 for marketing expenses, $5,000 for research expenses, and $3,000 for compliance. Budgeted expenses for these items in 2004 were $66,280, $237,435, $7,500, $1,000, and $0, respectively.

The Committee at its December 15, 2004, meeting unanimously recommended reducing the assessable carton size from a 50-pound bag or equivalent to the current industry standard 40-pound carton size. The reduction in the assessable unit size increases the number of assessable units. The assessable unit size reduction also causes a slight increase in the actual per pound rate of assessment from $0.0024 to $0.0025, or an increase of $0.0001 per pound.

The Committee reviewed and unanimously recommended 2005 expenditures of $450,300 which includes increases in marketing, compliance, administrative expenses, and research programs. Prior to arriving at this budget, the Committee considered information from various sources. Alternative expenditure levels were discussed by the Committee based upon the relative value of various research and promotion projects to the Vidalia onion industry. The committee also discussed keeping the current $0.12 per 50-pound bag or equivalent assessment rate. The Committee believes, however, that using the current industry standard unit of 40-pounds will increase efficiency by saving handlers the considerable time and expense previously spent in converting 40-pound units to the 50-pound assessment rate unit. The Committee also felt that the slight increase of $0.001 per pound in assessments is insignificant when considering the benefits of using the industry standard unit. Thus the assessment rate of $0.10 per 40-pound carton of assessable Vidalia onions was approved unanimously. The expected income was derived by multiplying the assessment rate by the estimated number of 40-pound cartons the industry expects to ship for the 2005 season. Also available for expenditure are interest income and matching funds from the State of Georgia (for expenditures pursuant to § 955.50; production research, marketing research development, and marketing promotion including paid advertising).

A review of historical information and preliminary information pertaining to the upcoming fiscal period indicates that the grower price for the 2005 season could range between $13.75 and $17.15 per 40-pound carton of Vidalia onions. Therefore, the estimated assessment revenue for the 2005 fiscal period as a percentage of total grower revenue could range between 0.58 and 0.73 percent.

This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the marketing order. As noted earlier, the savings in time and expense previously spent on converting the industry standard 40-pound carton to the 50-pound unit used by the Committee more than offsets the negligible assessment increase of $0.001 per pound of onions handled. In addition, the Committee's meeting was widely publicized throughout the Vidalia onion industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the December 15, 2004, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

This action imposes no additional reporting or recordkeeping requirements on either small or large Vidalia onion handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

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

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

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect, and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The 2005 fiscal period began on January 1, 2005, and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable Vidalia onions handled during such fiscal period; (2) this action changes the assessable carton size from a 50-pound bag or equivalent to the current industry standard 40-pound carton size; (3) the Committee needs to have sufficient funds to pay its expenses, which are incurred on a continuous basis; (4) handlers are aware of this action which was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years; and (5) this interim final rule provides a 60-day comment period, and all comments timely received will be considered prior to finalization of this rule.

This final rule is issued under Marketing Agreement and Order No. 987, as amended (7 CFR part 987), regulating the handling of domestic dates produced or packed in Riverside County, California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

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

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

This final rule modifies the requirements for approved manufacturers of date products in § 987.157 of the order's administrative rules and regulations. This rule clarifies the application procedures and qualification requirements for approved manufacturers of date products. This rule also specifies that, to be an approved manufacturer of date products, a regulated date handler must be in compliance with the order. These modifications will help safeguard the integrity of the approved date product manufacturer program, as well as the quality of whole and pitted dates marketed both domestically and in Canada. These changes were recommended unanimously by the committee at a meeting on April 23, 2004.

Section 987.57 of the order provides the authority for the approved date product manufacturer program. Section 987.57 states in part: “Diversion of dates pursuant to § 987.55 or § 987.56 shall be accomplished only by such persons (which may include handlers) as are approved manufacturers or feeders * * * The application and approval shall be in accordance with such rules, regulations and safeguards as may be prescribed pursuant to § 987.59.” Further, § 987.59 states: “The Committee may prescribe, with the approval of the Secretary, such rules, regulations and safeguards as are necessary to prevent dates covered by §§ 987.55 and 987.56 from interfering with the objectives of this part.”

Finally, § 987.157 of the order's administrative rules and regulations prescribes the application procedure and qualification requirements to become an approved manufacturer of date products.

At its public meeting on April 23, 2004, the committee unanimously recommended modifying the application procedures and qualification requirements for approved manufacturers of date products. The committee's approved date product manufacturer program helps assure that high quality whole and pitted dates are marketed in the United States and Canada. Whole and pitted dates shipped within the United States and to Canada must at least meet the requirements of U.S. Grade B, whereas dates for manufacture into products must meet the lower quality requirements of U.S. Grade C.

Only firms on the committee's list of approved date product manufacturers are allowed to receive dates for conversion into date products. These entities agree to alter the form and appearance of the lower quality dates so they cannot be marketed in competition with higher quality whole and pitted dates in the United States and Canada.

Based on the committee's recommendation, the procedures used to qualify an applicant as an approved manufacturer of date products have been revised in this final rule to help ensure that each applicant is treated similarly, and that an approved date product manufacturer remains qualified to receive dates for conversion into products.

Within the regulated production area (Riverside County, California), all approved manufacturers are also date handlers regulated under the order. Conversely, approved manufacturers outside the regulated area are not regulated date handlers.

This rule also helps safeguard the integrity of the approved manufacturer program by requiring that regulated handlers be in compliance with the order—including the assessment and reporting requirements of the order—for approval as date product manufacturers. Once approved as a date product manufacturer, handlers must stay in compliance with the requirements of the order to remain on the committee's approved date product manufacturers' list.

Prior to revoking a handler's approved manufacturer status for noncompliance with the requirements of the order, the committee staff will consult with USDA. If, after consultation with USDA and notification of the handler, the approved product manufacturer continues to be in noncompliance with order requirements, the committee staff will announce the revocation of such handler's approved manufacturer status by mailing or faxing a revised approved manufacturer list to all date handlers in the regulated area.

Further, the approved manufacturers will be required to maintain accurate records regarding date product information and provide these records to the committee staff. This will enable the committee to verify that each approved date product manufacturer is operating as required. To ensure that approved manufacturers continue to be qualified, each will be required to reapply for approved manufacturer status once a year. The procedures for reapplication are the same as the procedures used for initial approval as a date product manufacturer.

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

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

There are approximately 124 date producers in the production area and 10 handlers subject to regulation under the order. The Small Business Administration (SBA) (13 CFR 121.201) defines small agricultural producers as those with annual receipts of less than $750,000, and small agricultural service firms as those with annual receipts of less than $5,000,000.

The committee estimates approximately 7 producers (approximately 6 percent) had receipts over $750,000 and that 4 handlers (40 percent) shipped over $5,000,000 worth of California dates. Based on this information, a majority of handlers and producers of California dates may be classified as small entities.

Within the regulated production area all approved manufacturers are also date handlers regulated under the order. Conversely, approved manufacturers outside the regulated area are not regulated date handlers. Currently, there are three approved manufacturers outside the regulated area. We do not have information on their size, but believe most of them are small entities.

This final rule modifies the requirements for approved date product manufactures under § 987.157 of the order's administrative rules and regulations. This rule clarifies both the application procedures and qualification requirements for approval as a manufacturer of date products. This final rule also requires an applicant who is a date handler regulated under the order to be in compliance with the order to continue to manufacture date products. These changes help safeguard the integrity of the approved manufacturer program and help assure the quality of whole and pitted dates marketed in the United States and Canada. These changes were recommended unanimously by the committee at a meeting on April 23, 2004.

At the meeting, the committee discussed the impact of this change on handlers and approved manufacturers. By clarifying the date product manufacturer application procedure and qualification requirements, the modifications help ensure that applicants are treated similarly. In addition, the committee believes the modifications will help safeguard the integrity of the approved manufacturer program by requiring that participating handlers are in compliance with the order. As such, the committee believes that the impact of this rule on handlers and date product manufactures will be negligible and greatly outweighed by the improvement in the overall integrity and efficiency of the program.

Furthermore, the benefits of this rule are not expected to be disproportionately greater or less for small entities than for large entities.

The committee discussed alternatives to these changes, including not making any changes to the requirements to become an approved date product manufacturer. The committee, however, decided that lack of action on its part could negatively impact the effectiveness of the safeguards that help ensure the quality of whole and pitted dates marketed in the United States and Canada.

A second alternative debated by the committee would have required an applicant to pay all the costs for repeated inspections to verify that the applicant can, indeed, meet the requirements of an approved manufacturer. There was some discussion about whether the committee should continue to pay for the committee staff's time for verification inspections beyond the initial visit. There is no authority to charge applicants for verification inspections under this program, thus this alternative was deemed unacceptable.

These changes clarify the application procedures and qualification requirements to become or maintain an approved manufacturer status of date products under the date marketing order. Accordingly, this final rule does not impose any additional reporting or recordkeeping requirements on small or large California date handlers. This information collection burden has been approved by the Office of Management and Budget (OMB) under OMB No. 0581-0178. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.

In addition, the committee's meeting was widely publicized throughout the California date industry and all interested persons were invited to attend the meeting and participate in committee deliberations on all issues. Like all committee meetings, the April 23, 2004, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

A proposed rule concerning this action was published in the Federal Register on January 24, 2005 (70 FR 3315). Copies of the rule were provided to all committee members and date handlers. The rule was also made available through the Internet by USDA and the Office of the Federal Register. A 15-day comment period ending on February 3, 2005, was provided to allow interested persons to responds to the proposal. No comments were received.

Accordingly, no changes will be made to the rule as proposed.

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

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

It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register (5 U.S.C. 553). Handlers are already shipping dates from the 2004-2005 crop. This action clarifies the application procedures and qualification requirements for approved manufacturers of date products. Further, handlers and approved manufacturers are aware of this rule, which was recommended at a public meeting. Also, a 15-day comment period was provided for in the proposed rule and no comments were received.

Wellmark International, 1100 East Woodfield Rd., suite 500, Schaumburg, IL 60173 has informed FDA of a change of address to 1501 East Woodfield Rd., suite 200 West, Schaumburg, IL 60173. Accordingly, the agency is amending the regulations in 21 CFR 510.600(c) to reflect the change.

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

(2) * * *

The final regulations (TD 9176) that are the subject of these corrections are under section 411(d)(6) of the Internal Revenue Code.

As published, TD 9176 contains errors that may prove to be misleading and are in need of clarification.

The temporary regulations (TD 9164) that is the subject of this correction are under section 409(p).

As published, the temporary regulations (TD 9164) contain errors that may prove to be misleading and are in need of clarification.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Kentucky program on May 18, 1982. You can find background information on the Kentucky program, including the Secretary's findings, the disposition of comments, and conditions of approval in the May 18, 1982, Federal Register (47 FR 21434). You can also find later actions concerning Kentucky's program and program amendments at 30 CFR 917.11, 917.12, 917.13, 917.15, 917.16 and 917.17.

In a Federal Register notice dated May 13, 2004, we published a final rule indicating that we were not approving an amendment to the Kentucky program (69 FR 26500). The amendment transferred $3,840,000 from the Kentucky Bond Pool Fund to the General Fund for the 2002-2003 and 2003-2004 fiscal years. In the same notice, we also suspended Kentucky's use of the Bond Pool Fund to provide new financial guarantees. Our decision was codified at 30 CFR 917.17(c). By letter dated July 12, 2004, Kentucky notified us that $3,840,000 would be transferred from the General Fund into the Bond Pool Fund by authority of the Governor (Administrative Record No. KY-1629). By letter dated July 15, 2004, we noted that Executive Order 2004-753 effected the transfer of the $3,840,000 from the General Fund into the Bond Pool Fund and notified Kentucky that the transfer satisfies our concerns and that we were therefore terminating our suspension of the use of the Bond Pool Fund (Administrative Record No. KY-1632).

As a result of the transfer of $3,840,000 into the Bond Pool Fund as specified in the letter dated July 12, 2004, and our subsequent termination of the suspension on July 15, 2004, the Director has determined that the suspension notation at 30 CFR 917.17(c) is no longer required, and should be removed. Accordingly, we are removing the suspension notation.

This rule does not have takings implications. The removal of the suspension notation at 30 CFR 917.17(c) merely acknowledges the transfer of funds into the Kentucky Bond Pool by the State.

This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.

This rule does not have federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects 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. The basis for this determination is our decision on a State regulatory program and does not involve a Federal regulation involving Indian lands.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This final rule has been issued without prior notice or opportunity for public comment. The Administrative Procedure Act (APA) (5 U.S.C. 553) provides an exception to the notice and comment procedures when an agency finds there is good cause for dispensing with such procedures on the basis that they are unnecessary. We have determined that under 5 U.S.C. 553(b)(3)(B), good cause exists for dispensing with the notice of proposed rulemaking and public comment procedures. For the reasons previously stated, the rule removes a suspension status notation from the Code of Federal Regulations at 30 CFR 917.17(c). This action does not constitute our decision to terminate the suspension of Kentucky's use of the Bond Pool Fund. That decision was made on July 15, 2004. Rather, the removal of the suspension notation pertaining to the use of the Bond Pool Fund merely acknowledges the return of the $3,840,000 previously transferred out of the Bond Pool Fund, and our July 15, 2004, decision to terminate our suspension. When we removed the suspension, we reactivated that portion of the State regulatory program previously approved. For these same reasons, we believe there is good cause under 5 U.S.C. 553(d)(3) of the APA to have the rule become effective on a date that is less than 30 days after the date of publication in the Federal Register .

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior 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. ). The removal of the suspension notation from 30 CFR 917.17(c) acknowledges the transfer of funds by Kentucky into the Bond Pool Fund. The July 15, 2004, removal of the suspension should increase bonding options for coal operators and facilitate the approval of surface coal mining operations within the State.

For the reasons previously discussed, this rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

For the reasons previously discussed, this rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year.

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

Table 1 lists the rules we are approving with the date that they were adopted by the local air agency and submitted by the California Air Resources Board (CARB).

On June 3, 1994, the recision submittal of KCAPCD Rule 403 was found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review. On October 18, 2004, the submittal of KCAPCD Rule 416.1 was found to meet the completeness criteria.

Rule 403 was originally submitted on June 30, 1972 and approved on September 22, 1972 (37 FR 19812). There is no version of Rule 416.1 in the SIP.

PM-10 harms human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control PM-10 emissions.

The purpose of the recision of Rule 403 is as follows:

• To simplify the SIP by incorporating the exemption for wet plumes into KCAPCD Rule 401, Visible Emissions.

The purpose of Rule 416.1 is as follows:

• To minimize the emissions of PM-10, organic gases, and carbon monoxide from wood burning fireplaces in new housing subdivisions and wood burning heaters throughout East Kern County by (a) prohibiting the sale or transfer of a new or used wood burning heater unless it is EPA Phase II-certified or rendered permanently inoperable or is pellet-fueled and by (b) prohibiting installation of new wood burning fireplaces in a residential subdivision with more than 10 homes.

Generally, SIP rules must be enforceable (see section 110(a) of the CAA), must require reasonably available control measures (RACM), including reasonably available control technology (RACT) in moderate PM-10 nonattaiment areas ( see section 189(a)), and must not relax existing requirements ( see sections 110(l) and 193). A portion of KCAPCD was designated the Indian Wells Valley moderate PM-10 nonattainment area. However, this area was redesignated PM-10 attainment on May 7, 2003 (68 FR 24368). The redesignation action did not rely on Rule 416.1 to achieve attainment. Therefore, we conclude that submitted Rule 416.1 need not fulfill the requirements of RACM/RACT.

The following guidance documents were used for reference.

• Requirements for Preparation, Adoption, and Submittal of Implementation Plans, U.S. EPA, 40 CFR part 51.

• PM-10 Guideline Document (EPA-452/R-93-008).

Rule 416.1 improves the SIP by regulating a source category not previously regulated. We believe that Rule 416.1 is consistent with the relevant policy and guidance regarding enforceability and SIP relaxations and should be approved. The recision of Rule 403 does not relax the SIP and should be approved.

The TSD has more information on our evaluation.

As authorized in section 110(k)(3) of the CAA, EPA is fully approving Rule 416.1 and the recision of Rule 403, because we believe these actions fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing the approval without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same actions. If we receive adverse comments by April 7, 2005, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on May 9, 2005. This will incorporate Rule 416.1 into and rescind Rule 403 from the federally-enforceable SIP.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this direct final rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . 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 May 9, 2005. 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” or “our” is used it means the EPA.

This format revision will affect the “Identification of plan” section of 40 CFR part 52, as well as the format of the SIP materials that will be available for public inspection at the National Archives and Records Administration (NARA); the Air and Radiation Docket and Information Center located at EPA Headquarters in Washington, DC; and the EPA Region 8 Office.

Each state has a SIP containing the control measures and strategies used to attain and maintain the national ambient air quality standards (NAAQS) and achieve certain other Clean Air Act (Act) requirements ( e.g. , visibility requirements, prevention of significant deterioration). The SIP is extensive, containing such elements as air pollution control regulations, emission inventories, monitoring network descriptions, attainment demonstrations, and enforcement mechanisms.

Each SIP revision submitted by South Dakota must be adopted at the state level after undergoing reasonable notice and public hearing. SIPs submitted to EPA to attain or maintain the NAAQS must include enforceable emission limitations and other control measures, schedules and timetables for compliance.

EPA evaluates submitted SIPs to determine if they meet the Act's requirements. If a SIP meets the Act's requirements, EPA will approve the SIP. EPA's notice of approval is published in the Federal Register and the approval is then codified in the Code of Federal Regulations (CFR) at 40 CFR part 52. Once EPA approves a SIP, it is enforceable by EPA and citizens in federal district court.

We do not reproduce in 40 CFR part 52 the full text of the South Dakota regulations that we have approved; instead, we incorporate them by reference (“IBR”). We approve a given state regulation with a specific effective date and then refer the public to the location(s) of the full text version of the state regulation(s) should they want to know which measures are contained in a given SIP (see “I.F. Where You Can Find a Copy of the SIP Compilation”).

The SIP is a living document which the state can revise as necessary to address the unique air pollution problems in the state. Therefore, EPA from time to time must take action on SIP revisions containing new and/or revised regulations.

On May 22, 1997 (62 FR 27968), we announced revised procedures for incorporating by reference federally approved SIPs. The procedures announced included: (1) A new process for incorporating by reference material submitted by states into compilations and a process for updating those compilations on roughly an annual basis; (2) a revised mechanism for announcing EPA approval of revisions to an applicable SIP and updating both the compilations and the CFR; and (3) a revised format for the “Identification of plan” sections for each applicable subpart to reflect these revised IBR procedures.

We have organized into a compilation the federally-approved regulations, source-specific requirements and nonregulatory provisions we have approved into the SIP. We maintain hard copies of the compilation in binders and we primarily update these binders on an annual basis.

Each compilation contains three parts. Part one contains the state regulations, part two contains the source-specific requirements that have been approved as part of the SIP (if any), and part three contains nonregulatory provisions that we have approved. Each compilation contains a table of identifying information for each regulation, each source-specific requirement, and each nonregulatory provision. The state effective dates in the tables indicate the date of the most recent revision to a particular regulation. The table of identifying information in the compilation corresponds to the table of contents published in 40 CFR part 52 for the state. The EPA Regional Offices have the primary responsibility for ensuring accuracy and updating the compilations.

EPA Region 8 developed and will maintain the compilation for South Dakota. An electronic copy of the compilation is contained in Regional Materials in EDOCKET index at http://docket.epa.gov/rmepub/index.jsp . Look for Docket ID No. R08-OAR-2005-SD-0001. A hard copy of the regulatory and source-specific portions of the compilation will also be maintained at the Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, Room B-108 (Mail Code 6102T), 1301 Constitution Ave., NW., Washington, DC 20460; and National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html . Copies of the South Dakota regulations we have approved are also available on the following Web page: http://www.epa.gov/region8/air/sip.html .

In order to better serve the public, EPA has revised the organization of the “Identification of plan” section in 40 CFR part 52 and included additional information to clarify the elements of the SIP.

The revised Identification of plan section for South Dakota contains five subsections:

1. Purpose and scope ( see 40 CFR 52.2170(a));

2. Incorporation by reference ( see 40 CFR 52.2170(b));

3. EPA-approved regulations ( see 40 CFR 52.2170(c));

4. EPA-approved source-specific requirements ( see 40 CFR 52.2170(d)); and

5. EPA-approved nonregulatory provisions such as transportation control measures, statutory provisions, control strategies, monitoring networks, etc. ( see 40 CFR 52.2170(e)).

All revisions to the applicable SIP are federally enforceable as of the effective date of EPA's approval of the respective revisions. In general, SIP revisions become effective 30 to 60 days after publication of EPA's SIP approval action in the Federal Register . In specific cases, a SIP revision action may become effective less than 30 days or greater than 60 days after the Federal Register publication date. In order to determine the effective date of EPA's approval for a specific South Dakota SIP provision that is listed in paragraph 40 CFR 52.2170 (c), (d), or (e), consult the volume and page of the Federal Register cited in the “EPA approval date” column of 40 CFR 52.2170 for that particular provision.

To facilitate enforcement of previously approved SIP provisions and to provide a smooth transition to the new SIP processing system, we are retaining the original Identification of plan section ( see 40 CFR 52.2186). This section previously appeared at 40 CFR 52.2170. After an initial two-year period, we will review our experience with the new table format and will decide whether or not to retain the original Identification of plan section (40 CFR 52.2186) for some further period.

Today's action constitutes a “housekeeping” exercise to reformat the codification of the EPA-approved South Dakota SIP.

EPA has determined that today's action falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedure Act (APA) which, upon a finding of “good cause,” authorizes agencies to dispense with public participation, and section 553(d)(3), which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). Today's action simply reformats the codification of provisions which are already in effect as a matter of law.

Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Likewise, there is no purpose served by delaying the effective date of this action.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute as indicated in the Supplementary Information section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does 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), nor will it 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 rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. This rule does not involve technical standards; thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). EPA's compliance with these statutes and Executive Orders for the underlying rules are discussed in previous actions taken on the State's rules.

The Congressional Review Act (5 U.S.C. 801 et seq. ), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. Today's action simply reformats the codification of provisions which are already in effect as a matter of law. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of March 8, 2005. 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 . These corrections to the Identification of plan for South Dakota is not a “major rule” as defined by 5 U.S.C. 804(2).

EPA has also determined that the provisions of section 307(b)(1) of the Clean Air Act pertaining to petitions for judicial review are not applicable to this action. Prior EPA rulemaking actions for each individual component of the South Dakota SIP compilation had previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, EPA sees no need to reopen the 60-day period for filing such petitions for judicial review for this reorganization of the “Identification of plan” section of 40 CFR 52.2170 for South Dakota.

I. Incorporation by Reference A. What Is Codification?

Codification is the process of including the statutes and regulations that comprise the State's authorized hazardous waste management program in the CFR. Section 3006(b) of RCRA, as amended, allows the Environmental Protection Agency (EPA) to authorize State hazardous waste management programs. The State regulations authorized by EPA supplant the federal regulations concerning the same matter with the result that after authorization EPA enforces the authorized regulations. Infrequently, State statutory language which acts to regulate a matter is also authorized by EPA with the consequence that EPA enforces the authorized statutory provision. EPA does not authorize State enforcement authorities and does not authorize State procedural requirements. EPA codifies the authorized State program in 40 CFR part 272 and incorporates by reference State statutes and regulations that make up the approved program which is federally enforceable. EPA retains the authority to exercise its inspection and enforcement authorities in accordance with sections 3007, 3008, 3013 and 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934 and 6973, and any other applicable statutory and regulatory provisions.

Today's action codifies EPA's authorization of revisions to Idaho's hazardous waste management program. This codification reflects the State program in effect at the time EPA authorized revisions to the Idaho hazardous waste management program in a final rule dated March 10, 2004 (69 FR 11322). Notice and an opportunity for comment regarding the revisions to the authorized State program were provided to the public at the time those revisions were proposed.

Idaho initially received final authorization for its hazardous waste management program, effective April 9, 1990 (55 FR 11015). Subsequently, EPA authorized revisions to the State's program effective June 5, 1992 (57 FR 11580), August 10, 1992 (57 FR 24757), June 11, 1995 (60 FR 18549), January 19, 1999 (63 FR 56086), July 1, 2002 (67 FR 44069), and March 10, 2004 (69 FR 11322). EPA first codified Idaho's authorized hazardous waste program effective February 4, 1991 (55 FR 50327), and updated the codification of Idaho's program on June 5, 1992 (57 FR 11580), August 10, 1992 (57 FR 24757), and August 24, 1999 (64 FR 34133). In this action, EPA revises Subpart N of 40 CFR part 272, to include the recent authorization revision actions effective July 1, 2002 (67 FR 44069) and March 10, 2004 (69 FR 11322).

Today's action codifies EPA's authorization of revisions to Idaho's hazardous waste management program. This codification incorporates by reference the most recent version of the State's authorized hazardous waste management regulations. This action does not reopen any decision EPA previously made concerning the authorization of the State's hazardous waste management program.

EPA is incorporating by reference the authorized revisions to the Idaho hazardous waste program by revising subpart N of 40 CFR part 272. 40 CFR part 272, subpart N, § 272.651 previously incorporated by reference Idaho's authorized hazardous waste program, as amended, through 1999. Section 272.651 also references the demonstration of adequate enforcement authority, including procedural and enforcement provisions, which provide the legal basis for the State's implementation of the hazardous waste management program. In addition, § 272.651 references the Memorandum of Agreement, the Attorney General's Statement and the Program Description which were evaluated as part of the approval process of the hazardous waste management program in accordance with subtitle C of RCRA.

EPA retains the authority under statutory provisions, including but not limited to, RCRA sections 3007, 3008, 3013 and 7003, and any other applicable statutory and regulatory provisions, to undertake inspections and enforcement actions and to issue orders in all authorized States. With respect to enforcement actions, EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than the State analogues to these provisions. Therefore, the EPA is not incorporating by reference Idaho's inspection and enforcement authorities nor are those authorities part of Idaho's approved State program which operates in lieu of the Federal program. 40 CFR 272.651(b)(2) lists these authorities for informational purposes, and also because EPA considered them in determining the adequacy of Idaho's enforcement authorities. This action revises this listing for informational purposes where these authorities have changed under Idaho's revisions to State law and were considered by EPA in determining the adequacy of Idaho's enforcement authorities. Idaho's authority to inspect and enforce the State's hazardous waste management program requirements continues to operate independently under State law.

The public is reminded that some provisions of Idaho's hazardous waste management program are not part of the federally authorized State program. These non-authorized provisions include:

(1) Provisions that are not part of the RCRA subtitle C program because they are “broader in scope” than RCRA subtitle C ( see 40 CFR 271.1(i));

(2) Federal rules for which Idaho is not authorized, but which have been incorporated into the State regulations because of the way the State adopted Federal regulations by reference;

(3) State procedural and enforcement authorities which are necessary to establish the ability of the program to enforce compliance but which do not supplant the Federal statutory enforcement and procedural authorities.

State provisions that are “broader in scope” than the Federal program are not incorporated by reference in 40 CFR part 272. For reference and clarity, 40 CFR 272.651(b)(3) lists the Idaho regulatory provisions which are “broader in scope” than the Federal program and which are not part of the authorized program being incorporated by reference. This action updates that list for “broader in scope” provisions. While “broader in scope” provisions are not part of the authorized program and cannot be enforced by EPA, the State may enforce such provisions under State law.

Idaho has adopted but is not authorized for certain sections of the Post Closure rule (Standards Applicable to Owners and Operators of Closed and Closing Hazardous Waste Management Facilities: Post-Closure Permit Requirement and Closure Process; Final Rule) promulgated by EPA on October 22, 1998 (63 FR 56710). These unauthorized sections of the Post Closure rule include the State analogs to Federal citations 40 CFR 270.1(c)(7), 40 CFR 265.121, 40 CFR 265.110(c), and 40 CFR 265.118(c)(4). Additionally, Idaho is authorized for State analogs to Federal 40 CFR 264.90(e), 264.90(f), 264.110(c), 264.112(b)(8), 264.112(c)(2)(iv), 264.118(b)(4), 264.118(d)(2)(iv), 264.140(d), 265.90(f), 265.110(d), 265.112(b)(8), 265.118(c)(5), 265.140(d), 270.1(c) introductory text, and 270.28 except where those sections reference the use of enforceable documents in the context of the Post Closure rule. Idaho did not seek, nor receive, authorization for language in those sections which state as follows: “* * * or in an enforceable document (as defined in 270.1(c)(7).” Therefore, these Federal amendments, included in Idaho's adoption by reference at IDAPA 58.01.05.000, et seq. , are not part of the State's authorized program included in this codification.

With respect to any requirement(s) pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) for which the State has not yet been authorized and which EPA has identified as taking effect immediately in States with authorized hazardous waste management programs, EPA will enforce those Federal HSWA standards until the State is authorized for those provisions.

The Codification does not affect Federal HSWA requirements for which the State is not authorized. EPA has authority to implement HSWA requirements in all States, including States with authorized hazardous waste management programs, until the States become authorized for such requirements or prohibitions unless EPA has identified the HSWA requirement(s) as an optional or as a less stringent requirement of the Federal program. A HSWA requirement or prohibition, unless identified by EPA as optional or as less stringent, supersedes any less stringent or inconsistent State provision which may have been previously authorized by EPA (50 FR 28702, July 15, 1985).

Some existing State requirements may be similar to the HSWA requirements implemented by EPA. However, until EPA authorizes those State requirements, EPA enforces the HSWA requirements and not the State analogs.

This action codifies EPA-authorized hazardous waste management requirements pursuant to RCRA Section 3006 and imposes no requirements other than those imposed by State law (see SUPPLEMENTARY INFORMATION ). Therefore, this action complies with applicable executive orders and statutory provisions as follows:

1. Executive Order 12866: Regulatory Planning Review —The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993).

2. Paperwork Reduction Act —This action does not impose an information collection burden under the Paperwork Reduction Act.

3. Regulatory Flexibility Act —This action codifies Idaho's authorized hazardous waste management regulations in the CFR and does not impose new burdens on small entities. After considering the economic impacts of today's action on small entities under the Regulatory Flexibility Act, I certify that this action will not have a significant economic impact on a substantial number of small entities.

4. Unfunded Mandates Reform Act —Because this action codifies pre-existing requirements under State law which EPA already approved under 40 CFR part 271 and does not impose any additional enforceable duty beyond that required by State law or existing Federal law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

5. Executive Order 13132: Federalism —Executive Order 13132 does not apply to this action because it will not have federalism implications ( i.e. substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government). This action codifies existing authorized State hazardous waste management program requirements without altering the relationship or the distribution of power and responsibilities established by RCRA.

6. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments —Executive Order 13175 does not apply to this action because this action does not have tribal implications ( i.e. substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes).

7. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks —This action is not subject to Executive Order 13045 because it is not economically significant and it does not make decisions based on environmental health or safety risks.

8. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use —This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.

9. National Technology Transfer and Advancement Act (NTTAA) —EPA previously addressed the non-applicability of the NTTAA in its final approvals to revisions of the State's authorized hazardous waste management program. Section 12(d) of the NTTAA does not apply to this action.

10. Executive Order 12988 —EPA has taken the necessary steps in this action to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.

11. Congressional Review Act —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. The EPA will submit a report containing this document 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 in the Federal Register .

In accordance with the Norman Y. Mineta Research and Special Programs Improvement Act (Pub. L. 108-426, 118 Stat. 2423; Nov. 30, 2004) (the “Mineta Act”), which reorganized the Department's pipeline and hazardous materials safety programs into the new PHMSA, this document revises all references to the former RSPA in 49 CFR parts 190-199 to reflect the creation of PHMSA. This document also makes conforming changes reflecting the enactment of the Pipeline Safety Improvement Act of 2002 (Pub. L. 107-355, 116 Stat. 2985; Dec. 17, 2002) (the “PSI Act”) including changes to the Office of Pipeline Safety's (OPS’) Internet and mailing addresses, docket procedures, titles, section numbers, penalty considerations and cap adjustments, terminology, and other editorial changes to enhance the clarity and consistency of the part 190 enforcement procedures used by the agency. The amendments made by this rule reflect the changed organizational posture of the agency and update the part 190 enforcement procedures to reflect current public law. This rule does not impose any new operating requirements on pipeline owners and operators.

The following is a summary of the nomenclature changes, updates to the enforcement procedures in part 190, and other technical amendments made to the affected sections of 49 CFR under this final rule. It does not include all editorial and typographical corrections and other minor amendments that were made to enhance the clarity and consistency of the enforcement procedures used by the agency.

• In 49 CFR parts 190, 191, 192, 193, 194, 195, 198, and 199, the term “Research and Special Programs Administration” is changed to “Pipeline and Hazardous Materials Safety Administration” everywhere it appears, and the abbreviation “RSPA” is changed to “PHMSA” everywhere it appears ( see Mineta Act, Sec. 2; 49 U.S.C. 108).

• In § 190.203, the procedure used by OPS to request that pipeline operators afford their assistance with pipeline incident investigations is specified in paragraph (e) ( see PSI Act Sec. 10(a); 49 U.S.C. 60118(e)).

• In §§ 190.213 and 190.215, the time period within which the Administrator issues final orders and takes action on petitions for reconsideration is updated to reflect the Administrator's policy of issuing such orders and decisions expeditiously and providing notice if substantial delays are expected.

• In § 190.223, paragraph (a) is amended to reflect the statutory increase in the maximum civil penalty amount of $25,000 per violation per day, with a $500,000 cap for any related series of violations, to $100,000 per violation per day with a $1,000,000 cap ( see PSI Act Sec. 8(b); 49 U.S.C. 60122(a)(1)).

• In § 190.223, the civil penalty of up to $1,000 for violation of the whistleblower protection provisions is specified in paragraph (d) ( see PSI Act Sec. 6(b); 49 U.S.C. 60122(a)).

• In § 190.225, the penalty assessment considerations are amended by specifying environmental impact as a factor that must be considered, and any economic benefit from the violation as a factor that may be considered ( see PSI Act Sec. 8(b); 49 U.S.C. 60122(b)).

• In § 190.229, paragraph (c) is amended by specifying intentional damage to intrastate pipeline facilities as an act subject to criminal penalties ( see PSI Act Sec. 8(c); 49 U.S.C. 60123(b)).

• In § 190.229, knowingly and willfully engaging in excavation activity that results in property damage, serious injury, or death, without first using an available One-Call notification system is specified as an act subject to criminal penalties in paragraph (e) ( see PSI Act Sec. 3(c); 49 U.S.C. 60123(d)).

• In § 190.233, the term “hazardous facility order” is changed to “corrective action order” everywhere it appears and the title of the section is amended ( see PSI Act Sec. 8(a); 49 U.S.C. 60112(d)).

• In § 190.233, wherever the phrase “* * * hazardous to life or property” appears, the phrase “or the environment” is added after the word property ( see PSI Act Sec. 8(a); 49 U.S.C. 60112(a)).

• In § 190.235, civil penalties are specified as an available U.S. District Court remedy, and the title of the section is amended. Operators should note that OPS believes that the caps that apply to civil penalties that are assessed in administrative proceedings would not apply to civil penalties assessed in U.S. District Court actions ( see PSI Act Sec. 8(b); 49 U.S.C. 60120(a)).

This final rule reflects the changed organizational posture of the Department due to the establishment of PHMSA, changes nomenclature, and updates the part 190 enforcement procedures to reflect current public law. As such, this final rule is ministerial in nature and relates only to agency organization, procedure and practice. This final rule does not impose substantive requirements on the public and the agency does not expect to receive substantive comments on the rule. Accordingly, notice and comment on this rule is unnecessary under 5 U.S.C. 553(b).

With respect to the effective date, because this rule relates only to agency organization, procedure and practice, does not impose substantive requirements on the public, and its expeditious issuance facilitates the Department's ability to meet the statutory implementation requirements of the Mineta Act, we find that there is good cause under 5 U.S.C. 553(d) to make this rule effective on March 8, 2005.

This final rule is not considered a significant regulatory action under Section 3(f) of Executive Order 12866 and, therefore, was not subject to review by the Office of Management and Budget. This rule is not significant under DOT Regulatory Policies and Procedures (44 FR 11034; Feb. 26, 1979). Because this rule only changes nomenclature to reflect the organizational posture of the agency and updates the part 190 enforcement procedures to reflect current public law, it has no economic impact on regulated entities and preparation of a regulatory impact analysis was not warranted.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This rule does not introduce any regulation that: (1) Has substantial direct effects on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government; (2) imposes substantial direct compliance costs on state and local governments; or (3) preempts state law. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. Further, this rule does not have sufficient impacts on federalism to warrant the preparation of a federalism assessment.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this rule does not significantly or uniquely affect the communities of the Indian tribal governments, the funding and consultation requirements of Executive Order 13175 do not apply.

This final rule is not a significant energy action under Executive Order 13211. It is not a significant regulatory action under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, this rule has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.

Because this final rule only changes nomenclature to reflect the organizational posture of the agency, amends agency internal practice and procedure, and will have no direct or indirect economic impacts for government units, businesses, or other organizations, I certify that this final rule will not have a significant economic impact on a substantial number of small entities.

This final rule contains no new information collection requirements or additional paperwork burdens. Therefore, submitting an analysis of the burdens to OMB pursuant to the Paperwork Reduction Act was unnecessary.

This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $100 million or more, as adjusted for inflation, to either state, local or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule.

Because this final rule involves agency practices and procedures and does not impose any new requirements on pipeline operators, there are no significant environmental impacts associated with this rule.

In 30 years of implementing the Act, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of available conservation resources. The Service's present system for designating critical habitat has evolved since its original statutory prescription into a process that provides little real conservation benefit, is driven by litigation and the courts rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. The Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.

While attention to and protection of habitat are paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. Sidle (1987) stated, “Because the Act can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7.” Currently, only 473 species or 37 percent of the 1,264 listed species in the U.S. under the jurisdiction of the Service have designated critical habitat. We address the habitat needs of all 1,264 listed species through conservation mechanisms such as listing, section 7 consultations, the Section 4 recovery planning process, the Section 9 protective prohibitions of unauthorized take, Section 6 funding to the States, and the Section 10 incidental take permit process. The Service believes that it is these measures that may make the difference between extinction and survival for many species.

We note, however, that a recent judicial opinion, Gifford Pinchot Task Force v. United States Fish and Wildlife Service, has invalidated the Service's regulation defining destruction or adverse modification of critical habitat. We are currently reviewing the decision to determine what effect it may have on the outcome of consultations pursuant to Section 7 of the Act.

In crafting the Act, Congress provided guidance for the exercise of discretion by the Secretary in making critical habitat decisions. We have applied the guidance in this rulemaking. Section 3(5)(a) of the Act, defines critical habitat as “(i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species.”

Section 3(5)(C) of the Act further provides that “except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species.” “These provisions of section 3 authorize the exercise of discretion in determining (1) whether special management considerations or protections may be required; (2) whether unoccupied areas are essential for the conservation of the species; and (3) the extent to which the entire area which can be occupied by the species should be included in critical habitat.”

Finally, section 4(b)(2) of the Act allows the Secretary to exclude any area from critical habitat, after considering the economic impact and any other relevant impact of a designation, upon a determination that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species concerned.

The Congressional record is clear that Congress contemplated occasions where the Secretary could exclude the entire designation. In addition, the discretion that Congress anticipated would be exercised in Section 4(b)(2) of the Act is extremely broad. “The consideration and weight given to any particular impact is completely within the Secretary's discretion. * * *” (Congressional Research Service 1982).

Given that section 4(a)(3)(A) of the Act requires that critical habitat be designated concurrently with making a determination that a species is an endangered species or a threatened species, we are mindful of the Congressional intent with respect to listing as we designate critical habitat. For example, section 4(a)(1) of the Act (16 U.S.C. 1533(a)(1), states that we must consider in listing determinations, among factors, “the inadequacy of existing regulatory mechanisms” (so-called “Factor D”); and “other natural or manmade factors affecting its continued existence” (referred to as “Factor E”).

Section 4(b)(1)(A) requires us also to “tak[e] into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction, or on the high seas.” Read together, sections 4(a)(1) and 4(b)(1)(A), as reflected in our regulations at 50 CFR 424.11(f), require us to take into account any State or local laws, regulations, ordinances, programs, or other specific conservation measures that either positively or negatively affect a species' status ( i.e. , measures that create, exacerbate, reduce, or remove threats identified through the section 4(a)(1) analysis). The manner in which the section 4(a)(1) factors are framed supports this conclusion. Factor (D) for example, “the inadequacy of existing regulatory mechanisms” indicates that overall we might find existing regulatory mechanisms adequate to justify a determination not to list a species. Factor (E) in section 4(a)(1) (any “manmade factors affecting [the species'] continued existence”) requires us to consider the pertinent laws, regulations, programs, and other specific actions of any entity that either positively or negatively affect the species. Thus, the analysis outlined in section 4 of the Act requires us to consider the conservation efforts of not only State and foreign governments but also of Federal agencies, Tribal governments, businesses, organizations, or individuals that positively affect the species' status. The section 4 analysis for listing determinations is relevant to our exercise of discretion in critical habitat designations, although it must be stressed that analysis in no way limits the Secretary's discretion.

We have been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.

The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent (NOIs) to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, listing petition responses, the Service's own proposals to list critically imperiled species, and final listing determinations on existing proposals are all significantly delayed. The accelerated schedules of court-ordered designations have left the Service with almost no ability to provide for adequate public participation or to ensure a defect-free rulemaking process before making decisions on listing and critical habitat proposals due to the risks associated with noncompliance with judicially imposed deadlines. This in turn fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless, is very expensive, and in the final analysis provides relatively little additional protection to listed species.

The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects, the cost of requesting and responding to public comment, and in some cases the costs of compliance with the National Environmental Policy Act (NEPA); all are part of the cost of critical habitat designation. None of these costs result in any benefit to the species that is not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions.

On September 24, 2002, we published a proposed rule to designate critical habitat, pursuant to the Endangered Species Act of 1973, as amended (Act), for 4 vernal pool crustaceans and 11 vernal pool plants (67 FR 59884). The four vernal pool crustaceans involved in this critical habitat designation are the Conservancy fairy shrimp ( Branchinecta conservatio ), longhorn fairy shrimp ( Branchinecta longiantenna ), vernal pool fairy shrimp ( Branchinecta lynchi ), and vernal pool tadpole shrimp ( Lepidurus packardi ). The 11 vernal pool plant species are Butte County meadowfoam ( Limnanthes floccosa ssp. californica ), Contra Costa goldfields ( Lasthenia conjugens ), Hoover's spurge ( Chamaesyce hooveri ), fleshy (or succulent) owl's-clover ( Castilleja campestris ssp. succulenta ), Colusa grass ( Neostapfia colusana ), Greene's tuctoria ( Tuctoria greenei ), hairy Orcutt grass ( Orcuttia pilosa ), Sacramento Orcutt grass ( Orcuttia viscida ), San Joaquin Valley Orcutt grass ( Orcuttia inaequalis ), slender Orcutt grass ( Orcuttia tenuis ), and Solano grass ( Tuctoria mucronata ). We proposed a total of 128 units of critical habitat for these 15 vernal pool species, totaling approximately 672,920 hectares (ha) (1,662,762 acres (ac)) in 36 counties in California and one county in Oregon. In accordance with our regulations at 50 CFR 424.16(c)(2), we opened a 60-day comment period on this proposal which closed on November 25, 2002.

All the species live in vernal pools (shallow depressions that hold water seasonally), swales (shallow drainages that carry water seasonally), and ephemeral freshwater habitats. None are known to occur in riverine waters, marine waters, or other permanent bodies of water. The vernal pool habitats of these species have a discontinuous distribution west of the Sierra Nevada that extends from southern Oregon through California into northern Baja California, Mexico. The species have all adapted to the generally mild climate and seasonal periods of inundation and drying that help make the vernal pool ecosystems of California and southern Oregon unique.

Section 4(b)(2) of the Act requires that the Secretary of the Interior designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact to national security, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if she determines that the benefit of such exclusion outweighs the benefits of specifying such area as part of the critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species concerned. Thus, to fulfill our requirement to consider the potential economic impacts of the proposed designation of critical habitat for the 15 vernal pool species, we conducted an analysis of the potential economic impacts on the proposed designation and published a notice on November 21, 2002 (67 FR 70201), announcing the availability of our draft economic analysis (DEA). The notice opened a 30-day public comment period on the draft economic analysis and extended the comment period on the proposed critical habitat designation.

During the development of the final designation, we reviewed the lands proposed as critical habitat based on public comments and any new information that may have become available and refined the boundaries of the proposal to remove lands determined not to be essential to the conservation of the 15 vernal pool species. We then took into consideration the potential economic impacts of the designation, impacts on national security, and other relevant factors such as partnerships, existing management of the lands being considered, and the effect of designation on the conservation of the species whose critical habitat was covered by the designation. Next, we determined whether the benefits of excluding certain lands from the final designation of critical habitat for the 15 vernal pool species outweighed the benefit of including them in the designation, and whether the specific exclusions would result in the extinction of any of the species involved. The final rule made two types of exclusions, lands excluded from the final designation based on economic effects of the designation and lands excluded due to other considerations. Lands excluded due to other considerations included lands within specific National Wildlife Refuges and Fish Hatcheries; Department of Defense lands; Tribal lands; State Wildlife Areas and Ecological Reserves; and lands covered by habitat conservation plans or other management plans that provide a benefit for the species. Lands proposed as critical habitat in Butte, Madera, Merced, Sacramento, and Solano Counties were excluded based on potential economic impacts. Thus, on July 15, 2003, we made a final determination of critical habitat for the 15 vernal pool species; the final rule was published in the Federal Register on August 6, 2003 (68 FR 46684). A total of approximately 744,067 ac (301,114 ha) of land were identified as within the boundaries of the designated critical habitat for the 15 vernal pool species.

In January 2004, Butte Environmental Council and several other organizations filed a complaint alleging that we: (1) Violated both the Act, and the Administrative Procedure Act (APA) by excluding over 1 million acres from the final designation of critical habitat for the 15 vernal pool species; (2) violated mandatory notice-and-comment requirements under the Act and APA; and (3) engaged in an unlawful pattern, practice, and policy by failing to properly consider the economic impacts of designating critical habitat. On October 28, 2004, the court signed a Memorandum and Order in that case. The Memorandum and Order remanded the final designation to the Service in part. In particular, the court ordered us to: (1) Reconsider the exclusions from the final designation of critical habitat for the 15 vernal pool species, with the exception of those lands within the 5 California counties that were excluded based on potential economic impacts, and publish a new final determination as to those lands within 120 days; and (2) reconsider the exclusion of the 5 California counties based on potential economic impacts and publish a new final determination no later than July 31, 2005. The court did not alter the August 6, 2003, final designation.

In order to more completely comply with the court order, on December 28, 2004, we reopened the comment period for 30 days (69 FR 77700) on the designation, to solicit any new information concerning the benefits of excluding and including the lands the final rule excluded on the basis of noneconomic considerations. Comments received during this 30-day comment period are addressed herein.

This notice addresses the first requirement of the remand—the reconsideration of the lands excluded for noneconomic considerations from the final designation of critical habitat for the 15 vernal pool species. Those lands within the 5 California counties that were excluded based on potential economic impacts will be addressed through a future Federal Register document, upon completion of the economic analysis currently underway.

Table 1 lists each specific area that was excluded from the proposed designation of critical habitat for the 15 vernal pool species, based on policy by category and size. The total area shown is the cumulative critical habitat area for all 15 species. Many of the critical habitat boundaries for each species overlap and as a result the actual total critical habitat area would be less.

In the September 24, 2002, proposed critical habitat designation (67 FR 59884) and subsequent Federal Register notices concerning the 15 vernal pool species (67 FR 70201 and 68 FR 12336), we requested all interested parties to submit comments on the specifics of the proposal, including information related to the critical habitat designation, unit boundaries, species occurrence information and distribution, land use designations that may affect critical habitat, potential economic effects of the proposed designation, benefits associated with critical habitat designation, potential exclusions and the associated rationale for the exclusions, and methods used to designate critical habitat.

In the December 28, 2004, reopening of public comment period for noneconomic exclusions related to critical habitat designation (69 FR 77700), we requested all interested parties to submit comments on the specifics of the proposal, including information related to amount and distribution of habitat, essential habitat, rationale for including or excluding habitat, benefits associated with including or excluding critical habitat designation, current or planned activities on proposed critical habitat, and public participation in designating critical habitat.

We contacted all appropriate State and Federal agencies, county governments, elected officials, and other interested parties and invited them to comment. This was accomplished through telephone calls, letters, and news releases faxed and/or mailed to affected elected officials, media outlets, local jurisdictions, interest groups and other interested individuals. In addition, we invited public comment through the publication of legal notices in numerous newspaper and news media throughout California and Oregon. In 2002, we provided notification of the DEA and proposed rule to all interested parties. At the request of Congressman Cardoza's Office, the Merced County Board of Supervisors, and the Stanislaus County Board of Supervisors, we held two public meetings to explain the December 28, 2004, Federal Register notice regarding the noneconomic exclusions to the public and requested that they provide comments. We provided contacts where they could direct questions regarding the proposed designation. We also posted the associated material on our Sacramento Fish and Wildlife Office internet site following the publication on December 28, 2004. Additionally, we made available to the public upon request individual maps of the noneconomic exclusions.

We received a total of 955 comment letters during the first 3 comment periods, and 17 on the most recent comment period, which ended on January 27, 2005. Comments were received from Federal, Tribal, State and local agencies, and private organizations and individuals. We reviewed all comments received, for this and previous rules, for substantive issues and new information on the proposed exclusions and other information regarding the vernal pool plants and vernal pool crustaceans. Similar comments were grouped into several general issue categories relating specifically to the proposed critical habitat determination, the proposed exclusions, and the Draft Economic Analysis, and are identified below.

For a discussion of the peer review of vernal pool critical habitat designation, please refer to our August 6, 2003, final designation (68 FR 46684).

For a discussion of the State Agency comments on the vernal pool critical habitat designation, please refer to our August 6, 2003, final designation (68 FR 46684).

We address other substantive comments and accompanying information in the following summary. Relatively minor editing changes and reference updates suggested by commenters have been incorporated into this final rule or the final economic analysis, as appropriate.

Comment 1: One commenter suggested that created vernal pool habitat should not be used as a method of mitigation for impacts to existing vernal pool habitat.

Our Response: Preservation of naturally occurring vernal pool complexes remains a key component to conservation for vernal pool species. In designating critical habitat areas we evaluated the importance of including created vernal pool habitat within the designated areas. We have determined that created vernal pool areas do provide essential habitat for many of the vernal pool species and are a key component toward their conservation.

Comment 2: The military, notably the California Army National Guard, specifically Camp Roberts and Fort Hunter Liggett, and the U.S. Air Force, specifically Beale Air Force Base and Travis Air Force Base, requested that critical habitat not be designated on the four bases. In addition, the Solano County Board of Supervisors requested that Travis Air Force Base, in particular, not be included in critical habitat designation. Another commenter had concerns that vernal pool habitat for federally listed vernal pool species within Travis Air Force Base was not adequately protected from military activities that occur on the base. This commenter requested that vernal pool habitat within Travis Air Force Base be designated as critical habitat.

Our Response: The two Air Force Bases have approved INRMPs and were excluded through section 4(a)(3)(B) of the Act. The two Army National Guard Reserves Bases were excluded through section 4(b)(2) of the Act, since the benefits of excluding outweigh the benefits of including those vernal pool areas within the designation. For a summary of our comments regarding the exclusion of lands occupied by these bases, please refer to our August 6, 2003, final designation (68 FR 46684) and the Exclusions section below. No significant changes to vernal pool habitat and the management of this habitat have occurred since these military bases were evaluated for exclusion from critical habitat designation in the August 6, 2003, final rule. All of these bases have draft or final Integrated Natural Resource Management Plans (INRMPs) and the Service has completed or is currently working on consultations on these through the section 7 consultation process. We recognize that the military is implementing measures to conserve existing locations of federally listed vernal pool species and the habitat they occupy. In addition, section 4(b)(2) of the Act requires that the Secretary of the Interior designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact to national security, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if she determines that the benefit of such exclusion outweighs the benefits of specifying such area as part of the critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species concerned.

Comment 3: Travis Air Force Base stated that in the August 6, 2003, final designation (68 FR 46684) we indicated that the exclusion acreage at Travis AFB is 9,651 acres. Travis AFB stated that the correct acreage is 5,128 acres of fee owned land and 1,255 acres in lesser interests, such as easements and rights of way.

Response: The acreage figures identified in the proposed rule issued on December 27, 2004 (69 FR 77700), reflected the accumulated critical habitat total for each of the species within the Travis Air Force boundary. As a result the total acreage identified was higher.

Comment 4: One commenter stated that critical habitat has to be occupied by the species at the time the species is listed, needs to contain the features essential to the conservation of the species, and may require special management considerations or protections. This commenter stated that that the 10 acres under discussion in the San Joaquin County Multiple Species Habitat Conservation Plan should continue to be excluded because this area is already afforded special management considerations or protections.

Our Response: We agree that this area is already under special management consideration and afforded protection by virtue of the San Joaquin County Multi-Species Habitat Conservation and Open Space Plan and have excluded the area covered under this HCP from this designation. For further discussion on the legal definition of critical habitat, refer to our August 6, 2003, final rule (68 FR 46684).

Comment 5: During the comment period for the proposed rule (67 FR 59884) and the December 28, 2004, proposed rule (69 FR 77700), the Mechoopda Tribe requested the exclusion of their land in Butte County from critical habitat designation. The Mechoopda Tribe's Environmental Department stated that they have implemented measures through a comprehensive management plan to further the protection and conservation of vernal pool ecosystems on their land.

Our Response: As a result of meeting with the Tribe and discussing the details of their management plan, we have determined that it is appropriate to exclude the Mechoopda lands from the current designation. We recognize that the Tribe is implementing measures to conserve existing locations of federally listed vernal pool species and the habitat they occupy. In addition, we note that under the tribe's existing management, vernal pool complexes have remained intact and able to support the species that rely on them. For a more detailed discussion summary of our comments regarding the exclusion of lands occupied by the Tribe and a more detailed description of the Tribe's voluntary measures to benefit the conservation of listed species, please refer to the discussion later in this rule.

Comment 6: The Bureau of Land Management (BLM) requested that critical habitat not be designated on the Carrizo Plains National Monument due to current management and protection of vernal pool resources within BLM's jurisdiction.

Our Response: The BLM's management plan implements measures to conserve existing locations of federally listed vernal pool species and their habitat. The Service is currently consulting on this plan through the section 7 consultation process. If we determine that the lands of the Carrizo Plains National Monument merits exclusion, we will solicit additional comments on such an exclusion when we reopen the comment period for the draft economic analysis in the spring of 2005. Those comments and any comments already received will be fully considered before sending a final rule to the Federal Register .

Comment 7: The Placer County Board of Supervisors stated that Critical Habitat Unit 12 for the vernal pool fairy shrimp should be excluded from designation because the Placer Legacy Habitat Conservation Plan, which is currently under development, will provide adequate protection of federally listed vernal pool species in this region. The Board of Supervisors stated that because the Placer Legacy HCP is similar to other HCPs, such as the Western Riverside Multiple Species HCP, and would provide for the conservation of vernal pools and listed vernal pool crustaceans, the Placer Legacy HCP should therefore similarly be excluded from critical habitat designation.

Our Response: The scope of this notice was to seek comments on those areas previously excluded for noneconomic reasons. However, we will consider all comments we receive and if additional proposed exclusions result from those comments, we will solicit additional comments on exclusions when we re-open the comment period for the draft economic analysis in the spring of 2005. Those comments and any comments already received will be fully considered before sending a final rule to the Federal Register .

Comment 8: One commenter stated that the existing designation of critical habitat for vernal pool species should be expanded. Specifically, areas adjacent to the Santa Rosa Plateau Ecological Reserve should be considered for critical habitat designation because these areas, as well as areas within the ER, are threatened by runoff from development on adjacent unprotected lands.

Our Response: The area proposed as critical habitat within the Santa Rosa Plateau Ecological Reserve has been excluded, as part of the Western Riverside MSHCP, under 4(b)(2) of the Act. In our original proposal we proposed to designate only those areas essential to the conservation of the vernal pool fairy shrimp and the vernal pool complexes in which it occurs. In our mapping of the area we believe we captured those areas, which were essential to maintain water quality and hydrology of the vernal pools and vernal pool complexes within the proposed unit. We determined that areas outside the proposed designated areas were not essential for the conservation of the species or its habitat. In addition, the scope of this notice was to seek comments on those areas previously excluded for noneconomic reasons. We will solicit additional comments on exclusions when we reopen the comment period for the draft economic analysis in the spring of 2005. Those comments and any comments already received will be fully considered before sending a final rule to the Federal Register .

Comment 9: One commenter requested that lands covered in the Skunk Hollow vernal pool basin should continue to be excluded, and if critical habitat designation is necessary, it should only include the 136-acre Barry Jones Wetland Mitigation Bank.

Our Response: This area is already under special management considerations and afforded protection as part of the Western Riverside County MSHCP. Therefore, we have determined that it would be appropriate to exclude the area covered under this HCP from this designation. For more detail on our reasons for exclusions please refer to the specific discussion in this rule.

Comment 10: Two commenters stated that the Western Riverside Multiple Species HCP is not designed to adequately review environmental effects on unprotected vernal pool habitats in this area.

Our Response: Critical habitat is only one of many conservation tools for federally listed species. HCPs are one of the most important tools for conserving habitat and reconciling economic land use with the conservation of listed species on non-Federal lands. Designation of critical habitat does not afford protection to species or habitat unless there is a federal nexus, lands protected under HCPs are protected regardless of the designation of critical habitat. Section 4(b)(2) allows us to exclude from critical habitat designation areas where the benefits of exclusion outweigh the benefits of designation, provided the exclusion will not result in the extinction of the species. We believe that in most instances, the benefits of excluding HCPs from critical habitat designations will far outweigh the benefits of including them. For this designation, we find that the benefits of exclusion outweigh the benefits of inclusion for the Western Riverside MSHCP issued for the covered federally listed species. In particular, Section 10(a)(1)(B) of the Act states that HCPs must meet issuance criteria, including minimizing and mitigating any take of the listed species covered by the permit to the maximum extent practicable, and that the taking must not appreciably reduce the likelihood of the survival and recovery of the species in the wild.

Comment 11: Congressman Dennis Cardoza and one other commenter concurred with our previous noneconomic exclusions of lands from designation of critical habitat. In addition, they further stated that all lands with conservation easements that are managed for the protection of listed vernal pool species should also be excluded from vernal pool critical habitat designation.

Our Response: The scope of this notice was to seek comments on those areas previously excluded for non-economic reasons. We will consider comments requesting additional exclusions and will propose any additional exclusions with opportunity for comments when we reopen the comment period for the draft economic analysis in the spring of 2005. Those comments, and any comments already received, will be fully considered before sending a final rule to the Federal Register .

Comment 12: Commenters associated with California Native Plant Society (CNPS) and Butte Environmental Council stated that lands excluded for policy and noneconomic reasons are essential to the survival and recovery of endangered vernal pool species, and therefore should be designated as vernal pool critical habitat. CNPS emphasized that vernal pool habitat on Department of Defense lands should be included in the designation of vernal pool critical habitat.

Our Response: There is minimal benefit from designating critical habitat for the vernal pool species within areas that are currently excluded because these lands, such as State-owned Wildlife Areas, Ecological Reserves, National Fish and Wildlife Refuges and Hatcheries, are already managed for the conservation of wildlife. HCPs that have been excluded from the rule for the same reason, they are already managed for conservation under Section 10(a)(1)(B) of the Act, which states that HCPs must meet issuance criteria, including minimizing and mitigating any take of the listed species covered by the permit to the maximum extent practicable, and that the taking must not appreciably reduce the likelihood of the survival and recovery of the species in the wild. Furthermore, an HCP application must itself be consulted upon. While this consultation will not look specifically at the issue of adverse modification to critical habitat, unless critical habitat has already been designated in the proposed plan area, it will determine if the HCP permit would jeopardize the species in the plan area. In addition, protections afforded by HCPs, management plans, and other landscape management programs go beyond any protections provided by a critical habitat designation. A critical habitat designation only protects areas that are subject to a federal action. HCPs and other management plans are not dependent on federal action to provide species protection.

In response to the CNPS concerns regarding exclusions of Department of Defense lands, section 4(b)(2) of the Act requires that the Secretary of the Interior shall designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact to national security, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if she determines that the benefit of such exclusion outweighs the benefits of specifying such area as part of the critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species concerned. The two AFBs were not eligible for designation through operation of section 4(a)(3)(B) of the Act as they had approved INRMPs, which provided for the conservation of the species. The two ANGR bases were excluded through section 4(b)(2) of the Act, since the benefits of excluding outweigh the benefits of including those vernal pool areas within the designation. For a detailed discussion of our noneconomic exclusion analysis used in our final designation of critical habitat for the 15 vernal pool species, please refer to our August 6, 2003, final designation (68 FR 46684) and in the Exclusions section below.

Comment 13: One commenter stated that prior designations and economic analyses do not properly account for the recovery standard and the mitigation requirements expressed by the court in Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059, 1070 (9th Cir. 2004). This commenter stated that certain areas within Critical Habitat Unit 12 in western Placer County should be excluded, specifically the Placer Vineyards site and the Rioso property, because the Primary Constituent Elements (PCEs) are absent. They also stated, along with an additional commenter, that other areas outside this critical habitat unit should actually be included because PCEs are present.

Our Response: With regard to including additional areas for critical habitat designation, the scope of this notice was to reexamine our previous noneconomic exclusions and to more fully explain our rationale for any noneconomic exclusions we make subsequent to the re-examination. We will consider all comments received, and if we propose additional exclusions for non-economic reasons or any other reason, we will propose those exclusions and solicit additional comments when we reopen the comment period for the draft economic analysis in the spring of 2005. Those comments and any comments already received will be fully considered before sending a final rule to the Federal Register . We will be considering the impact of the recent 9th Circuit decision ( Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059, 1070 (9th Cir. 2004)) in the economic analysis conducted for this final rule.

Comment 14: One commenter requested that the Service incorporate results from Dr. Bob Holland's recent work regarding biogeographic distribution of vernal pool species in relation to their edaphic (soil related) requirements. The commenter also requested that the Service link critical habitat designation to recovery plans as long as critical habitat deadlines are enforced.

Our Response: It is the goal of the Service to utilize the most recent scientific information available. In the development of this designation, we contacted numerous species experts and other members of the scientific community, including Dr. Holland. In developing critical habitat designations, we analyze all pertinent scientific and commercial information available to make our final determinations. This information would include any scientific information that was used in the development of recovery plans for the specific species. In the case of the 15 vernal pool species, we used, among other sources of information, scientific information gathered during the recovery planning process. On November 18, 2004, the draft Vernal Pool Recovery Plan for Vernal Pool Ecosystems in California and Southern Oregon was published in the Federal Register (69 FR 67601). We used the scientific information compiled in the draft recovery plan in this final determination; however, we will re-examine the designation in light of any significant information should we become aware of such information and make a final determination by July 31, 2005.

Comment 15: The military, notably the California Army National Guard, specifically Camp Roberts and Fort Hunter Liggett, and the U.S. Air Force, specifically Beale Air Force Base, requested that critical habitat be excluded on the four bases. Designation of critical habitat would increase the costs and regulatory requirements and hamper the military from carrying out its mission objectives for the bases. Designation of critical habitat would adversely affect national security by diminishing the military's ability to support realistic and effective military operations.

Our Response: We have not designated critical habitat on two AFBs based on section 4(a)(3)(B) of the Act and excluded the two Army Bases from final designation of critical habitat pursuant to section 4(b)(2) of the Act. Please refer to the Relationship of Critical Habitat to Military Lands section of this final rule for a detailed discussion of our rationale for not including or excluding these military bases pursuant to section 4(a)(3)(B) or 4(b)(2) of the Act.

Comment 16: The Placer County Board of Supervisors and one other commenter stated that critical habitat designation within the County places a disproportionate amount of the regulatory burden on western Placer County. Western Placer County contains the infrastructure to support the majority of the projected growth within the entire County and, therefore, growth in this portion of the County would be hindered by the regulatory burden of the designation of critical habitat.

Our Response: The scope of this notice and resulting analysis was to seek comment on the noneconomic exclusions previously excluded in our final determination of critical habitat (68 FR 46684). We will be conducting a new economic analysis and will finalize economic exclusions in the final rule in July 2005. This comment will also be addressed at that time.

Comment 17: One commenter suggested that the National Wildlife Refuges, State Wildlife Areas, and Ecological Reserves all provide economic benefits from wildlife viewing, photography, hunting, and fishing. The Commenter requested that the Service quantify these benefits using visitation records as part of the Service's re-evaluation of special lands exclusions.

Our Response: We agree that National Wildlife Refuges, State Wildlife Areas and Ecological Reserves provide benefits in the form of recreational opportunities. However, these benefits will remain regardless of whether these areas are designated as critical habitat. These benefits are not due to a critical habitat designation, rather, they result from the legal authorities establishing these areas, such as the National Wildlife Refuge System Administration Act, the Refuge Recreation Act, and other authorities, all of which are independent of critical habitat designations.

Comment 18: One commenter stated that the 30-day comment period for the proposed rule violated 50 CFR 424.16(c)(2) and requested that we extend the comment period on the re-evaluation of noneconomic exclusions for a total or 60 days to allow for additional outreach to interested parties.

Our Response: An additional public comment period of at least 30 days will open once the draft economic analysis has been completed prior to the finalization of the rule in July.

Comment 19: One commenter stated that the maps of the lands being considered for removal from the exempt status were not readily available and accessible to the public in a timely manner.

Our Response: Maps and Geographic Information System (GIS) maps of the final designation published in August of 2003 (68 FR 46684) were available through our Sacramento and Regional Web sites as identified in the proposed rule (69 FR 77700). Specific maps identifying the exclusion areas and any other information requested by the public were made available upon request on an individual basis. Because this rulemaking is subject to a court-imposed deadline, the accelerated schedules of this designation as well as budget and staffing constraints had left us with a limited amount of time and resources to post maps for the December 28, 2004, Federal Register document specifically identifying each exclusion area.

Comment 20: One commenter stated that the Interior Secretary should not use broad discretion to override critical habitat designation decisions that are made by Service biologists, as exemplified by the proposed special lands exemptions, because it opens the door for political manipulation. The commenter noted that economic factors are important and relevant, but should not be allowed to impede recovery, particularly when interim analysis fails to quantify benefits. In addition, this commenter stated that biology, rather than politics, should be the driving force behind critical habitat designation.

Our Response: Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific and commercial information available, and to consider the economic and other relevant impacts of designating a particular area as critical habitat. We may exclude areas from critical habitat upon a determination that the benefits of exclusions outweigh the benefits of specifying such areas as critical habitat. The Congressional record is clear that Congress contemplated occasions where the Secretary could exclude the entire designation. In addition, the discretion that Congress anticipated would be exercised in Section 4(b)(2) of the Act is extremely broad. “The consideration and weight given to any particular impact is completely within the secretary's discretion” (Congressional Research Service 1982). We cannot exclude areas from critical habitat when the exclusion will result in the extinction of the species concerned. We will be analyzing the economic costs associated with the proposed designation and re-evaluate the economic exclusions based on the new analysis when it becomes available. The public will have an opportunity to comment on the analysis at that time.

In development of the original final designation of critical habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon, significant revisions to the proposed critical habitat designation were made based on review of public comments received on the proposed designation, the Draft Economic Analysis (DEA), and further evaluation of existing protection on lands proposed as critical habitat. These revisions relied on legal authorities and requirements provided in the Act. This re-evaluation of those exclusions relies on the same legal authorities.

In analyzing the proposed exclusions, we contacted representatives from State Wildlife Areas and Ecological Reserves, the four military bases, and the Mechoopda Tribe to verify that no significant changes to vernal pool habitat or their management have occurred since the August 6, 2003, final rule. After reviewing the public comments received and the previously proposed and final designations of critical habitat for the 4 vernal pool crustaceans and 11 vernal pool plants in California and southern Oregon, we find that the noneconomic exclusions were based on the best available science and that the benefits of excluding these areas outweighs the benefits of inclusion. As a result we have determined that no significant boundary changes to the noneconomic exclusions should occur to the August 6, 2003, final rule (68 FR 46684). Where we have received new information was included in our reanalysis. In addition, we have expanded our discussion of the analysis conducted on each of the exclusions.

This rule focuses on the reanalysis and evaluation of the non-economic exclusions from critical habitat. For that reason, much of the August 6, 2003, final rule describing the basis for designation is unchanged. Accordingly, for all discussions other than those related to non-economic exclusions we refer you to the August 6, 2003, final designation (68 FR 46684).

On the basis of the final economic analysis and other relevant impacts, as outlined under section 4(b)(2) of the Act, and the economic effects associated with this rule, certain exclusions were made to our final designation. The Service will be reanalyzing the economic effects of the critical habitat designation over the entire designation. Our original rule excluded five Counties: Butte, Madera, Merced, Sacramento, and Solano Counties. That exclusion was based on a comparison of the economic effects of the designation among the counties, and excluded those with relatively higher effects. At the time, the economic effects were aggregated on a countywide basis, which limited our ability to make exclusions on anything less than a county-level. Pursuant to the October 28, 2004, court order, the Service is reanalyzing the economic effects of the entire designation and will make its final critical habitat designation and any economic exclusions based on this more detailed analysis. A Federal Register notice announcing the availability of the draft economic analysis will be published and the public will have the opportunity to comment on the document.

Section 318 of fiscal year 2004 the National Defense Authorization Act (Public Law No. 108-136) amended the Endangered Species Act to address the relationship of Integrated Natural Resources Management Plans (INRMPs) to critical habitat by adding a new section 4(a)(3)(B). This provision prohibits the Service from designating as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an INRMP prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary of the Interior determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.

This provision was added subsequent to our final designation of critical habitat in 2003. However, its provisions apply to this designation. Accordingly the Service does not have the authority to designate Beale Air Force Base or Travis Air Force Base as those facilities have existing INRMPs that provide a benefit to the species.

As noted earlier, section 4(b)(2) of the Act states that critical habitat shall be designated, and revised, on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. An area may be excluded from critical habitat if it is determined that the benefits of exclusion outweigh the benefits of specifying a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species. The following paragraphs will provide detail as to the basis for the non-economic exclusions that we have analyzed and found appropriate.

A total of approximately 1,184,513 ac (479,356 ha) of land falls within the boundaries of designated critical habitat of those lands we propose to exclude:

• Lands within the boundaries of Habitat Conservation Plans,

• National Wildlife Refuge lands and National fish hatchery lands (33,097 ac (13,394 ha)),

• State lands within ecological reserves and wildlife management areas (20,933 ac (8,471 ha)),

• Department of Defense lands within Fort Hunter Liggett Army installation (16,583 ac (6,711 ha)),

• Tribal lands managed by the Mechoopda Tribe (644 ac (261 ha)),

• The Santa Rosa Plateau Ecological Reserve (10,200 ac (4,128 ha)) from the final designation.

The benefits of including HCPs or NCCP/HCPs in critical habitat are small to nonexistent. The principal benefit of any designated critical habitat is that federally funded or authorized activities in such habitat that may affect it require consultation under section 7 of the Act. Such consultation would ensure that adequate protection is provided to avoid adverse modification of critical habitat. An HCP application must be itself consulted upon. While this consultation will not look specifically at the issue of adverse modification to critical habitat, unless critical habitat has already been designated within the proposed plan area, it will determine if the HCP jeopardizes the species in the plan area. Therefore, any federal activity that is consistent with the terms of the HCP and IA would be very unlikely to have an effect on the primary constituent elements of habitat that would otherwise be designated as critical habitat would not serve the intended conservation role for the species.

HCPs/NCCPs are already designed to ensure the long-term survival of covered species within the entire plan area rather than just those areas with a federal nexus. Where we have approved HCPs or NCCP/HCPs, lands will normally be protected in reserves and other conservation lands by the terms of the HCPs or NCCP/HCPs and their Implementing Agreements (IAs). These HCPs or NCCP/HCPs and IAs include management measures and protections for conservation lands designed to protect, restore, and enhance their value as habitat for covered species and provide the same benefits for any species that relies on the same ecosystems.

Another possible benefit to including these lands is that the designation of critical habitat can serve to educate landowners and the public regarding the potential conservation value of an area. This may focus and contribute to conservation efforts by other parties by clearly delineating areas of high conservation value for certain species. However in the case of HCCP/NCCPs the public notice and comment and final publication in the Federal Register of the final provisions provide virtually the same notice as a critical habitat designation.

Because of the above, we conclude that any benefits that accrue to habitat in an HCP from a critical habitat designation are small to non-existant.

The benefits of excluding HCPs from critical habitat are significant. In an approved HCP, lands that might ordinarily be identified as critical habitat for covered species will normally be protected in reserves and other conservation lands by the terms of the HCP and its associated implementing agreement (IA). Since these large regional HCPs address land use within the plan boundaries, habitat issues within the plan boundaries have been addressed in the HCP and the consultation on its associated permit. In the consultation we are required to if the action jeopardizes the listed species. In the case of critical habitat we analyze whether the function of the habitat for recovery of the species will be reduced or eliminated by the proposed action.

Designating these areas will likely have an adverse impact on the partnerships that we have developed with the local jurisdiction(s) and project proponents in the development of the HCP and NCCP/HCP, and in the management of the other excluded areas to benefit the species. Excluding these areas will promote future partnerships, and avoid duplicative regulatory burden on cooperating parties. We have received substantial comments from various parties in comment periods on this and many other critical habitat rules that those regulatory burdens can be significant to private and public parties. In part, it is to avoid the regulatory costs associated with project-by-project consultations that provides an incentive for private landowners to enter into HCPs. The Service achieves far more conservation when entire regions can be subject to the HCP permit issuance standards instead of just projects with a federal nexus. Failure to exclude HCPs from critical habitat removes any incentive for landowners to voluntarily participate in HCPs and thus removes any protection for lands with no federal nexus.

The San Joaquin County Multi-Species Conservation Plan (SJMSCP) covers the entirety of San Joaquin County and identifies the vernal pool fairy shrimp and the vernal pool tadpole shrimp as covered species. The SJMSCP has identified areas where growth and development are expected to occur (build-out areas). A portion of one of these build-out areas overlaps with the San Joaquin Unit 18 for vernal pool fairy shrimp. The SJMSCP has been finalized and includes participants from seven cities; the County of San Joaquin, the San Joaquin Council of Governments; various water districts within the County; the California Department of Transportation; East Bay Municipal Utility District; and the San Joaquin Area Flood Control District. The SJMSCP is a subregional plan under the State's Natural Community Conservation Planning (NCCP) program and was developed in cooperation with California Department of Fish and Game (CDFG). Within the county wide planning area of the SJMSCP, approximately 71, 837 ac (29,071 ha) of diverse habitats are proposed for conservation. The proposed conservation of 71, 837 ac (29,071 ha) will compliment other, existing natural and open space areas that are already conserved through other means ( e.g. , State Parks, USFWS, and County Park lands). For a complete discussion of this HCP, please refer to our August 6, 2003, final designation (68 FR 46684).

The Western Riverside MSHCP has been finalized since the issuance of the August 6, 2003, rule. The Western Riverside MSHCP includes participants from 14 cities; the County of Riverside, including the County Flood Control and Water Conservation District; the County Waste Department; the California Department of Transportation; and the California Department of Parks and Recreation. The Western Riverside MSHCP is a subregional plan under the State's Natural Community Conservation Planning (NCCP) program and was developed in cooperation with California Department of Fish and Game (CDFG). Within the 1.26-million-acre (510,000-ha) planning area of the MSHCP, approximately 153,000 ac (62,000 ha) of diverse habitats are proposed for conservation. The proposed conservation of 153,000 ac (62,000 ha) will compliment other, existing natural and open space areas that are already conserved through other means ( e.g. , State Parks, USFS, and County Park lands). For a complete discussion of this HCP, please refer to our August 6, 2003, final designation (68 FR 46684).

The Skunk Hollow mitigation bank (the correct title is the Barry Jones Wetland Mitigation Bank) and the Santa Rosa Plateau Preserve are within the planning area of the Western Riverside County MSHCP. Both of these areas are conserved as part of the Western Riverside County MSHCP. The management actions undertaken as part of the Western Riverside County MSHCP benefit the endangered Riverside fairy shrimp, threatened Navarretia fossalis, and the endangered Oructtia californica-vernal pool species, which are included as covered species under this regional HCP, will provide equal conservation benefits for the vernal pool fairy shrimp.

The Skunk Hollow vernal pool basin (Unit 35) consists of a single, large vernal pool and its essential associated watershed in western Riverside County and is part of the Western Riverside County MSHCP. Several federally listed species have been documented as occurring in the Skunk Hollow vernal pool basin. These include the vernal pool fairy shrimp (Simovich, in litt. 2001), the Riverside fairy shrimp (Service 2001), Navarretia fossalis , and Orcuttia californica (Service 1998). The vernal pool complex and watershed are also currently protected as part of a reserve established within an approved wetland mitigation bank in the Rancho Bella Vista HCP area, and as part of the conservation measures contained in the Assessment District 161 Subregional HCP (AD161 HCP), all of which are now incorporated into the Western Riverside County MSHCP. Although the Skunk Hollow does not identify the vernal pool fairy shrimp as a covered species it does list the endangered Riverside fairy shrimp as a covered species and protects the vernal pool habitat within the area. Since a critical habitat designation is designed to conserve the habitat type or ecosystem (in this case vernal pools) and not the species specifically, the HCP and associated reserve and mitigation bank don't need to name the species specifically in order to provide benefits, as long as the ecosystem upon which the species relies is preserved. In this case, since species which rely on the same ecosystem are the target of the HCP and mitigation bank, we are able to conclude that the plan will provide the necessary management to protect the critical habitat. In addition, since the entire habitat area is addressed under the HCP, preserve, and mitigation bank and not just habitat with a federal nexus, the existing management already provides more protection than can be provided by a critical habitat designation.

The Western Riverside County MSHCP also encompasses lands within the Santa Rosa Plateau Ecological Reserve (SRPER) (Unit 34 for vernal pool fairy shrimp), an area that covers approximately 8,300 ac (3360 ha) near the town of Murrieta, California. The SRPER is situated on a large mesa composed of basaltic and granitic substrates and contains one of the largest vernal pool complexes remaining in southern Riverside County. Several endemic vernal species are known to occur within the complex, including the vernal pool fairy shrimp, Riverside fairy shrimp, Santa Rosa fairy shrimp ( Linderiella santarosae ), Orcuttia californica , Brodiaea filifolia (Thread-leaved brodiaea), and Eryngium aristulatum var. parishii (San Diego button-celery.) Established in 1984, the SRPER is owned by The Nature Conservancy (TNC), and is cooperatively managed by TNC, the Riverside County Regional Park and Open Space District, CDFG, and the Service.

TNC has transferred ownership of SRPER to CDFG. As a signatory to the agreement, CDFG has will oversee the SRPER in a manner consistent with the present conservation management scheme agreed to by the cooperating agencies. The CDFG has a broad authority to protect lands and conserve species (Fish and Game Code §§ 2700 et seq. ). Designation of critical habitat would not have any beneficial effect of the present management of the vernal pool complex on the SRPER.

The principal benefit of any designated critical habitat is that federally funded or authorized activities in such habitat require consultation under section 7 of the Act. Such consultation would ensure that adequate protection is provided to avoid adverse modification of critical habitat. Where HCPs are in place, our experience indicates that this benefit is small or nonexistent. The issuance of a permit (under section 10(a) of the Act) in association with an HCP application is subject to consultation under section 7(a)(2) of the Act. During consultation on permit issuance, we must address the issue of destruction or adverse modification of critical habitat for vernal pool species and any other species protected by the plan. In an approved HCP, lands we ordinarily would define as critical habitat for covered species will normally be protected in reserves and other conservation lands by the terms of the HCP and its its associated implementing agreement (IA). Since these large regional HCPs address land use within the plan boundaries, habitat issues within the plan boundaries have been addressed in the HCP and the consultation on the permit associated with the HCP. This requires us to make a determination as to the appreciable reduction in the survival and recovery of a listed species, in the case of critical habitat by reducing the function of the habitat so designated. Therefore, any federal activity that is consistent with the terms of the HCP and IA would be very unlikely to have an effect on the primary constituent elements of habitat that would otherwise be designated as critical habitat would not serve the intended conservation role for the species.

We have determined that the management and protections afforded the vernal pool fairy shrimp in the build-out areas through the SJMSHCP and the Western Riverside County MSHCP are adequate for the long-term conservation of these species. In addition, protections afforded by HCPs, management plans, and other landscape management programs go beyond any protections provided by a critical habitat designation. A critical habitat designation only protects areas that are subject to a federal action. HCPs and other management plans are not dependent on federal action to provide species protection. The Western Riverside County MSHCP provides protection for the affected vernal pool complex and its associated watershed in perpetuity. Therefore it addresses the primary conservation needs of the species by protecting the ecosystem upon which it relies. The management and protections afforded the vernal pool and Riverside fairy shrimp provide for the long-term conservation of this pool and vernal pool fairy shrimp.

The education benefits of critical habitat, including informing the public of areas that are important for long-term survival and conservation of the species, are essentially the same as those that would occur from the public notice and comment procedures required to establish a HCP or NCCP/HCP, as well as the public participation that occurs in the development of many regional HCPs or NCCP/HCPs. Therefore, the benefits of designating these areas as critical habitat are low.

In contrast, the benefits of excluding these areas from critical habitat, are more significant. Designating these areas will likely have an adverse impact on the partnerships that we have developed with the local jurisdiction and project proponents in the development of the HCP and NCCP/HCP, and in the management of the other excluded areas to benefit the species. Excluding these areas will promote future partnerships, and avoid duplicative regulatory burden on cooperating parties. We have received substantial comments from various parties in comment periods on this and many other critical habitat rules that those regulatory burdens can be significant to private and public parties. Excluding these areas from critical habitat removes those concerns and provides an incentive to place lands that would not ordinarily be protected under regulatory management to protect the ecosystem.

Section 4(b)(2) of the Act requires us to consider other relevant impacts, in addition to economic and national security impacts, when designating critical habitat. Section 10(a)(1)(B) of the Act authorizes us to issue to non-Federal entities a permit for the incidental take of endangered and threatened species. This permit allows a non-Federal landowner to proceed with an activity that is legal in all other respects, but that results in the incidental taking of a listed species ( i.e. , take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity). The Act specifies that an application for an incidental take permit must be accompanied by a conservation plan, and specifies the content of such a plan. The purpose of such an HCP is to describe and ensure that the effects of the permitted action on covered species are adequately minimized and mitigated, and that the action does not appreciably reduce the survival and recovery of the species.

Approved and permitted HCPs are designed to ensure the long-term survival of covered species within the plan area. Where we have an approved HCP, the areas we ordinarily would designate as critical habitat for the covered species will be protected through the terms of the HCPs and their IAs. These HCPs and IAs include management measures and protections that are crafted to protect, restore, and enhance their value as habitat for covered species. We have reviewed and evaluated HCPs, NCCP/HCPs, and other cooperatively managed lands at the SRPER currently with approved and implemented management plans within the areas being designated as critical habitat for the vernal pool crustaceans and plants. Based on this evaluation, we find that the benefits of exclusion outweigh the benefits of designating the Western Riverside County MSHCP, and a portion of the San Joaquin County NCCP/MSHCP as critical habitat.

For these reasons, then, we believe that designation of critical habitat has little benefit in areas covered by these HCPs, as the referenced HCP and its associated IA are legally operative and adequately protects the habitat or ecosystem upon which the listed species rely and for which critical habitat is being designated. We also believe that the measures being taken by the managers of the Santa Rosa Plateau Ecological Reserve will conserve and benefit the vernal pool fairy shrimp. The exclusion of the HCP areas and Ecological Reserve from the designation will not result in the extinction of the vernal pool fairy shrimp.

We have determined that proposed critical habitat units on the Sacramento, San Francisco Bay, San Luis, and Kern National Wildlife Refuge Complexes, and the Coleman National Fish Hatchery Complex, warrant exclusion pursuant to section 4(b)(2) of the Act because the benefits of excluding these lands from final critical habitat outweigh the benefits of their inclusion. For a complete discussion of these NWRs and NFHLs, please refer to our August 6, 2003 final designation (68 FR 46684).

There is minimal benefit from designating critical habitat for the vernal pool species within National Wildlife Refuge and National Fish Hatchery lands because these lands are already managed for the conservation of wildlife. The benefits of including these lands are low, since their purpose is to preserve natural resource values, a purpose that is not incompatible with critical habitat designation.

Critical habitat designation provides little gain in the way of increased recognition for special habitat values on lands that are expressly managed to protect and enhance those values. All of these refuges are developing comprehensive resource management plans that will provide for protection and management of all trust resources, including federally listed species and sensitive natural habitats. These plans, and many of the management actions undertaken to implement them must also complete consultation under section 7 of the Act. The comprehensive resource management plan for the Kern National Wildlife Refuge Complex has been completed and the associated biological opinion concluded that its implementation would not jeopardize the continued existence of these species (Service 2004). Therefore, any federal activity that is consistent with the terms of the comprehensive resource management plan would be very unlikely to have an effect on the primary constituent elements of habitat that would otherwise be designated as critical habitat would not serve the intended conservation role for the species.

The consultation requirement associated with critical habitat on the National Wildlife Refuge and Fish Hatchery lands would require the use of resources to ensure regulatory compliance that could otherwise be used for on-the-ground management of the targeted listed or sensitive species. Therefore, the benefits of exclusion include relieving additional regulatory burden that might be imposed by the critical habitat, which could divert resources from substantive resource protection to procedural regulatory efforts.

We believe that the benefit of including these lands in critical habitat is low because they already are publicly owned and managed to protect and enhance unique and important natural resource values. In addition, by designating these lands the Service would be required to conduct internal consultations on activities to determine whether they adversely modify critical habitat. This extra and unnecessary regulatory process will require funding that must be diverted from the management of the resource. The Service would prefer to allocate taxpayer funds to actions that more directly benefit species on the ground. Exclusion of these lands will not increase the likelihood that management activities would be proposed which would appreciably diminish the value of the habitat for conservation of the species. Further, such exclusion will not result in the extinction of the vernal pool species. We, therefore, conclude that the benefits of excluding refuge and Fish Hatchery lands from the final critical habitat designation outweigh the benefits of including them.

In accordance with section 4(b)(2) of the Act, we have excluded lands within the Sacramento, San Francisco Bay, San Luis, and Kern National Wildlife Refuge Complexes, and the Coleman National Fish Hatchery Complex from final critical habitat.

We contacted local California Department of Fish and Game (CDFG) resource managers and staff at the various locations to verify that no significant changes to vernal pool habitat and the management of this habitat have occurred since the August 6, 2003, final rule. These areas continue to be managed for the benefit of common and special-status species and their habitats.

We proposed as critical habitat, but have now considered for exclusion from the final designation, the CDFG owned lands within the Battle Creek, Big Sandy, Grizzly Island, Hill Slough, North Grasslands, and Oroville Wildlife Areas and State-owned lands within Allensworth, Boggs Lake, Butte Creek Canyon, Calhoun Cut, Carrizo Plains, Dales Lake, Fagan Marsh, Phoenix Field, San Joaquin River, Stone Corral, and Thomes Creek Ecological Reserves. These State Managed Ecological Reserves and Wildlife Areas were excluded from critical habitat designation in our August 6, 2003, final designation (68 FR 46684).

The designation of critical habitat would require consultation with us for any action undertaken, authorized, or funded by a Federal agency that may affect the species or its designated critical habitat. However, the management objects for State ecological reserves already include specifically managing for targeted listed and sensitive species; therefore, the benefit from additional consultation is likely also to be minimal.

The State of California establishes ecological reserves to protect threatened or endangered native plants, wildlife, or aquatic organisms or specialized habitat types, both terrestrial and nonmarine aquatic, or large heterogeneous natural gene pools (Fish and Game Code § 1580). They are to be preserved in a natural condition, or are to be provided some level of protection as determined by the commission, for the benefit of the general public to observe native flora and fauna and for scientific study or research (Fish and Game Code § 1584). Wildlife areas are for the purposes of propagating, feeding, and protecting birds, mammals, and fish (Fish and Game Code § 1525); however, they too provide habitat and are managed for the benefit of listed and sensitive species (CDFG in litt. 2003).

Take of species except as authorized by State Fish and Game Code is prohibited on both State ecological reserves and wildlife areas (Fish and Game Code § 1530 and § 1583). While public uses are permitted on most wildlife areas and ecological reserves, such uses are only allowed at times and in areas where listed and sensitive species are not adversely affected (CDFG in litt. 2003). The management objectives for these State lands include: “to specifically manage for targeted listed and sensitive species to provide protection that is equivalent to that provided by designation of critical habitat; to provide a net benefit to the species through protection and management of the land; to ensure adequate information, resources, and funds are available to properly manage the habitat; and to establish conservation objectives, adaptive management, monitoring and reporting processes to assure an effective management program, and monitoring and reporting processes to assure an effective management program (CDFG, in litt. 2003).” In summary, we believe that the benefits of inclusion for these lands are minimal as these lands already are publicly owned and managed to protect and enhance unique and important natural resource values. Therefore, any federal activity that is consistent with the State code for activity on both State ecological reserves and wildlife areas would be very unlikely to have an effect on the primary constituent elements of habitat that would otherwise be designated as critical habitat would not serve the intended conservation role for the species.

While the consultation requirement associated with critical habitat on the CDFG ecological reserves and wildlife areas add little benefit, it would require the use of resources to ensure regulatory compliance that could otherwise be used for on-the-ground management of the targeted listed or sensitive species, in addition, there is no guarantee that any federal action that would require consultation would take place on such as the state preserves. In the past, the State has expressed a concern that the designation of these lands and associated regulatory requirements may cause delays that could be expected to reduce their ability to respond to vernal pool management issues that arise on the ecological reserves and wildlife areas. Therefore, the benefits of exclusion include relieving additional regulatory burden that might be imposed by the designation of critical habitat for vernal pool species, which could divert resources from substantive resource protection to procedural regulatory efforts.

We believe that the benefits of inclusion for these lands are low as these lands already are publicly-owned and managed by a wildlife agency to protect and enhance unique and important natural resource values. Therefore, designation of critical habitat would add little value. The benefits of exclusion are higher, as federal actions on these lands may result in the need for consultation, most often on activities that would enhance wildlife conservation. These consultations would result in additional administrative burdens without significant accompanying conservation benefits.

We, therefore, conclude that the benefits of excluding CDFG ecological reserves and wildlife areas from the final critical habitat designation outweigh the benefits of including them. Such exclusion will not result in the extinction of the vernal pool species. Further, we do not believe that such exclusion will increase the likelihood that activities would be proposed that would appreciably diminish the value of the habitat for the conservation of these species.

In accordance with section 4(b)(2) of the Act, we have excluded California Department of Fish and Game-owned lands within the Battle Creek, Big Sandy, Grizzly Island, Hill Slough, North Grasslands, and Oroville Wildlife Areas and State-owned lands within Allensworth, Boggs Lake, Butte Creek Canyon, Calhoun Cut, Carrizo Plains, Dales Lake, Fagan Marsh, Phoenix Field, San Joaquin River, Stone Corral, and Thomes Creek Ecological Reserves.

As stated above we are prohibited from designating Military lands with approved INRMPs as critical habitat according to section 4(a)(3)(B) of the Act as long as the Secretary of the Interior determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.

Section 4(b)(2) of the Act requires us to base critical habitat designations on the best scientific and commercial data available, after taking into consideration the economic and any other relevant impact of specifying any particular area as critical habitat. It also requires us to gather information regarding the designation of critical habitat and the effects thereof from all relevant sources, including the Unites States Air Force and the United States Army. The following discussions are provided on Travis AFB, Beale AFB, Camp Roberts, and Fort Hunter Liggett.

Travis AFB has several vernal pool complexes that support the vernal pool fairy shrimp and Lasthenia conjugens and also contain PCEs for Neostapfia colusana , Conservancy fairy shrimp, Tuctoria mucronata , and vernal pool tadpole shrimp. As a result of wetland surveys, Travis AFB had identified 235 vernal pools on approximately 100 ac (40 ha) of the 1,100 ac (445 ha) that are not developed on the base. To date, only Lasthenia conjugens and the vernal fairy shrimp have been discovered on Travis AFB within these 100 ac (40 ha). Travis AFB has a Service approved INRMP in place that provides a benefit for the vernal pool fairy shrimp and Lasthenia conjugens and provides protection of the PCEs for Neostapfia colusana , Conservancy fairy shrimp, Tuctoria mucronata , and vernal pool tadpole shrimp. As a result we are prohibited from designating critical habitat on Travis AFB in compliance with our section 4(a)(3)(B) responsibilities.

Beale AFB has several substantial vernal pool complexes that support the vernal pool fairy shrimp and vernal pool tadpole shrimp, especially on the western side of the base. Beale AFB completed their INRMP in 1999. The completed INRMP provides for management and conservation of vernal pools with the base and establishes a Vernal Pool Conservation and Management Area to protect vernal pool complexes on the western side of the base. Beale AFB has provided an updated INRMP for the Service's review. The Beale AFB is also currently preparing a Habitat Conservation Management Plan (HCMP) for the area. We will consult with Beale AFB under section 7 of the Act on the development and implementation of the revised INRMP, HCMP and base comprehensive plan. A final revised and Service approved INRMP is expected to be completed by March 2005. Beale AFB has a Service approved INRMP in place that provides a benefit for the vernal pool fairy shrimp and vernal pool tadpole shrimp. As a result we are prohibited from designating critical habitat on Beale AFB in compliance with our section 4(a)(3)(B) responsibilities.

Camp Roberts has substantial vernal pool complexes that support the vernal pool fairy shrimp. Camp Roberts completed their INRMP in 1999. The completed INRMP provides for the vernal pool fairy shrimp. We will consult with Camp Roberts under section 7 of the Act on the development and implementation of the INRMP. Camp Roberts has a final INRMP in place that provides a benefit for the vernal pool fairy shrimp. As a result we are prohibited from designating critical habitat on Camp Roberts (13,247 ha (33,117 ac)) in compliance with our section 4(a)(3)(B) responsibilities.

Fort Hunter Liggett (6,519 ha (16,298 ac)) and Camp Roberts (13,247 ha (33,117 ac)) occur in San Luis Obispo and Monterey Counties. Fort Hunter Liggett has submitted draft INRMPs for our review. We are currently reviewing the INRMPs and expect completion of the section 7 consultation by April 2005. Fort Hunter Ligget has several substantial vernal pool complexes that support the vernal pool fairy shrimp.

Inclusion of these military lands could provide additional areas of conserved species habitat. However, the principal benefit of any designated critical habitat is that federally funded or authorized activities in such habitat that may affect it require consultation under section 7 of the Act. Such consultation would ensure that adequate protection is provided to avoid adverse modification of critical habitat. The military also has an obligation under the Sykes Act, and Section 7(a)(1) of the Act to conserve threatened and endangered species on lands under its jurisdiction. Therefore, the benefits of inclusion are low.

Military operations in training areas with listed fairy shrimp at Fort Hunter Liggett could be modified, activities affected include the use of field artillery pieces, range training, drop zone use, and use of tank trails or roads. One of these training areas contains a multi-purpose range complex that only occurs at four military bases in the country (FHL 2002b). Consistent access to the facility is critical because comparable facilities at other locations are scheduled for use several months to years in advance. Initiating and completing section 7 consultations that would arise from a critical habitat designation would likely result in alterations to, and delays in, training schedules at the multi-purpose range complex. If critical habitat is designated on these bases, the military would need to consider and possibly implement alternatives that modify the timing, location, and intensity of training activities. Failure to complete the training and activities these bases are intended for would adversely affect national security.

Based on the above considerations, and consistent with the direction provided in section 4(b)(2) of the Act, we have determined that the benefits of excluding Fort Hunter Liggett as critical habitat for vernal pool fairy shrimp (Unit 29) outweigh the benefits of including them as critical habitat for vernal pool species. We base this determination on the need for maintaining mission-critical military training activities. Further, we have determined that excluding Fort Hunter Liggett will not result in the extinction of the vernal pool fairy shrimp.

Section 4(b)(2) of the Act requires us to gather information regarding the designation of critical habitat and the effects thereof from all relevant sources, including Indian Pueblos and Tribes. In accordance with Secretarial Order 3206, American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act (June 5, 1997); the President's memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments, and Executive Order 13175, we recognize the need to consult with federally recognized Indian Tribes on a Government-to-Government basis. The Secretarial Order 3206 “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act (1997)” provides that critical habitat should not be designated in an area that may impact Tribal trust resources unless it is determined to be essential to conserve a listed species.

The benefits of including the Tribe's land are limited to minor educational benefits. Because one or more of the species occupies all these areas, consultation on federal actions will occur regardless of whether critical habitat is designated. While some additional benefit might accrue from these adverse modification analyses, we expect them to be small. Tribal areas represent a small proportion of this designation and the tribe has demonstrated the will and ability to manage these lands in a manner that preserves their conservation benefits. The benefits of excluding these areas from being designated as critical habitat are more significant, and include our policy of maintaining a government-to-government relationship with tribes, as well as encouraging the continued development and implementation of special management measures. For Tribal Lands, the Mechoopda Tribe has their own environmental agency, the Mechoopda Environmental Protection Agency, which is responsible for the management of the Tribe's natural resources, and which recognizes the importance of implementing conservation measures that will contribute to the conservation of federally listed species on their lands. The Mechoopda Tribe have already demonstrated their willingness to work with us to address the habitat needs of listed species that may occur on Mechoopda lands. The exclusion of critical habitat for the Mechoopda trust lands is consistent with our published policies on Native American natural resource management by allowing the Mechoopda Tribe to manage their own natural resources.

Based on the above considerations, and consistent with the direction provided in section 4(b)(2) of the Act, we have determined that the benefits of excluding Mechoopda Tribal land as critical habitat outweigh the benefits of including it as critical habitat for the vernal pool tadpole shrimp (Unit 4) and will not result in the extinction of the vernal pool tadpole shrimp. For a complete discussion of these Tribal lands, please refer to our August 6, 2003, final designation (68 FR 46684).

We have reviewed the overall effect of excluding from the designated critical habitat for the vernal pool species lands covered by the following authorities: The above-mentioned approved HCPs, the State, national wildlife refuges, national fish hatcheries, Tribal trusts, and military installations, and we have determined that the benefits of excluding these areas outweigh the benefits of including them in this critical habitat designation. The exclusion of vernal pool critical habitat in Butte, Madera, Merced, Solano, and Sacramento Counties, California, will be evaluated in a future Federal Register document. The lands removed from critical habitat as a result of these exclusions will not jeopardize the long-term survival and conservation of the species or lead to their extinction.

An economic analysis of the effect of critical habitat in the 36 counties in California and 1 county in Oregon was conducted for the final rule. For a complete discussion of the economic analysis, please refer to our August 6, 2003, final rule (68 FR 46684). A re-analysis of the economic impacts of critical habitat designation in the five counties that were excluded in the final rule will be conducted in a future Federal Register document.

We have reviewed our analyses of Required Determinations and subsequent conclusions that were made in the August 6, 2003, final rule designating critical habitat for the 15 vernal pool species (68 FR 46684). On the basis that we are affirming our treatment and decisions of noneconomic exclusions from the August 2003 final rule and are making no additional exclusions or changes to the designation, we believe that our previous conclusions stand. Thus, we refer the public to our previous analyses and conclusions of the Required Determinations in the August 6, 2003, final rule.

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

The primary authors of this notice are the staff of the Sacramento Fish and Wildlife Office ( see ADDRESSES section).