The FLRA proposed revisions to Part 2430 of its EAJA regulations, which were published in the Federal Register on November 29, 1999 (64 FR 66589). Public comment was solicited on the proposed changes. However, no written comments were received in response to the notice of proposed rulemaking.

The EAJA, 5 U.S.C. 504(b)(1)(A) (1994 & Supp. III 1997), provides that an agency may not award attorney fees in excess of $125 per hour (or $75 for proceedings commenced prior to March 29, 1996), unless the agency determines by regulation that a higher fee is justified by (1) an increase in the cost of living or (2) some special factor. In a recent decision, 55 FLRA (No. 72) 444 (Apr. 30, 1999), responding to petitions requesting an adjustment to the EAJA fees cap, the FLRA announced its intention to engage in the instant rulemaking to consider appropriate criteria for increasing the maximum rate based on cost of living and other special factors. The FLRA also announced in that decision its intention to amend its regulations implementing the EAJA to permit recovery, in conjunction with adversary adjudications commenced on or after March 29, 1996, of attorney fees not to exceed $125.00 per hour. This was accomplished through the promulgation of the final rule published at 64 FR 30861 (Jun. 9, 1999).

The FLRA amends its rule to allow for an increase in the maximum EAJA attorney fees rate based on cost of living increases. The FLRA's inflation-based adjustment to the statutory cap utilizes the Bureau of Labor Statistics Consumer Price Index, All Urban Consumers, U.S. City Average, All Items (CPI-U). This CPI-U is the generally understood “cost of living” index that is widely used as a price inflator in labor and contract matters.

To determine the appropriate attorney fees rate, adjusted for cost of living, the statutory cap ($125 or $75) is multiplied by an inflation factor. The inflation factor is the CPI-U for the year that legal services were rendered divided by the CPI-U for the base year. Phrased as a formula, the calculation is:

The FLRA also amends its EAJA regulations to allow for an adjustment to the statutory fees cap based on “special factors.” The EAJA, 5 U.S.C. 504(b)(1)(A), lists as a special factor the “limited availability of attorneys qualified to handle certain types of proceedings.” This phrase refers to a narrow category of attorneys who have “some distinctive knowledge or specialized skill” such as those who practice patent law. Pierce v. Underwood, 487 U.S. 552, 572 (1988). Without specifying what other special factors may exist, the Supreme Court noted that they “must be such as are not of broad and general application.” Id. at 573.

Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the FLRA has determined that this regulation, as amended, will not have a significant economic impact on a substantial number of small entities, because this rule applies to Federal employees, Federal agencies, and labor organizations representing Federal employees.

This rule change will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This action is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

The amended regulation contains no additional information collection or record keeping requirement under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq.

This rule is issued under Marketing Agreement No. 156 and Order No. 979, both as amended (7 CFR part 979), regulating the handling of melons grown in South Texas, hereinafter referred to as the “order.” The marketing agreement and order are 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 (Department) 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, South Texas melon 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 melons beginning on October 1, 1999, 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 the Secretary 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 the Secretary 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 the Secretary'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 1999-2000 and subsequent fiscal periods from $0.04 to $0.05 per carton of melons handled.

The South Texas melon marketing order provides authority for the Committee, with the approval of the Department, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are growers and handlers of South Texas melons. They are familiar with the Committee's needs and with the costs of 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 1997-1998 and subsequent fiscal periods, the Committee recommended, and the Department approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by the Secretary upon recommendation and information submitted by the Committee or other information available to the Secretary.

The Committee, in a mail vote, unanimously recommended 1999-2000 expenses of $219,148 for personnel, office, compliance, promotion, and research expenses. These expenses were approved in September 1999. The assessment rate and specific funding for research and promotion projects were to be recommended at a later Committee meeting.

The Committee met on November 4, 1999, and unanimously recommended 1999-2000 expenditures of $265,500 and an assessment rate of $0.05 per carton of melons. In comparison, last year's budgeted expenditures were $219,148. The assessment rate of $0.05 is $0.01 higher than the rate currently in effect. The Committee voted to increase its assessment rate because the current rate would not have generated the income needed to administer the marketing order and would have reduced the Committee's reserve funds beyond the level acceptable to the Committee. Assessment income, along with funds from the Committee's authorized reserve, should provide the Committee with adequate funds to meet its 1999-2000 fiscal period's expenses.

The major expenditures recommended by the Committee for the 1999-2000 fiscal period include $98,800 for personnel and administrative expenses, $31,200 for compliance activities, $110,500 for research projects, and $25,000 for promotional activities. Budgeted expenses for these items in 1998-1999 were $97,600, $32,400, $79,148, and $10,000, respectively.

The assessment rate recommended by the Committee was derived by considering anticipated expenses, expected shipments of South Texas melons, and the amount of funds in the Committee's operating reserve. Melon shipments for the year are estimated at 4,200,000 cartons, which should provide $210,000 in assessment income at the $0.05 per carton rate. Income derived from handler assessments, along with funds from the Committee's authorized reserve, will be adequate to cover budgeted expenses for the 1999-2000 fiscal period. Funds in the reserve (currently $316,208) will be kept within the maximum permitted by the order (approximately two fiscal periods' expenses; § 979.44).

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by the Secretary 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 the Department. Committee meetings are open to the public and interested persons may express their views at these meetings. The Department 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 budget and those for subsequent fiscal periods will be reviewed and, as appropriate, approved by the Department.

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 20 growers of South Texas melons in the production area and 20 handlers subject to regulation under the marketing order. Small agricultural growers have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts less than $500,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.

Most of the handlers are vertically integrated corporations involved in producing, shipping, and marketing melons. For the 1998-99 marketing year, melons produced on 8,364 acres were shipped by the industry's 20 handlers with the average acreage being 418 acres and the median volume handled was 193,867 cartons. In terms of production value, average revenues for the 20 handlers were estimated to be $2.9 million.

The South Texas melon industry is characterized by growers and handlers whose farming operations generally involve more than one commodity, and whose income from farming operations is not exclusively dependent on the production of melons. Alternative crops provide an opportunity to utilize many of the same facilities and equipment not in use when the melon production season is complete. For this reason, typical melon growers and handlers either double-crop melons during other times of the year or produce alternate commodities, like onions.

Based on the SBA's definition of small entities, the Committee estimates that a majority of the 20 handlers regulated by the order would be considered small entities if only their spring melon revenues are considered. However, revenues from other productive enterprises would likely push a large number of these handlers above the $5,000,000 annual receipt threshold. Of the 20 growers within the production area, few have sufficient acreage to generate sales in excess of $500,000; therefore, the majority of growers may be classified as small entities.

This rule increases the assessment rate established for the Committee and collected from handlers for the 1999-2000 and subsequent fiscal periods from $0.04 to $0.05 per carton of melons. The Committee unanimously recommended 1999-2000 expenditures of $265,500 and an assessment rate of $0.05 per carton of melons. In comparison, last year's budgeted expenditures were $219,148. The assessment rate of $0.05 is $0.01 higher than the 1998-1999 rate. At the rate of $0.05 per carton and an estimated 2000 melon production of 4,200,000 cartons, the projected income derived from handler assessments ($210,000), along with funds from the Committee's authorized reserve, would be adequate to cover budgeted expenses.

The major expenditures recommended by the Committee for the 1999-2000 fiscal period include $98,800 for personnel and administrative expenses, $31,200 for compliance activities, $110,500 for research projects, and $25,000 for promotional activities. Budgeted expenses for these items in 1998-1999 were $97,600, $32,400, $79,148, and $10,000, respectively.

The Committee voted to increase its assessment rate because the current rate would not have generated the income needed to administer the marketing order and would have reduced the Committee's reserve funds beyond the level acceptable to the Committee. Assessment income, along with funds from the Committee's authorized reserve, should provide the Committee with adequate funds to meet its 1999-2000 fiscal period's expenses.

The Committee reviewed and unanimously recommended 1999-2000 expenditures of $265,500, which included increases in personnel, promotion, and research projects. Prior to arriving at this budget, the Committee considered information from various sources, including the Research and Post Harvest Subcommittees. Alternative expenditure levels were discussed by these groups, based upon the relative value of various research projects to the melon industry. The assessment rate of $0.05 per carton of assessable melons was then determined by considering the total recommended budget, the quantity of assessable melons, estimated at 4,200,000 cartons for the 1999-2000 fiscal period, and the amount of funds in the Committee's operating reserve. The recommended rate will generate $210,000, which is $55,500 below the anticipated expenses. The Committee found this acceptable because reserve funds will be used to make up the deficit.

A review of historical and preliminary information pertaining to the upcoming fiscal period indicates that the grower price for the 1999-2000 marketing season could range between $9.00 and $12.00 per carton of cantaloupes and between $6.00 and $9.00 per carton of honeydew melons. Therefore, the estimated assessment revenue for the 1999-2000 fiscal period as a percentage of total grower revenue could range between .55 and .42 percent for cantaloupes and between .83 and .55 percent for honeydew melons.

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 South Texas melon 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 4, 1999, 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 South Texas melon 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.

The Department 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 10, 2000 (65 FR 1347). Copies of the proposed rule were also mailed or sent via facsimile to all melon handlers. Finally, the proposal was made available through the Internet by the Office of the Federal Register. A 30-day comment period ending February 9, 2000, 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 the following web site: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

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 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 1999-2000 fiscal period began on October 1, 1999, and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable melons handled during such fiscal period; (2) the Committee needs to have sufficient funds to pay its expenses which are incurred on a continuous basis; and (3) the handlers are aware of this rule which was unanimously recommended by the Committee at a public meeting. Also, a 30-day comment period was provided for in the proposed rule, and no comments were received.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 96-24-06, amendment 39-9844 (61 FR 64456, December 10, 1996), which is applicable to certain Cessna Model 560 series airplanes, was published in the Federal Register on September 10, 1999 (64 FR 49115). The action proposed to require revising the AFM and would revise the applicability of the existing AD. That action also proposed to require modification of the stall warning system of the angle-of-attack computer.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comment received.

One commenter, the manufacturer, requests that the FAA withdraw the proposal since the manufacturer has written confirmation that the modification described in the appropriate service bulletin, as specified in the proposed AD, has been accomplished on all affected airplanes.

The FAA does not concur that the final rule should be withdrawn. The FAA points out that compliance with the applicable service bulletins is not the only requirement of the final rule. Paragraph (a) of the final rule specifies certain Airplane Flight Manual (AFM) revisions and requires that the FAA-approved AFM be revised in accordance with those specified AFM revisions. The FAA notes that, although the service bulletins specified as the appropriate service information in the final rule contain instructions to revise the AFM, those instructions are not mandatory. Therefore, the FAA cannot be assured that the AFM revision would not be removed in the future. Further, paragraph (b) of the final rule only requires modification of the stall warning system of the angle-of-attack computer of the navigational system. It does not require that other instructions ( i.e., revision of the AFM) be accomplished. The FAA has determined that it is necessary to issue the final rule as proposed.

After careful review of the available data, including the comment noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

There are approximately 437 airplanes of the affected design in the worldwide fleet. The FAA estimates that 327 airplanes of U.S. registry will be affected by this AD.

For all airplanes, the new AFM revision that is required by this new AD will take approximately 1 work hour per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the AFM revision required by this AD on U.S. operators is estimated to be $19,620, or $60 per airplane.

For airplanes listed in Cessna Service Bulletin SB560-34-69, the modification that is required in this new AD will take approximately 40 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts will cost approximately $8,036 per airplane. Based on these figures, the cost impact of the modification required by this AD on U.S. operators is estimated to be $10,436 per airplane.

For airplanes listed in Cessna Service Bulletin SB560-34-70, the modification that is required in this new AD will take approximately 40 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts will cost approximately $7,762 per airplane. Based on these figures, the cost impact of the modification required by this AD on U.S. operators is estimated to be $10,162 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

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

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

On February 11, 2000, the FAA issued telegraphic AD 2000-03-51, which is applicable to all Model DC-9, Model MD-90-30, Model 717-200, and Model MD-88 airplanes; certificated in any category.

On January 31, 2000, a McDonnell Douglas Model DC-9-83 (MD-83) airplane was involved in an accident near Los Angeles, California, on a flight from Puerto Vallarta, Mexico, to San Francisco, California. The FAA has participated in the subsequent accident investigation to determine possible causes of the accident. One area of interest in the investigation has been the jackscrew assembly of the horizontal stabilizer. The FAA has received a report from an operator that indicated two instances of metallic shavings in the vicinity of the jackscrew assembly and gimbal nut of the horizontal stabilizer. Metallic shavings in the vicinity of the horizontal stabilizer indicate excessive wear of the jackscrew assembly. Such excessive wear, if not corrected, could result in possible loss of pitch trim capability, which could result in loss of vertical control of the airplane.

The FAA has reviewed and approved Boeing Alert Service Bulletin DC9-27A362 (for Model DC-9 and Model MD-88 airplanes), Boeing Alert Service Bulletin MD90-27A034 (for Model MD-90-30 airplanes), and Boeing Alert Service Bulletin 717-27A0002 (for Model 717-200 airplanes), all dated February 11, 2000, which describe procedures for inspecting the general condition of the jackscrew assembly and the area around the jackscrew assembly to detect the presence of metal shavings and flakes.

Since the unsafe condition described is likely to exist or develop on other airplanes of the same type design, the FAA issued telegraphic AD 2000-03-51 to prevent loss of pitch trim capability due to excessive wear of the jackscrew assembly of the horizontal stabilizer, which could result in loss of vertical control of the airplane. Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of this same type design, this airworthiness directive requires the accomplishment of the previously referenced alert service bulletins.

Since it was found that immediate corrective action was required, notice and opportunity for prior public comment thereon were impracticable and contrary to the public interest, and good cause existed to make the AD effective immediately by individual telegrams issued on February 11, 2000, to all known U.S. owners and operators of McDonnell Douglas Model DC-9, Model MD-90-30, Model 717-200, and Model MD-88 airplanes. These conditions still exist, and the AD is hereby published in the Federal Register as an amendment to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13) to make it effective to all persons.

This is considered to be interim action until final action is identified.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-58-AD.” The postcard will be date stamped and returned to the commenter.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Aerospatiale Model ATR72 series airplanes was published as a supplemental notice of proposed rulemaking (NPRM) in the Federal Register on October 26, 1999 (64 FR 57602). That action proposed to require initial and repetitive inspections to detect fatigue cracking in certain areas of the fuselage, and corrective actions, if necessary.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

One commenter, an operator, expresses concern that paragraphs (c) and (d)(2)(ii) of the proposed AD mandate that any repairs, previously conducted through Aerospatiale, now must be approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the Direction Ge ne rale de l'Aviation Civile (DGAC) (or its delegated agent). The commenter is concerned that, if the only resources for repair approvals are those mentioned here, any repair approval process will not be responsive on a timely basis. The commenter states that notification to the Manager, ANM-116, of damage found and the repair method used, following embodiment, would be more appropriate.

The FAA infers that the commenter is requesting that the AD be revised to allow repair approvals through Aerospatiale, with subsequent notification to the Manager, ANM-116. The FAA does not concur. To specify within an AD that repairs are to be accomplished in accordance with the manufacturer would be delegating the FAA's rulemaking authority to the manufacturer. Since the referenced service information does not provide appropriate repair procedures, the FAA must require that operators accomplish necessary repairs in accordance with a method approved by the FAA or the DGAC (or its delegated agent). The FAA notes that, if Aerospatiale has been designated by the DGAC as a delegated agent for repair approvals, such approvals by Aerospatiale would be acceptable for compliance with this AD. No change to the AD is necessary.

The same commenter notes that there should be some consideration for airplanes on which the modification has already been accomplished with some form of repair (prior to the effective date of the AD). As written, the AD would require that any such repair be “reapproved” by the FAA or DGAC.

The FAA does not concur. As noted in the FAA's response to the previous comment, repairs approved by Aerospatiale may be acceptable for compliance with this AD, if Aerospatiale is a delegated agent of the DGAC for such repairs. If this is the case, no “reapproval” is necessary, since such approved repairs would be acceptable for compliance with the requirements of this AD. Further, sufficient time is provided prior to the compliance thresholds of this AD to allow operators to determine if approvals must be obtained for previously accomplished repairs, and to obtain such approvals, if necessary. No change to the AD is necessary.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that 39 airplanes of U.S. registry will be affected by this AD.

For airplanes identified in Avions de Transport Regional Service Bulletin ATR72-53-1018 (14 U.S.-registered airplanes), it will take approximately 250 work hours per airplane to accomplish the required actions, at an average labor rate of $60 per work hour. Required parts will cost approximately $9,880 per airplane. Based on these figures, the cost impact of these actions required by this AD on U.S. operators is estimated to be $348,320, or $24,880 per airplane.

For airplanes identified in Avions de Transport Regional Service Bulletin ATR72-52-1013, Revision 2 (2 U.S.-registered airplanes), it will take approximately 3 work hours per airplane to accomplish the required actions, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of these actions required by this AD on U.S. operators is estimated to be $360, or $180 per airplane.

For airplanes identified in Avions de Transport Regional Service Bulletin ATR72-52-1019, Revision 2 (2 U.S.-registered airplanes), it will take approximately 100 work hours per airplane to accomplish the required actions, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of these actions required by this AD on U.S. operators is estimated to be $12,000, or $6,000 per airplane.

For airplanes identified in Avions de Transport Regional Service Bulletin ATR72-52-1028 (2 U.S.-registered airplanes), it will take approximately 5 work hours per airplane to accomplish the required actions, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of these actions required by this AD on U.S. operators is estimated to be $600, or $300 per airplane, per inspection cycle.

For airplanes identified in Avions de Transport Regional Service Bulletin ATR72-52-1033, and ATR72-52-1029, Revision 1 (2 U.S.-registered airplanes), it will take approximately 145 work hours per airplane to accomplish the required door stop fitting replacement, at an average labor rate of $60 per work hour. Required parts will be provided by the manufacturer at no cost to the operators. Based on these figures, the cost impact of the stop fittings replacement required by this AD on U.S. operators is estimated to be $17,400 or $8,700 per airplane.

For airplanes identified in Avions de Transport Regional Service Bulletin ATR72-53-1021, Revision 1 (2 U.S.-registered airplanes), it will take approximately 30 work hours per airplane to accomplish the required actions, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of these actions required by this AD on U.S. operators is estimated to be $3,600, or $1,800 per airplane.

For airplanes identified in Avions de Transport Regional Service Bulletin ATR72-53-1014, Revision 2 (2 U.S.-registered airplanes), it will take approximately 8 work hours per airplane to accomplish the required actions, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of these actions required by this AD on U.S. operators is estimated to be $960, or $480 per airplane.

For airplanes identified in Avions de Transport Regional Service Bulletin ATR72-53-1020 (14 U.S.-registered airplanes), it will take approximately 6 work hours per airplane to accomplish the required actions, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of these actions required by this AD on U.S. operators is estimated to be $5,040, or $360 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

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

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

Transport Canada, which is the airworthiness authority for Canada, notified the FAA that an unsafe condition may exist on BHTC Model 222, 222B, 222U, and 230 helicopters. Transport Canada advises that an investigation into the crash of a BHTC Model 222 helicopter revealed that one of the two drive pins, part number (P/N) 222-010-455-003, had failed due to an insufficient interference fit between the pin and the ring.

BHTC has issued Service Bulletins 230-99-16, 222U-99-55, and 222-99-84, all dated February 15, 1999. These service bulletins describe procedures for inspecting each drive pin, P/N 222-010-455-003, for damage or looseness; conducting an initial torque test to determine if the interference fit between each drive pin and ring is adequate; and replacing any unairworthy drive pin. Transport Canada classified these service bulletins as mandatory and issued AD No. CF-99-16, dated June 9, 1999, to ensure the continued airworthiness of these helicopters in Canada.

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

Since an unsafe condition has been identified that is likely to exist or develop on other BHTC Model 222, 222B, 222U, and 230 helicopters of these same type designs registered in the United States, this AD is being issued to prevent fatigue failure of a drive pin, P/N 222-010-455-003, and subsequent loss of control of the helicopter. This AD requires inspecting each drive pin for damage or looseness, an initial torque test to determine if the interference fit between the drive pin and ring is adequate, and replacing any unairworthy drive pin. The actions are required to be accomplished in accordance with the service bulletins described previously. The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the controllability and structural integrity of the helicopter. Therefore, an inspection and torque test of the drive pin is required within the next 50 hours time-in-service (TIS) and this AD must be issued immediately.

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

The FAA estimates that 105 helicopters will be affected by this AD, that it will take approximately 1 work hour to accomplish the inspection and the torque test, and that the average labor rate is $60 per work hour. A special tool to perform the torque test will cost approximately $196 per helicopter. Based on these figures, the total cost impact of the AD on U.S. operators is estimated to be $26,880.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 99-SW-77-AD.” The postcard will be date stamped and returned to the commenter.

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

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

Since the Lexington Municipal Airport, NC, has been renamed the Davidson County Airport, the Class E5 airspace description must be amended to reflect this change. Since this amendment is technical in nature and does not change the dimensions of the Class E airspace area, it has no impact on users of the airspace. This rule will become effective on the date specified in the EFFECTIVE DATE section.

This amendment to Part 71 of the Federal Aviation Regulations (14 CFR part 71) makes a technical amendment to the Class E5 airspace description at Lexington, NC, by changing the airport name to Davidson County Airport and updating the airport coordinates.

Class E airspace areas are published in paragraph 6005 of FAA Order 7400.9G, dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class E airspace area listed in this document will be published subsequently in the Order.

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

On April 22, 1999, the FAA proposed to amend Title 14, Code of Federal Regulations, part 71 (14 CFR part 71) by removing the Oak Harbor, Class E surface area (64 FR 19728). The airport is no longer eligible to retain a Class E surface area because of a lack of weather reporting. The weather reporting requirements for a surface area dictate that weather observations must be taken by a Federally Certified Weather Observer and/or a Federally Commissioned Weather Observing System during the times and dates the surface area is designated. These weather observations routinely are not being met as required at the Oak Harbor Air Park. Attempts to have interested personnel fix the reporting problem were unsuccessful. The intended effect of this rule is designed to provide efficient and safe use of the navigable airspace. No comments were received.

The coordinates for this airspace docket are based on North American Datum 83. Class E airspace areas designated as en route domestic airspace areas are published in Paragraph 6002 of FAA Order 7400.9G, dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 removes the Class E surface area at the Oak Harbor Air Park, Oak Harbor, WA. The intended effect of this rule is designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations at the Oak Harbor Air Park.

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

In a letter dated May 5, 1999 (Administrative Record Number WV-1127), the West Virginia Division of Environmental Protection (WVDEP) submitted an amendment to the West Virginia program. We subsequently reviewed the amendment, and approved it on October 1, 1999 (64 FR 53200). Also in the May 5, 1999, letter the WVDEP requested that we reconsider our previous disapproval of parts of the West Virginia regulations at CSR 38-2-3.12 (concerning subsidence control plan) and 38-2-16.2 (concerning surface owner protection from subsidence damage) and remove the corresponding required regulatory program amendments specified in the February 9, 1999, Federal Register rule. The WVDEP stated the reason for the request is the April 27, 1999, United States Court of Appeals decision in National Mining Association v. Babbitt.

On April 27, 1999, the United States Court of Appeals for the District of Columbia struck down two OSM regulations on coal mine subsidence. The regulations struck down were among those issued on March 31, 1995, at 60 FR 16722-16751, pursuant to SMCRA and section 2504 of the Energy Policy Act of 1992 (the EPAct) which added a new section 720 to SMCRA. Section 720 requires underground mine operators to repair or to compensate for material damage to residential structures and noncommercial buildings, and to replace residential water supplies adversely affected by underground mining.

The Court of Appeals struck down the rebuttable presumption that, when subsidence damage occurs within the so-called “angle of draw,” damage has been caused by the related underground mine (30 CFR 817.121(c)(4)). The Court emphasized that, for a regulatory presumption to withstand legal challenge, the circumstances giving rise to the presumption must make it more likely than not that the presumed fact exists. Slip op. at 6. The Court noted that OSM had characterized the angle of draw only as “one way to define the outer boundary of subsidence displacement that may occur at the surface.” 60 FR at 16738 (emphasis added by the Court). The Court ruled that OSM could not “impose a presumption of causation of damage on a party based merely on the possibility that the party caused the damage.” Slip op. at 10. Because it could not be said that subsidence-caused damage to structures within the angle of draw is more likely than not to occur, the Court struck down the regulation. Id.

The Court also vacated OSM's regulation requiring coal operators to conduct presubsidence structural condition surveys (30 CFR 784.20(a)(3)), solely because that regulation was interconnected with the angle of draw regulation. The Court ruled that, after enactment of the Energy Policy Act, OSM possessed the authority to require such surveys. Slip op. at 13-14. The Court, however, found it necessary to vacate the regulation because the regulation defined the area within which the pre-subsidence survey is required by reference to the angle of draw. Id. at 14.

In accordance with the Court's decision, we suspended the following regulations on December 22, 1999 (64 FR 71652). We suspended 30 CFR 817.121(c)(4) (i)-(iv). These provisions set out a procedure under which damage occurring within an area defined by an angle of draw would be subject to the rebuttable presumption: that subsidence from underground mining was the cause of any surface damage to non-commercial buildings or occupied residential dwellings and related structures within the angle of draw. We also suspended that portion of 30 CFR 784.20(a)(3) which required a specific structural condition survey of all EPAct protected structures within an area defined by an angle of draw.

1. CSR 38-2-3.12.a.1. In our February 9, 1999, decision, we did not approve the phrase “within an angle of draw of at least 30 degrees” at CSR 38-2-3.12.a.1. This provision requires the identification (on a map) of the lands, structures, and water supplies that could be damaged by subsidence. We disapproved the phrase “within an angle of draw of at least 30 degrees” because it limited the identification of water supplies to areas within the angle of draw. This limitation renders the provision less effective than the Federal regulations at 30 CFR 784.20(a)(1) which has no “angle of draw” limit for the identification of water supplies that may be affected by subsidence. Our suspension of the Federal “angle of draw” criterion at 30 CFR 817.121(c)(4) (i)-(iv) does not affect this disapproval of the State as it pertains to water supplies. Therefore, our disapproval of the phrase “within an angle of draw of at least 30 degrees” at CSR 38-2-3.12.a.1. continues in force.

In addition we required, at 30 CFR 948.16(zzz), that CSR 38-2-3.12.a.1 be amended to require that the map identify the type and location of all lands, structures, and drinking, domestic and residential water supplies within the permit and adjacent areas, and to include a narrative indicating whether subsidence, if it occurred, could damage or diminish the use of the lands, structures, or water supplies. This required amendment is not affected by our suspension of the Federal regulations cited above and, therefore, remains in force.

We also approved CSR 38-2-3.12.a.1 pertaining to an alternative, site-specific angle of draw, but only with the understanding that such an alternative angle of draw would be justified based on a site-specific geotechnical analysis of the potential surface impacts of the mining operation. This decision is affected by our suspension of the “angle of draw” criterion, and must be corrected. We are correcting this decision by changing the qualified approval that CSR 38-2-3.12.a.1, to a complete approval, because there is now no Federal regulatory counterpart to this alternative angle of draw criterion. As we stated in the December 22, 1999, suspension notice, under section 505(b) of SMCRA, a State may elect to retain its existing regulations despite the fact that OSM has suspended their counterparts.

In addition we required, at 30 CFR 948.16(yyy), that CSR 38-2-3.12.a.1 be amended to clarify that approval of the proposed angle of draw has a more reasonable basis than the 30-degree angle of draw based on site-specific geotechnical analysis of the potential impacts of the proposed mining operation. Because our approval of CSR 38-2-3.12 is now unqualified, we are removing the required amendment at 30 CFR 948.16(yyy).

2. CSR 38-2-3.12.a.2. We approved CSR 38-2-3.12.a.2. concerning presubsidence surveys, except we did not approve the phrase “within the area encompassed by the applicable angle of draw” as it applies to water supply surveys. In addition we required, at 30 CFR 948.16(aaaa), that CSR 38-2-3.12.a.2. be amended to require a pre-subsidence survey without limitation by an angle of draw, of the quantity and quality of all drinking, domestic, and residential water supplies within the permit area and adjacent area that could be contaminated, diminished, or interrupted by subsidence. The Federal regulations concerning pre-subsidence surveys of water supplies have never incorporated an “angle of draw” criterion. CSR 38-2-3.12.a.2. does contain an “angle of draw” criterion for water supplies, and that criterion renders the State provision less effective than 30 CFR 784.20(a)(3) as it pertains to water supplies. Therefore, the disapproval and required amendment concerning water supplies continue to be in effect, because they are not affected by our suspension of the Federal “angle of draw” provision.

CSR 38-2-3.12.a.2. also contains a requirement for pre-subsidence surveys for non-commercial or residential dwellings and structures that incorporates an “angle of draw” criterion. Although the counterpart Federal requirement contained an “angle of draw” criterion and has been suspended, the suspension does not render the State provisions inconsistent with the Federal regulations. Under section 505(b) of SMCRA, a State may elect to retain its existing regulations despite the fact that OSM has suspended its counterparts. Therefore, CSR 38-2-3.12.a.2. concerning pre-subsidence surveys for non-commercial or residential dwellings and structures continues to be approved.

CSR 38-2-3.12.a.2.A. and B. We did not approve CSR 38-2-3.12.a.2.A. and B. concerning exemption and postponement of the pre-subsidence structural survey. These provisions were disapproved because we found them to be less effective than 30 CFR 784.20(a)(3) and 817.121(c)(4)(ii). Both of these Federal provisions have been suspended. Therefore, CSR 38-2-3.12.a.2.A. and B. are no longer less effective than the Federal regulations. We are correcting our finding to approve CSR 38-2-3.12.a.2.A. and B. concerning exemption and postponement of the pre-subsidence structural surveys. As we stated in the December 22, 1999, suspension notice, under section 505(b) of SMCRA, a State may elect to retain its existing regulations despite the fact that OSM has suspended its counterparts.

We required, at 30 CFR 948.16(bbbb), that CSR 38-2-3.12.a.2. be amended to require that the permit applicant pay for any pre-subsidence surveys of protected structures and water supplies, and to require the applicant to provide copies of the surveys to the property owner and the regulatory authority. The Federal requirements at 30 CFR 784.20(a)(3) concerning pre-subsidence structural surveys have been suspended, but the Federal requirements concerning pre-subsidence surveys of water supplies have not been suspended. Therefore, we are correcting our required amendment at 30 CFR 948.16(bbbb) to remove all references to presubsidence surveys of protected structures, since the portion of 3.12.a.2. referring to presubsidence surveys no longer has a Federal counterpart. Pursuant to section 505(b) of SMCRA, a State may elect to retain its existing regulations, despite the fact that OSM has suspended its counterparts. As corrected, 30 CFR 948.16(bbbb) will now only require that the permit applicant pay for any pre-subsidence surveys of protected water supplies, and that the applicant provide copies of the surveys to the property owner and the regulatory authority.

We did not approve, at CSR 38-2-3.12.a.2., the definition of “non-commercial building.” In addition, we required, at 30 CFR 948.16(cccc), that CSR 38-2-3.12.a.2. be amended to clarify that the definition of “non-commercial building” includes such buildings used on a regular or temporary basis. These two decisions are affected by our suspension of 30 CFR 784.20(a)(3). The State's definition of “non-commercial building” pertains directly to its pre-subsidence survey requirement for structures at CSR 38-2-3.12.a.2. Since the Federal pre-subsidence survey requirement for structures at 30 CFR 784.20(a)(3) has been suspended, the State's definition is applied to a provision for which the Federal regulations have no counterpart. Pursuant to SMCRA section 505(b), the State's use of the definition of “non-commercial building” at CSR 38-2-3.12.a.2. is not inconsistent with SMCRA and can be approved. Therefore, we are correcting our decision regarding the definition of “non-commercial building” at CSR 38-2-3.12.a.2. to approve the definition. In addition, we are deleting the required amendment at 30 CFR 948.16(cccc).

3. CSR 38-2-16.2.c.3. In our February 9, 1999, decision, we found that CSR 38-2-16.2.c.3. was less effective than 30 CFR 817.121(c)(4)(i) to the extent that the State's presumption of causation of subsidence damage only applies within the area which a pre-subsidence structural survey is required. In addition, we required, at 30 CFR 948.16(dddd), that CSR 38-2-16.2.c.3. be amended to provide that a rebuttable presumption of causation would exist within the applicable angle of draw regardless of whether or not a pre-subsidence survey had been conducted. These two decisions are no longer valid because of our suspension of the Federal regulations at 30 CFR 817.121(c)(4) (i)-(iv). The Federal regulations no longer contain a presumption of causation of subsidence damage. As we stated in the December 22, 1999, suspension notice, under section 505(b) of SMCRA, a State may elect to retain its existing regulations despite the fact that OSM has suspended its counterparts. Therefore, we are correcting our decision on CSR 38-2-16.2.c.3. concerning presumption of causation of damage by subsidence, to be an approval of this provision. In addition, we are deleting the required amendment codified at 30 CFR 948.16(dddd).

CSR 38-2-16.2.c.3.B. Finally, in our February 9, 1999, decision we did not approve the word “or” at CSR 38-2-16.2.c.3.B. concerning rebuttal of the presumption. In addition, we required, at 30 CFR 948.16(eeee) that CSR 38-2-16.2.c.3.B. be amended to make it clear that the presumption of subsidence causation of damage can be rebutted only where the permittee demonstrates that the damage was proximately caused by some other factor or factors “and” was not proximately caused by subsidence. These two decisions are no longer valid because of our suspension of the Federal regulations at 30 CFR 817.121(c)(4) (i)-(iv). As we stated in the December 22, 1999, suspension notice, under section 505(b) of SMCRA, a State may elect to retain its existing regulations despite the fact that OSM has suspended its counterparts. Therefore, we are correcting our previous decision on CSR 38-2-16.2.c.3.B. concerning rebuttal of the presumption, and are approving this provision. In addition, we are deleting the required amendment codified at 30 CFR 948.16(eeee).

The Administrative Procedure Act provides exceptions to its notice and public comment procedures when an agency finds that there is good cause for dispensing with such procedures on the basis that they are impracticable, unnecessary, or contrary to the public interest. We have determined that, under 5 U.S.C. 553(b)(3)(B), good cause exists for dispensing with the notice and public comment procedures in this case. Good cause exists because this rule merely makes corrections that are indirectly mandated by the decision of the court in National Mining Association v. Babbitt, supra. Therefore, notice and opportunity for prior comment are unnecessary and we are issuing these corrections as a final rule.

In addition, under 5 U.S.C. 553(d)(3), we find good cause for dispensing with the 30-day delay in the effective date of this final rule because we are merely making corrections indirectly mandated by the court in National Mining Association v. Babbitt, supra.

Under Executive Order 12866, Regulatory Planning and Review (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. In addition, this action does not impose any enforceable duty, contain any unfunded mandate, or impose any significant or unique impact on small governments as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not require prior consultation with state, local, and tribal government officials as specified by Executive Order 12875 (58 FR 58093, October 28, 1993) or Executive Order 13084 (63 FR 27655, May 10, 1998), or involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). Because this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), entitled “Protection of Children from Environmental Health Risks and Safety Risks,” because EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 28, 2000. 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)).

EPA is publishing this notice to inform the public that EPA has approved the Washington Department of Ecology's (Ecology) updated delegation requests on behalf of the Northwest Air Pollution Authority (NWAPA), the Puget Sound Clean Air Agency (Puget Sound Clean Air), 1 and the Southwest Air Pollution Control Agency (SWAPCA), to implement certain 40 CFR parts 61 and 63 National Emission Standards for Hazardous Air Pollutants (NESHAP). This action also provides an amendment to Federal Register actions published on December 1, 1998 ( see 63 FR 66054) and April 22, 1999 ( see 64 FR 19719), that granted Clean Air Act, Section 112(l), delegation of authority for these three local air agencies in Washington to implement and enforce specific 40 CFR parts 61 and 63 federal NESHAP regulations which have been adopted into local law. Specifically, this action amends 40 CFR 61.04 and 63.99 by revising the tables outlining these three local agencies' current delegation status.

With this updated delegation, NWAPA, Puget Sound Clean Air, and SWAPCA now have the authority to implement and enforce 40 CFR parts 61 and 63 NESHAPs in effect as of July 1, 1999 (NWAPA and Puget Sound Clean Air), or August 1, 1998 (SWAPCA). This update includes any revisions to previously delegated 40 CFR parts 61 and 63 standards, and any new NESHAPs. At the end of this rule is an updated delegation table reflecting this approval and identifying the delegated standards. Please note that EPA has withheld delegation of several subparts as explained below.

EPA decided not to delegate to these three agencies any 40 CFR part 61 subparts pertaining to radon or radionuclides. Typically, EPA delegates all standards adopted (and requested) by an air agency and in effect as of a certain date, regardless of whether or not there are any applicable sources within that agency's jurisdiction. As an exception, EPA decided not to delegate any 40 CFR part 61 NESHAPs pertaining to radon or radionuclides (subparts B, H, I, K, Q, R, T, and W). EPA determined that it is not necessary to delegate these standards to NWAPA, Puget Sound Clean Air, and SWAPCA for the following reasons: (1) There are no radon sources in any of these three locals' jurisdictions and only one radionuclide source, as explained below; (2) It is highly unlikely that any new radon or radionuclide sources will emerge; and (3) The Washington Department of Health has the expertise and authority to implement radionuclide standards (subparts H and I) for the State of Washington. For the one radionuclide source within Puget Sound Clean Air's jurisdiction, the agency currently has a Memorandum of Understanding for the Washington Department of Health to regulate that facility.

EPA also did not delegate 40 CFR part 63, subpart LL (Primary Aluminum) and subpart S (Pulp & Paper), as it pertains to kraft and sulfite pulping mills. EPA cannot delegate all or part of these subparts, respectively, to these three locals because Ecology retains the sole authority for regulating these particular industries in the State of Washington. The Revised Code of Washington (RCW) 70.94.395 gives Ecology the authority to regulate a particular class of air contaminant sources on a state-wide basis. Ecology has enacted that authority in the Washington Administrative Code Chapters 173-405-012, 173-410-012, and 173-415-012 to regulate Kraft Pulping Mills, Sulfite Pulping Mills and Primary Aluminum Plants, respectively, on a state-wide basis. Because of these regulations, NWAPA, Puget Sound Clean Air, and SWAPCA cannot regulate primary aluminum facilities and kraft and sulfite pulping mills. Therefore, EPA is unable to delegate 40 CFR part 63, subpart LL (Primary Aluminum), and part of subpart S (Pulp & Paper). Since 40 CFR part 63, subpart S is applicable to more facilities and processes than kraft and sulfite pulping mills, EPA did delegate subpart S as it applies to all applicable facilities, as defined in 40 CFR 63.440, except kraft and sulfite pulping mills. Please note that EPA had originally delegated both subpart S and LL to Puget Sound Clean Air in a letter dated March 19, 1999, granting updated delegation (see 64 FR 19719, April 22, 1999), but this current updated delegation now supercedes the March 19, 1999, delegation.

Local agencies in Washington submit delegation requests to Ecology and ask that Ecology forward those requests to EPA. Consistent with Ecology's interpretation of RCW 70.94.860, Ecology must first accept delegation of a program on behalf of the local agency and then redelegate the program to that agency. Ecology's Delegation Orders outline this redelegation process for each delegation, and are signed by both Ecology and the local agency. As described in the orders, the effective date of the orders is the same as the effective date of EPA's delegation action. Therefore, the delegation to local agencies via Ecology causes no delay.

On December 1, 1998, EPA promulgated direct final approval of Ecology's request, on behalf of NWAPA, Puget Sound Clean Air, and SWAPCA for program approval and delegation of authority to implement and enforce specific 40 CFR parts 61 and 63 federal NESHAP regulations which have been adopted into local law (as they apply to both part 70 and non-part 70 sources). That delegation was effective on February 1, 1999. Additionally, on April 22, 1999, EPA published an amendment to the December 1, 1998, direct final rule. This amendment revised Puget Sound Clean Air's current delegation status based on a delegation update that was effective on March 29, 1999. Since the February 1, 1999, effective date of the program approval and delegation for NWAPA and SWAPCA and since the March 29, 1999, effective date for the updated delegation for Puget Sound Clean Air, Ecology has submitted updated delegation requests on behalf of each of these three agencies.

On November 24, 1999, Ecology submitted a request on behalf of NWAPA for updated delegation of those NESHAPs in 40 CFR Parts 61 and 63 in effect on July 1, 1999. These new and revised standards have been adopted unchanged into NWAPA Regulation Section 104.2 (as amended on November 12, 1999). In a letter dated November 8, 1999, Ecology submitted a request on behalf of Puget Sound Clean Air for updated delegation of those NESHAPs in 40 CFR parts 61 and 63 in effect on July 1, 1999. These new and revised standards have been adopted unchanged into PSCAA Regulation III, Section 2.02 (as amended on September 9, 1999). Ecology also submitted a request dated November 4, 1999, on behalf of SWAPCA for updated delegation of those NESHAPs in 40 CFR parts 61 and 63 in effect on August 1, 1998. These new and revised standards have been adopted unchanged into SWAPCA 400-075 (as amended on April 11, 1999).

Ecology also submitted copies of its Delegation Orders for each local agency for this updated delegation. Ecology signed the orders for Puget Sound Clean Air and SWAPCA on November 18, 1999. Puget Sound Clean Air signed the orders on October 27, 1999, while SWAPCA signed them on October 20, 1999. Ecology signed the orders for NWAPA on November 23, 1999, and NWAPA signed them on November 19, 1999.

Consistent with the approved mechanism for streamlined delegation (see page 66057, 63 FR 66054, December 1, 1998) and with Ecology's interpretation of RCW 70.94.860, EPA granted these updated delegation requests to Ecology for purposes of redelegating to NWAPA, Puget Sound Clean Air, and SWAPCA, in a letter to Ecology dated January 25, 2000. The effective date of that letter and the updated delegation was February 4, 2000. As described in Ecology's delegation orders, the effective date of the redelegation to the three locals is the same as the effective date of the updated delegation. Therefore, the delegation to these agencies via Ecology caused no delay in this delegation to NWAPA, Puget Sound Clean Air, and SWAPCA.

NWAPA, Puget Sound Clean Air, and SWAPCA are now the primary point of contact with respect to these delegated NESHAPs. Pursuant to 40 CFR 63.9(a)(4)(ii) and 63.10(a)(4)(ii), EPA waived the requirement that notifications and reports for delegated standards be submitted to EPA in addition to these agencies. Therefore, sources within NWAPA, Puget Sound Clean Air, or SWAPCA's jurisdiction should send notifications and reports for delegated NESHAPs directly to NWAPA, Puget Sound Clean Air, or SWAPCA, and do not need to send a copy to EPA.

This updated delegation for NWAPA, Puget Sound Clean Air, and SWAPCA to implement and enforce NESHAPs does not extend to sources or activities located in Indian country, as defined in 18 U.S.C. 1151, except for those non-trust lands within the boundaries of the Puyallup Indian Reservation, also known as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and local agencies, such as Puget Sound Clean Air, authority over activities on non-trust lands within the 1873 Survey Area. Therefore, Puget Sound Clean Air will implement and enforce the NESHAPs on these non-trust lands within the 1873 Survey Area. EPA will continue to implement the NESHAPs in all other Indian country, consistent with previous federal program approvals or delegations, because NWAPA, Puget Sound Clean Air, and SWAPCA do not have authority over sources and activities located within the exterior boundaries of Indian reservations and other areas in Indian country.

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

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

1. Electronically . You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/.

2. In person . The Agency has established an official record for this action under docket control number OPP-300971. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

In the Federal Register of February 24, 1999 (64 FR 4751) (FRL-6058-9), EPA issued a notice pursuant to section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act (FQPA) (Public Law 104 -170) announcing the filing of a pesticide tolerance petition (9E5063) by Uniqema (formerly known as ICI Surfactants), 3411 Silverside Road, Wilmington, DE 19803-8340. This notice included a summary of the petition prepared by the petitioner. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR 180.1001 (c) and (e) be amended by establishing an exemption from the requirement of a tolerance for residues of polyoxyethylated sorbitol fatty acid esters; the sorbitol solution containing up to 15% water is reacted with 20-50 moles of ethylene oxide and aliphatic alkanoic and/or alkenoic fatty acids C 8 through C 22 with minor amounts of associated fatty acids; the resulting polyoxyethylene sorbitol ester having a minimum MW of 1,300.

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

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

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

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

1. The polymers, polyoxyethylated sorbitol fatty acid esters, are not cationic polymers nor are reasonably anticipated to become cationic polymers in a natural aquatic environment.

2. The polymers do contain as an integral part of their composition the atomic elements carbon, hydrogen, and oxygen.

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

4. The polymers are neither designed nor can be reasonably anticipated to substantially degrade, decompose, or depolymerize.

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

6. The polymers are not water absorbing polymers with a number average MW greater than or equal to 10,000 daltons.

Additionally, the polymers, polyoxyethylated sorbitol fatty acid esters also meet as required the following exemption criteria specified in 40 CFR 723.250(e).

7. The polymers' number average MW are greater than 1,000 and less than 10,000 daltons. The polymers contain less than 10% oligomeric material below MW 500 and less than 25% oligomeric material below MW 1,000, and the polymers do not contain any reactive functional groups.

Thus, polyoxyethylated sorbitol fatty acid esters meet all the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the above criteria, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to polyoxyethylated sorbitol fatty acid esters.

For the purposes of assessing potential exposure under this exemption, EPA considered that polyoxyethylated sorbitol fatty acid esters could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MW of polyoxyethylated sorbitol fatty acid esters are greater than 1,000 and less than 10,000 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since polyoxyethylated sorbitol fatty acid esters conform to the criteria that identify a low risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. Since the Agency has determined that there is a reasonable certainty that no harm will result from aggregate exposure to polyoxyethylated sorbitol fatty acid esters, a tolerance is not necessary.

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

Based on the conformance to the criteria used to identify a low risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population from aggregate exposure to residues of polyoxyethylated sorbitol fatty acid esters.

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

There is no available evidence that polyoxyethylated sorbitol fatty acid esters are an endocrine disruptor.

Currently, an Exemption from the Requirement of a Tolerance is established in 40 CFR 180.1001 in the table in paragraph (d) inert ingredients in pesticide formulations applied to growing crops only. The exemption reads as follows:

Polyoxyethylated Sorbitol Fatty Acid Esters; the polyoxyethylated sorbitol solution containing up to 15% water is reacted with fatty acids limited to C 12 , C 14 , C 16 , and C 18 containing minor amounts of associated fatty acids; the poly (oxyethylene) content averages 30 moles.

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

The Agency is not aware of any country requiring a tolerance for polyoxyethylated sorbitol fatty acid esters nor have any CODEX Maximum Residue Levels (MRLs) been established for any food crops at this time.

Accordingly, EPA finds that exempting polyoxyethylated sorbitol fatty acid esters; the sorbitol solution containing up to 15% water is reacted with 20-50 moles of ethylene oxide and aliphatic alkanoic and/or alkenoic fatty acids C 8 through C 22 with minor amounts of associated fatty acids; the resulting polyoxyethylene sorbitol ester having a minimum MW of 1,300 from the requirement of a tolerance will be safe.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-300971 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before April 28, 2000.

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

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

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

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

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

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VIII.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-300971, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov . Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

This final rule establishes an exemption from the tolerance requirement under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any prior consultation as specified by Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 19, 1998); special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or require OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4).

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

Therefore, 40 CFR chapter I is amended as follows:

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

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

1. Electronically . You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/.

2. In person . The Agency has established an official record for this action under docket control number OPP-300973. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, (CM #2), 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

In the Federal Register of May 26, 1999 (64 FR 28480) (FRL-6081-3), EPA issued a notice pursuant to section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act (FQPA) (Public Law 104-170) announcing the filing of a pesticide tolerance petition (PP 8E4950) by Omnichem S. A., Industrial Research Park, 1348 Louvain-La-Neuve, Belgium. This notice included a summary of the petition prepared by the petitioner. The petition requested that 40 CFR 180.1001(c) be amended by establishing an exemption from the requirement of a tolerance for residues of α-alkyl (C 12 -C 15 )- v -hydroxypoly (oxypropylene) poly (oxyethylene) copolymers (where the poly (oxypropylene) content is 3-60 moles and the poly (oxyethylene) content is 5-80 moles, CAS Reg. No. 68551-13-3). After publication of the Federal Register notice, Omnichem informed the Agency that their summary contained an error and that the exemption from the requirement of a tolerance should have requested C 12 -C 15 not C 12 -C 18 . Since the desired C range is less than the range in the notice of filing, and there were no comments received in response to the notice, the Agency will establish the exemption from the requirement of a tolerance for the C 12 -C 15 range.

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

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

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

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

1. The polymer, ethoxylated propoxylated C 12 -C 15 alcohols, is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.

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

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

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

5. The polymer is not manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.

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

Additionally, the polymer, ethoxylated propoxylated C 12 -C 15 alcohols, also meets as required the following exemption criteria specified in 40 CFR 723.250(e).

7. The polymer's minimum number average MW of 1,500 is greater than 1,000 and less than 10,000 daltons. The polymer contains less than 10% oligomeric material below MW 500 and less than 25% oligomeric material below MW 1,000, and the polymer does not contain any reactive functional groups.

Thus, ethoxylated propoxylated C 12 -C 15 alcohols meet all the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the above criteria, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to ethoxylated propoxylated C 12 -C 15 alcohols.

For the purposes of assessing potential exposure under this exemption, EPA considered that ethoxylated propoxylated C 12 -C 15 alcohols could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The minimum number average MW of ethoxylated propoxylated C 12 -C 15 alcohols is 1,500 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since ethoxylated propoxylated C 12 -C 15 alcohols conform to the criteria that identify a low risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. Since the Agency has determined that there is a reasonable certainty that no harm will result from aggregate exposure to ethoxylated propoxylated C 12 -C 15 alcohols, a tolerance is not necessary.

Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance or tolerance exemption, the Agency consider “available information” concerning the cumulative effects of a particular chemical's residues and “other substances that have a common mechanism of toxicity.” The Agency has not made any conclusions as to whether or not ethoxylated propoxylated C 12 -C 15 alcohols share a common mechanism of toxicity with any other chemicals. However, polyvinyl acetate, carboxyl modified sodium salt conform to the criteria that identify a low risk polymer. Due to the expected lack of toxicity based on the above conformance, the Agency has determined that a cumulative risk assessment is not necessary.

Based on the conformance to the criteria used to identify a low risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population from aggregate exposure to residues of ethoxylated propoxylated C 12 -C 15 alcohols.

FFDCA section 408 provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of ethoxylated propoxylated C 12 -C 15 alcohols, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.

There is no available evidence that ethoxylated propoxylated C 12 -C 15 alcohols is an endocrine disruptor.

There are no known exemptions from a tolerance for α-alkyl (C 12 -C 15 )- v -hydroxypoly (oxypropylene) poly (oxyethylene) copolymers (where the poly(oxypropylene) content is 3-60 moles and the poly (oxyethylene) content is 5-80 moles).

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

The Agency is not aware of any country requiring a tolerance for ethoxylated propoxylated C 12 -C 15 alcohols nor have any CODEX Maximum Residue Levels (MRLs) been established for any food crops at this time.

Accordingly, EPA finds that exempting α-alkyl (C 12 -C 15 )- v -hydroxypoly (oxypropylene) poly (oxyethylene) copolymers (where the poly (oxypropylene) content is 3-60 moles and the poly (oxyethylene) content is 5-80 moles) also known as ethoxylated propoxylated C 12 -C 15 alcohols from the requirement of a tolerance will be safe.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-300973 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before April 28, 2000.

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

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

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

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

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

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VIII.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-300973, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Avenue, Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov . Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

This final rule establishes an exemption from the tolerance requirement under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any prior consultation as specified by Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 19, 1998); special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or require OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4).

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

Therefore, 40 CFR chapter I is amended as follows:

States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, states must change their programs and ask EPA to authorize the changes. Changes to state programs may be necessary when Federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, states must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273, and 279.

We conclude that Missouri's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Missouri final authorization to operate its hazardous waste program with the changes described in the authorization application. Missouri has responsibility for permitting treatment, storage, and disposal facilities (TSDFs) within its borders and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized states before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Missouri, including issuing permits, until the state is granted authorization to do so.

The effect of this decision is that a facility in Missouri subject to RCRA will now have to comply with the authorized state requirements instead of the equivalent Federal requirements in order to comply with RCRA. Missouri has enforcement responsibilities under its state hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003 which include, among others, authority to:

• Do inspections, and require monitoring, tests, analyses or reports,

• Enforce RCRA requirements and suspend or revoke permits.

This action does not impose additional requirements on the regulated community because the regulations for which Missouri is being authorized by today's action are already effective, and are not changed by today's action.

EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's Federal Register we are publishing a separate document that proposes to authorize the state program changes.

If EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the Federal Register before this rule becomes effective. EPA will base any further decision on the authorization of the state program changes on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.

If we receive comments that oppose only the authorization of a particular change to the state hazardous waste program, we will withdraw that part of this rule but the authorization of the program changes that the comments do not oppose will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn.

On November 20, 1985, EPA published a Federal Register notice announcing its decision to grant final authorization for the RCRA base program to the State of Missouri which became effective December 12, 1985 (50 FR 47740). Missouri received authorization for revisions to its program as follows: February 27, 1989, effective April 28, 1989 (54 FR 8190); January 11, 1993, effective March 12, 1993 (58 FR 3497) and on May 30, 1997, effective July 29, 1997 (62 FR 29301). On January 7, 1998, (63 FR 683) a correction was made to the May 30, 1997 (62 FR 29301) notice to correct the effective date of the rule to be consistent with sections 801 and 808 of the Congressional Review Act, enacted as part of the Small Business Regulatory Enforcement Fairness Act. Additionally, the state adopted and applied for interim authorization for the corrective action portion of the HSWA Codification Rule (July 15, 1985, 50 FR 28702). For a full discussion of the HSWA Codification Rule, the reader is referred to the Federal Register cited above. The state was granted interim authorization for the corrective action portion on February 23, 1994, effective April 25, 1994 (50 FR 8544). Final authorization for corrective action was granted on May 4, 1999, effective July 5, 1999 (64 FR 23740).

On August 25, 1999, Missouri submitted a final complete program revision application, seeking authorization of its changes in accordance with 40 CFR 271.21. We now make an immediate final decision, subject to receipt of written comments that oppose this action, that Missouri's hazardous waste program revision satisfies all of the requirements necessary to qualify for final authorization. Therefore, we grant Missouri final authorization for the following program changes and revisions:

We consider the following state requirements to be more stringent than the Federal requirements and, therefore, Federally enforceable:

• Missouri's 10 CSR 25-7.264(2)(K)1.B. Each new surface impoundment shall be constructed with a double liner as required in 40 CFR 264.221(c), incorporated in this rule in accordance with the additional requirements in subparagraphs (2)(K)1.C. and D. of the state's rule.

• Missouri's 10 CSR 25-7.264(2)(K)1.C. This state regulation imposes stricter standards with regard to what the lower component of the composite liner must consist of that is required by 40 CFR 264.221(c) which is incorporated by reference.

• Missouri's 10 CSR 25-7.264(2)(K)1.D. This state regulation requires the leak detection system required by 40 CFR 264.221(c)(2) to cover the entire sides and bottom of the surface impoundment, whereas 264.221(c)(2) requires the leak detection system to be installed between the liners, and immediately above the bottom composite liner in the case of multiple leachate collection and removal systems.

• Missouri's 10 CSR 25-7.264(2)(K)1.E., 7.264(2)(L)2.E., and 7.264(2)(N)2.F. When liquids are detected in a leak detection system, Missouri regulations require an owner/operator to notify the department within 30 days of the event, and to continue to operate and maintain the leak detection system so that liquids are removed as they accumulate or with sufficient frequency to prevent backwater within the system, and to implement leachate monitoring requirements in accordance with 7.264(2)(K)1.F. for surface impoundments, 7.264(2)(L)2.F. for waste piles, or 7.264(2)(N)2.G. for landfills. The Federal regulations do not contain these requirements.

• Missouri's CSR 10-25.7.264(2)(K)1.F.(I), 7.264(2)(L)2.F.(I), and 7.264(2)(N)2.G.(I). These state regulations require the owner operator who is required under 7.264 (2)(K)(1)E., 7.264 (2)(L)2.E., or 7.264 (2)(N)2.F. to initiate leachate monitoring to remove any accumulated leachate in the leak detection system collection sumps at least weekly during active life and closure periods. Whereas, 40 CFR 264.221(c)(3), 264.251(c)(4), and 264.301(c)(4) do not impose a time requirement and merely require the owner/operator to collect and remove pumpable liquids in the leak detection system sumps to minimize the head on the bottom liner.

• Missouri's 10 CSR 25-7.264(2)(K)1.F.(II), 7.264 (2)(L)1.F.(II), and 7.264(2)(N)2.G.(II). These state regulations require owner/operator to analyze the leachate at least annually. The Federal regulations do not contain this requirement.

• Missouri's 10 CSR 25-7.264(2)(L)2.B. Each new waste pile shall be constructed with a double liner as required in 40 CFR 264.251(c), incorporated in this rule, and in accordance with the additional requirements in subparagraphs (2)(L)2.C. and D. of the state's rule.

• Missouri's 10 CSR 25-7.264(2)(L)2.C. This state regulation imposes stricter standards with regard to what the lower component of the composite liner must consist of that is required by 40 CFR 264.251(c), which is incorporated.

• Missouri's 10 CSR 25-7.264(2)(L)2.D. This state regulation requires the leak detection system required by 40 CFR 264.251(c)(3) to be capable of detecting leaks from the entire area of the waste pile, whereas 264.251(c)(3) requires the leak detection system to be capable of detecting leaks through all areas of the top liner likely to be exposed to waste or leachate during the active life and post-closure care period.

• Missouri's 10 CSR 25-7.264(2)(L)3.A. In addition to recording the amount of liquids removed from each leak detection system sump at least once per week during the active life and closure period, as required by 40 CFR 264.254(c), the owner/operator shall record the amount of liquids removed from each leachate collection/removal system sump at the same frequency.

• Missouri's 10 CSR 25-7.264(2)(N)2.B. Each new landfill shall be constructed with a double liner as required in 40 CFR 264.301(c), incorporated in this rule, and in accordance with the additional requirements in subparagraphs (2)(N)2.C. of the state's rule.

• Missouri's 10 CSR 25-7.264(2)(N)2.C. This state regulation imposes stricter standards with regard to what the lower component of the composite liner must consist of that is required by 40 CFR 264.301(c), which is incorporated.

• Missouri's 10 CSR 25-7.264(2)(N)2.E. This state regulation requires the leak detection system required by 40 CFR 264.301(c)(3) to be capable of detecting leaks from the entire sides and bottom of each cell, whereas 264.301(c)(3) requires the leak detection system to be capable of detecting leaks through all areas of the top liner likely to be exposed to waste or leachate during the active life and post-closure care period.

• Missouri's 10 CSR 25-7.264(2)(H)6. This state regulation modifies the requirements for letters of credit per 40 CFR 264.143(d), 264.145(d), and 264.147(h) which are incorporated. The Missouri regulation provides that letters of credit shall be issued by a state-or Federally-chartered and regulated bank or trust association. This state regulation also states that if the issuing institution is not located in Missouri, a bank or trust association located in Missouri shall confirm the letter of credit and the confirmation and the letter of credit shall be filed with the department.

• Missouri's 10 CSR 25-7.264(2)(H)7. An owner/operator of a facility that is a commercial facility may not satisfy financial assurance requirements for closure, post-closure, or liability coverage, or any combination of these, by the use of a financial test as specified in 40 CFR 264.143(f), 264.145(f), or 264.147(h), which are incorporated.

• Missouri's 10 CSR 25-7.264(2)(H)8. This state regulation modifies the requirements for closure insurance per 40 CFR 264.143(e), post-closure insurance per 264.145(e), liability coverage for sudden accidental occurrences per 264.147(a)(1), and liability coverage for non-sudden accidental occurrences per 264.147(b)(1), which are all incorporated. The state regulation provides that each insurance policy shall be issued by an insurer which, at a minimum, is licensed to transact the business of insurance or is eligible to provide insurance as an excess or surplus lines insurer in Missouri. In contrast, the Federal regulations require the insurer to be licensed or eligible to provide insurance as an excess or surplus lines insurer in one of more states.

• Missouri's 10 CSR 25-7.264(2)(H)9., 7.264(2)(H)10., and 7.264(2)(H)11. Missouri incorporates the cited Federal regulations (40 CFR 264.143(f), 264.145(f) and 264.147(g)) but deletes from them the phrase, “or a firm with a ‘substantial business relationship,’ with the owner or operator.” Missouri does not recognize a “substantial business relationship,” and deletes it from the incorporation wherever it occurs in the three CFR provisions noted.

• Missouri's 10 CSR 25-7.265(2)(H)5. This state regulation modifies the requirements for letters of credit per 40 CFR 265.143(c), 265.145(c), and 265.147(h), which are incorporated. The Missouri regulation provides that letters of credit shall be issued by a state-or Federally-chartered and regulated bank or trust association. The state regulation also states that if the issuing institution is not located in Missouri, a bank or trust association located in Missouri shall confirm the letter of credit and the confirmation and the letter of credit shall be filed with the department.

• Missouri's 10 CSR 25-7.265(2)(H)6. An owner/operator of a facility that is a commercial TSDF may not satisfy financial assurance requirements for closure, post-closure, or liability coverage, or any combination of these, by the use of a financial test as specified in 40 CFR 265.143(e), 265.145(e), or 265.147(f), which are incorporated.

• Missouri's 10 CSR 25-7.265(2)(H)7. This state regulation modifies the requirements for closure insurance per 40 CFR 265.143(d), post-closure insurance per 265.145(d), liability coverage for sudden accidental occurrences per 265.147(a)(1), and liability coverage for non-sudden accidental occurrences per 265.147(b)(1), which are all incorporated. The state regulation provides that each insurance policy shall be issued by an insurer which, at a minimum, is licensed to transact the business of insurance or is eligible to provide insurance as an excess or surplus lines insurer in Missouri. In contrast, the Federal regulations require the insurer to be licensed or eligible to provide insurance as an excess or surplus lines insurer in one or more states.

• Missouri's 10 CSR 7.265(2)(H)8., 7.265(2)(H)9., and 7.265(2)(H)10. Missouri incorporates the cited Federal regulations (40 CFR 265 265.143(e), 265.145(e), and 265.147(g)), but deletes from them the phrase, “or a firm with a “substantial business relationship,’ with the owner or operator.” Missouri does not recognize “a substantial business relationship,” and deletes it from the incorporation wherever it occurs in the three CFR provisions noted.

• Missouri's 10 CSR 3.260(2)(B). 40 CFR 260, Subpart C, Rulemaking Petitions, is not incorporated in this rule; 3.260(2)(B) provides that not more than 60 days after promulgation of the final federal determination, the department shall approve or disapprove all delistings granted under 40 CFR 260.20 or 260.22. If the department fails to take action within that 60-day time frame, the delistings shall be deemed approved.

• Missouri's 10 CSR 25-7.264(2)(B)1. In addition to the requirements in 40 CFR 264.12(a) incorporated in this rule, an owner/operator shall submit a separate analysis for each hazardous waste that he/she intends to import.

• Missouri's 10 CSR 25-7.265(2)(B)1. In addition to the requirements in 40 CFR 265.12(a) incorporated in this rule, an owner/operator shall submit a separate analysis for each hazardous waste that he/she intends to import.

• Missouri's 10 CSR 25-4.261(2)(A)11.C. Missouri regulations specify that a process, procedure, method, or technology is considered on-site treatment, for the purposes of 40 CFR 261.5(f)(3) and 261.5(g)(3), as incorporated in this rule, only if the process, procedure, method or technology reduces the hazardous characteristics and/or the quantity of hazardous waste; and the process, procedure, method, or technology does not result in off-site emissions of any hazardous waste or constituent. These criteria provide a more specific definition of on-site treatment than the Federal analog and are, therefore, more stringent.

The following state requirement goes beyond the scope of the Federal program:

• Missouri's 10 CSR 25-4.261(2)(A)(8). The state rule does not incorporate 40 CFR 261.4(a)(11), which excludes from the definition of solid waste non-wastewater splash condenser dross residue from the treatment of K061 in high temperature metals recovery units, provided it is shipped in drums (if shipped) and not land disposed before recovery. Because the state regulation provides fewer exceptions, it is broader in scope.

Broader-in-scope requirements are not part of the authorized program and EPA can not enforce them. Although you must comply with these requirements in accordance with state law, they are not RCRA requirements.

Missouri will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization. We will not issue any more new permits or new portions of permits for the provisions listed in the Table above after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Missouri is not yet authorized.

Codification is the process of placing the state's statutes and regulations that comprise the state's authorized hazardous waste program into the CFR. We do this by referencing the authorized state rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart AA for this authorization of Missouri's program changes until a later date.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to state, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

EPA has determined that section 202 and 205 requirements do not apply to today's action because this rule does not contain a Federal mandate that may result in annual expenditures of $100 million or more for state, local, and/or tribal governments in the aggregate, or the private sector. Costs to state, local and/or tribal governments already exist under the Missouri program, and today's action does not impose any additional obligations on regulated entities. In fact, EPA's approval of state programs generally may reduce, not increase, compliance costs for the private sector. Further, as it applies to the state, this action does not impose a Federal intergovernmental mandate because UMRA does not include duties arising from participation in a voluntary Federal program.

The requirements of section 203 of UMRA also do not apply to today's action because this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Although small governments may be hazardous waste generators, transporters, or own and/or operate TSDFs, they are already subject to the regulatory requirements under the existing state laws that are being authorized by EPA, and, thus, are not subject to any additional significant or unique requirements by virtue of this program approval.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's action on small entities, small entity is defined as: (1) a small business as specified in the Small Business Administration regulations; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this authorization on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This action does not impose any new requirements on small entities because small entities that are hazardous waste generators, transporters, or that own and/or operate TSDFs are already subject to the regulatory requirements under the state laws which EPA is now authorizing. This action merely authorizes for the purpose of RCRA section 3006 those existing state requirements.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the SBREFA 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 today's Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The Office of Management and Budget has exempted this rule from the requirements of Executive Order 12866.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by state and local officials in the development of regulatory policies that have Federalism implications.” “Policies that have Federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.”

Under section 6 of Executive Order 13132, EPA may not issue a regulation that has Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by state and local governments, or EPA consults with state and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has Federalism implications and that preempts state law unless the agency consults with state and local officials early in the process of developing the proposed regulation.

This authorization does not have Federalism implications. It will not have a substantial direct effect on states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because this rule affects only one state. This action simply approves Missouri's proposal to be authorized for updated requirements of the hazardous waste program that the state has voluntarily chosen to operate. Further, as a result of this action, newly authorized provisions of the state's program now apply in Missouri in lieu of the equivalent Federal program provisions implemented by EPA under HSWA. Affected parties are subject only to those authorized state program provisions, as opposed to being subject to both Federal and state regulatory requirements. Thus, the requirements of section 6 of the Executive Order do not apply.

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks,” applies to any rule that: (1) the Office of Management and Budget determines is “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the agency must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency.

This rule is not subject to Executive Order 13045 because it is not an economically significant rule as defined by Executive Order 12866, and because it does not involve decisions based on environmental health or safety risks.

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies with consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

This rule is not subject to Executive Order 13084 because it does not significantly or uniquely affects the communities of Indian tribal governments. Missouri is not authorized to implement the RCRA hazardous waste program in Indian country. This action has no effect on the hazardous waste program that EPA implements in the Indian country within the state.

Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , Federal agencies must consider the paperwork burden imposed by any information request contained in a proposed rule or a final rule. This rule will not impose any information requirements upon the regulated community.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the agency decides not to use available and applicable voluntary consensus standards.

This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

States that receives final authorization from EPA under RCRA Section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal Hazardous Waste Program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260-266, 268, 270, 273, and 279.

The effect of this decision is that a facility in Louisiana subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent federal requirements in order to comply with RCRA. Louisiana has enforcement responsibilities under its state hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to: (1) do inspections, and require monitoring, tests, analyses or reports, (2) enforce RCRA requirements and suspend or revoke permits, and (3) take enforcement actions regardless of whether the State has taken its own actions. This action does not impose additional requirements on the regulated community because the regulations for which Louisiana is being authorized by today's action are already effective, and are not changed by today's action.

The State of Louisiana initially received final authorization on February 7, 1985 (50 FR 3348), to implement its base Hazardous Waste Management Program. Louisiana received authorization for revisions to its program on January 29, 1990 (54 FR 48889); October 25, 1991 (56 FR 41958); August 26, 1991 (56 FR 41958) effective August 26, 1991; November 7, 1994 (59 FR 55368) effective January 23, 1995; December 23, 1994 (59 FR 66200) effective March 8, 1995; there were technical corrections made on January 23, 1995; (60 FR 4380), effective January 23, 1995 and another technical correction was made on April 11, 1995 (60 FR 18360). We authorized the additional following revisions: October 17, 1995; (60 FR 53704) January 2, 1996; March 28, (61 FR 13777-13782) effective June 11, 1996; December 29, 1997 (62 FR 67572-67577) effective March 16, 1998; October 23, 1998 (63 FR 56830-56891) effective December 22, 1998; August 25, 1999 (64 FR 46302-46316) effective October 25, 1999; and September 2, 1999 (48099-48103) effective November 1, 1999. On August 30, 1999, Louisiana applied for approval of its complete final program. In this application, Louisiana is seeking additional approval of its program revision in accordance with 40 CFR 271.21(b)(3). The State is also including in this authorization program revisions for RCRA Cluster VIII, waste minimization rules a requirement for generators and owners or operators of treatment, storage, and disposal facilities to certify that they have instituted a waste minimization program.

In 1983, the Louisiana legislature adopted Act 97, which amended and reenacted Louisiana Revised Statutes (LRS) 30:1051 et seq. , the Environmental Affairs Act. This Act created Louisiana Department of Environmental Quality (LDEQ), which has lead agency jurisdictional authority for administering the RCRA Subtitle C program in the State. Also, LDEQ is designated to facilitate communication between EPA and the State. The State law governing the generation, transportation, treatment, storage and disposal of hazardous waste can be found in LRS 30:2171-2205. This part may be cited as the “Louisiana Hazardous Waste Control Law.” The laws governing hazardous waste should be viewed as part of a larger framework of environmental laws specified in Title 30, Subtitle II Louisiana Revised Statutes. The State of Louisiana has adopted the Federal regulations in Cluster VIII promulgated from July 1, 1997, through June 30, 1998; the State of Louisiana regulations became effective September 20, 1998, and March 20, 1999.

Louisiana applied for final approval of its revision to its hazardous waste program in accordance with 40 CFR 271.21. Louisiana's revisions consist of regulations which specifically govern RCRA Cluster VIII and waste minimization rules. Louisiana requirements are included in a chart with this document. The EPA is now making a final decision, subject to receipt of written comments that oppose this action, that Louisiana's hazardous waste program revision satisfies all of the requirements necessary to qualify for final authorization. Therefore, we grant Louisiana final authorization for the following program revisions:

The Dismal Swamp southeastern shrew is a small, long-tailed shrew with a brown back, slightly paler underparts, buffy feet, and a relatively short, broad nose (Handley 1979a). It weighs 3 to 5 grams and measures up to 10 centimeters in length. The species was first described as Sorex fisheri by C.H. Merriam (Merriam 1895). Merriam's description was based on four specimens trapped near Lake Drummond, Virginia, by A.K. Fisher of the U.S. Department of Agriculture's Bureau of Biological Surveys. Rhoads and Young (1897) captured a specimen in Chapanoke, Perquimans County, North Carolina, that seemed intermediate between S. fisheri and the southeastern shrew ( Sorex longirostris Bachman) (Handley 1979b). Jackson (1928) subsequently reduced S. fisheri to a subspecies of S. longirostris. Three subspecies of southeastern shrew are now recognized— Sorex longirostris eionis, which occurs in the northern two-thirds of peninsular Florida (Jones et al. 1991); S. l. fisheri, which occurs in southeastern Virginia and eastern North Carolina; and S. l. longirostris, which occurs in the rest of the range that extends through eastern Louisiana, eastern Oklahoma, and Missouri, then eastward through central Illinois and Indiana, southern Ohio, and Maryland. Jones et al. (1991) examined the taxonomic status of these three subspecies and verified substantial size differences. Jones et al. (1991) found that S. l. eionis was significantly larger in four cranial measurements when compared with the other two subspecies; S. l. fisheri was significantly larger in one cranial and one external measurement; and S. l. longirostris had a relatively short palate and rostrum, narrow skull, and short foot and tail. This study confirmed the subspecific status of S. l. fisheri.

Apart from a litter of five young found in a nest in the Dismal Swamp in 1905, little is known about reproduction or other life history features of Sorex longirostris fisheri (Handley 1979b). However, more is known about the life history of other Sorex species, and this information may apply to S. l. fisheri. Sorex longirostris reproduces from March through October, and two litters are likely born each year, with one to six young produced per litter (Webster et al. 1985). Nests are shallow depressions lined with dried leaves and grasses and are usually associated with rotting logs (Webster et al. 1985). Young shrews grow rapidly and are almost adult size when they leave the nest (Jackson 1928). Sorex longirostris forage on spiders, crickets, butterfly and moth larvae, slugs, snails, beetles, centipedes, and vegetation (Webster et al. 1985, Whitaker and Mumford 1972). Little information is available about the daily activity patterns of S. longirostris. They forage intermittently throughout the day and night in all seasons, seem to be most active after rains and during periods of high humidity, and do much of their foraging in the leaf litter or in tunnels in the upper layers of the soil (Jackson 1928).

The Dismal Swamp, the type locality for Sorex longirostris fisheri, is a forested wetland with a mosaic of habitat types located in southeastern Virginia and adjacent North Carolina. Within the Dismal Swamp, S. l. fisheri has been found in a variety of habitat types, including recent clearcuts, regenerating forests, young pine plantations, grassy and brushy roadsides, young forests with shrubs and saplings, and mature pine and deciduous forests (Padgett 1991, Rose 1983). Sorex longirostris fisheri has also been collected in utility line rights-of-way. The highest densities of S. l. fisheri occur in early successional stage habitats and the lowest densities in mature forests (Everton 1985), although mature forests are likely to be important to the survival of the shrew during periods of drought or fire. Densities of southeastern shrews in early successional stage habitats are 10 to 30 per hectare (Rose 1995).

Until recently, the distribution of Sorex longirostris fisheri was considered coincidental with the historical boundaries of the Dismal Swamp (Handley 1979a, Hall 1981, Rose 1983). After collection of the original type series, additional S. l. fisheri specimens were collected from similar habitats in the Dismal Swamp between 1895 and 1902. Prior to 1980, only 20 specimens of S. l. fisheri were known. In 1980, 15 S. longirostris fisheri were collected in pitfall traps in Suffolk, Virginia, from the northwest section of the Great Dismal Swamp National Wildlife Refuge (Refuge) located in North Carolina and Virginia (Rose 1981).

From December 1980 through July 1982, researchers established 37 pitfall grids in Currituck and Gates Counties, North Carolina and the Cities of Chesapeake, Suffolk, and Virginia Beach and Isle of Wight and Surry Counties, Virginia (Rose 1983). This trapping produced 24 specimens from 10 populations classified as Sorex longirostris fisheri, 62 specimens from 9 populations classified as intergrades, and 30 specimens from 7 populations classified as S. l. longirostris. Three grids each contained one specimen classified as S. l. longirostris, while the remaining specimens were classified as S. l. fisheri. Rose (1983) determined that S. l. fisheri was associated with the Dismal Swamp proper, except for a population north of the Refuge and another population east of the Refuge. A narrow zone of hybridization (these populations contained specimens that represent the parent stocks and individuals that may be hybrids) was found to border the Dismal Swamp running approximately north/south along its western edge and running northwest/southeast adjacent to the southeastern corner of the Refuge. Sorex longirostris longirostris was found to the east and west of the Dismal Swamp with distinctive populations of S. l. longirostris occurring within 20 miles of the Dismal Swamp border (Rose 1983). The results of this analysis indicated that the largest Sorex were located within the Refuge and the smallest Sorex were located at greater distances from the Refuge, with specimens of intermediate size on the margins of the Refuge. This finding suggested that interbreeding of the two subspecies might be occurring, particularly at the margins of the Refuge. Rose (1983) tentatively recommended that S. l. fisheri be listed as threatened primarily because of the potential for contact and interbreeding with S. l. longirostris. “If widespread, this interbreeding can result in an alteration of the gene pools of both subspecies in the zone of contact, and the integrity of both subspecies may be lost in the extreme” (Rose 1983).

Additional study of Sorex was conducted from October 1986 through June 1989, focusing within the Refuge but also including outlying areas of the historical Dismal Swamp (Padgett 1991). Particular emphasis was placed on determining whether the nominate subspecies might be expanding into the remaining Dismal Swamp proper and interbreeding with Sorex longirostris fisheri. Padgett's (1991) study indicated that S. l. fisheri was restricted to the historic Dismal Swamp and that no strong evidence existed that S. l. longirostris was using roadways to enter the interior of the Refuge. Between 1989 and 1991, Erdle and Pagels (1991) collected shrews to further delineate the distributions of S. l. fisheri and S. l. longirostris in Virginia. Sampling was conducted in much of the historic Dismal Swamp east of the Refuge and north of the Virginia-North Carolina State line. Shrews referable to both taxa and intergrades were represented in the 26 Sorex trapped. These findings supported the hypothesis that S. l. longirostris might be moving into areas of the historical Dismal Swamp. During the 1990s, many additional areas were surveyed within the historical Dismal Swamp in Virginia; the specimens found were referable to S. l. fisheri or S. l. longirostris or were of intermediate size.

Although researchers had significant information on the distribution of Sorex longirostris fisheri in Virginia, knowledge of the species in North Carolina was sparse. In the early 1980s, D.W. Webster from the University of North Carolina-Wilmington collected Sorex longirostris from southeastern North Carolina (D.W. Webster, pers. comm. 1997). Using the existing range maps for S. longirostris, Webster determined the specimens were S. l. longirostris. In the late 1980s, Webster collected S. longirostris from Beaufort County, North Carolina and realized that those specimens looked the same as those collected from southeastern North Carolina. Still using the existing range maps (Webster, pers. comm. 1997), assumed these specimens were S. l. longirostris. Webster (1992) summarized historical locations of S. l. fisheri in North Carolina, indicating collection of S. l. fisheri from Camden, Currituck, and Gates Counties, and that S. l. fisheri probably inhabits parts of Chowan, Pasquotank, and Perquimans Counties. Webster continued to collect shrews from coastal North Carolina throughout the early 1990s (D.W. Webster, pers. comm. 1997).

In January 1994, Webster visited the Smithsonian's National Museum of Natural History and compared his specimens, collected from southeastern North Carolina and Beaufort and Gates Counties, North Carolina, to the specimens at the Smithsonian. He realized that his specimens were of the same size as the voucher specimen for Sorex longirostris fisheri from Lake Drummond, the type locality. Charles O. Handley, at the time curator of mammals for the museum, agreed with Webster that these shrews were referable to S. l. fisheri based on size. Based on that information, Webster hypothesized that the “dividing line” between S. l. fisheri and S. l. longirostris may be somewhere between Wilmington, North Carolina and Charleston, South Carolina.

In May 1994, Webster visited the North Carolina State Museum of Natural Sciences and found a series of relatively large Sorex longirostris (not identified to subspecies) from Croatan National Forest (Jones, Craven, and Carteret Counties) in North Carolina (U.S. Fish and Wildlife Service 1995). He presumed that this series of shrews was S. l. fisheri based on his trip to the Smithsonian (D.W. Webster, pers. comm. 1997). The State museum also had specimens of southeastern shrews from Chowan, Bladen, and Brunswick Counties that Webster assumed were S. l. fisheri (D.W. Webster, pers. comm. 1997). In May and June 1994, Webster collected S. longirostris near the town of Warsaw in Duplin County, midway between Wilmington and Raleigh, North Carolina. He determined that these specimens were referable to S. l. fisheri (D.W. Webster, pers. comm. 1997).

Webster et al. (1996a, 1996b) compared Sorex longirostris specimens from east-central and southeastern North Carolina to specimens from the Dismal Swamp. They also examined specimens from Charleston County, South Carolina (near the type locality for S. l. longirostris ), and Citrus County, Florida (the type locality for S. l. eionis ), and representative samples of S. longirostris from throughout the southeastern United States. They concluded that S. l. fisheri is much more widespread and ubiquitous than previously believed. Webster's group undertook an analysis of physical characteristics to better delineate the geographic distribution of S. l. fisheri in Virginia and North Carolina. This analysis used 626 S. longirostris from the southeastern United States (15 from Florida, 375 from North Carolina, 159 from Virginia, and the remaining 77 from Alabama, the District of Columbia, Indiana, Kentucky, Maryland, Mississippi, Missouri, South Carolina, and Tennessee). The analysis included six cranial measurements, palatal length, and braincase length. If available from specimen tags, the total specimen length, tail length, hind foot length, and weight were also used. Head and body length or the difference between total length and tail length were determined where possible. Significant geographic variation occured in all cranial measurements; samples from southeastern Virginia, eastern North Carolina, and southern Georgia and Florida had much larger cranial characteristics than samples from elsewhere in the range. The significant geographic variation in external measurements and weight typically followed the same pattern. A two-dimensional plot of the samples formed three clusters: (1) shrews from Georgia and Florida that have longer and overall much wider crania; (2) shrews from southeastern Virginia and eastern North Carolina that have longer crania with relatively narrower rostra; and (3) shrews from elsewhere in the range that were smaller in all cranial measurements. This plot explained 93.2 percent of the total morphometric variation exhibited in S. longirostris crania. Shrews from the piedmont and mountains of Virginia and North Carolina were more similar to specimens from the Mississippi and Ohio River basins than they were to those from the mid-Atlantic coast.

Webster et al. (1996a, 1996b) established 84 survey sites in a wide range of habitats throughout North Carolina and Virginia to ensure that both Sorex longirostris longirostris and S. l. fisheri would be captured. Of the 84 sites, 49 (58.3 percent) were located in abandoned fields and powerline rights-of-way that were dominated by herbaceous vegetation typical of early stages of succession. The other 35 sites (41.7 percent) were dominated by arborescent vegetation, including such forest types as longleaf pine/turkey oak, pocosin/bay, Atlantic white cedar, shortleaf pine, riparian hardwood, and cove hardwood. The researchers collected 18 species of small mammals, and S. longirostris was the most abundant and ubiquitous. The researchers divided survey sites into two groups, those occurring in the newly delineated range of S. l. fisheri and those occuring in the newly delineated range of S. l. longirostris. Within each the results were similar. Within its geographic distribution, S. l. fisheri was the most abundant small mammal, or shared that distinction with other species at 31 of the 84 sites sampled. Sorex longirostris fisheri was especially abundant in forested habitats in and adjacent to the Refuge, comprising 84 percent of the specimens taken. The only habitat sampled where S. l. fisheri was absent was xeric longleaf pine/turkey oak. Both taxa were found in a wide range of habitat types and moisture regimes, from early successional to mature second-growth forest and from well-drained uplands to seasonally inundated wetlands. Webster (1996a, 1996b) concluded that “* * *even the smallest specimens from relatively dry, upland sites in the Dismal Swamp region clearly are assignable to S. l. fisheri .”

Gurshaw (1996) examined allozyme variability in specimens of the southeastern shrew from North Carolina and Virginia to identify characters that differentiate Sorex longirostris fisheri and S. l. longirostris and to determine if there are similarities between shrews from the Dismal Swamp region and the coastal plain of southeastern North Carolina. She found that shrews from the coastal plain of southeastern North Carolina grouped most closely with those from the Dismal Swamp. The author found an allele in the shrews from the coastal plain that represents a genetic distinction from S. l. longirostris. Distribution of this allele appeared to follow the Fall Line, the boundary between the piedmont plateau and upper coastal plain in the southeastern United States.

Webster et al. (1996a, 1996b) concluded that Sorex longirostris fisheri “* * * has a much broader geographic distribution than previously believed, extending from southeastern Virginia to southeastern North Carolina along the outer coastal plain. In Virginia, all specimens examined from Isle of Wight County, the City of Chesapeake, and the City of Virginia Beach are referable to S. l. fisheri, whereas those from Surry, Sussex, and Southampton Counties are assignable to S. l. longirostris. In North Carolina, S. l. fisheri is distributed throughout the coastal counties as far south as New Hanover, Brunswick, and Columbus Counties.” Since the conclusion of that study, S. l. fisheri has been documented in Hyde County, North Carolina (D.W. Webster, pers. comm. 1997). No trapping for S. longirostris has been conducted in Onslow, Martin, Pamlico, or Burtie Counties, North Carolina (D.W. Webster, pers. comm. 1997). Webster (pers. comm. 1997) does not have any records of S. l. fisheri from Pasquotank County, although surveys were conducted there in 1995. At the time of listing, Pasquotank County was listed as a county of occurrence for S. l. fisheri, however, the literature cited does not support this designation.

At the time of listing, Sorex longirostris fisheri was believed to occur in only two cities in Virginia and four counties in North Carolina. Sorex longirostris fisheri is now known to occur in Beaufort, Bladen, Brunswick, Camden, Carteret, Chowan, Columbus, Craven, Currituck, Dare, Duplin, Gates, Greene, Hyde, Jones, Lenoir, New Hanover, Pender, Perquimans, Robeson, Scotland, Tyrrell, and Washington Counties in North Carolina and Chesapeake, Suffolk, and Virginia Beach Cities and Isle of Wight County in Virginia. Information gaps still exist in the distribution of S. l. fisheri in North Carolina and potentially South Carolina. Jones et al. (1991) noted a sample of Sorex specimens from coastal South Carolina that appeared to be similar to S. l. fisheri, but substantiation is needed regarding the taxonomy of these specimens.

On December 30, 1982, in our Review of Vertebrate Wildlife for Listing as Endangered or Threatened Species (47 FR 58454), we designated the Dismal Swamp southeastern shrew as a category 2 candidate species, meaning that a proposal to list the subspecies as threatened or endangered was possibly appropriate, but that substantial biological data were not available at that time to support such a proposal. Rose (1981, 1983) and Everton (1985) conducted pre-listing status surveys that documented large shrews within the Refuge, small shrews outside the Refuge, and intermediate-sized shrews near the Refuge boundaries.

On July 16, 1985, we published a proposed rule to list the Dismal Swamp southeastern shrew as a threatened species (50 FR 28821). The final rule to list the species was published in the Federal Register on September 26, 1986 (51 FR 34422), and became effective on October 27, 1986. The reasons for listing the Dismal Swamp southeastern shrew were habitat loss and alteration and possible loss of genetic integrity through interbreeding with S. l. longirostris .

In the early 1990s, a group of biologists from Virginia held meetings to discuss information and issues related to the recovery of the Dismal Swamp southeastern shrew. Initially, most of the effort was focused in Virginia because of the development pressure occurring there. In 1992, biologists from North Carolina were included in the group. The Service then convened an official recovery team, and held the first meeting in February 1993.

The recovery team completed a draft recovery plan in July 1994, and we published a notice of availability for the plan in the Federal Register (59 FR 37260). The recovery plan was finalized on September 9, 1994, and updated on June 13, 1995.

In March 1995, based on questions raised by D.W. Webster about the shrew's distribution and taxonomy, the Virginia Department of Game and Inland Fisheries and the Service funded studies to determine if large shrews are distributed from the Dismal Swamp region southward throughout the coastal plain of North Carolina, and if the large shrews from coastal North Carolina are similar to S. l. fisheri from near the type locality. A combination of morphometric and genetic analyses was proposed to answer these questions. The results of the morphological and genetic analyses that followed are discussed in detail in the Background section of this rule.

In May 1996, we received reports on morphometric variation among the three Sorex longirostris subspecies (Webster et al . 1996a) and protein electrophoresis and allozymic variation between S. l. fisher and S. l. longirostris (Gurshaw 1996) and sent this information to the recovery team members. The recovery team convened in June 1996 to discuss the two reports. The consensus of the team was that the results of both the morphological and genetic analyses conclusively show that S. l. fisheri is widely distributed along the coastal plain of southeastern Virginia and eastern North Carolina at least as far south as Wilmington, North Carolina; that S. l. fisheri uses a wide variety of habitat types; and that S. l. fisheri is not in danger of genetic swamping by S. l. longirostris . However, the team agreed that the reports should undergo independent peer review before further action was taken and sent them to reviewers in June 1996. Reviewers who responded concurred with the conclusions of the authors and supported delisting. Based on comments provided by recovery team members, the Service, and peer reviewers, the original manuscripts were revised (Moncrief 1996, Webster et al. 1996b).

Federal involvement with the Dismal Swamp southeastern shrew after listing has included surveys for new locations and informal and formal consultations under section 7 of the Act for activities involving a Federal action occurring in suitable habitat within the historical Dismal Swamp. No biological opinion reflecting a conclusion that a project could result in the extinction of this species has ever been issued.

We published a proposed rule to remove the shrew from the List of Endangered and Threatened Wildlife in the Federal Register on October 21, 1998 (63 FR 56128).

In the October 21, 1998, proposed rule (63 FR 56128) and associated notifications, we invited all interested parties to submit factual reports or information that might contribute to the development of a final rule. We also contacted appropriate State and Federal agencies, county governments, scientific organizations, members of the recovery team, and other interested parties and asked them to comment. We published legal notices soliciting comments in one North Carolina newspaper, The Wilmington Journal, on November 5, 1998. Legal notices were also published in two Virginia newspapers, The Virginian-Pilot and The Suffolk News-Herald , on November 1, 1998.

Ten individuals or organizations submitted comment letters. Two peer reviewers supported the delisting, and one of the reviewers provided additional pertinent information that was incorporated into the final rule. The Virginia Department of Game and Inland Fisheries; U.S. Army Corps of Engineers, Wilmington District; Isle of Wight County, Virginia; and the North Carolina Department of Environment and Natural Resources, Division of Parks and Recreation, and North Carolina Natural Heritage Program supported the delisting. The Virginia Department of Conservation and Recreation, Hampton Roads Planning District Commission (representing Cities of Chesapeake, Suffolk, and Virginia Beach), and Virginia Department of Environmental Quality had no comment. The Virginia Department of Agriculture and Consumer Services stated that delisting would have no adverse impacts on their regulatory responsibilities. We received no additional written or oral comments during the comment period.

After a thorough review and consideration of all information available, we have determined that the Dismal Swamp southeastern shrew should be removed from the List of Endangered and Threatened Wildlife. Procedures found at section 4(a)(1) of the Act and regulations implementing the listing provisions of the Act (50 CFR part 424) were followed. Regulations at 50 CFR 424.11 require that certain factors be considered before a species can be listed, reclassified, or delisted. These factors and their application to the Dismal Swamp southeastern shrew ( Sorex longirostris fisheri Merriam) are as follows:

A. The present or threatened destruction, modification, or curtailment of its habitat or range. Extensive habitat alteration has occurred within the area historically occupied by the Dismal Swamp. At the beginning of the twentieth century, the Dismal Swamp occupied 2,000 to 2,200 square miles (mi  2 ) (5,200 to 5,700 square kilometers (km  2 )). Currently, less than 320 mi  2 (830 km  2 ) of the historical Dismal Swamp remain, 189 mi  2 (490 km  2 ) of which are protected within the Refuge and the Great Dismal Swamp State Park in North Carolina. Remnants of the historical Dismal Swamp outside Refuge and State Park boundaries and land beyond the historical Dismal Swamp boundaries are disappearing due to development associated with the rapid growth of the Hampton Roads metropolitan area of southeastern Virginia. Agricultural and silvicultural conversions (especially in North Carolina) also contribute significantly to habitat loss. Habitat loss was a primary reason for listing the Dismal Swamp southeastern shrew, considered at the time to be endemic to the historical Dismal Swamp. However, because the species is now known to occur across a much larger area and in a wider variety of habitats, this threat is not as significant as was believed at the time of listing.

B. Overutilization for commercial, recreational, scientific, or educational purposes. At present, the only known method for studying or monitoring the Dismal Swamp southeastern shrew involves lethal collection with pitfall traps. Researchers have been permitted to take individuals of the species to gain an understanding of its taxonomy, ecology, and distribution. However, because the Dismal Swamp southeastern shrew has a high reproductive potential and a rapid maturation rate, limited collection of individuals is not considered detrimental to healthy populations. Utilization for commercial, recreational, or educational purposes is not known to occur.

C. Disease or predation. Southeastern shrews are subject to some predation, most frequently by owls, snakes, opossums, and domestic cats and dogs (French 1980, Webster et al. 1985). The number of dead shrews found in woods and on roads suggests that many predators reject the shrew, probably because of the bad taste associated with their musk glands (French 1980). We have no evidence that predation or disease is a significant threat to the Dismal Swamp southeastern shrew.

D. The inadequacy of existing regulatory mechanisms. Wetland habitats for the Dismal Swamp southeastern shrew will continue to receive protection indirectly under Section 404 of the Clean Water Act, which requires the Department of the Army, Corps of Engineers to regulate certain activities affecting “waters of the United States,” including wetlands. Delisting the Dismal Swamp southeastern shrew removes Federal prohibitions against take and activities involving a Federal action that would jeopardize the continued existence of the species. However, because of its wide distribution and use of a wide variety of habitats, the removal of these protections afforded by the Act will not pose a significant threat to the Dismal Swamp southeastern shrew.

The Dismal Swamp southeastern shrew is listed as threatened by the State of Virginia. Virginia's Endangered Species Act of 1972, as amended (Code of Virginia Section 29.1-564-568), prohibits the taking, transportation, processing, sale, or offer for sale of endangered and threatened species except as permitted. The Virginia Department of Game and Inland Fisheries provides general protection to wildlife through State law Section 29.1-521, which prohibits their possession and capture, including the attempt to capture, take, kill, possess, offer for sale, sell, offer for purchase, purchase, deliver for transportation, transport, cause to be transported, receive, export, import in any manner or in any quantity except as specifically permitted.

The Dismal Swamp southeastern shrew is listed as threatened by the State of North Carolina. The species is protected by North Carolina general statute Article 25, section 113-337, which makes it unlawful to take, possess, transport, sell, barter, trade, exchange, export, or offer for sale, barter, trade, exchange, or export, or give away for any purpose including advertising or other promotional purpose any animal on a protected wild animal list, except as authorized according to the regulations of the North Carolina Wildlife Resources Commission.

All States have the option of retaining the Dismal Swamp southeastern shrew on their various lists. Both the States of Virginia and North Carolina support the delisting. The State of North Carolina plans to delist the Dismal Swamp southeastern shrew (H. LeGrand, North Carolina Natural Heritage Program, pers. comm. 1997). However, because of its wide distribution and use of a wide variety of habitats, the removal of State protection will not constitute a significant threat to the species.

E. Other natural or manmade factors affecting its continued existence. One of the reasons for listing the Dismal Swamp southeastern shrew was concern regarding the possible loss of genetic integrity through interbreeding with the nominate subspecies. Gurshaw (1996) examined allozyme variability in specimens of the southeastern shrew from North Carolina and Virginia. She found an allele in the shrews from the coastal plain that represents a genetic distinction from Sorex longirostris longirostris and that appeared to follow the Fall Line. The author stated, “A cline for this allele may be shifted in the direction of dispersal in proportion to the direction of gene flow through barriers such as the Fall Line and population size. If the populations containing [this] allele are small, they will not have as many individuals dispersing* * *and gene flow may be restricted (Endler, 1977). In this study, however, the opposite appears to be happening. Populations with [this allele] are widespread in eastern North Carolina and southeastern Virginia, with gene flow carrying [this] allele above the Fall Line in central North Carolina.” She concluded that genetic swamping within the Dismal Swamp region was not evident.

Webster et al. (1996a, 1996b) found that intergradation between Sorex longirostris fisheri and S. l. longirostris is evident in specimens from the inner coastal plain of Virginia and North Carolina. The zone of intergradation is relatively narrow in Virginia and relatively wide in North Carolina, commensurate with the relative size of the inner coastal plain. Shrews from samples immediately to the east and west of the present Dismal Swamp were slightly smaller than shrews from the Dismal Swamp in cranial and external measurements. Padgett et al. (1987) noted this trend. However, when compared with specimens from throughout the range of the species, these shrews are referable to S. l. fisheri.

The following summarizes available information regarding potential environmental contaminant threats to the Dismal Swamp southeastern shrew throughout its range. In 1987 and 1989, we conducted a preliminary study (Ryan et al. 1992) within the Refuge to determine if contaminants were impacting fish and small mammals. All water (metal-laden leachate and groundwater) draining the Suffolk City Landfill, at the time a federally designated Superfund site, enters the Refuge. This landfill received industrial and domestic wastes, including 30 tons of organophosphate pesticides in the 1970s. Numerous automobile junkyards border the Refuge to the north and drain into the Dismal Swamp and the Refuge. Oil, grease, metals, polycyclic aromatic hydrocarbons (PAHs) and alkanes (PAHs and alkanes are components of petroleum products) are common constituents of junkyard and roadway runoff. Agricultural fields to the north and west of the Refuge contribute surface runoff that may contain residual herbicides, insecticides, and fungicides.

Our study (Ryan et al. 1992) included analyses for contaminant residues in the short-tailed shrew ( Blarina brevicauda ). Short-tailed shrews trapped near the East Ditch displayed elevated levels of lead, mercury, and several organochlorine pesticides. The lead levels for short-tailed shrews exceeded normal ranges and fell within the range for lead toxicosis according to Ma (1996). Small mammal lead toxicosis symptoms may include neurological dysfunction, reproductive disorders (including stillbirths), liver and kidney failure, etc. Apart from overt symptoms, asymptomatic effects may occur at lower levels and have significant effects on animal behavior, yet be difficult to evaluate and/or document. Ryan et al. (1992) found that mercury levels for short-tailed shrews collected at East Ditch, Badger Ditch, Railroad Ditch, and Pocosin Swamp were elevated in comparison to levels for short-tailed shrews collected from the study reference location and other sites within the Refuge. The mercury levels reported for short-tailed shrews, although elevated when compared within study area sites, were below those levels reported in the literature as causing observed adverse effects. Organochlorine pesticide levels of short-tailed shrews from the East Ditch were higher than those reported from all other study sites. However, the levels were below those documented in the literature for observed adverse effects. In summary, there may be a contaminant concern for the Dismal Swamp southeastern shrew near the East Ditch of the Refuge. However, no contaminant analysis has been conducted on Dismal Swamp southeastern shrews, although we have recommended further monitoring related to this issue.

Small mammals tend to have limited ranges, and, therefore, elevated levels of contaminants found in shrews from one location cannot be interpreted as a condition for shrews throughout the Refuge or range. Land uses such as agriculture, transportation, and urbanization with increased impervious surfaces contribute measurable levels of contaminants to the environment, and many persistent contaminants are passed through the food web. However, we do not have any information indicating that contaminants pose a significant threat to the continued existence of the Dismal Swamp southeastern shrew.

Regulations at 50 CFR 424.11(d) state that a species may be delisted if (1) it becomes extinct, (2) it recovers, or (3) the original data for classification were in error. We have determined that the original data for classification of the Dismal Swamp southeastern shrew as a threatened species were in error. However, it is important to note that the original data for classification constituted the best available scientific and commercial information available at the time and were in error only in the sense that they were incomplete. Because Sorex longirostris from the Dismal Swamp were originally classified as S. l. fisheri based on morphological measurements from a limited number of specimens, and because specimens from areas bordering the Dismal Swamp did not have similar morphological measurements, taxonomists logically concluded that only the largest specimens were S. l. fisheri. Since the early 1900s, scientists have assumed that small-sized shrews were S. l. longirostris, resulting in erroneous classification of shrews found outside, and sometimes within, the historical Dismal Swamp boundaries. Therefore, the perception of a restricted range for S. l. fisheri was not a misinterpretation on the part of the Service, but a longstanding scientific assumption. At the time of listing, no other interpretation could be reasonably construed from the available data. We conclude that the data supporting the original classification were incomplete and that removal of S. l. fisheri from the List of Endangered and Threatened Wildlife is warranted.

The listing of the Dismal Swamp southeastern shrew as a threatened species was based on the best information available and was therefore a valid decision at the time. The data leading to a better understanding of S. longirostris taxonomy were derived incrementally as a direct result of the recovery program, and no preceding shrew research anticipated the outcome of the final morphometric and genetic analyses. The dual effort to increase the base of available information while addressing the perceived threats to this subspecies was thus both legally and scientifically justified up to the point when new information yielded a significant change in the knowledge of the Dismal Swamp southeastern shrew's status.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by this species in determining to make this rule final. Based on this evaluation, the preferred action is to remove the Dismal Swamp southeastern shrew from the List of Endangered and Threatened Wildlife because the shrew no longer meets the definition of “threatened” under section 3 of the Act and, therefore no longer requires the protection afforded by the Act.

In accordance with 5 U.S.C. 553(d), we have determined that this rule relieves an existing restriction and good cause exists to make this rule effective immediately. Delay in implementation of this delisting would cost government agencies staff time and monies on conducting section 7 consultation on actions that may affect a species no longer in need of protection under the Act. Relieving the existing restriction associated with this listed species will enable Federal agencies to minimize any further delays in project planning and implementation for actions that may affect the Dismal Swamp southeastern shrew.

This action results in the removal of the Dismal Swamp southeastern shrew from the List of Endangered and Threatened Wildlife. Federal agencies are no longer required to consult with us to insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of this species. There is no designated critical habitat for this species. Federal restrictions on taking no longer apply. The 1988 amendments to the Act require that all species that have been delisted due to recovery be monitored for at least 5 years following delisting. The Dismal Swamp southeastern shrew is being delisted due to new information. Therefore we do not intend to monitor the species. We believe that sufficient habitat will remain over the long term to allow for the continued viability of this species. Within the Refuge and the Great Dismal Swamp State Park in North Carolina, management will continue to focus on restoring the hydrological regime to as close to historical conditions as possible, and efforts are being made to restore or maintain the habitat mosaic through forestry practices, all of which will benefit the shrew.

Office of Management and Budget (OMB) regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act, require that Federal agencies obtain approval from OMB before collecting information from the public. Implementation of this rule will not involve any information collection requiring OMB approval under the Paperwork Reduction Act.

We have determined that we do not need to prepare an Environmental Assessment, as defined under the authority of the National Environmental Policy Act of 1969, in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

This rule is not subject to review by the OMB under Executive Order 12866.

A complete list of all references cited herein is available upon request from the Virginia Field Office (see ADDRESSES section).

The primary author of this document is Cynthia A. Schulz (see ADDRESSES section).

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

In accordance with § 679.20(a)(5)(i)(D)(3) and the 2000 TAC amounts for pollock in the Bering Sea subarea (65 FR 4220, January 28, 2000), the A/B season allocation of pollock TAC specified to the vessels not participating in cooperatives catching pollock for processing by the inshore component in the Bering Sea subarea is 11,968 metric tons.

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the A/B season allocation of pollock TAC specified to the vessels not participating in cooperatives that are catching pollock for processing by the inshore component in the Bering Sea subarea will be reached. Therefore, the Regional Administrator is establishing the A/B season allocation of pollock TAC as the directed fishing allowance (§ 679.20(a)(5)(i)(D)(2)). In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance soon will be reached. Consequently, NMFS is prohibiting directed fishing for pollock by vessels not participating in cooperatives that are catching pollock for processing by the inshore component in the Bering Sea subarea.

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

This action responds to the best available information recently obtained from the fishery. It must be implemented immediately in order to prevent exceeding the A/B season allocation of pollock TAC specified to the vessels not participating in cooperatives catching pollock for processing by the inshore component in the Bering Sea subarea. A delay in the effective date is impracticable and contrary to the public interest. Further delay would only result in overharvest. NMFS finds for good cause that the implementation of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

This action is required by § 679.22 and is exempt from review under E.O. 12866.

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

The amount of the 2000 GOA AFA catcher vessel sideboard in the Western and Central Regulatory Areas was established by the Emergency Interim Rule to Implement Major Provisions of the American Fisheries Act (65 FR 4520, January 28, 2000) as 1,945 metric tons (mt) and 1,330 mt respectively in accordance with § 679.20(c)(2)(i).

The Administrator, Alaska Region, NMFS (Regional Administrator), has established a Pacific cod directed fishing allowance of 1,745 mt, and set aside the remaining 200 mt as bycatch to support other anticipated groundfish fisheries for this component of the fishery in the Western Regulatory Area. He also has established a directed fishing allowance of 1,130 mt, and set aside the remaining 200 mt as bycatch to support other anticipated groundfish fisheries for this component of the fishery in the Central Regulatory Area. These areas of the GOA were closed to directed fishing for Pacific cod by non-exempt AFA vessels on January 21, 2000 (65 FR 4520, January 28, 2000).

NMFS has determined that as of February 18, 2000, 1,745 mt remain in the directed fishing allowance for the Western Regulatory Area and 1,130 mt remain in the directed fishing allowance for the Central Regulatory Area. Therefore, NMFS is terminating the previous closure and is opening directed fishing for Pacific cod by catcher vessels that are non-exempt under the AFA in the Western and Central Regulatory Area of the GOA.

All other closures remain in full force and effect. This action responds to the best available information recently obtained from the fishery. It must be implemented immediately in order to allow participation of catcher vessels that are non-exempt under the AFA. Providing prior notice and opportunity for public comment for this action is impracticable and contrary to the public interest. NMFS finds for good cause that the implementation of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

This action is required by § 679.20 and is exempt from review under E.O. 12866.