The Mexican fruit fly, Anastrepha ludens (Loew), is a destructive pest of citrus and other types of fruit. The short life cycle of the Mexican fruit fly allows rapid development of serious outbreaks that can cause severe economic losses in commercial citrus-producing areas. The Mexican fruit fly regulations, contained in 7 CFR 301.64 through 301.64-10 (referred to below as the regulations), quarantine infested States, designate regulated areas, and restrict the interstate movement of specified fruits and other regulated articles from regulated areas in order to prevent the spread of the Mexican fruit fly to noninfested areas of the United States. Quarantined States are listed in § 301.64(a), and regulated areas are listed in § 301.64-3(c).

In an interim rule effective September 22, 1999, and published in the Federal Register on September 28, 1999 (64 FR 52211-52212, Docket No. 99-075-1), we amended the Mexican fruit fly regulations by designating an area in San Bernardino and Riverside Counties, CA, as a regulated area. In a second interim rule effective December 14, 1999, and published in the Federal Register on December 21, 1999 (64 FR 71267-71270, Docket No. 99-075-2), we amended the Mexican fruit fly regulations by adding a portion of San Diego and Riverside Counties, CA, to the list of areas regulated because of the Mexican fruit fly.

Based on insect trapping surveys by inspectors of California State and county agencies and by inspectors of the Animal and Plant Health Inspection Service, we have determined that the Mexican fruit fly has been eradicated from the regulated area of San Bernardino and Riverside Counties, CA. The last finding of Mexican fruit fly thought to be associated with the infestation in this area was made on August 27, 1999. Since then no evidence of Mexican fruit fly infestations has been found in this area. Therefore, we are removing this area from the list of areas in § 301.64-3(c) that are regulated because of the Mexican fruit fly.

The Administrator of the Animal and Plant Health Inspection Service has determined that there is good cause for publishing this interim rule without prior opportunity for public comment. Immediate action is warranted to remove unnecessary restrictions on the public. The area in California affected by this document was regulated due to the possibility that the Mexican fruit fly could spread to noninfested areas of the United States. Since this situation no longer exists, the continued regulated status of this area would impose unnecessary restrictions.

Because prior notice and other public procedures with respect to this action are impracticable and contrary to the public interest under these conditions, we find good cause under 5 U.S.C. 553 to make this action effective less than 30 days after publication. We will consider comments that are received within 60 days of publication of this rule in the Federal Register . After the comment period closes, we will publish another document in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the rule as a result of the comments.

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

This rule removes restrictions on the interstate movement of regulated articles from a portion of San Bernardino and Riverside Counties, CA, that has been regulated because of the Mexican fruit fly. Within this regulated area, there are 106 small entities that may be affected by this rule. These include 2 distributors, 62 fruit sellers, 19 growers, 1 landfill, 18 nurseries, 1 packer, 1 processor, and 2 swap meets. These 106 entities comprise less than 1 percent of the total number of similar enterprises operating in the State of California.

These small entities sell regulated articles primarily for local intrastate, not interstate, movement, and the distribution of these articles was not affected by the regulatory provisions we are removing. Many of these entities also handle other items in addition to the previously regulated articles. The effect on those few entities that do move regulated articles interstate was minimized by the availability of various treatments that, in most cases, allowed these small entities to move regulated articles interstate with very little additional cost. Therefore, the effect, if any, of this rule on these entities appears to be minimal.

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

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

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

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

The Animal and Plant Health Inspection Service's (APHIS's) regulations in 9 CFR part 85 govern the interstate movement of swine and other livestock (cattle, sheep, and goats) in order to help prevent the spread of pseudorabies.

Pseudorabies is a contagious, infectious, and communicable disease of livestock, primarily swine. The disease, also known as Aujeszky's disease, mad itch, and infectious bulbar paralysis, is caused by a herpes virus, and is known to cause reproductive problems, including abortion and stillborn death, and death in neonatal pigs, and occasional death losses in breeding and finishing hogs. Prior to 1998, the cost of pseudorabies to pork producers alone in the United States was over $30 million annually. Of this amount, more than half, $17 million, represented the cost of vaccination, and another $11 million was attributable to pig deaths. The remainder was spent on testing.

A Federal eradication program for pseudorabies was implemented in the United States in 1989. The program is cooperative in nature and involves Federal, State, and industry participation. In an interim rule published in the Federal Register on January 15, 1999, and effective as of January 12, 1999 (64 FR 2545-2550, Docket No. 98-123-2), APHIS promulgated regulations to establish an accelerated pseudorabies eradication program that provided, among other things, for the payment of indemnity by the United States Department of Agriculture (Department) for the voluntary depopulation of herds of swine known to be infected with pseudorabies.

In our January 15, 1999, interim rule, we explained that we considered it appropriate to accelerate the pseudorabies eradication program through whole-herd buyouts because of a combination of three factors: (1) The danger that some owners might eliminate eradication efforts, such as vaccination of swine, due to depressed market conditions; (2) the relatively small number of herds infected with pseudorabies; and (3) the fact that markedly depressed prices for swine would lessen the cost to the Federal Government of whole-herd buyouts.

We explained that a surplus of live swine, due in part to reduced export markets, had slaughter facilities operating at maximum capability. Consequently, swine producers were being forced to continue feeding swine that could not go to slaughter. Swine that were being slaughtered were being sold at prices below the costs of feeding and transportation.

Under the regulations governing the accelerated eradication program, we began paying owners fair market value for herds of swine depopulated because of pseudorabies. In addition to paying 100 percent of the fair market value of the animals, we have been paying for trucking to disposal, for euthanasia and disposal, and for cleaning and disinfection of conveyances used for transporting the swine to disposal. To date, we have disposed of the herds depopulated under the accelerated eradication program by rendering. Although pseudorabies does not affect humans, we chose rendering as the method for disposal at the outset of the program because, as noted, a surplus of live swine was causing slaughtering establishments to operate at maximum capability.

Since January 1999, a reduction in swine inventories has contributed to an increase in the market value of swine. Additionally, this has created a situation where slaughtering establishments are generally not operating at maximum capability. Although the price per pound APHIS is paying for swine destroyed under the eradication program has increased over the past year, we consider it necessary to the eradication of pseudorabies to continue the accelerated eradication program. However, because slaughtering establishments can now handle swine to be destroyed under the accelerated eradication program, we consider it prudent to revise the method by which owners of swine will receive fair market value for their animals under the accelerated eradication program.

Instead of the Department paying each owner 100 percent of the fair market value of all swine disposed of under the accelerated eradication program, we will pay indemnity for the difference between whatever payment for net salvage an owner receives for herds of swine disposed of through slaughter and the fair market value of those animals. Net salvage is the amount derived from the sale of an animal after deducting freight, trucking, yardage, commission, slaughtering charges, and similar costs to the owner. This change will increase the number of pseudorabies-infected herds that can be depopulated using available program funds. Under either formula, a swine owner receives the fair market value of the swine.

To ensure that the swine for which indemnity is paid do not pose a pseudorabies risk to any swine not moving to slaughter, and to ensure that APHIS receives documentation that the swine have been destroyed, we are requiring that the swine be sent under permit directly to a recognized slaughtering establishment, where State or Federal meat inspection is available. We are requiring that the swine be moved to the recognized slaughtering establishment in a conveyance closed with an official seal that is applied and removed by an APHIS employee, a State representative, an accredited veterinarian, or an individual authorized for this purpose by an APHIS employee.

We are adding definitions in § 52.1 of this interim rule for the terms accredited veterinarian, official seal, permit, and recognized slaughtering establishment.

We define accredited veterinarian to mean a veterinarian approved by the Administrator in accordance with the provisions of 9 CFR part 161 to perform functions specified in 9 CFR, chapter I, subchapters B, C, and D. This definition is consistent with that set forth elsewhere in 9 CFR chapter I.

We define official seal to mean a serially numbered metal or plastic strip, consisting of a self-locking device on one end and a slot on the other end, that forms a loop when the ends are engaged and that cannot be reused if opened, or a serially numbered, self-locking button that can be used for this purpose.

We define permit to mean an official document for movement of swine that is issued by an APHIS employee, State representative, or accredited veterinarian and that lists the disease status and individual identification of the animal, where consigned, cleaning and disinfection requirements, and proof of slaughter certification by a recognized slaughtering establishment. It is standard practice for the State or Federal inspector at the recognized slaughtering establishment to submit a signed copy of the permit to the APHIS veterinarian in charge when the animal is destroyed.

We define recognized slaughtering establishment to mean a slaughtering establishment operating under the Federal Meat Inspection Act (21 U.S.C. 601-695) or a State meat inspection act. (A list of recognized slaughtering establishments can be obtained by contacting the person listed in this Supplementary Information under For Further Information Contact. )

As under the program to date, the fair market value will be primarily based on a per pound compensation. The per pound compensation will continue to be based on weighted average base market prices from the previous week (as released in “USDA-AMS Livestock Market News” and as determined by calculating the average of the Wednesday through Friday prices). An additional producer cost offset will also continue to be paid according to whether the animal is a breeder pig, a baby pig, a market hog less than 200 pounds, or a market hog greater than 200 pounds.

Although we expect that the great majority of swine disposed of under the accelerated eradication program will be disposed of through sale to slaughter, we recognize that this may not be reasonable or possible for some swine. For instance, some swine may be too small to provide a profitable yield to the slaughtering facility or may not be of sufficient size to be handled by slaughtering machinery that is set for larger animals. Additionally, recognized slaughtering establishments may not accept swine that have some visible health problem, such as an abscess. Such swine are usually readily identifiable by owners and APHIS employees or State representatives without actually being sent to a recognized slaughtering establishment. In this interim rule, we are providing that we will continue to pay 100 percent of the fair market value for swine that are identified for destruction under the accelerated eradication program, even if they are not accepted by a recognized slaughtering establishment. We may also pay 100 percent of the fair market value for swine that the owner and an authorized APHIS employee or State representative agree will not be accepted by a recognized slaughtering establishment.

Prior to this interim rule, § 52.3 of the regulations provided that swine to be destroyed under the accelerated eradication program were to be appraised by an APHIS employee and a representative of the State jointly, or, if the State authorities approved, by an APHIS employee alone. The regulations did not specifically provide for appraisal by a State representative alone because the States were willing to allow APHIS to assume a lead role in carrying out the depopulation and indemnity process. Recently, however, States have indicated to APHIS a willingness to assume an increased role in the appraisal of swine. Increasing State involvement would reduce the demands on APHIS resources and, in some cases, promote more rapid completion of the appraisal process. Therefore, we are amending § 52.3 to provide that swine to be destroyed under the accelerated eradication program may be appraised by a State representative alone.

Section 52.2 of the regulations provides that the Administrator is authorized to agree, on the part of the Department, to pay 100 percent of the expenses of purchase, destruction, and disposition of herds of swine that are destroyed because the herds are known to be infected with pseudorabies.

In § 52.1 of the regulations, a herd is defined as a group of swine maintained on common ground for any purpose, or two or more groups of swine under common ownership or supervision, that are geographically separated but have an interchange or movement of animals without regard to whether the animals are infected with or exposed to pseudorabies.

The definition of herd includes two or more groups of swine under common ownership because it is standard practice in the swine industry for a production facility to maintain groups of swine in different units in different buildings, pens, etc. The swine from the different units may or may not come into contact with each other. If there is an interchange or movement of animals between groups without regard to whether the animals are infected with or exposed to pseudorabies, then, for disease and indemnity purposes, the groups must be considered as one herd.

For the most part under the accelerated eradication program, it has been clear to APHIS and owners of swine whether different groups of swine should be considered as one herd for disease purposes. However, in certain cases, questions have arisen as to whether there was a risk of disease transmission between groups of swine under common ownership. To help address this situation, we are providing in the definition of herd that any risk of disease transmission between two groups of swine will be determined by the official pseudorabies epidemiologist. ( Official pseudorabies epidemiologist is defined in the regulations as a State or Federally employed veterinarian designated by the veterinarian in charge and the State animal health official to investigate and diagnose pseudorabies in livestock.) The factors the official pseudorabies epidemiologist will use in making this determination include the physical layout of the premises and the management practices of the facility, including whether groups of swine are kept in separate areas with no interchange of potential contaminants. Additionally, the epidemiologist will examine the pseudorabies testing and vaccination history of the animals on the premises to assess where the occurrence of pseudorabies is focused and the likelihood of its transmission to separated groups of swine.

We are also including in this interim rule a provision to allow owners of breeding sows that are identified as being infected with pseudorabies to receive indemnity if those sows are sent directly to slaughter, even if the rest of the herd they are part of is not depopulated. Although depopulation of an entire herd is the quickest and surest method of ensuring that pseudorabies is eradicated, some swine owners with infected herds have chosen not to depopulate the entire herd due to the loss of production during the time necessary to replace the herd. In such cases, the alternative method of ridding a herd of pseudorabies is to remove from the herd individual sows that test positive for pseudorabies. Prior to the implementation of indemnity payments for herd depopulation under the accelerated pseudorabies eradication program, “test and removal” of individual sows was the primary method used to further the pseudorabies eradication program, although owners of individual swine disposed of because of pseudorabies were not eligible to receive indemnity from APHIS for those animals.

Because a number of swine owners have chosen not to depopulate their infected herds under the accelerated eradication program, we believe it is necessary for the continued progress of the pseudorabies eradication program to provide owners of infected herds with an incentive to rid their herds of those animals most likely to perpetuate pseudorabies within a herd. The swine that constitute the greatest risk are the breeding sows in a herd. As their name denotes, the primary purpose of breeding sows is to produce litters, whereas the purpose of other swine in the herd is generally to be moved to slaughter. Because breeding sows remain in a herd over a period of years, a sow that is infected with pseudorabies can come into contact with, and possibly infect, a number of swine in the herd over the course of its lifetime.

Therefore, to encourage the prompt removal of infected breeding sows from a herd, we are providing in § 52.2(a) of this interim rule that APHIS will pay indemnity to owners of breeding sows known to be infected with pseudorabies that are sent under permit directly to a recognized slaughtering establishment. The payment of indemnity will be carried out by the same method as that described above for whole herd depopulations— i.e., APHIS will pay the owner of the swine the difference between the amount of the net salvage value the owner receives when the animal is slaughtered and the fair market value of the animal. The option of receiving indemnity for less than whole-herd depopulation will not apply to any swine other than breeding sows known to be infected with pseudorabies.

In order to make clear the criteria APHIS will use in determining whether an individual breeding sow is infected with pseudorabies, we are adding to § 52.1 a definition of known infected breeding sow. Under this definition, which is the same as the definition of known infected herd, except that it applies to individual breeding sows rather than to entire herds, breeding sows known to be infected are those that have been determined to be infected with pseudorabies based on an official pseudorabies test or an approved differential pseudorabies test, or based on a diagnosis by an official pseudorabies epidemiologist.

Prior to this interim rule, the provisions governing the presentation to APHIS of claims for indemnity for swine destroyed because of pseudorabies were set forth in §§ 52.5 and 52.6. Because herds of swine destroyed under the accelerated pseudorabies program prior to this interim rule were purchased in their entirety by APHIS for shipment to rendering, there was no need for the owner to report any salvage value for the swine. Under this interim rule, however, owners may receive indemnity for swine that are not purchased by APHIS but that are sent directly to slaughter. Therefore, it is necessary that the owner of the swine submit to APHIS, along with a claim for indemnity, documentation of the amount of net salvage proceeds received for the swine at slaughter. This documentation, along with the certification of destruction that APHIS will receive from the recognized slaughtering establishment when the animals are destroyed, will provide APHIS with the information needed to process payment of indemnity. We are adding the requirement for submission of a net salvage proceeds report at § 52.5 of this interim rule (discussed below).

For those swine eligible for indemnity that are purchased by APHIS rather than sent to a slaughtering establishment, the procedures for indemnity claims will be the same as those in place prior to this interim rule. (Those procedures, which were contained in §§ 52.5 and 52.6 prior to this interim rule, are consolidated in § 52.4 of this interim rule.)

In § 52.5 of this interim rule, we are setting forth procedures by which an owner must report to APHIS net salvage proceeds received when swine infected with pseudorabies are sent to slaughter under the accelerated eradication program. We are providing that a report of the amount received for net salvage must be made on a salvage form that shows the gross receipts, expenses, if any, and net proceeds. An original or copy of the salvage form must be furnished by the owner to the veterinarian in charge.

We are defining “net salvage” in § 52.1 to mean the amount received for swine destroyed because of pseudorabies, after deducting freight, trucking, yardage, commission, slaughtering charges, and similar costs to the owner.

In this interim rule, we are also making some nonsubstantive changes to part 52 by redesignating § 52.4 as § 52.7, redesignating § 52.7 as § 52.6, and combining the provisions of §§ 52.5 and 52.6 into one section, new § 52.4. Additionally, we are amending the definition of known infected herd to remove some redundant language.

By revising the method by which owners receive fair market value for swine disposed of under the accelerated eradication program, we will significantly extend the use of APHIS' accelerated pseudorabies eradication program funds. This will help ensure that pseudorabies is eradicated from the United States by the end of 2000.

The Administrator of the Animal and Plant Health Inspection Service has determined that an emergency exists that warrants publication of this interim rule without prior opportunity for public comment. The nature of the emergency is the immediate need to extend the funds available to APHIS for the accelerated pseudorabies eradication program before these funds are exhausted. This action is necessary to effect the eradication of pseudorabies in the United States by the end of 2000.

Because prior notice and other public procedures with respect to this action are impracticable and contrary to the public interest under these conditions, we find good cause under 5 U.S.C. 533 to make the rule effective less than 30 days after publication. We will consider comments that are received within 60 days of publication of this rule in the Federal Register. After the comment period closes, we will publish another document in the Federal Register. It will include a discussion of any comments we receive and any amendments we are making to the rule as a result of the comments.

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

An analysis of the economic effects of this rule on small entities, as required by the Regulatory Flexibility Act, follows.

Pseudorabies is a herpes virus disease, primarily affecting swine, that is known to cause reproductive problems, including abortion, stillborn death, and death in neonatal pigs, and occasional death losses in breeding and finishing hogs. The disease is recognized to cause considerable economic losses.

A Federal eradication program for pseudorabies was implemented in the United States in 1989. The program is cooperative in nature and involves Federal, State, and industry participation. The Federal Government coordinates the national program, the State Governments promulgate and enforce intrastate regulations, and producers have contributed by testing their herds and purchasing vaccines.

In January 1999, we published regulations to establish an accelerated pseudorabies eradication program that provided, among other things, for the payment of indemnity by the Department for the voluntary depopulation of herds of swine known to be infected with pseudorabies.

Under the regulations governing the accelerated eradication program, we have been paying owners fair market value for herds of swine depopulated because of pseudorabies. In addition to paying 100 percent of the fair market value of the animals, we have been paying for trucking to disposal, for euthanasia and disposal, and for cleaning and disinfection of conveyances used for transporting the swine to disposal. To date, the herds that have been depopulated under the accelerated eradication program have been disposed of by rendering.

In this interim rule, we are providing that, instead of the Department paying each owner 100 percent of the fair market value of all swine destroyed under the accelerated eradication program, the Department will also pay indemnity for the difference between whatever net salvage value is received for herds of swine disposed of through slaughter and the fair market value of those animals. Additionally, we are providing that indemnity may be paid for breeding sows that are disposed of because they are known to be infected with pseudorabies, even if the remainder of the herd the sow is part of is not depopulated. We will continue to pay full purchase price for those swine that are not accepted at recognized slaughtering establishments.

The total amount paid to each owner whose herd is depopulated because of pseudorabies will be the same under this interim rule as under the regulations prior to this interim rule. The difference will be in how much the Department pays of that amount and how much is paid by other sources. The provision we are adding to the regulations to allow for the payment of indemnity for individual breeding sows disposed of because they are known to be infected with pseudorabies is expected to provide indemnity to owners who would not otherwise have received indemnity under the accelerated eradication program.

As explained below, we expect the number of infected herds sold to slaughter to be a very small portion of swine slaughter sales overall. In turn, the number of individual breeding sows sold to slaughter will comprise a small fraction of the number of pseudorabies-infected swine sent to slaughter.

For the purposes of our analysis, we used information from accelerated eradication program activities for the first 4 months of fiscal year (FY) 2000 (October 1, 1999 to January 28, 2000) because we expect the participation in the accelerated eradication program that occurred during that period to be representative of participation during the 4 months following publication of this interim rule. Longer term projections, as the accelerated eradication program approaches its eradication goal and the number of participating herds decreases, would be more problematic.

From October 1, 1999, through January 28, 2000, a total of 146,300 swine from 112 herds were depopulated through the accelerated eradication program. Although this results in a nationwide average herd size of 1,306 swine, average herd sizes varied widely by State, from 39 swine (the average for the three herds depopulated in Florida) to 2,688 swine (the average for the 10 herds depopulated in Indiana).

In comparison to the 146,300 swine destroyed under the accelerated eradication program during the first 4 months of FY 2000, the total number of swine slaughtered nationwide during the same period averaged approximately 8,910,700 swine per month (slaughter numbers for January were projected based on the average of the first 3 months), yielding a 4-month total of 35,642,800. Therefore, the number of swine slaughtered under the accelerated eradication program represented about 0.4 percent of the total number of swine slaughtered. Assuming similar national and accelerated eradication program totals during the coming 4 months, any effect on slaughter prices due to infected animals going to slaughter will be slight, as explained below.

We estimated the effect on slaughter prices by considering the price flexibility for slaughter swine. The flexibility coefficient for a commodity is the percentage change in price associated with a 1 percent change in quantity, other factors being held constant. Assuming a flexibility coefficient for swine of about −0.8 to −0.9 1 , a 0.4 percent increase in the quantity of slaughter swine would result in a 0.32 to 0.36 percent decrease in price. Thus, entry of swine from the accelerated eradication program into the slaughter market could result in slaughter prices falling from, for example, 40 cents per pound to 39.86 or 39.87 cents per pound, assuming all other market determinants remained constant.

The major effect of this interim rule will be in reducing expenses to the accelerated pseudorabies eradication program. Program costs will be reduced by the amount that is paid at slaughter for swine destroyed under the program. Maximum potential savings can be estimated using accelerated eradication program data for the first 4 months of FY 2000. Indemnity payments, including producer cost offsets, during this period totaled $11,097,796. The producer cost offsets comprised $2,782,300 of that amount.

If accelerated eradication program participation during the coming 4 months is similar to what took place during the first 4 months of FY 2000, and assuming that the amount an owner receives at slaughter equals the fair market value of the animal minus the producer cost offset, the savings to the accelerated eradication program in indemnity payments would exceed $8 million ($11,097,796−$2,782,300 = $8,315,496). Even after taking into account indemnity program-related expenses during the first 4 months of FY 2000 ($2,602,860) and enhanced surveillance expenses during that period ($97,024), total expenses to the program under the scenario described would be reduced to about 40 percent of what they would be without the slaughter sale option. Although, realistically, not all infected swine to be destroyed will be sold for slaughter, and the prices received at slaughter will usually not match the fair market value of the animals, savings to the accelerated eradication program are expected to be considerable.

This interim rule is not expected to have an effect on the total amount of compensation swine owners will receive for pseudorabies-infected swine. Additionally, it is not expected to have a significant effect on the price per pound paid for swine at slaughter.

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

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

In accordance with section 3507(j) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection or recordkeeping requirements included in this interim rule have been submitted for emergency approval to the Office of Management and Budget (OMB). OMB has assigned control number 0579-0151 to the information collection and recordkeeping requirements.

We plan to request continuation of that approval for 3 years. Please send written comments on the 3-year approval request to the following addresses: (1) Docket No. 98-123-6, Regulatory Analysis and Development, PPD, APHIS, suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue SW., Washington, DC 20250. Please state that your comments refer to Docket No. 98-123-6 and send your comments within 60 days of publication of this rule.

This interim rule provides that APHIS will pay an indemnity for swine destroyed because of pseudorabies that is equal to the difference between the net salvage received and the fair market value of the swine destroyed. Under these provisions, owners seeking indemnity for swine destroyed will be required to obtain a movement permit and submit to APHIS a report of net salvage proceeds. Additionally, the swine must be moved to slaughter in a means of conveyance sealed with an official seal. We are soliciting comments from the public concerning our information collection and recordkeeping requirements. These comments will help us:

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

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

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

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

Estimate of burden: Public reporting burden for this collection of information is estimated to average .14257 hour per response.

Copies of this information collection can be obtained from: Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue, SW., Washington, DC 20250.

The regulations in 9 CFR part 94 (referred to below as the regulations) govern the importation of certain animals and animal products into the United States in order to prevent the introduction of various animal diseases, including rinderpest, foot-and-mouth disease, African swine fever, hog cholera, and swine vesicular disease. These are dangerous and destructive communicable diseases of ruminants and swine. Section 94.1 of the regulations lists regions of the world that are declared free of rinderpest or free of both rinderpest and foot-and-mouth disease (FMD). Rinderpest or FMD exists in all other regions of the world not listed. Section 94.11 of the regulations lists regions of the world that have been determined to be free of rinderpest and FMD, but are subject to certain restrictions because of their proximity to or trading relationships with FMD-affected regions.

Prior to the effective date of this interim rule, Japan was listed among those countries considered free of rinderpest and FMD. However, on March 8, 2000, a suspected outbreak of FMD was detected. And on March 27, 2000, Japan's Ministry of Agriculture notified us with confirmation of the FMD diagnosis. Therefore, to protect the livestock of the United States from FMD, we are amending the regulations in § 94.1 by removing Japan from the list of regions that have been declared free of rinderpest and FMD. We are also removing Japan from the list of countries in § 94.11 that are declared to be free of these diseases, but that are subject to certain restrictions because of their proximity to or trading relationships with FMD-affected regions. As a result of this action, the importation into the United States of any ruminant or swine or any fresh (chilled or frozen) meat of any ruminant or swine that left Japan on or after March 8, 2000, is prohibited or restricted.

The Administrator of the Animal and Plant Health Inspection Service has determined that an emergency exists that warrants publication of this interim rule without prior opportunity for public comment. Immediate action is necessary to prevent the introduction of FMD into the United States.

Because prior notice and other public procedures with respect to this action are impracticable and contrary to the public interest under these conditions, we find good cause under 5 U.S.C. 553 to make this action effective less than 30 days after publication. We will consider comments that are received within 60 days of publication of this rule in the Federal Register . After the comment period closes, we will publish another document in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the rule as a result of the comments.

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

This interim rule amends the regulations governing the importation of certain animals, meat, and other animal products by removing Japan from the list of regions declared free of rinderpest and FMD. We are taking this action because Japan's Ministry of Agriculture has reported an outbreak of FMD in that country. This action prohibits or restricts the importation into the United States of any ruminant or swine, or any fresh (chilled or frozen) meat of any ruminant or swine that left Japan on or after March 8, 2000. This action is necessary to protect the livestock of the United States from FMD.

This emergency situation makes timely compliance with section 604 of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) impracticable. We are currently assessing the potential economic effects of this action on small entities. Based on that assessment, we will either certify that the rule will not have a significant economic impact on a substantial number of small entities or publish a final regulatory flexibility analysis.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has retroactive effect to March 8, 2000; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

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

The regulations in 9 CFR part 94 (referred to below as the regulations) govern the importation of certain animals and animal products into the United States in order to prevent the introduction of various animal diseases, including rinderpest, foot-and-mouth disease, African swine fever, hog cholera, and swine vesicular disease. These are dangerous and destructive communicable diseases of ruminants and swine. Section 94.1 of the regulations lists regions of the world that are declared free of rinderpest or free of both rinderpest and foot-and-mouth disease (FMD). Rinderpest or FMD exists in all other regions of the world not listed. Section 94.11 of the regulations lists regions of the world that have been determined to be free of rinderpest and FMD, but are subject to certain restrictions because of their proximity to or trading relationships with FMD-affected regions.

Prior to the effective date of this interim rule, the Republic of Korea was listed among those countries considered free of rinderpest and FMD. However, on March 20, 2000, a suspected outbreak of FMD was detected. And on March 28, 2000, the Republic of Korea's Ministry of Agriculture notified us with confirmation of the FMD diagnosis. Therefore, to protect the livestock of the United States from FMD, we are amending the regulations in § 94.1 by removing the Republic of Korea from the list of regions that have been declared free of rinderpest and FMD. We are also removing the Republic of Korea from the list of countries in § 94.11 that are declared to be free of these diseases, but that are subject to certain restrictions because of their proximity to or trading relationships with FMD-affected regions. As a result of this action, the importation into the United States of any ruminant or swine or any fresh (chilled or frozen) meat of any ruminant or swine that left the Republic of Korea on or after March 20, 2000, is prohibited or restricted.

The Administrator of the Animal and Plant Health Inspection Service has determined that an emergency exists that warrants publication of this interim rule without prior opportunity for public comment. Immediate action is necessary to prevent the introduction of FMD into the United States.

Because prior notice and other public procedures with respect to this action are impracticable and contrary to the public interest under these conditions, we find good cause under 5 U.S.C. 553 to make this action effective less than 30 days after publication. We will consider comments that are received within 60 days of publication of this rule in the Federal Register . After the comment period closes, we will publish another document in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the rule as a result of the comments.

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

This interim rule amends the regulations governing the importation of certain animals, meat, and other animal products by removing the Republic of Korea from the list of regions declared free of rinderpest and FMD. We are taking this action because the Republic of Korea's Ministry of Agriculture has reported an outbreak of FMD in that country. This action prohibits or restricts the importation into the United States of any ruminant or swine, or any fresh (chilled or frozen) meat of any ruminant or swine that left the Republic of Korea on or after March 20, 2000. This action is necessary to protect the livestock of the United States from FMD.

This emergency situation makes timely compliance with section 604 of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) impracticable. We are currently assessing the potential economic effects of this action on small entities. Based on that assessment, we will either certify that the rule will not have a significant economic impact on a substantial number of small entities or publish a final regulatory flexibility analysis.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has retroactive effect to March 20, 2000; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

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

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 Rolls-Royce plc (R-R) Tay 650-15 series turbofan engines was published in the Federal Register on January 12, 2000 (65 FR 1831). That action proposed to establish life limits for stage 1 HPT and stage 1 LPT disks operated under the new flight plan profiles, C and D; require the removal from service of stage 1 HPT and stage 1 LPT disks prior to reaching new, lower cyclic life limits; and replace those disks with serviceable parts in accordance with R-R Service Bulletin TAY-72-1479, dated July 20, 1999.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

There are approximately 242 engines of the affected design in the worldwide fleet. The FAA estimates that three engines installed on aircraft of U.S. registry will be affected by this AD, and that the prorated life reduction would cost $26,658 per engine. Based on these figures, the total cost impact of the proposed AD on US operators is estimated to be $79,974.

This rule does not have federalism implications, as defined in Executive Order (EO) No. 13132, because it does 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. Accordingly, the FAA has not consulted with state authorities prior to publication of this rule.

For the reasons discussed above, I certify that this action (1) Is not a “significant regulatory action” under EO No. 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 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 .

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 Airbus Model A300 series airplanes was published in the Federal Register on January 3, 2000 (65 FR 91). That action proposed to require a one-time detailed visual inspection to detect corrosion on the outer surface of the fuselage skin panel; application of corrosion preventive protection; and corrective action, if necessary.

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

One commenter, the manufacturer, requests that the proposed AD be revised to refer to Airbus Service Bulletin A300-53-0328, Revision 01, including Appendix 01, dated March 15, 2000, for accomplishment of the inspection. The original issue of the service bulletin, dated March 5, 1999, was referenced in the proposed AD as the appropriate source of service information. The commenter notes that the original issue of the service bulletin references a 30-month interval rather than the correct 5-year interval for certain follow-on repetitive inspections that are covered by the Corrosion Prevention Control Program (CPCP). The commenter suggests that referencing Revision 01 of the service bulletin, in which the correct interval is specified, will avoid confusion on the part of operators.

The FAA concurs. The FAA has reviewed the procedures described in Airbus Service Bulletin A300-53-0328, Revision 01, including Appendix 01, dated March 15, 2000, and has determined that they are equivalent to those described in the original issue of the service bulletin, except for certain cleaning procedures. The final rule has been revised to refer to Revision 01 of the service bulletin as the appropriate source of service information. However, a “NOTE” has been included in the final rule to provide credit for previous accomplishment of the actions required by this AD in accordance with the original issue of the service bulletin.

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 with the change described previously. The FAA has determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

The FAA estimates that 3 airplanes of U.S. registry will be affected by this AD, that it will take approximately 4 or 22 work hours per airplane, depending on the airplane configuration, to accomplish the required inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $240 or $1,320 per airplane.

The cost impact figure discussed above is 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.

The FAA has recently received three reports of dual inertial reference (IR) critical faults of the air data inertial reference system comprising two or more air data inertial reference units (ADIRU) on transport category airplanes during flight. Three days prior to one of the dual IR critical fault incidents, one of those ADIRU's had an IR critical fault in flight. During the subsequent ground check, the failed ADIRU passed the built-in test and aligned, functioning normally.

The subject ADIRU's are subject to IR critical faults related to the power supply margin. The demand for voltage increases as operating hours and temperature increase. Once the demand for voltage exceeds the capability of the power supply, the inertial reference portion of the ADIRU will exhibit an IR critical fault, while the air data portion of the ADIRU will continue to function normally. It may be possible to reset the failed inertial reference unit on the ground after the temperature of the ADIRU decreases; however, the risk of the dual critical fault increases when an ADIRU with a failed inertial reference power supply is returned to service. If two inertial reference units fail, the airplane is left with only one functioning source of attitude data. This condition could result in loss of the main sources of attitude data, consequent high pilot workload, and a significant increase in the likelihood of pilot error.

The FAA has reviewed and approved Honeywell Alert Service Bulletins HG2030AD-34-A0009, and HG2050AC-34-A0008, both dated March 9, 2000, which describe procedures for determining the modification status of the ADIRU. For any ADIRU part number (P/N) HG2050AC not marked as modification 2 or 3 and any ADIRU P/N HG2030AD not marked as modification 3 or 6, the alert service bulletins also describe procedures for replacement of the ADIRU with a serviceable ADIRU.

Since an unsafe condition has been identified that is likely to exist or develop on other products of the same type design, this AD is being issued to prevent loss of the main sources of attitude data, consequent high pilot workload, and a significant increase in the likelihood of pilot error. This AD requires inspection of a failed ADIRU to determine its modification status, and replacement of any unmodified failed ADIRU with a serviceable ADIRU. This AD also provides for optional terminating action for the requirements of the AD. The actions are required to be accomplished in accordance with the alert service bulletins described previously.

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

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

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-83-AD.” The postcard will be date stamped and returned to the commenter.

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

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

A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

On August 27, 1999, the FAA issued AD 99-18-22, amendment 39-11288 (64 FR 48280, September 3, 1999), applicable to certain Fokker Model F27 series airplanes, to require revising the FAA-approved Airplane Flight Manual (AFM) to provide the flightcrew with modified operational procedures to ensure continuous operation with the high pressure cock (HPC) levers in the lockout position. That action was prompted by issuance of mandatory continuing airworthiness information by a foreign civil airworthiness authority. The actions required by that AD are intended to prevent burnout of the engines during flight by ensuring that the HPC levers are in a permanent lockout position.

Since the issuance of that AD, the Rijksluchtvaartdienst (RLD), which is the airworthiness authority for the Netherlands, has advised the FAA that certain incorrect instructions had been included in the AFM revision required by that AD.

Fokker Manual Change Notice MCNO-F27-001 was cited in the existing AD as the appropriate source of service information for placing the HPC levers in a permanent lock position (with the cruise lock withdrawal system disabled) during operation of the airplane. However, MCNO-F27-001 contains remove/replace instructions rather than the amended procedures. One operator reported that strict adherence to the instructions in its flight manual (following incorporation of the MCNO) would have resulted in incorrect “Manual Feathering Procedure” and “Propeller Overspeed Procedure.”

The emergency manual feathering procedures in the MCNO specify that the HPC be placed in lockout position before the feather button is pressed; however, this procedure is intended to relight the engine in flight. Use of this procedure would result in unfeathering of the propeller and loss of control of the airplane.

In light of this information, the FAA finds that certain procedures should be amended in the AFM for Model F27 series airplanes to ensure that flightcrews follow correct procedures that will maintain the HPC levers in a permanent lockout position to prevent consequent burnout of the engines during flight. The FAA has determined that such procedures currently are not defined adequately in the AFM for these airplanes.

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

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD supersedes AD 99-18-22 to continue to require revising the Normal and Abnormal Procedures Sections of the AFM. This AD also requires incorporation of amended Limitations and Emergency Procedures into the AFM.

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

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

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-95-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) by revising AD 86-15-10, Amendment 39-5517 (52 FR 13233, April 22, 1987) and AD 86-15-10 R1, Amendment 39-6515 (55 FR 5833, February 20, 1990), which is applicable to Eurocopter France Model AS-350B, BA, B1, B2, C, D, and D1, and AS-355E, F, F1, F2 and N helicopters, was published in the Federal Register on January 20, 2000 (65 FR 3165). The action proposed to require repetitive inspections of the main rotor head components, the MGB suspension bars, and the ground resonance prevention system components at intervals not to exceed 500 hours TIS.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA has determined that this regulation is relieving in nature and imposes no additional costs or regulatory burden on any person.

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.

This amendment to 14 CFR 71 revises the Class E airspace at Orange City, IA. A review of the Class E airspace for Orange City Municipal Airport, IA, indicates it does not meet the criteria for 700 feet AGL airspace required for diverse departures as specified in FAA Order 7400.2D. The criteria in FAA Order 7400.2D for an aircraft to reach 1200 feet AGL is based on a standard climb gradient of 200 feet per mile plus the distance from the Airport Reference Point (ARP) to the end of the outermost runway. Any fractional part of a mile is converted to the next higher tenth of a mile. The amendment at Orange City Municipal Airport, IA, will provide additional controlled airspace for aircraft operating under IFR, and comply with the criteria of FAA Order 7400.2D. The area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9G, dated September 10, 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.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. The amendment will enhance safety for all flight operations by designating an area where VFR pilots may anticipate the presence of IFR aircraft at lower altitudes, especially during inclement weather conditions. A greater degree of safety is achieved by depicting the area on aeronautical charts. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register and a notice of proposed rulemaking may be published with a new comment period.

Although this action is in the form of a final rule and was not preceded by a notice of proposed rulemaking, 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 or withdrawn in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of this action and determining whether additional rulemaking action would be needed.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy-related 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 action 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. 00-ACE-9”. 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 noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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.

This amendment to 14 CFR 71 revises the Class E airspace at Sheldon, IA. A review of the Class E airspace for Sheldon Municipal Airport, IA, indicates it does not meet the criteria for 700 feet AGL airspace required for diverse departures as specified in FAA Order 7400.2D. The criteria in FAA Order 7400.2D for an aircraft to reach 1200 feet AGL is based on a standard climb gradient of 200 feet per mile plus the distance from the Airport Reference Point (ARP) to the end of the outermost runway. Any fractional part of a mile is converted to the next higher tenth of a mile. The amendment at Sheldon Municipal Airport, IA, will provide additional controlled airspace for aircraft operating under IFR, and comply with the criteria of FAA Order 7400.2D. The area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9G, dated September 10, 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.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. The amendment will enhance safety for all flight operations by designating an area where VFR pilots may anticipate the presence of IFR aircraft at lower altitudes, especially during inclement weather conditions. A greater degree of safety is achieved by depicting the area on aeronautical charts. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register and a notice of proposed rulemaking may be published with a new comment period.

Although this action is in the form of a final rule and was not preceded by a notice of proposed rulemaking, 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 or withdrawn in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of this action and determining whether additional rulemaking action would be needed.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy-related 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 action 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. 00-ACE-8.” 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 noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regular action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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.

Section 2(d)(4) of the Railroad Retirement Act (RRA) references section 216(h) of the Social Security Act for purposes of determining whether an individual is the child of the insured employee for entitlement to a surviving child's annuity. In addition, the Board must look to the Social -Security Act to determine the status of a child for increasing a disability annuitant's annuity under the social security overall minimum provided in section 3(f)(3) of the RRA. See part 229 of this chapter. Section 216(h)(2)(A) of the Social Security Act provides that the Social Security Administration (SSA) looks to the law of the state in which the wage earner was domiciled regarding the devolution of intestate personal property to determine who would be a child for inheritance purposes.

The SSA has announced final regulations which revise its procedures for determining whether a child has inheritance rights under the appropriate state law and, thus, may be entitled to social security benefits as the child of an insured worker (63 FR 57590, October 28, 1998). Specifically, those rules have been revised to explain which state law will be applied, how SSA will apply state law requirements on time limits for determining inheritance rights, and how it will apply state law requirements for a court determination of paternity. The current rule on determining an applicant's status as a legally adopted child of an insured individual is also clarified. As a consequence, the Board must amend part 222 of its regulations, which deals with determining family relationships, to conform to SSA's new regulations.

The Board revises §§ 222.31 and 222.32 to provide that the status of child will be determined by applying the state inheritance law of the employee's domicile that is in effect when the claim for benefits is adjudicated. If the child does not have inheritance rights under that version of state law, the state law that was in effect when the insured died will be examined to determine if the status of child is met at that time.

Many state laws impose time limits within which someone must act to establish paternity for purposes of intestate succession in order to ensure the orderly administration of estates. New § 222.32 makes it clear that the Board will disregard these time limits since the purpose served by the limits is not relevant to the adjudication of benefits under the RRA. If the applicable inheritance law requires a formal determination of paternity to establish the status of child, § 222.32 provides that the Board will not require such a formal determination, but will rather make its own determination of paternity based upon the requirements of state law.

A “child” under the RRA includes an adopted child. The amendment to § 222.33 clarifies that in determining whether an individual is the legally adopted child of the employee, the Board will apply the adoption laws, rather than the inheritance laws, of the state or foreign country where the adoption took place.

Under section 216(h) of the Social Security Act an individual may qualify as a deemed spouse if a ceremonial or common law marriage cannot be established under state law, if that person's marriage to the employee would have been valid under state law but for a legal impediment, and the following requirements are met: there was a ceremonial marriage, the claimant went through the ceremony in good faith, and the claimant was living in the same household as the employee when he or she applied for the spouse annuity or when the employee died.

Formerly, the Social Security Act also required that no other person be entitled as the wife, husband, or widow(er)of the employee. However, this last requirement was deleted by § 5119(a) of Public Law 101-508. Accordingly, this amendment also deletes the now obsolete requirement contained in § 222.14(d) of the Board's regulations.

On December 8, 1999, the Board published the revisions to §§ 222.31—222.32 as a proposed rule (64 FR 68647) inviting comments on or before February 7, 2000. No comments were received.

The Board, with the concurrence of the Office of Management and Budget, has determined that this is not a significant regulatory action for purposes of Executive Order 12866. Therefore, no regulatory analysis is required. There are no information collections associated with this rule.

In a notice published in the Federal Register of April 22,1999 (64 FR 19790), FDA announced that a food additive petition (FAP 9B4641) had been filed by The Dow Chemical Co., Midland, MI 48674. The petition proposed to amend the food additive regulations in § 175.105 Adhesives (21 CFR 175.105) and § 176.170 Components of paper and paperboard in contact with aqueous and fatty foods (21 CFR 176.170) to provide for the safe use of 2,2-dibromo-3-nitrilopropionamide as a preservative for adhesives and coatings in the manufacture of paper and paperboard intended for contact with food.

FDA has evaluated the data in the petition and other relevant material. Based on this information, the agency concludes that: (1) The proposed uses of the additive are safe, (2) the additive will achieve its intended technical effect, and therefore, (3) the regulations in §§ 175.105 and 176.170 should be amended as set forth below.

In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that FDA considered and relied upon in reaching its decision to approve the petition are available for inspection at the Center for Food Safety and Applied Nutrition by appointment with the information contact person listed above. As provided in § 171.1(h), the agency will delete from the documents any materials that are not available for public disclosure before making the documents available for inspection.

The agency has previously considered the environmental effects of this final rule as announced in the notice of filing for FAP 9B4641 (64 FR 19790). No new information or comments have been received that would affect the agency's previous determination that there is no significant impact on the human environment and that an environmental impact statement is not required.

This final rule contains no collections of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

Any person who will be adversely affected by this regulation may at any time file with the Dockets Management Branch (address above) written objections by May 18, 2000. Each objection shall be separately numbered, and each numbered objection shall specify with particularity the provisions of the regulation to which objection is made and the grounds for the objection. Each numbered objection on which a hearing is requested shall specifically so state. Failure to request a hearing for any particular objection shall constitute a waiver of the right to a hearing on that objection. Each numbered objection for which a hearing is requested shall include a detailed description and analysis of the specific factual information intended to be presented in support of the objection in the event that a hearing is held. Failure to include such a description and analysis for any particular objection shall constitute a waiver of the right to a hearing on the objection. Three copies of all documents are to be submitted and are to be identified with the docket number found in brackets in the heading of this document. Any objections received in response to the regulation may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.

International Nutrition, Inc., 6664 “L” St., Omaha, NE 68117, has informed FDA of a change of sponsor address to 7706 ‘I’ Plaza, Omaha, NE 68127. Accordingly, the agency is amending the regulations in 21 CFR 510.600(c)(1) and (c)(2) to reflect the change of sponsor address.

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

Wellmark International, 1000 Tower Rd., suite 245, Bensenville, IL 60106, filed NADA 141-162 that provides for use in dogs, 9 weeks of age and older and 4 pounds body weight or greater, for the prevention and control of flea populations. (S)-methoprene prevents and controls flea populations by preventing the development of flea eggs but does not kill adult fleas. Concurrent use of insecticides may be necessary for adequate control of adult fleas. NADA 141-162 is approved as of January 24, 2000, and the regulations are amended in 21 CFR part 520 by adding new § 520.1390 to reflect the approval. The basis of approval is discussed in the freedom of information summary.

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

Under section 512(c)(2)(F)(i) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360b(c)(2)(F)(i)), this approval qualifies for 5 years of marketing exclusivity beginning January 24, 2000, because no active ingredient (including any ester or salt of the drug) has been previously approved in any other application filed under section 512(b)(1) of the act.

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

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

Merial Ltd., 2100 Ronson Rd., Iseline, NJ 08830-3077, has informed FDA that it has transferred the ownership of, and all rights and interests in, the approved NADA 113-510 (phenylbutazone granules) to Vétoquinol N.-A., Inc., 2000 chemin Georges, Lavaltrie (PQ), Canada, J0K 1H0. Accordingly, the agency is amending the regulations in 21 CFR 510.600(c) and 520.1720b(b) to reflect the change of sponsor.

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

Biopure Corp., 11 Hurley St., Cambridge, MA 02141, is the sponsor of NADA 141-067 that provides for the veterinary prescription use of Oxyglobin® (hemoglobin glutamer-200 (bovine)) for the treatment of anemia in dogs. The drug increases systemic oxygen content (plasma hemoglobin concentration) and improves the clinical signs associated with anemia, regardless of the cause of anemia (hemolysis, blood loss, or ineffective erythropoiesis). The supplemental NADA provides for use of 10 to 30 milliliters per kilogram of body weight (mL/kg) administered at 10 mL/kg/hour. The supplemental NADA is approved as of January 11, 2000, and 21 CFR 522.1125(d) is amended to reflect the approval. The basis of approval is discussed in the freedom of information summary.

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

Under section 512(c)(2)(f)(iii) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(iii)), this approval for nonfood-producing animals qualifies for 3 years of marketing exclusivity beginning January 11, 2000, because the approval contains substantial evidence of effectiveness of the drug involved, or any studies of animal safety, required for approval of the supplement and conducted or sponsored by the applicant. The 3 years of marketing exclusivity applies only to use of the dosing range of 10 to 30 mL/kg.

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

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

Fort Dodge Animal Health, Division of American Home Products Corp., 800 Fifth Street NW., P.O. Box 518, Fort Dodge, IA 50501, filed supplemental NADA 97-222 that provides for a 96-hour milk-discard time (i.e., removal of the parenthetical reference to an 8-milking milk discard time) for use of CEFA-LAK® and TODAY® (cephapirin sodium) intramammary infusion products for treatment of lactating cows for bovine mastitis. The supplemental NADA is approved as of February 4, 2000, and the regulations are amended in 21 CFR 526.365(d)(3) to reflect the approval.

Approval of this supplemental NADA conforms to the requirements of 21 CFR 510.105. Approval does not require review of the safety or effectiveness data required for approval of the NADA. Therefore, a freedom of information summary is not required.

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

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

Hoechst Roussel Vet, Perryville Corporate Park III, P.O. Box 4010, Clinton, NJ 08809-4010, filed a supplement to NADA 131-675 that provides for use of Safe-Guard® (20 percent fenbendazole) Type A medicated articles to make Type B and C medicated swine feeds. The supplement provides for establishing tolerances for parent fenbendazole in swine liver and muscle. The supplement is approved as of February 10, 2000, and § 556.275 (21 CFR 556.275) is amended to reflect the approval. The basis of approval is discussed in the freedom of information summary.

Section 556.275 is further amended by deleting references to safe concentrations and by adding the previously established acceptable daily intake (ADI) of total residues of fenbendazole. The footnote for “tolerance” in that section is also removed.

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

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

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

Hoechst Roussel Vet, Perryville Corporate Park III, P.O. Box 4010, Clinton, NJ 08809-4010, is sponsor of NADA 141-034 that provides for use of GAINPRO® (bambermycins) Type A medicated articles to make Type B and Type C medicated cattle feeds. In its approval letter of October 17, 1994, the Center for Veterinary Medicine approved the use of Type C medicated feeds containing 2 to 40 g of bambermycins per ton of feed, used to provide 10 to 20 milligrams bambermycins per head per day for increased rate of weight gain in pasture cattle. At this time, 21 CFR 558.95(d)(4)(ii) is amended by removing “4 to 20” and adding in its place “2 to 40” to reflect the correct Type C medicated feed levels.

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

The Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 301 et seq .), as amended by the Medical Device Amendments of 1976 (the 1976 amendments) (Public Law 94-295), the Safe Medical Devices Act of 1990 (the SMDA) (Public Law 101-629), and the Food and Drug Administration Modernization Act of 1997 (the FDAMA) (Public Law 105-115), established a comprehensive system for the regulation of medical devices intended for human use. Section 513 of the act (21 U.S.C. 360c) established three categories (classes) of devices, depending on the regulatory controls needed to provide reasonable assurance of their safety and effectiveness. The three categories of devices are class I (general controls), class II (special controls), and class III (premarket approval).

The 1976 amendments broadened the definition of “device” in 201(h) of the act (21 U.S.C. 321(h)) to include certain articles that were once regulated as drugs. Under the 1976 amendments, Congress classified all transitional devices, i.e., those devices previously regulated as new drugs, including the nonabsorbable ePTFE surgical suture, into class III. The legislative history of the SMDA reflects congressional concern that many transitional devices were being overregulated in class III (H. Rept. 808, 101st Cong., 2d sess. 26-27 (1990); S. Rept. 513, 101st Cong., 2d sess. 27 (1990)). Congress amended section 520(l) of the act (21 U.S.C. 360j(l)) to direct FDA to collect certain safety and effectiveness information from the manufacturers of transitional devices still remaining in class III to determine whether the devices should be reclassified into class II (special controls) or class I (general controls). Accordingly, in the Federal Register Of November 14, 1991 (56 FR 57960), FDA issued an order under section 520(l)(5)(A) of the act, requiring manufacturers of transitional devices, including the nonabsorbable ePTFE surgical suture, to submit to FDA a summary of, and a citation to, any information known or otherwise available to them respecting the devices, including adverse safety or effectiveness information which had not been submitted under section 519 of the act (21 U.S.C. 360i). Manufacturers were to submit the summaries and citations to FDA by January 13, 1992. However, because of misunderstandings and uncertainties regarding the information required by the order, and whether the order applied to certain manufacturers' devices, many transitional class III device manufacturers failed to comply with the reporting requirement by January 13, 1992. Consequently, in the Federal Register of March 10, 1992 (57 FR 8462), FDA extended the reporting period to March 31, 1992.

Section 520(l)(5)(B) of the act provides that, after the issuance of an order requiring manufacturers to submit a summary of, and citation to, any information known or otherwise available respecting the devices, but before December 1, 1992, FDA was to publish regulations either leaving transitional class III devices in class III or reclassifying them into class I or II. Subsequently, as permitted by section 520(l)(5)(C) of the act, in the Federal Register of November 30, 1992 (57 FR 56586), the agency published a notice extending the period for issuing such regulations until December 1, 1993. Due to limited resources, FDA was unable to publish the regulations before the December 1, 1993, deadline.

Nevertheless, in accordance with sections 520(l)(5)(B) and 513(a) of the act, FDA is now reclassifying the nonabsorbable ePTFE surgical suture from class III to class II.

On September 14, 1994, FDA filed the reclassification petition submitted by W. L. Gore and Associates, Inc., requesting reclassification of the nonabsorbable ePTFE surgical suture from class III to class II.

FDA consulted with members of the General and Plastic Surgery Devices Panel (the Panel) of the Medical Devices Advisory Committee about the requested reclassification. The Panel members recommended that the nonabsorbable ePTFE surgical suture intended for use in soft tissue approximation and ligation, including cardiovascular surgery, be reclassified from class III to class II. They also recommended FDA recognized consensus standards and device-specific labeling as the special controls for this device.

After reviewing the data in the petition and considering the Panel members' recommendations, FDA agreed with their recommendations to reclassify the device from class III into class II with the recommended special controls. Based on the available information, FDA issued an order to the petitioner on September 9, 1999, reclassifying the nonabsorbable ePTFE surgical suture, and substantially equivalent devices of this generic type, from class III to class II.

FDA identified the following FDA recognized consensus standards and labeling as special controls for the device:

Accordingly, as required by 21 CFR 860.136(b)(6) of the regulations, FDA is announcing the reclassification of the generic nonabsorbable ePTFE surgical suture from class III into class II. In addition, FDA is codifying the reclassification of the device by adding new § 878.5040.

The agency has determined under 21 CFR 25.34(b) that this reclassification is of a type that does not individually or cumulatively have a significant effect on the human environment.

Therefore, neither an environmental assessment nor an environmental impact statement is required.

FDA has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety and other advantages, distributive impacts, and equity). The agency believes that this final rule is consistent with the regulatory philosophy and principles identified in the Executive Order. In addition, the notice is not a significant regulatory action as defined by the Executive Order and so is not subject to review under the Executive Order.

The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Reclassification of the device from class III to class II will relieve all manufacturers of the device of the cost of complying with the premarket approval requirements in section 515 of the act (21 U.S.C. 360e). Because reclassification will reduce regulatory costs with respect to this device, it will impose no significant economic impact on any small entities, and it may permit small potential competitors to enter the marketplace by lowering their costs. The agency therefore certifies that this final rule will not have a significant economic impact on a substantial number of small entities. In addition, this final rule will not impose costs of $100 million or more on either the private sector or state, local, and tribal governments in the aggregate, and therefore a summary statement or analysis under section 202(a) of the Unfunded Mandates Reform Act of 1995 is not required.

FDA concludes that this final rule contains no information that is subject to review by the Office of Management and Budget under the Paperwork Reduction Act of 1995. The special controls do not require the respondent to submit additional information to the public. Therefore, no burden is placed on the public.

Section 18 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq , (the “Act”) provides that States which desire to assume responsibility for the development and enforcement of occupational safety and health standards may do so by submitting, and obtaining Federal approval of, a State plan. Procedures for State Plan submission and approval are set forth in regulations at 29 CFR Part 1902. If the Assistant Secretary, applying the criteria set forth in section 18(c) of the Act and 29 CFR 1902.3 and .4, finds that the plan provides or will provide for State standards and enforcement which are “at least as effective” as Federal standards and enforcement, “initial approval” is granted. A State may commence operations under its plan after this determination is made, but the Assistant Secretary retains discretionary Federal enforcement authority during the initial approval period as provided by section 18(e) of the Act. A State plan may receive initial approval even though, upon submission, it does not fully meet the criteria set forth in §§ 1902.3 and 1902.4 if it includes satisfactory assurances by the State that it will take the necessary “developmental steps” to meet the criteria within a three-year period (29 CFR 1902.2(b)). The Assistant Secretary publishes a “certification of completion of developmental steps” when all of a State's developmental commitments have been satisfactorily met (29 CFR 1902.34).

When a State plan that has been granted initial approval is developed sufficiently to warrant a suspension of concurrent Federal enforcement activity, it becomes eligible to enter into an “operational status agreement” with OSHA (29 CFR 1954.3(f)). A State must have enacted its enabling legislation, promulgated State standards, achieved an adequate level of qualified personnel, and established a system for review of contested enforcement actions. Under these voluntary agreements, concurrent Federal enforcement will not be initiated with regard to Federal occupational safety and health standards in those issues covered by the State plan, where the State program is providing an acceptable level of protection.

Following the initial approval of a complete plan, or the certification of a developmental plan, the Assistant Secretary must monitor and evaluate actual operations under the plan for a period of at least one year to determine, on the basis of actual operations under the plan, whether the criteria set forth in section 18(c) of the Act and 29 CFR 1902.37 are being applied.

An affirmative determination under section 18(e) of the Act (usually referred to as “final approval” of the State plan) results in the relinquishment of authority for Federal concurrent enforcement jurisdiction in the State with respect to occupational safety and health issues covered by the plan (29 U.S.C. 667(e)). Procedures for section 18(e) determinations are found at 29 CFR part 1902, Subpart D. In general, in order to be granted final approval, actual performance by the State must be “at least as effective” overall as the Federal OSHA program in all areas covered under the State plan.

An additional requirement for final approval consideration is that a State must meet the compliance staffing levels, or benchmarks, for safety inspectors and industrial hygienists established by OSHA for that State. This requirement stems from a court order by the U.S. District Court for the District of Columbia pursuant to the U.S. Court of Appeals' decision in AFL-CIO v. Marshall, 570 F.2d 1030 (D.C. Cir 1978), that directed the Assistant Secretary to calculate for each State plan State the number of enforcement personnel needed to assure a “fully effective” enforcement program.

The last requirement for final approval consideration is that a State must participate in OSHA's Integrated Management Information System (IMIS). This is required so that OSHA can obtain the detailed program performance data on a State necessary to make an objective continuing evaluation of whether the State performance meets the statutory and regulatory criteria for final and continuing approval.

A history of the Nevada State plan, a description of its provisions, and a discussion of the compliance staffing benchmarks established for Nevada was contained in the November 16, 1999, Federal Register notice (64 FR 62138 ) proposing that final approval under Section 18(e) of the Act be granted. The Nevada State plan was submitted on December 12, 1972, initially approved on December 28, 1973 (39 FR 1008), certified as having completed all developmental steps on August 13, 1981 (42 FR 42844), concurrent Federal enforcement jurisdiction suspended on December 9, 1981 (47 FR 25323), and revised compliance staffing benchmarks for Nevada were approved on September 11, 1987 (52 FR 34381).

Procedures for final approval of State plans are set forth at 29 CFR 1902, Subpart D. On November 16, 1999, OSHA published notice (64 FR 62138) of the eligibility of the Nevada State plan for determination under section 18(e) of the Act as to whether final approval of the plan should be granted. The determination of eligibility was based on monitoring of State operations for at least one year following certification, State participation in the Federal-State Integrated Management Information System, and staffing which meets the revised State compliance staffing benchmarks.

The November 16 Federal Register notice set forth a general description of the Nevada State plan and summarized the results of Federal OSHA monitoring of State operations during the period from July 1, 1995 through March 31, 1999, with special attention to the period from October 1, 1997 to March 31, 1999. In addition to the information set forth in the notice itself, OSHA made available as part of the record extensive and detailed exhibits documenting the plan, including copies of the State legislation, administrative regulations and procedural manuals under which Nevada operates its plan.

The most recent comprehensive evaluation report covering the period of July 1, 1995 through March 31, 1999, which was extensively summarized in the November 16 proposal and provided the principal factual basis for the proposed 18(e) determination, was included in the docket. In addition, updated data on investigation of complaints alleging discrimination for exercising one's occupational safety and health rights was submitted into the record (Exhibit 5) and was considered in the final approval process.

To assist and encourage public participation in the 18(e) determination, copies of all docket materials were maintained in the OSHA Docket Office in Washington, DC., in the OSHA Regional Office in San Francisco, and at the Nevada Division of Industrial Relations in Carson City, Nevada. Summaries of the November 16 notice, with an invitation for public comments, were published in Nevada on November 24, 1999 in the Las Vegas Review-Journal and on November 26, 1999 in the Elko Daily Free Press, Reno Gazette Journal and Nevada Appeal.

The November 16 notice invited interested persons to submit by December 16 written comments and views regarding the Nevada plan and whether final approval should be granted. An opportunity to request an informal public hearing also was provided. Four (4) comments were received in response to this proposal; none requested an informal hearing.

OSHA has encouraged interested members of the public to provide information and views regarding operations under the Nevada plan to supplement the information already gathered during OSHA monitoring and evaluation of plan administration.

In response to the November 16 proposal, OSHA received comments from: Robert Ostrovsky, President, Ostrovsky and Associates, member and former Chairman, Department of Industrial Relations (DIR) Advisory Board [Ex. 3-1]; Linda M. Rogers, Vice-Chairman, DIR Advisory Board [Ex. 3-2]; John S. Rogers, CEO, Pacific Matrix Financial Corporation and former Chairman, Nevada Occupational Safety and Health Review Board [Ex. 3-3]; and Danny L. Thompson, Executive Secretary-Treasurer, Nevada State AFL-CIO [Ex. 3-4]. All four commenters expressed unqualified support for final approval. All of these comments indicated that the State has established and operates an effective safety and health program and that the State has been effective in protecting employees in Nevada. Specifically, the commenters commended the State program for, among other things: its automatic adoption of Federal standards; requirements in excess of those under Federal OSHA in such areas as pre-construction safety conferences and standards for ammonium perchlorate and tower cranes; and effective staffing.

As required by 29 CFR 1902.41, in considering the granting of final approval to a State plan, OSHA has carefully and thoroughly reviewed all information available to it on the actual operation of the Nevada State plan. This information has included all previous evaluation findings since certification of completion of the State plan's developmental steps, especially data for the period July 1, 1995 through March 31, 1999, and information presented in written submissions. Findings and conclusions in each of the areas of performance are as follows:

(1) Standards. Section 18(c)(2) of the Act requires State plans to provide for occupational safety and health standards which are at least as effective as Federal standards. Such standards where not identical to the Federal must be promulgated through a procedure allowing for consideration of all pertinent factual information and participation of all interested persons (29 CFR 1902.4(b)(2)(iii)); must, where dealing with toxic materials or harmful physical agents, assure employee protection throughout his or her working life (29 CFR 1902.4(b)(2)(i)); must provide for furnishing employees appropriate information regarding hazards in the workplace through labels, posting, medical examinations, etc. (29 CFR 1902.4(b)(2)(vi)); must require suitable protective equipment, technological control, monitoring, etc. (29 CFR 1902.4(b)(2)(vii)); and, where applicable to a product, must be required by compelling local conditions and not pose an undue burden on interstate commerce (29 CFR 1902.3(c)(2)).

As documented in the approved Nevada State plan and OSHA's evaluation findings made a part of the record in this 18(e) determination proceeding, and as discussed in the November 16 notice, the Nevada plan provides for the adoption of standards and amendments thereto which are identical to Federal standards. The State's laws and regulations, previously approved by OSHA and made a part of the record in this proceeding, include provisions addressing all of the structural requirements for State standards set out in 29 CFR Part 1902.

In order to qualify for final State plan approval, a State program must be found to have adhered to its approved procedures (29 CFR 1902.37(b)(2)); to have timely adopted identical or at least as effective standards, including emergency temporary standards and standards amendments (29 CFR 1902.37(b)(3)); to have interpreted its standards in a manner consistent with Federal interpretations and thus to demonstrate that in actual operation State standards are at least as effective as the Federal (29 CFR 1902.37(b)(4)); and to correct any deficiencies resulting from administrative or judicial challenge of State standards (29 CFR 1902.37(b)(5)).

As noted in the 18(e) Evaluation Report and summarized in the November 16, 1999 Federal Register notice, Nevada has adopted standards in a timely manner which are identical to Federal standards.

The Nevada plan provides for the automatic adoption of standards which are identical to Federal standards. A new standard becomes effective in Nevada on the effective date of the Federal standard. The State may adopt alternative standards and has adopted some standards which do not have Federal counterparts, such as standards concerning ammonium perchlorate and tower cranes. Nevada also has regulations requiring pre-construction safety conferences with the Division of Industrial Relations for certain types of construction projects.

The State also requires employers with more than 10 employees to implement safety and health programs, including a safety and health committee for employers with more than 25 employees. For issues where OSHA is considering issuing a rule, as in the case of safety and health programs, the agency does not take action to decide whether the State plan requirements are at least as effective until the Federal action is complete. Nor can OSHA review this requirement for compliance with the National Labor Relations Act (NLRA), which is independently administered by the National Labor Relations Board. The Board's General Counsel has noted in a written opinion that committee requirements under State law do not amount to a per se violation of the NLRA; however, the General Counsel has pointed out that employers must comply with State laws in a manner which does not constitute an unfair labor practice under the NLRA.

Nevada's standards adoption process continued to meet the six-month time frame for adoption of OSHA standards requiring State action during the section 18(e) evaluation period.

Where a State adopts Federal standards, the State's interpretation and application of such standards must ensure consistency with Federal interpretation and application. OSHA's monitoring has found that the State's application of its standards is comparable to Federal standards application. No challenges to State standards have occurred in Nevada.

Therefore, in accordance with section 18(c)(2) of the Act and the pertinent provisions of 29 CFR 1902.3, 1902.4 and 1902.37, OSHA finds that the Nevada program in actual operation provides for standards adoption, correction when found deficient, interpretation and application, in a manner at least as effective as the Federal Program.

(2) Variances. A State plan is expected to have the authority and procedures for the granting of variances comparable to those in the Federal program (29 CFR 1902.4(b)(2)(iv)). The Nevada State plan contains such provisions in both law and regulations which have been previously approved by OSHA. In order to quality for final State plan approval, permanent variances granted must assure employment equally as safe and healthful as would be provided by compliance with the standard (29 CFR 1902.37(b)(6)); temporary variances granted must assure compliance as early as possible and provide appropriate interim employee protection (29 CFR 1902.37(b)(7)). As noted in the 18(e) Evaluation Report and the November 16 notice, Nevada had five requests for permanent variances during the 18(e) evaluation period. Two requests were approved, two were denied, and one was canceled. The granted variances were processed in accordance with State procedures. During the section 18(e) evaluation period, no temporary variance requests were received.

Accordingly, OSHA finds that the Nevada program is able to effectively grant variances from its occupational safety and health standards.

(3) Enforcement. Section 18(c)(2) of the Act and 29 CFR 1902.3(d)(1) require a State program to provide a program for enforcement of State standards which is and will continue to be at least as effective in providing safe and healthful employment and places of employment as the Federal program. The State must require employer and employee compliance with all applicable standards, rules and orders (29 CFR 1902.3(d)(2)) and must have the legal authority for standards enforcement including compulsory process (29 CFR 1902.4(c)(2)).

The Nevada occupational safety and health statutes and implementing regulations, previously approved by OSHA, establish employer and employee compliance responsibility and contain legal authority for standards enforcement in terms substantially identical to those in the Federal Act. In order to be qualified for final approval, the State must have adhered to all approved procedures adopted to ensure an at least as effective compliance program (29 CFR 1902.37(b)(2)). The 18(e) Evaluation Report indicates no significant lack of adherence to such procedures.

(a) Inspections. In order to qualify for final approval, the State program, as implemented, must allocate sufficient resources toward high-hazard workplaces while providing adequate attention to other covered workplaces (29 CFR 1902.37(b)(8)). Data contained in the 18(e) Evaluation Report noted that Nevada uses a list of high hazard industries provided by OSHA to schedule programmed general industry inspections and uses Dodge Reports and local knowledge to schedule construction inspections. The State's strategic plan is focusing on three industries with high rates of injuries and illnesses: manufacturing, construction and hotel/casinos. During the period from October 1997 though March 1999, 53% of the State's safety inspections and 11% of health inspections were programmed. During this period 68% of programmed safety inspections and 71% of programmed health inspections uncovered violations. This exceeds the percentage of Federal programmed inspections with violations and indicates that the State's targeting system is effective.

(b) Employee Notice and Participation in Inspections: State plans must provide for inspections in response to employee complaints and must provide for an opportunity for employees and their representatives to point out possible violations through such means as employee accompaniment or interviews with employees (29 CFR 1902.4(c)(i) through (iii)). Nevada has procedures similar to Federal OSHA for processing and responding to complaints and providing for employee participation in State inspections. The data indicate that during the evaluation period the State was timely in responding to employee complaints, responding to 92% of serious safety and health complaints within the prescribed time frame of 30 days. During the period from October 1997 through March 1999, 25% of State inspections were in response to employee complaints. In 89.8% of cases during the period, complainants were informed of inspection results within 20 working days of citation issuance or, where no citations were issued, within 30 working days of the closing conference. The State also responds to non-formal complaints by letter and utilizes a phone/fax system to expedite response to non-serious complaints.

The State has procedures similar to those of Federal OSHA which require that an opportunity for employee participation in inspections be provided, either through representation on the walkaround or the conduct of interviews with a reasonable number of employees. No problems have been noted concerning employee particpation in Nevada inspections.

In addition, the State plan must provide that employees be informed of their protections and obligations under the Act by such means as the posting of notices (29 CFR 1902.4(c)(2)(iv)), and provide that employees have access to information on their exposure to regulated agents and access to records of the monitoring of their exposure to such agents (29 CFR 1902.4(c)(vi)).

To inform employees and employers of their protections and obligations, Nevada requires that a poster approved by OSHA be displayed in all covered workplaces. Requirements for the posting of the poster and other notices such as citations, contests, hearings and variances applications are set forth in the previously approved State law and regulations which are substantially identical to Federal requirements. Information on employee exposure to regulated agents and access to medical and monitoring records is provided through State standards which are identical to the Federal. No problems have been noted regarding notice of these actions to employers and employees. Therefore, OSHA has concluded that the State's performance in this area is effective.

(c) Nondiscrimination. A State is expected to provide appropriate protection to employees against discharge or discrimination for exercising their rights under the State's program including provision for employer sanctions and employee confidentiality (29 CFR 1902.4(c)(2)(v)). Section 618.445 of the Nevada Occupational Safety and Health Act and State regulations provide for discrimination protection equivalent to that provided by Federal OSHA. A total of 136 investigations of complaints alleging discrimination were completed during the evaluation period, of which 14 were found to be meritorious. The State takes appropriate action in the courts on merit cases where the employer does not voluntarily comply with the State's proposed remedy. During the evaluation period, Nevada experienced difficulty in meeting the 90-day time limit for completion of discrimination investigations. The State took action to ensure timely processing of discrimination complaints, and State performance in this area improved in Fiscal Year 1999. Statistics for the full fiscal year show that 78% of investigations were completed within 90 days. During the period from July 1 through September 30, 1999, 89% of discrimination investigations were completed within 90 days. Therefore, OSHA concludes that Nevada's performance in this area is satisfactory.

(d) Restraint of Imminent Danger; Protection of Trade Secrets. A State plan is required to provide for the prompt restraint of imminent danger situations, (29 CFR 1902.4(c)(2)(vii)) and to provide adequate safeguards for the protection of trade secrets (29 CFR 1902.4(c)(2)(viii)). The State has provisions concerning imminent danger and protection of trade secrets in its law, regulations and operations manual which are similar to the Federal requirements. In addition, the Administrator of the Division of Industrial Relations may issue an emergency order to restrain an imminent danger situation. There were no imminent danger situations identified during the evaluation period. There were no Complaints About State Program Administration (CASPA's) filed concerning the protection of trade secrets during the report period.

(e) Right of Entry; Advance Notice. A State program is expected to have authority for right of entry to inspect and compulsory process to enforce such right equivalent to the Federal program (section 18(c)(3) of the Act and 29 CFR 1902.3(e)). In addition, a State is expected to prohibit advance notice of inspection, allowing exceptions thereto no broader than the Federal program (29 CFR 1902.3(f)). Section 618.325 of the Nevada Occupational Safety and Health Act provides for an inspector's right to enter and inspect all covered workplaces in terms substantially identical to those in the Federal Act. The Nevada law also prohibits advance notice, and implementing procedures for exceptions to this prohibition are substantially identical to the Federal procedures.

In order to be found qualified for final approval, a State is expected to take action to enforce its right of entry when denied (29 CFR 1902.37(b)(9)) and to adhere to its advance notice procedures. During the evaluation period, there were 14 denials of entry. Entry was achieved in 11 of these cases. This exceeds the Federal experience during the period. During the evaluation period, no advance notice of inspections was given.

(f) Citations, Penalties, and Abatement. A State plan is expected to have authority and procedures for promptly notifying employers and employees of violations identified during inspections, for the purpose of effective first-instance sanctions against employers found in violation of standards and for prompt employer notification of such penalties (29 CFR 1902.4(c)(2) (x) and (xi)). The Nevada plan, through its law, regulations and operations manual has established a system similar to the Federal program to provide for the prompt issuance of citations to employers delineating violations and establishing reasonable abatement periods, requiring posting of such citations for employee information, and proposing penalties.

In order to be qualified for final approval, the State, in actual operation, must be found to conduct competent inspections in accordance with approved procedures and to obtain adequate information to support resulting citations (29 CFR 1902.37(b)(10)), to issue citations, proposed penalties and failure-to-abate notifications in a timely manner (29 CFR 1902.37(b)(11)), to propose penalties for first-instance violations that are at least as effective as those under the Federal program (29 CFR 1902.37(b)(12)), and to ensure abatement of hazards including issuance of failure-to-abate notices and appropriate penalties (29 CFR 1902.37(b)(13)).

Procedures for the Nevada occupational safety and health compliance program are set out in the Nevada Operations Manual, which is patterned after the Federal manual. The State follows inspection procedures, including documentation procedures, which are similar to the Federal procedures. The 18(e) Evaluation Report notes overall adherence by Nevada to these procedures. In addition to issuing citations, the State issues “Notices of Violation” for other-than-serious violations that do not carry a penalty, when the employer agrees to abate the violation and not to contest. Nevada cited an average of 2.7 violations per safety inspection and 3.3 violations per health inspection; and 27% of both safety and health violations were cited as serious. The percentage of serious safety and health violations were lower than the comparable Federal percentages. While OSHA has disagreed with the State on the classification of some violations in the past, no systemic problems relating to violation classification have been found. The State continues to provide compliance officers with specific training and direction to ensure the proper classification of violations of standards. Nevada's lapse time from the opening conference to issuance of citation averaged 40 days for safety and 53 days for health. Both of the lapse times are comparable to Federal OSHA's citation lapse times.

Nevada's procedures for calculation of penalties are similar to those of Federal OSHA. The 18(e) Evaluation Report noted that Nevada proposed higher penalties for serious violations than Federal OSHA. The average penalty for serious safety violations was $1844 and the average serious health penalty was $1336. Eighty-eight percent (88%) of serious safety violations had abatement periods of less than 30 days, and 97% of serious health violations had abatement periods of less than 60 days. This compares favorably to Federal performance. The Notice of Violation policy has been successful in assuring prompt abatement of other-than-serious violations without litigation.

(g) Contested Cases. In order to be considered for initial approval and certification, a State plan must have authority and procedures for employer contest of citations, penalties and abatement requirements at full administrative or judicial hearings. Employees must also have the right to contest abatement periods and the opportunity to participate as parties in all proceedings resulting from an employer's contest (29 CFR 1902.4(c)(2)(xii)). Nevada's procedures for employer and employee contest of citations, penalties and abatement requirements and for ensuring employees' rights are contained in the law, regulations and operations manual made a part of the record in this proceeding. The Nevada plan provides for the review of contested cases by the Occupational Safety and Health Review Board, an independent administrative board. Decisions of the Review Board may be appealed to the appropriate State District Court.

Whenever appropriate, the State must seek administrative and judicial review of adverse adjudications. Additionally, the State must take necessary and appropriate action to correct any deficiencies in its program which may be caused by an adverse administrative or judicial determination. See §§ 1902.37(b)(14) and 1902.3 (d) and (g). Nevada has taken action when appropriate to appeal adverse decisions. The Nevada 18(e) Evaluation Report noted that a case involving egregious citations was appealed to the Nevada Supreme Court by the State. The case was settled before hearing.

(h) Enforcement Conclusion. In summary, the Assistant Secretary finds that enforcement operations provided under the Nevada plan are competently planned and conducted, and are overall at least as effective as Federal OSHA enforcement.

(4) Public Employee Program: Section 18(c)(6) of the Act requires that a State which has an approved plan must maintain an effective and comprehensive safety and health program applicable to all employees of public agencies of the State and its political subdivisions, which program must be as effective as the standards contained in an approved plan. 29 CFR 1902.3(j) requires that a State's program for public employees be as effective as the State's program for private employees covered by the plan. The Nevada plan provides a program in the public sector which is comparable to that in the private sector, including assessment of penalties for serious violations. Injury and illness rates in the public sector are comparable to private sector rates.

During the 18(e) Evaluation period, the State conducted 4.4% of its total inspections in the public sector. The results of these inspections were comparable to those in the private sector. Because Nevada's performance in the public sector is comparable to that in the private sector, OSHA concludes that the Nevada program meets the criteria in 29 CFR 1902.3(j).

(5) Staffing and Resources. Section 18(c)(4) of the Act requires State plans to provide the qualified personnel necessary for the enforcement of standards. In accordance with 29 CFR 1902.37(b)(1), one factor which OSHA must consider in evaluating a plan for final approval is whether the State has a sufficient number of adequately trained and competent personnel to discharge its responsibilities under the plan.

The Nevada plan provides for 22 safety compliance officers and 9 industrial hygienists as set forth in the Nevada FY 1999 grant application. The FY 2000 grant application provides for 25 safety compliance officers and 12 industrial hygienists. This staffing level exceeds the revised “fully effective” benchmarks for Nevada for health and safety staffing of 11 safety and 5 health compliance officers approved by OSHA on September 11, 1987 [52 FR 34381]. At the close of the evaluation period the State had 20 safety and 9 health compliance officer positions filled.

Nevada utilizes the OSHA Training Institute for most of its staff training. The State also conducts internal training through staff meetings regarding any new issues or standards. In addition, enforcement and consultation staffs conduct joint regional meetings to discuss standards and other issues to ensure that enforcement and consultation have the same understanding of the requirements of the standards.

Because Nevada has allocated sufficient enforcement staff to meet the revised benchmarks for that State, and personnel are trained and competent, the requirements for final approval set forth in 29 CFR 1902.37(b)(1), and in the court order in AFL-CIO v. Marshall , supra, are being met by the Nevada plan.

Section 18(c)(5) of the Act requires that the State devote adequate funds to administration and enforcement of its standards. The Nevada plan was funded at $4,917,275 in FY 1999. ($1,163,000 (24%) of the funds were provided by Federal OSHA; Nevada matched this amount and contributed an additional $2,591,275 for a total State share of $3,754,275 (76%)).

As noted in the 18(e) Evaluation Report, Nevada's funding exceeds Federal requirements in absolute terms; moreover, the State allocates its resources to the various aspects of the program in an effective manner. On this basis, OSHA finds that Nevada has provided sufficient funding and resources for the various activities carried out under the plan.

(6) Records and Reports: State plans must assure that employers in the State submit reports to the Secretary in the same manner as if the plan were not in effect (section 18(c)(7) of the Act and 29 CFR 1902.3(k)). The plan must also provide assurance that the designated agency will make such reports to the Secretary in such form and containing such information as he may from time to time require (section 18(c)(8) of the Act and 29 CFR 1902.4(1)).

Nevada employer recordkeeping requirements are identical to those of Federal OSHA, and the State participates in the BLS Annual Survey of Occupational Injuries and Illnesses as well as the OSHA Data Initiative. The State participates and has assured its continuing participation with OSHA in the Integrated Management Information System (IMIS) as a means of providing reports on its activities to OSHA.

For the foregoing reasons, OSHA finds that Nevada has met the requirements of sections 18(c)(7) and (8) of the Act on employer and State reports to the Secretary.

(7) Voluntary Compliance: A State plan is required to undertake programs to encourage voluntary compliance by employers and employees (29 CFR 1902.4(c)(2)(xiii)).

The Nevada consultation program, which until July 1, 1999 operated its private sector component under the State plan rather than OSHA's section 21(d) consultation program, includes 14 consultants and 4 trainers. The State provides consultation services to both the private and public sectors. During the evaluation period, Nevada conducted 1781 consultation visits, primarily in smaller high hazard private sector establishments. From Fiscal Year 1996 through Fiscal Year 1999, the State conducted 739 safety and health classes, reaching a total of 6,737 employers and 8,551 employees. Training covered such issues as developing safety and health programs, lockout/tagout, fall protection, hazard communication and bloodborne pathogens. In addition, the Safety Consultation and Training Section has carried out substantial promotion and outreach efforts through a multi-media campaign, including television and newspaper public service announcements, funded by the State.

Accordingly, OSHA finds that Nevada has established and is administering an effective voluntary compliance program.

(8) Injury/Illness Rates: As a factor in its section 18(e) determination, OSHA must consider whether the Bureau of Labor Statistics' annual occupational safety and health survey and other available Federal and State measurements of program impact on worker safety and health indicate that trends in worker safety and health injury and illness rates under the State program compare favorably with those under the Federal program. See § 1902.37(b)(15). Nevada's lost workday case rate for private industry declined from 4.2 in 1994 to 3.3 in 1997. The lost workday case rate for construction decreased from 7.5 to 5.6, even though there was substantial growth in the construction industry particularly in the southern part of the State. The rate for manufacturing increased slightly from 5.0 to 5.2. The rate for State and local government decreased from 3.6 to 3.4.

OSHA finds that during the evaluation period trends in worker injury and illness in Nevada were comparable with those in States with Federal enforcement.

OSHA has carefully reviewed the record developed during the above described proceedings, including all comments received thereon. The present Federal Register document sets forth the findings and conclusions resulting from this review.

In light of all the facts presented on the record, the Assistant Secretary has determined that the Nevada State plan for occupational safety and health, which has been monitored for at least one year subsequent to certification, is in actual operation at least as effective as the Federal program and meets the statutory criteria for State plans in section 18(e) of the Act and implementing regulations at 29 CFR Part 1902. Accordingly, the Nevada State plan is hereby granted final approval under section 18(e) of the Act and implementing regulations at 29 CFR Part 1902, effective April 18, 2000.

Under this 18(e) determination, Nevada will be expected to maintain a State program which will continue to be at least as effective as operations under the Federal program in providing employee safety and health at covered workplaces. This requirement includes submitting all required reports to the Assistant Secretary as well as submitting plan supplements documenting State-initiated program changes, changes required in response to adverse evaluation findings, and responses to mandatory Federal program changes. In addition, Nevada must continue to allocate sufficient safety and health enforcement staff to meet the benchmarks for State compliance staffing established by the Department of Labor, or any revision to those benchmarks.

The determination that the criteria set forth in section 18(c) of the Act and 29 CFR Part 1902 are being applied in actual operations under the Nevada plan terminates OSHA authority for Federal enforcement of its standards in Nevada, in accordance with section 18(e) of the Act, in those issues covered under the State plan. Section 18(e) provides that upon making this determination “the provisions of sections 5(a)(2), 8 (except for the purpose of carrying out subsection (f) of this section), 9, 10, 13, and 17, shall not apply with respect to any occupational safety and health issues covered under the plan, but the Secretary may retain jurisdiction under the above provisions in any proceeding commenced under section 9 or 10 before the date of determination.”

Accordingly, Federal authority to issue citations for violation of OSHA standards (sections 5(a)(2) and 9); to conduct inspections (except those necessary to conduct evaluations of the plan under section 18(f), and other inspections, investigations or proceedings necessary to carry out Federal responsibilities which are not specifically preempted by section 18(e)) (section 8); to conduct enforcement proceedings in contested cases (section 10); to institute proceedings to correct imminent dangers (section 13); and to propose civil penalties or initiate criminal proceedings for violations of the Federal OSH Act (section 17) is relinquished as of the effective date of this determination.

Federal authority under provisions of the Act not listed in section 18(e) is unaffected by this determination. Thus, for example, the Assistant Secretary retains his authority under section 11(c) of the Act with regard to complaints alleging discrimination against employees because of the exercise of any right afforded to the employee by the Act although such complaints may be initially referred to the State for investigation. Any proceeding initiated by OSHA under sections 9 and 10 of the Act prior to the date of this final determination would remain under Federal jurisdiction. The Assistant Secretary also retains his authority under section 6 of the Act to promulgate, modify or revoke occupational safety and health standards which address the working conditions of all employees, including those in States which have received an affirmative 18(e) determination. In the event that a State's 18(e) status is subsequently withdrawn and Federal authority reinstated, all Federal standards, including any standards promulgated or modified during the 18(e) period, would be Federally enforceable in the State.

In accordance with section 18(e), this determination relinquishes Federal OSHA authority only with regard to occupational safety and health issues covered by the Nevada plan, and OSHA retains full authority over issues which are not subject to State enforcement under the plan. Thus, for example, Federal OSHA retains its authority to enforce all provisions of the Act, and all Federal standards, rules or orders which relate to safety or health coverage of any private sector maritime activities (occupational safety and health standards comparable to 29 CFR Parts 1915, shipyard employment; 1917, marine terminals; 1918, longshoring; and 1919, gear certification, as well as provisions of general industry and construction standards (29 CFR Parts 1910 and 1926) appropriate to hazards found in these employments), private employment on Indian land and any contractors or subcontractors on any Federal establishment where the land is exclusive Federal jurisdiction. Federal OSHA will also retain authority for coverage of the United States Postal Service (USPS), including USPS employees, contract employees, and contractor-operated facilities engaged in USPS mail operations and all Federal employers in Nevada. In addition Federal OSHA may subsequently initiate the exercise of jurisdiction over any issue (hazard, industry, geographical area, operation or facility) for which the State is unable to provide effective coverage for reasons which OSHA determines are not related to the required performance or structure of the State plan.

As provided by section 18(f) of the Act, the Assistant Secretary will continue to evaluate the manner in which the State is carrying out its plan. Section 18(f) and regulations at 29 CFR Part 1955 provide procedures for the withdrawal of Federal approval should the Assistant Secretary find that the State has subsequently failed to comply with any provision or assurance contained in the plan. Additionally, the Assistant Secretary is required to initiate proceedings to revoke an 18(e) determination and reinstate concurrent Federal authority under procedures set forth in 29 CFR 1902.47, et seq. , if his evaluations show that the State has substantially failed to maintain a program which is at least as effective as operations under the Federal program, or if the State does not submit program change supplements to the Assistant Secretary as required by 29 CFR Part 1953.

29 CFR Part 1952 contains, for each State having an approved plan, a Subpart generally describing the plan and setting forth the Federal approval status of the plan. 29 CFR 1902.43(a)(3) requires that notices of affirmative 18(e) determinations be accompanied by changes to Part 1952 reflecting the final approval decision. This notice makes changes to Subpart W of Part 1952 to reflect the final approval of the Nevada plan.

The table of contents for Part 1952, Subpart W, has been revised to reflect the following changes:

A new Section 1952.294, Final approval determination, which formerly was reserved, has been added to reflect the determination granting final approval of the plan. This section contains a more accurate description of the current scope of the plan than the one contained in the initial approval decision.

Section 1952.295, Level of Federal enforcement, has been revised to reflect the State's 18(e) status. This replaces the former description of the relationship of State and Federal enforcement under an Operational Status Agreement voluntarily suspending Federal enforcement authority, which was entered into on December 9, 1981. Section 1952.295 describes the issues over which Federal authority has been terminated and the issues for which it has been retained in accordance with the discussion of the effects of the 18(e) determination set forth earlier in the present Federal Register notice.

Section 1952.296, Where the plan may be inspected, has been revised to reflect a new address for the Nevada Division of Industrial Relations.

OSHA certifies pursuant to the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) that this determination will not have a significant economic impact on a substantial number of small entities. Final approval would not place small employers in Nevada under any new or different requirements, nor would any additional burden be placed upon the State government beyond the responsibilities already assumed as part of the approved plan.

Executive Order 13132, “Federalism,” emphasizes consultation between Federal agencies and the States and establishes specific review procedures the Federal government must follow as it carries out policies which affect state or local governments. OSHA has included in the Background section of today's final approval decision a detailed explanation of the relationship between Federal OSHA and the State plan States under the Occupational Safety and Health Act. OSHA has consulted extensively with Nevada throughout the period of 18(e) evaluation. Although OSHA has determined that the requirements and consultation procedures provided in Executive Order 13132 are not applicable to final approval decisions under the OSH Act, which have no effect outside the particular State receiving the approval, OSHA has reviewed the Nevada final approval decision proposed today, and believes it is consistent with the principles and criteria set forth in the Executive Order.

This document was prepared under the direction of Charles N. Jeffress, Assistant Secretary of Labor for Occupational Safety and Health. It is issued under Section 18 of the OSH Act, (29 U.S.C. 667), 29 CFR Part 1902, and Secretary of Labor's Order No. 1-90 (55 FR 9033)).

The Coast Guard has determined that good cause exists under the Administrative Procedure Act (5 U.S.C. 553) to forego notice and comment for this rulemaking because notice and comment are impracticable. The Coast Guard believes notice and comment are impracticable because the requested closures are of such short duration. In the last two years, there have been few requests to open these bridges on Sunday during the hours they will be closed. Vessel traffic on the Harlem River and Newtown Creek is mostly commercial vessels that normally pass under the draws without openings. The commercial vessels that do require openings are work barges that do not operate on Sundays. The Coast Guard, for the reasons just stated, has also determined that good cause exists for this rule to be effective less than 30 days after it is published in the Federal Register .

Third Avenue Bridge. The Third Avenue Bridge, mile 1.9, across the Harlem River between Manhattan and the Bronx, has a vertical clearance of 25 feet at mean high water and 30 feet at mean low water in the closed position. The existing operating regulations listed at § 117.789(c) require the draw to open on signal from 10 a.m. to 5 p.m., if at least a four-hour notice is given to the New York City Highway Radio (Hotline) Room. From 5 p.m. to 10 a.m., the draw need not be opened for vessel traffic.

Madison Avenue Bridge. The Madison Avenue Bridge, mile 2.3, across the Harlem River between Manhattan and the Bronx, has a vertical clearance of 25 feet at mean high water and 29 feet at mean low water in the closed position. The existing operating regulations listed at § 117.789(c) require the draw to open on signal from 10 a.m. to 5 p.m., if at least a four-hour notice is given to the New York City Highway Radio (Hotline) Room. From 5 p.m. to 10 a.m., the draw need not be opened for vessel traffic.

Pulaski Bridge. The Pulaski Bridge, mile 0.6, across the Newtown Creek between Brooklyn and Queens, has a vertical clearance of 39 feet at mean high water and 43 feet at mean low water in the closed position. The existing operating regulations require the draw to open on signal at all times.

The New York City Department of Transportation (NYCDOT) requested a change to the operating regulations for the Third Avenue Bridge, the Madison Avenue Bridge, and the Pulaski Bridge on May 7, 2000, to allow the bridges to remain in the closed position at different times to facilitate the running of the Five Boro Bike Tour.

The Third Avenue Bridge, mile 1.9, across the Harlem River between Manhattan and the Bronx and the Madison Avenue Bridge, mile 2.3, across the Harlem River between Manhattan and the Bronx, shall remain in the closed position from 8 a.m. to 11 a.m. on May 7, 2000. The Pulaski Bridge, mile 0.6, across the Newtown Creek between Brooklyn and Queens, shall remain in the closed position from 9 a.m. to 12 p.m. on May 7, 2000.

Vessels that can pass under the bridges without bridge openings may do so at all times.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). This conclusion is based on the fact that the requested closures are of short duration and on Sunday morning when there have been few requests to open these bridges.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612) we considered whether this rule would have a significant economic impact on a substantial number of small entities. “Small entities” comprises small businesses, not-for profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This conclusion is based on the fact that the requested closures are of short duration and on Sunday when there have been few requests to open these bridges.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those unfunded mandate costs. This rule will not impose an unfunded mandate.

This rule will not effect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (32)(e) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation because promulgation of changes to drawbridge regulations have been found to not have a significant effect on the environment. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES .

The Veterans Programs Enhancement Act of 1998 (Pub. L. 105-368) contains provisions that affect the educational assistance and education benefit regulations. This document amends these regulations to correspond with new statutory provisions concerning the education criteria an individual must meet in order to establish eligibility for the Montgomery GI Bill—Active Duty (MGIB).

To meet the eligibility criteria for the MGIB, a veteran, among other things, must have completed the requirements of a secondary school diploma (or the equivalency certificate). Previously, if a veteran did not actually receive a diploma, by statute a veteran could have met this criterion only by successfully completing within statutory deadlines the equivalent of 12 semester hours.

Public Law 105-368 provides that the criterion will also be met if the veteran otherwise receives academic credit for the equivalent of 12 semester hours. Thus, a veteran who did not actually earn 12 semester hours credit, but who received academic credit for 12 semester hours because of his or her life experiences before the applicable deadline, would now be eligible for MGIB. We are amending 38 CFR 21.7042, 21.7044, and 21.7045 to reflect this provision of law. We are also making nonsubstantive changes for the purpose of clarity.

Consistent with the effective date provisions of section 203 of Public Law 105-368, the date of applicability for the provisions in this final rule that affect eligibility criteria for the Montgomery GI Bill—Active Duty is October 1, 1998.

Substantive changes made by this final rule merely reflect statutory requirements. Accordingly, there is a basis for dispensing with prior notice and comment and delayed effective date provisions of 5 U.S.C. 552 and 553.

The Secretary of Veterans Affairs hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule directly affects only individuals. Pursuant to 5 U.S.C. 605(b), this final rule, therefore, is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.

(a) * * *

(3) * * *

(ii) Successfully complete (or otherwise receive academic credit for) 12 semester hours (or the equivalent) in a program of education leading to a standard college degree. This may be done at any time.

On August 1, 1995, January 6, 1995, June 14, 1995, December 8, 1995, May 31, 1995, May 2, 1996, March 21, 1996, September 13, 1996, November 4, 1997, March 24, 1998, December 7, 1998, February 2, 1999, March 3, 1999, April 9, 1999, April 20, 1999 and July 28, 1999, the Commonwealth of Pennsylvania submitted formal revisions to its State Implementation Plan (SIP). On March 24, 1998, May 29, 1998, October 2, 1998, October 16, 1998, December 7, 1998, February 2, 1999, April 9, 1999 and June 22, 1999, the Commonwealth submitted supplemental information pertaining to the Cogentrix, Scrubgrass Generating Company, Indiana University of Pennsylvania, INDSPEC, Wheelabrator-Frackville, Piney Creek, Harrisburg Steam Works and the four PP&L revisions, respectively. On July 24, 1998, PADEP submitted materials which replaced the May 2, 1996 submittal for Transit America Inc. Each source subject to this rulemaking will be identified and discussed below. Any plan approvals and operating permits submitted coincidentally with those being approved in this document, and not identified below, will be addressed in a separate rulemaking action.

Pursuant to sections 182(b)(2) and 182(f) of the Clean Air Act (CAA), Pennsylvania is required to implement RACT for all major VOC and NO Χ sources by no later than May 31, 1995. The definition of a major source is determined by its size, location, the classification of that area and whether it is located in the ozone transport region (OTR), which is established by the CAA. The Pennsylvania portion of the Philadelphia-Wilmington-Trenton ozone nonattainment area (the Philadelphia area) consists of Bucks, Chester, Delaware, Montgomery, and Philadelphia Counties and is classified as severe. The remaining counties in Pennsylvania are designated as nonattainment are classified as either moderate or marginal. However, under section 184 of the CAA, at a minimum, moderate area requirements for stationary sources, including RACT as specified in sections 182(b)(2) and 182(f), apply throughout the OTR. Therefore, RACT is applicable statewide in Pennsylvania. The Pennsylvania submittals that are the subject of this document are meant to satisfy the RACT requirements for twenty-six specific sources.

The details of the RACT requirements for the source-specific plan approvals, operating permits and compliance permit can be found in the docket and accompanying technical support documents (TSD) and will not be reiterated in this document. Briefly, EPA is approving a revision to the Pennsylvania SIP pertaining to the determination of RACT for twenty-six major sources. Several of the plan approvals and operating permits contain conditions which are not relevant to the determination of VOC or NO Χ RACT. These provisions are not included in Pennsylvania's SIP revision requests these sources.

The following table identifies the individual compliance permit, plan approvals, and operating permits EPA is approving. The specific emission limitations and other RACT requirements for these sources are summarized in the accompanying technical support documents, which are available upon further request from the EPA Region III office listed in the ADDRESSES section of this document.

EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This direct final rule will be effective on June 19, 2000 without further notice unless we receive adverse comment by May 18, 2000. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

EPA is approving SIP revisions submitted by the Commonwealth of Pennsylvania which consist of four plan approvals, twenty-three operating permits and one compliance permit imposing RACT on twenty-six individual major sources of NO X and/or VOC.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source-specific requirements for twenty-six named sources.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 19, 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 approving Pennsylvania's source-specific RACT requirements for twenty-six sources may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Today's action addresses several State Implementation Plan (SIP) revisions submitted by the Maine Department of Environmental Protection (DEP). These SIP submittals contain reasonably available control technology (RACT) requirements for certain VOC sources.

On November 3, 1993, EPA received a formal State Implementation Plan (SIP) submittal from the Maine Department of Environmental Protection (DEP) containing Chapter 134 “Reasonably Available Control Technology for Facilities that Emit Volatile Organic Compounds.” In addition, on April 28, 1995, Maine DEP submitted a revised version of this rule to EPA as a SIP revision in order to address several issues EPA had identified with the previous submittal. Furthermore, Maine DEP also subsequently submitted source specific SIP revisions for several VOC sources on January 10, 1996, July 1, 1997, October 9, 1997, November 14, 1997, and December 10, 1997.

On November 15, 1990, amendments to the 1977 Clean Air Act were enacted. Public Law 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q. In Maine, pursuant to the Clean Air Act Amendments (CAAA) of 1990, the Portland area (York, Sagadahoc, and Cumberland counties), the Lewiston-Auburn area (Androscoggin and Kennebec counties), and the Knox and Lincoln Counties area were designated as moderate ozone nonattainment areas and the Hancock and Waldo counties area was designated as a marginal ozone nonattainment area. See 56 FR 56694 (Nov. 6, 1991).

Section 182(b)(2) of the amended Act requires states to adopt RACT rules for all areas designated nonattainment for ozone and classified as moderate or above. There are three parts to the section 182(b)(2) RACT requirement: (1) RACT for sources covered by an existing Control Technique Guideline (CTG)— i.e., a CTG issued prior to the enactment of the CAAA of 1990; (2) RACT for sources covered by a post-enactment CTG; and (3) all major sources not covered by a CTG, i.e., non-CTG sources. As previously mentioned, three areas in Maine were designated moderate ozone nonattainment areas. These areas were thus subject to the section 182(b)(2) RACT requirement.

Furthermore, the State of Maine is located in the Northeast Ozone Transport Region (OTR). The entire State is, therefore, subject to section 184(b) of the amended CAA. Section 184(b) requires that RACT be implemented in the entire state for all VOC sources covered by a CTG issued before or after the enactment of the CAAA of 1990 and for all major VOC sources (defined as 50 tons per year for sources in the OTR).

A CTG is a document issued by EPA which establishes a presumptive norm for RACT for a specific VOC source category. Under the pre-amended CAA, EPA issued CTG documents for 29 categories of VOC sources. Maine has previously addressed all of EPA's pre-1990 CTGs and EPA has approved Maine's submittals for these source categories. See 57 FR 3946, 58 FR 15281, 59 FR 31154, and 60 FR 33730. Today's document addresses requirements adopted by Maine pursuant to the non-CTG and new ( i.e., post-1990) CTG requirements of the CAA.

Section 183 of the amended CAA requires that EPA issue 13 new CTGs. Appendix E of the General Preamble of Title I (57 FR 18077) lists the categories for which EPA plans to issue new CTGs. On November 15, 1993, EPA issued a CTG for Synthetic Organic Chemical Manufacturing Industry (SOCMI) Distillation Operations and Reactor Processes. Also, on August 27, 1996, EPA issued a CTG for shipbuilding and repair operations and on May 26, 1996, EPA issued a CTG for wood furniture finishing operations. Furthermore, on March 27, 1998, EPA issued a CTG for aerospace coating operations. CTGs for the remaining Appendix E categories have not yet been issued.

In response to the CAA requirement to adopt RACT for all sources covered by a new CTG, on November 15, 1994, Maine submitted a negative declaration for the SOCMI Distillation and Reactors Processes CTG categories. Through the negative declaration, the State of Maine is asserting that there are no sources within the State that would be subject to a rule for these source categories. EPA is approving this negative declaration submittal as meeting the section 182(b)(2) and section 184(b) RACT requirements for these two source categories. However, if evidence is submitted by May 18, 2000 that there are existing sources within the State of Maine that, for purposes of meeting the RACT requirements, would be subject to a rule for these categories, if developed, such comments would be considered adverse and EPA would withdraw its approval action on the negative declarations.

EPA's shipbuilding CTG applies to shipbuilding and ship repair coating sources which are major VOC sources, i.e., those with the potential to emit 50 tons or more per year in Maine. On October 9, 1997, Maine submitted a SIP revision for Portsmouth Naval Shipyard. EPA has evaluated the license submitted for this facility and has found it to be approvable. Generally, the facility is required to meet the VOC coating limits recommended by EPA's shipbuilding CTG. The specific requirements imposed on Portsmouth Naval Shipyard and EPA's evaluation of these requirements are detailed in a memorandum dated March 17, 2000, entitled “Technical Support Document—Maine—RACT for VOC sources” (TSD). Copies of this document are available, upon request, from the EPA Regional Office listed in the ADDRESSES section of this document. In addition, the Bath Iron Works facility in Bath, Maine is also subject to EPA's shipbuilding CTG. Maine DEP has not yet addressed VOC RACT for this facility but will need to do so in order to fulfill the State's new CTG CAA obligations.

EPA's CTG for wood furniture finishing operations applies to facilities with the potential to emit 25 tons of VOC or more per year. EPA is aware of at least two facilities in Maine which may be covered by this CTG. They are Moosehead Manufacturing's Monson and Dover-Foxcroft plants. Maine needs to address these facilities, as well as any other facilities to which the wood furniture CTG may be applicable, in order to fulfill the State's new CTG CAA obligations.

EPA's CTG for aerospace coating operations applies to facilities with the potential to emit 25 tons of VOC or more per year. EPA is aware of at least one source in Maine, Pratt & Whitney, which may be covered by this CTG. Maine needs to address this facility, as well as any other facilities to which the aerospace CTG may be applicable, in order to fulfill the state's new CTG CAA obligations.

Maine's Chapter 134 regulation requires major non-CTG VOC sources to implement RACT. The rule is based on EPA Region I's working draft rule entitled “Reasonably Available Control Technology for Facilities that Emit Volatile Organic Compounds” and EPA's national “Model Volatile Organic Compound Rules for Reasonably Available Control Technology” (June 1992).

Maine's Chapter 134 is generally consistent with EPA guidance, however, there is one outstanding issue associated with this regulation. This issue involves the generic nature of the rule and is further discussed below. In addition, there are two other aspects of the rule which are somewhat unique to Maine's regulation. These issues are also further discussed below.

Maine's Chapter 134 establishes three RACT options. The first two options are methods of achieving RACT by either: (a) operating a system to capture and control VOC emissions such that total VOC emissions do not exceed 15% of the uncontrolled daily VOC emissions; or (b) reducing VOC use and emissions such that total VOC emissions do not exceed 20% of the total daily VOC emissions in calendar year 1990 (calculated on either a mass of VOC per mass of solids applied basis for surface coating sources or a mass of VOC per unit of production basis). The third method, stated in section 3(A)(3) of the rule, is to submit a variety of strategies as an alternative compliance plan to reduce VOC emissions.

Since the first two options of Chapter 134 define presumptive norms for RACT, that portion of the regulation meets the requirements of section 182 of the CAA. However, since the third option describes a process by which RACT can be defined but does not define RACT as required by the CAA, this portion of the rule is not approvable. Maine must define explicitly, and have approved by EPA, RACT for all of those sources which do not conform to the presumptive RACT options outlined in the regulation.

Maine has submitted to EPA many, although not all, of the necessary single source SIP revisions. Specifically, SIP revisions have been submitted for all of the applicable sources in the following counties: York, Sagadahoc, Cumberland, Androscoggin, Kennebec, Knox, Lincoln, Hancock, Waldo, Aroostook, Franklin, Oxford, and Piscataquis. The sources for which non-CTG VOC RACT determinations have been submitted are discussed below in section (C). Maine must, however, submit, and EPA must approve, SIP revisions for all of the remaining sources which do not choose to conform to the presumptive RACT options outlined in the regulation in order for Chapter 134 to be approvable statewide. These sources are: GP Chip'n Saw and Mearl Corporation in Washington County, Irving Tanning in Somerset County, and Great Northern Paper's two facilities in Penobscot County.

There are two other aspects of Chapter 134 which are unique to Maine's rule. These are the requirements for pulp and paper processes and the exemptions included in the rule. Section 3(A)(4) of Chapter 134 (Option D) specifically addresses VOC RACT requirements for pulp and paper processes. For example, Option D requires that emissions from the digester system, multiple effect evaporator systems, condensate stripper systems, smelt tanks, and lime kilns be controlled through incineration or wet scrubber systems in accordance with Maine's Chapter 124 “Total Reduced Sulfur Control from Kraft Pulp Mills.” Chapter 134 also includes exemptions for specific pieces of equipment. For example, the rule contains an exemption for kraft recovery boilers. EPA has determined that the Chapter 134 requirements for pulp and paper processes and the exemptions included in the rule are approvable and that the rule is generally consistent with EPA guidance with the exception of the outstanding issue (i.e., the generic nature of the rule) discussed above. The specific requirements of Chapter 134 and EPA's evaluation of these requirements are detailed in the TSD. Copies of this document are available, upon request, from the EPA Regional Office listed in the ADDRESSES section of this document.

On January 10, 1996, Maine submitted licenses for the following pulp and paper facilities: SD Warren Paper Company (Westbrook and Skowhegan), Lincoln Pulp and Paper, James River, International Paper, Boise Cascade, and Georgia Pacific. Also, on July 1, 1997, Maine submitted licenses for Champion International, Boise Cascade, and International Paper to EPA as a SIP revision. These facilities are all pulp and paper mills. These licenses include conditions which re-state some of the Chapter 134 Option D requirements. The licenses also address VOC emissions from operations that are not addressed in Option D, such as the mechanical pulping operations which occur at Boise Cascade, Champion International, and International Paper.

In addition to the pulp and paper licenses, Maine also submitted a license for Pioneer Plastics on July 1, 1997. Pioneer Plastics manufactures specialty resins and produces a decorative laminate used for counter tops and furniture. Generally, Pioneer's license requires emissions from certain reactors to be vented to an incinerator and emissions from other reactors to be vented to a vapor condenser. Also, on November 14, 1997 and December 10, 1997, Maine submitted licenses for Prime Tanning and Dexter Shoe. Prime Tanning is a leather finishing facility. Prime Tanning's license includes provisions which impose work practice and equipment standards, as well as VOC coating emission limitations, on the facility. Dexter Shoe is a shoe manufacturing facility. The majority of Dexter's VOC emissions are generated through the use of solvent based primers and adhesives. The use of low VOC products and the implementation of certain work practice and equipment standards were determined to represent RACT for Dexter. Furthermore, a license for Nissen Bakeries was submitted to EPA as a SIP revision on October 9, 1997. The majority of VOC emissions at this facility resulted from the baking of yeast-leavened bread. The license issued to Nissen Bakeries requires that the facility cease production of yeast leavened bread by May 15, 1999.

EPA has evaluated the licenses submitted for all of the facilities listed above and has found that these licenses are consistent with EPA guidance. The specific requirements imposed on each facility and EPA's evaluation of these requirements are detailed in the TSD. Copies of this document are available, upon request, from the EPA Regional Office listed in the ADDRESSES section of this document.

EPA is publishing this action without prior proposal because the Agency anticipates no adverse comments on this rulemaking. However, in a separate document in this Federal Register publication, EPA is proposing to approve the SIP revision should adverse or critical comments be filed. This action will be effective June 19, 2000 unless adverse or critical comments are received by May 18, 2000.

If the EPA receives such comments, this action will be withdrawn before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. If no such comments are received, the public is advised that this action will be effective on June 19, 2000.

EPA is issuing a full approval of Maine's Chapter 134 “Reasonably Available Control Technology for Facilities that Emit Volatile Organic Compounds” as meeting the CAA sections 182(b)(2)(C) and 184(b) non-CTG VOC RACT requirements for York, Sagadahoc, Cumberland, Androscoggin, Kennebec, Knox, Lincoln, Hancock, Waldo, Aroostook, Franklin, Oxford, and Piscataquis Counties. EPA is also issuing a limited approval of Maine's Chapter 134 for Washington, Somerset, and Penobscot Counties.

In addition, EPA is approving licenses for the following facilities and incorporating them into the Maine SIP: SD Warren Paper Company (Westbrook and Skowhegan), Lincoln Pulp and Paper, James River, International Paper, Georgia Pacific, Pioneer Plastics, Champion International, Nissen Bakeries, Prime Tanning, Dexter Shoe, Portsmouth Naval Shipyard, and Boise Cascade.

Furthermore, EPA is also approving Maine's negative declaration for the SOCMI Distillation and Reactor Processes CTG categories as meeting the CAA VOC RACT requirements for these source categories.

Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any State Implementation Plan. Each request for revision to the State Implementation Plan shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 19, 2000. Interested parties should comment in response to the proposed rule rather than petition for judicial review, unless the objection arises after the comment period allowed for in the proposal. 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).) Interested parties should comment in response to the proposed rule rather than petition for judicial review, unless the objection arises after the comment period allowed for in the proposal.

Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

The supplementary information is organized in the following order:

EPA is providing notice that it is delegating authority for implementation and enforcement of the Federal standards shown in the tables below to the state and local air agencies in Region 7. This rule updates the delegation tables most recently published at 63 FR 1746 (January 12, 1998.)

Section 553(b)(B) of the Administrative Procedures Act (APA) provides that an agency may forgo notice-and-comment rulemaking upon determination of “good cause” published with the rule. EPA considers these updates to be minor changes which are not subject to notice-and-comment rulemaking procedures under the APA or any other statute.

1. Section 111(c)(1) of the Clean Air Act (CAA) authorizes EPA to delegate authority to any state agency which submits adequate regulatory procedures for implementation and enforcement of the NSPS program. The NSPS standards are codified at 40 CFR Part 60.

2. Section 112(l) of the CAA and 40 CFR Part 63, subpart E, authorizes EPA to delegate authority to any state or local agency which submits adequate regulatory procedures for implementation and enforcement of emission standards for hazardous air pollutants. The hazardous air pollutant standards are codified at 40 CFR Parts 61 and 63, respectively.

Delegation confers primary responsibility for implementation and enforcement of the listed standards to the respective state and local air agencies. However, EPA also retains the authority to enforce the standards if it so desires.

Tables I, II, and III below list the delegated standards. The first date in each block is the reference date to the CFR contained in the state rule. In general, the state has adopted the applicable standard through this date as noted in the table. The second date is the most recent effective date of the state agency rule for which EPA is providing or updating the delegation.

1. EPA regulations effective after the first date specified in each block have not been delegated, and authority for implementation of these regulations is retained solely by EPA.

2. In some cases, the standards themselves specify that specific provisions cannot be delegated. You should review the standard for this information.

3. In some cases, the agency rules do not adopt the Federal standard in its entirety. Each agency rule (available from the respective agency) should be consulted for specific information.

4. In some cases, existing delegation agreements between EPA and the agencies limit the scope of the delegated standards. Copies of delegation agreements are available from the state agencies, or from this office.

5. With respect to 40 CFR Part 63, subpart A, General Provisions (see Table III), EPA has determined that sections 63.6(g), 63.6(h)(9), 63.7(e)(2)(ii) and (f), 63.8(f), and 63.10(f) cannot be delegated. Additional information is contained in an EPA memorandum titled “Delegation of 40 CFR Part 63 General Provisions Authorities to State and Local Air Pollution Control Agencies' from John Seitz, Director, Office of Air Quality Planning and Standards, dated July 10, 1998.

After a review of the submissions, the Regional Administrator determined that delegation was appropriate for the source categories with the conditions set forth in the original NSPS and NESHAP delegation agreements, and the limitations in all applicable regulations, including 40 CFR Parts 60, 61, and 63.

You should refer to the applicable agreements and regulations referenced above to determine specific provisions which are not delegated.

All sources subject to the requirements of 40 CFR Parts 60, 61, and 63 are also subject to the equivalent requirements of the above-mentioned state or local agencies.

EPA's review of the pertinent regulations shows that they contain adequate and effective procedures for the implementation and enforcement of these Federal standards. This rule informs the public of delegations to the above-mentioned agencies.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the APA or any other statute (see section I. of this document), it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

This minor action does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act (5 U.S.C. 801 et 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 United States Senate, the United States House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

This is a synopsis of the Commission's Report and Order in MM Docket No. 00-8, adopted March 22, 2000, and released March 31, 2000. The full text of this decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Service, Inc., (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036.

The Hawaiian archipelago consists of eight main islands and the shoals and atolls of the northwest Hawaiian Islands. The islands were formed sequentially by basaltic lava that emerged from a crustal hot spot located near the southeast coast of the island of Hawai‘i (Stearns 1985).

The second oldest main island, O‘ahu, is 2.5 million to 3.5 million years old and is heavily weathered. O‘ahu has two principal mountain ranges, the Ko‘olau and Wai‘anae Mountains. The Ko‘olau Mountains extend 60 kilometers (km) (37 miles (mi)) from southeast to northwest along the eastern half of the island. The windward (northeast) slope of these mountains is characterized by steep cliffs and short ridges less than 6 km (4 mi) long. Leeward ridges as long as 18 km (11 mi) parallel each other to the southwest and west, alternating with steep-sided stream valleys. The peak elevation in the Ko‘olau Mountains occurs at Pu‘u Konahua Nui (955 meters (m); 3,100 feet (ft)). The Wai‘anae Mountains run from southeast to northwest in a 32-km (20-mi) arc along the western coast of O‘ahu. The leeward (western) cliffs of the Wai‘anae Mountains are steep; both windward and leeward ridges are less than 5 km (3 mi) in length. The peak elevation occurs at Mt. Ka‘ala (1,230 m; 4,000 ft).

Currently, approximately 36 percent (134,300 ac) of O‘ahu is forested (Buck et al. 1988). Of these forested lands, approximately 49 percent is considered native (dominated by koa ( Acacia koa ) and o hia ( Metrosideros spp.) forests) with the remainder (51 percent) dominated by introduced species, e.g., common guava ( Psidium guajava ), strawberry guava ( P. cattleianum ), Java plum ( Eugenia cumini ), mango ( Mangifera indica ), and several species of Eucalyptus (Buck et al. 1988).

The O‘ahu elepaio is a member of the monarch flycatcher family, Monarchidae (American Ornithologists' Union 1997), and is most likely related to the genus Monarcha (Mayr 1943, Conant 1977). The ancestors that gave rise to ‘elepaio were probably of Melanesian origin with colonization of Hawai‘i occurring through Polynesia or Micronesia (Baker 1951).

A physical description of the O‘ahu ‘elepaio is provided by VanderWerf (1998b). O‘ahu ‘elepaio have a blunt, medium-length bill that is mostly black and a long tail, which is often held up at an angle. Body length is about 15 centimeters (cm) (6 inches (in)) long, and weight varies between 11 and 15 grams (0.4 and 0.5 ounces). Males are usually 10 percent larger than females. Adults have a dark brown crown and back, and white underparts with the upper breast streaked very lightly with brown. The eyebrow and forehead are rufous, lores (area between a bird's eye and the base of the bill) are white, and the auricular (the feathers covering the opening of a bird's ear) is mostly black, forming a contrasting pattern. Distinctive field marks of adults are the white wing bars, rump, and tail-tips. Males are usually more black on the throat than females, especially the chin; however, this difference is not always detectable, and some overlap occurs. Immature birds are rufous on the head, back, upper breast, and wing bars.

The ‘elepaio from the island of O‘ahu has been recognized as a distinct taxonomic entity since Stejneger first described it as Chasiempis ibidis in 1887. Wilson (1891) described the bird as C. gayi, but, as pointed out by Olson (1989), the epithet ibidis has priority over gayi . Various taxonomic treatments of the Hawaiian ‘elepaio have described from one to six species and up to five subspecies (Sclater 1885, Stejneger 1887, Wilson and Evans 1890-1899, Wilson 1891, Rothschild 1892-1900, Henshaw 1902, Perkins 1903, MacCaughey 1919, Bryan and Greenway 1944, Pratt 1979 and 1980, Olson 1989, Olson and James 1991). The taxonomy used in this rule follows Pyle (1992) and recognizes only a single species of ‘elepaio in Hawai‘i (Chasiempis sandwichensis) with three subspecies, each of which is endemic to a different island. The three island-specific subspecies are the Kau‘ai ‘elepaio ( C. s. sclateri Ridgeway 1882), O‘ahu ‘elepaio ( C. s. ibidis Stejneger 1887), and Hawai‘i ‘elepaio ( C. s. sandwichensis Gmelin 1789). These subspecies differ considerably in plumage coloration and somewhat in vocalizations, but are quite similar in ecology and behavior (Conant 1977, Pratt 1980, VanderWerf 1998b).

Based upon the geographic variation among the three subspecies of ‘elepaio, species status might be appropriate for each subspecies (Conant et al. 1998). Systematic investigation of genetic, morphological, and vocal variation of each subspecies has begun and will help identify whether each taxon should be considered a distinct species (VanderWerf 1998b).

Comments by early naturalists indicate that the O‘ahu ‘elepaio was once widespread in forested areas throughout O‘ahu at all elevations. Perkins (1903) remarked that “the universal distribution over the islands they severally inhabit, from the lowest bounds to the uppermost edge of continuous forest, as well as their extreme abundance and obtrusive familiarity, has caused them to be noticed by many persons who have seen no other native bird.” Bryan (1905) noted that the ‘elepaio “remains the most abundant Hawaiian species on the mountainside all the way from the sea to well up into the higher elevations,” while MacCaughey (1919) said “the altitudinal range * * * on * * * O‘ahu is approximately from 800 ft to the highest summits.”

The earliest described historical range, however, was likely to have been somewhat modified by habitat destruction. MacCaughey (1919) noted, “[o]riginally, when the forests covered much more of the lowlands than at present, and extended down to the strand in many districts, the ‘elepaio was abundant at the lower levels * * *” Despite their descriptions of reduced range, naturalists were optimistic about the ‘elepaio’s chances for survival. Henshaw (1902) wrote “* * * it is probable that when most of the Hawaiian birds are extinct the ‘elepaio will long continue to maintain itself in scarcely diminished numbers.” MacCaughey (1919) wrote, “[t]he one indigenous forest bird that appears to successfully withstand the devastating influences of ‘civilization’ is the Hawaiian Flycatcher or ‘elepaio.” Munro (1944) was similarly optimistic about the ‘elepaio, reporting that “[i]t is holding its own well in the O‘ahu forests from which so many of the native birds have long disappeared.”

Early observations indicate that the O‘ahu ‘elepaio was widely distributed and extremely abundant. Rothschild (1893) called the ‘elepaio “one of the commonest, if not the commonest, of all the small native birds on O‘ahu.” Similarly, Seale (1900) said the ‘elepaio was “the commonest native land bird to be found on the island.” MacCaughey (1919) stated it was “the most abundant representative of the native woodland avifauna,” and “abundant in all parts of its range.” However, Bryan (1905) found it to be “much more frequently met within the Wai‘anae mountains than in the Ko‘olau range back of Honolulu,” which may indicate that the species' optimum habitat is dry, rather than wet, forest.

Based on the above range descriptions, the O‘ahu ‘elepaio was historically very general in its habitat requirements, and occupied all types of forest at most elevations. Several authors noted that ‘elepaio reached their greatest abundance in valleys at middle elevations. For example, Seale (1900) said that “its usual haunt is the densely wooded can ons at an elevation of from 800 to 1,300 feet.” MacCaughey (1919) observed that the ‘elepaio is “a bird of the humid and mesophytic forests,” and said it “is most plentiful in the protected wooded ravines and on the valley slopes.”

The generalized habitat requirements of the O‘ahu ‘elepaio are also shown by its ability to forage for arthropods and nest in a variety of different plant species, including nonnative species. Perkins (1903) believed that “to the changes wrought by civilization they are less susceptible than any other bird, and they may be seen feeding and even nesting in dense thickets of the introduced guava, or amongst masses of the prickly lantana, as contentedly as amongst the native vegetation.” Conant (1977) studied a population that existed in a forest of entirely introduced plant species. The species shows extremely versatile foraging behavior and uses all available plant species and all heights in forests of native plant species (Conant 1981, VanderWerf 1993 and 1994). ‘elepaio use all available substrates for foraging, including the ground and fallen logs, vertical trunks, branches, twigs, leaves, and the air (VanderWerf 1998b). The proportion of the substrates used for foraging depends upon the habitat. For example, in dense forests, ‘elepaio use the ground more, and, in open forests, they use the air and leaves more (VanderWerf 1994).

O`ahu `elepaio occur primarily in mesic mixed-species forests with a tall canopy and well-developed understory (VanderWerf et al. 1997; VanderWerf 1998b). The O`ahu `elepaio appears to be most common in valleys and on slopes between 200 m (656 ft) and 800 m (2,625 ft) elevation (VanderWerf 1998b). Valleys may support more `elepaio than ridges or slopes because they contain taller forest and are, therefore, more humid and protected from desiccating winds and large temperature fluctuations (VanderWerf et al. 1997). The species is less numerous in drier forests and on ridges (VanderWerf 1998b). O`ahu `elepaio are not found in very wet, stunted forest on high windswept ridges and summits, in very dry scrubby forest, in forests that lack a subcanopy, or in monotypic forests (Shallenberger and Vaughn 1978; VanderWerf 1998b). `Elepaio occur between 200 m (656 ft) and 500 m (1,641 ft) in the Ko`olau Mountain range and between 550 m (1,805 ft) and 850 m (2,789 ft) in the Wai`anae Mountain range (VanderWerf 1998b). O`ahu `elepaio will also occur as low as 90 m (295 ft) elevation in the southern Ko`olau Mountains (VanderWerf et al. 1997).

The distribution and abundance of O`ahu `elepaio do not appear to be related to the amount of native vegetation or species composition, but apparently to forest structure (VanderWerf et al. 1997). During an intensive bird survey of the central Ko`olau Mountains on O`ahu in 1978, Shallenberger and Vaughn (1978) found the greatest abundance of `elepaio in alien forests, particularly areas with kukui ( Aleurites moluccana ) and guava trees, and in mixed alien-native forest. The occurrence of `elepaio was lower in forests of entirely native species, primarily o hia and koa. The lesser abundance in native forest found by Shallenberger and Vaughn (1978) is unlikely to be a sampling artifact since the greatest effort was made in areas of native forest. The lesser abundance is likely due to a preference for certain elevations and diverse forest structure, rather than particular plant species. Also, more recent surveys conducted in the southern Ko`olau Mountains (VanderWerf et al. 1997) indicate that forest structure and density are more important components of O`ahu `elepaio habitat than plant species composition. O`ahu `elepaio were found to be most abundant in valleys between 200 m (656 ft) and 400 m (1,312 ft) elevation, with mesic forest that contained a tall canopy and well-developed understory. `Elepaio were found in shorter, drier forests on slopes and ridges, but were less common in this type of habitat and were not found in areas where there was no understory. Many of the plant species found at the study site were introduced species that sometimes dominated the overstory and understory. Of 70 locations sampled, 49 percent of the locations had overstories that were composed entirely of introduced species, while 50 percent had a mixture of native and introduced species. Only 1 percent had an overstory that was mostly composed of native vegetation. Within the understory, 44 percent of sites comprised only introduced species, 56 percent had a mixture of native and introduced species, and none had only native species. Native plants that are common throughout the current range of the O`ahu `elepaio include koa, papala kepau ( Pisonia umbellifera ), mamaki ( Pipturus albidus ), and lama ( Diospyros sandwicensis ) (VanderWerf et al. 1997). Introduced plants that are common where `elepaio occur include kukui, common guava, strawberry guava, mango, ti ( Cordyline terminalis ), and Christmasberry ( Schinus terebinthifolius ) (VanderWerf et al. 1997).

Conant (1995) identified 598 separate observations of O`ahu `elepaio dating from 1883 to 1995. Many of these sightings occurred in the same location, but over a period of years. By consolidating observations made at the same location, researcher could identify 83 site-specific locations where `elepaio had been seen. Sixty-nine of these sites (84 percent) have been revisited between 1990 and 1995. Of these revisited sites, only 31 (45 percent) still have `elepaio present. In 1995, the 31 extant sites were thought to be distributed among only 6 isolated populations in the southern Ko`olau Mountains and the central Wai`anae Mountains. Further analysis of both these data and the writings of early naturalists indicates that the `elepaio originally inhabited 75 percent of O`ahu's land mass. By 1960, only 30 percent of the original habitat was still occupied. Fifteen years later, in 1975, the distribution had declined to 14 percent of the original distribution. The O`ahu `elepaio currently occupies an area of 4,700 ha (11,600 ac). This amount represents approximately 4 percent of its original range.

While a collapse of the O`ahu `elepaio’s range has clearly occurred, decline in population density in the remaining populations has been more difficult to determine. Williams (1987) examined the decline of O`ahu `elepaio using Christmas Bird Counts from 1944 to 1985. Using standardized data (one census per year with number of birds per hour of observation), Williams documents a clear downward trend in `elepaio observations. The data show a sharp decline in O`ahu `elepaio observations beginning in the late 1950s and continuing through the 1960s, when observations were one or fewer birds per observer hour, dropping to less than 0.5 birds per party hour after 1974.

In a 1992 report on Hawai`i forest bird conservation assessment and management, Ellis et al. (1992) estimated the O`ahu `elepaio population at 200 to 500 birds. This report further stated that two subpopulations of O`ahu `elepaio existed, one in the Wai`anae Mountains and the other in the Ko`olau Mountains. A systematic range-wide count of O`ahu `elepaio was conducted from 1995 to 1998. Currently, the O`ahu `elepaio population is estimated at 1,500 birds (VanderWerf 1999). Island-wide surveys are nearly complete, and the possibility that any large populations of O`ahu `elepaio have been overlooked is unlikely (VanderWerf 1997). There are seven geographically isolated populations: three in the Ko`olau Mountains and four in the Wai`anae Mountains (VanderWerf 1997). Ellis et al. (1992) estimated that 20 percent of the population occurred in the Wai`anae Mountains and 80 percent in the Ko`olau Mountains. According to the 1997 estimate, 59 percent of the population occurs in the Wai`anae Mountains and 41 percent in the Ko`olau Mountains.

The present populations of O`ahu `elepaio occur on lands owned by Federal, State, and private parties. Analyses of major land ownership patterns identify 69 percent of the current range in privately held lands, 18 percent is federally owned or leased, and 13 percent occurs in State-owned areas. Ownership patterns vary among the seven populations. Five populations have between 66 and 99 percent private ownership within their ranges, one population occurs on land primarily owned by the State, and one population occurs on Federal land. Ninety-nine percent of the current O`ahu `elepaio range occurs within State-designated Conservation Districts. This designation offers varying degrees of protection and may permit human activities that may be detrimental to the `elepaio. Sixteen percent of the land designated as a Conservation District occurs in a subzone designated by the State as Protective. This subzone includes State Natural Area Reserves and The Nature Conservancy of Hawai`i's Honouliuli Preserve and aims to protect valuable resources such as wildlife sanctuaries.

We were petitioned by Mr. Vaughn Sherwood on March 22, 1994, to list the O`ahu `elepaio as an endangered or threatened species with critical habitat. The November 15, 1994, Animal Notice of Review (59 FR 58991) classified the O`ahu `elepaio ( Chasiempis sandwichensis gayi ) as a category 1 candidate. Category 1 candidates were those species for which we had sufficient data in our possession to support a listing proposal. On June 12, 1995 (60 FR 30827), we published a 90-day petition finding stating that the petition presented substantial information that listing may be warranted. In the February 28, 1996 (61 FR 7596), and September 19, 1997 (62 FR 49398), notices, we discontinued category designations and the O`ahu `elepaio was listed as a candidate species. Candidate species are those for which we have on file sufficient information on biological vulnerability and threats to support proposals to list as threatened or endangered. On October 6, 1998 (63 FR 53623), we published the proposed rule to list the O`ahu `elepaio as an endangered species. Because C. s. gayi is a synonym of C. s. ibidis, the proposed rule constituted the final 12-month finding for the petitioned action.

The processing of this final rule conforms with our Listing Priority Guidance published in the Federal Register on October 22, 1999 (64 FR 57114). The guidance clarifies the order in which we will process rulemakings. Highest priority is processing emergency listing rules for any species determined to face a significant and imminent risk to its well-being (Priority 1). Second priority (Priority 2) is processing final determinations on proposed additions to the lists of endangered and threatened wildlife and plants. Third priority is processing new proposals to add species to the lists. The processing of administrative petition findings (petitions filed under section 4 of the Act) is the fourth priority. The processing of this final rule is a Priority 2 action.

In the October 6, 1998, proposed rule and associated notifications, we requested all interested parties to submit factual reports or information that might contribute to the development of a final rule. The public comment period closed on December 7, 1998 (63 FR 53623). We contacted appropriate Federal and State agencies, county governments, scientific organizations, and other interested parties and requested them to comment. We also published newspaper notices in the Honolulu Star-Bulletin and Honolulu Advertiser on October 26, 1998, inviting general public comment.

In response to the open comment period, we received 15 comments on the proposed rule. Three Federal agencies provided comments, two supporting listing and one neither supporting nor opposing the proposal. Four Hawai`i State agencies provided comments, one supporting the proposal and three neutral. One Honolulu County agency commented that the agency supports the listing. The proposal was supported by five individuals and one conservation organization and opposed by one nonprofit legal foundation. Relevant information provided by these commenters has been incorporated into this rule.

Written opposition to listing of the O`ahu `elepaio was based on our supposed lack of jurisdiction to enact the proposed rule and beliefs that the rule should be withdrawn because of a presumption that no connection exists between regulation of this bird and a substantial effect on “interstate commerce.” The Federal Government has the authority under the Commerce Clause of the U.S. Constitution to protect this species, for reasons given in Judge Wald's opinion and Judge Henderson's concurring opinion in National Association of Homebuilders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 1185 S. Ct. 2340 (1998). That case involved a challenge to application of Endangered Species Act prohibitions to protect the listed Delhi Sands flower-loving fly. As with the O`ahu `elepaio , the Delhi Sands flower-loving fly is endemic to only one State. Judge Wald held that application of the Endangered Species Act's prohibition against taking of endangered species to this fly was a proper exercise of Commerce Clause power to regulate: (1) Use of channels of interstate commerce; and (2) activities substantially affecting interstate commerce, because it prevented loss of biodiversity and destructive interstate competition. Judge Henderson upheld protection of the fly because doing so prevents harm to the ecosystem upon which interstate commerce depends, and because doing so regulates commercial development that is part of interstate commerce.

The Federal Government also has authority under the Property Clause of the Constitution to protect this species. The O`ahu`elepaio occurs on Federal land on the U.S. Army's Makua Military Reservation and Schofield Barracks Military Reservation. If this species were to become extinct, the diversity of wildlife on the Makua and Schofield Barracks Military Reservations would be diminished. The courts have long recognized Federal authority under the Property Clause to protect Federal resources in such circumstances. See, e.g., Kleppe v. New Mexico, 429 U.S. 873 (1976); United States v. Alford, 274 U.S. 264 (1927); Camfield v. United States, 167 U.S. 518 (1897); United States v. Lindsey, 595 F.2d 5 (9th Cir. 1979). Therefore, our application of the Act to the O`ahu `elepaio ( Chasiempis sandwichensis ibidis ), a bird endemic to the island of O`ahu in the Hawaiian Islands, is constitutional.

We solicited the expert opinions of four qualified and independent specialists regarding pertinent scientific and/or commercial data and assumptions relating to the taxonomy, demography, and supportive biological and ecological information for the O`ahu `elepaio. We received written comments from two of these experts and incorporated their comments into the final rule.

After a thorough review and consideration of all information available, we have determined that the O`ahu `elepaio should be classified as an endangered species. Section 4 of the Act and regulations (50 CFR part 424) issued to implement the listing provisions of the Act set forth the procedures for adding species to the Federal Lists. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act. These factors and their application to the O`ahu `elepaio ( Chasiempis sandwichensis ibidis ) are as follows:

Historical habitat loss due to factors discussed below has undoubtedly reduced the range of O`ahu `elepaio. Although `elepaio appear to be generalized in habitat use and can adapt to a variety of plant species, this species may be sensitive to severe changes in forest structure, such as clearing of the understory or creation of monospecific, even-aged plantations. Feral pigs may pose another threat by destroying ground cover, which provides foraging habitat for `elepaio. The spread of certain alien plants, such as the velvet tree ( Miconia calvescens ), dramatically alters forest structure and/or diversity and poses a potential threat to the survival of O`ahu `elepaio.

Alteration of forested areas, including changes in forest composition and forest structure and resulting habitat loss, has impacted the O`ahu `elepaio. Early Hawaiians significantly altered the native vegetation of O`ahu, particularly in valleys used for taro cultivation. In uncultivated areas, trees were cut for firewood and construction, and fire was used to encourage the growth of grasses used for thatch (Kirch 1982). Destruction of the low-elevation forest resulted in the extinctions of numerous birds and land snails on O`ahu (Olson and James 1982, Kirch 1982). After European contact in 1778, habitat loss accelerated and began to occur at higher elevations. The sandalwood trade, which played a key role for O`ahu, required firewood, and completely eliminated native forests in the vicinity of Honolulu (Cuddihy and Stone 1990). From 1840 to about 1920, vast areas of low-and mid-elevation forest in Hawai`i were cleared for sugarcane cultivation. By the 1970s, more than 100,000 ha (274,000 acres) were under sugarcane cultivation. In contrast to early Hawaiian cultivation that was largely concentrated in mesic valleys and plains, sugarcane cultivation displaced native forest in dry leeward areas, and wide ridges and slopes such as the Leilehua Plateau between the Ko`olau and Wai`anae Mountains on O`ahu. Between 1900 and 1950, pineapple cultivation on O`ahu also resulted in a significant loss of native forests (Cuddihy and Stone 1990). Some of the areas cleared of native forest have either been replanted with exotic trees or regrown in alien vegetation. According to some estimates, approximately 36 percent of the land area on O`ahu is now covered by forest, but only about 49 percent of these forested areas is considered native vegetation (Buck et al. 1988).

O`ahu is the population center of the Hawaiian Islands, with about 40 percent of the State's population residing in Honolulu alone. The fastest growing areas on O`ahu, however, are suburban areas and new city development (such as creation of so-called “second cities” outside the city limits of Honolulu). Development can have significant impacts on O`ahu `elepaio habitat through modification of forest structure and diversity. Although 99 percent of lands within the `elepaio's range are within State-designated Conservation Districts, designation as such only offers varying degrees of protection and may allow activities, such as construction of individual houses, forestry-related activities, hunting, and recreational uses, that may be detrimental to the `elepaio. Other types of development can also eliminate habitat. A portion of the H-3 freeway completed in 1997 runs through Halawa Valley, which supports a relatively large population of O`ahu `elepaio (VanderWerf 1997). The effect of the freeway upon this population is unknown as no monitoring has occurred. Also, amenities such as golf courses may displace native and nonnative forests used by the O`ahu `elepaio.

Military activities and related impacts on federally owned and leased lands may also affect the O`ahu `elepaio. O`ahu `elepaio currently occupy the upper slopes of Makua Valley in and adjacent to the U.S. Army's Makua Military Reservation. The lower section of Makua Valley is used as a live firing range, and the facility has a history of ordnance-induced fires (Hawai`i Heritage Program-The Nature Conservancy of Hawai`i (HHP-TNCH) 1994a). Prescribed burning occasionally results in large fires that, along with construction of firebreaks, destroys `elepaio habitat and potentially threatens the birds. A large part of the `elepaio range in the eastern Wai`anae Mountains occurs on the West Range of Schofield Barracks Military Reservation, where live firing also occurs and ordnance-induced fires can pose a significant threat to O`ahu `elepaio habitat (Hawai`i Heritage Program, 1994b).

Miconia calvescens (velvet tree) is a recently naturalized species native to tropical America. This species has become invasive on islands of Hawai`i, Maui, O`ahu, and Kau`ai. Velvet tree is potentially the most invasive and damaging weed of rainforests of Pacific islands (Medeiros et al. 1997). This plant has the potential to greatly disrupt forest canopy and understory structure and significantly alter biological diversity. In moist conditions, this plant grows rapidly up to 15 m (49 ft) tall. This shade-tolerant tree produces abundant seed that is effectively dispersed by birds and accumulates in a large, persistent seed bank, and develops monospecific stands that eliminate understory plant species by shading and crowding (Medeiros et al. 1997). In Tahiti, it has become a dominant plant species in habitats similar to those of Hawai`i (Almeda 1990, Cuddihy and Stone 1990). Medeiros et al. (1997) state that velvet tree now dominates the forest in 65 percent of the island of Tahiti through the establishment of large, monospecific stands. This plant is now naturalized on O`ahu at three locations in the southeastern Ko`olau Mountain range, including Manoa Valley (Medeiros et al. 1997), where one population of O`ahu `elepaio is located.

Pigs ( Sus scrofa ) were introduced to Hawai`i by the Polynesian ancestors of Hawaiians, and later by western immigrants. The Polynesian strain of pig was comparatively small, and seems to have had a minimal impact on the native forests. The European strain of pig escaped domestication and invaded primarily wet and mesic forests on Kau`ai, O`ahu, Moloka`i, Maui, and Hawai`i. These pigs are large animals that threaten the continued existence of native plants and animals within these forest habitats. While foraging, pigs root and trample the forest floor. Given that O`ahu `elepaio rely on diverse groundcover for foraging, the disturbance caused by pigs could have a major impact on the species. In a study conducted at the Hakalau Forest National Wildlife Refuge on the island of Hawai`i, researchers found that areas where the ground cover had been destroyed by feral pigs were used less frequently by the Hawai`i Island subspecies of `elepaio for foraging (VanderWerf 1994). Expecting the same results on O`ahu is reasonable.

Overutilization is not known to threaten the O`ahu `elepaio.

Disease and predation are considered the primary threats responsible for the severe decline of the O`ahu `elepaio in the last few decades. Disease is believed the primary reason for reduced adult survival, and nest predation by introduced mammals, mainly black rats ( Rattus rattus ), is the primary reason for low reproductive success (VanderWerf 1998a).

Avian malaria ( Plasmodium relictum ) and poxvirus ( Avipox virus sp.) are two documented serious disease threats to O`ahu `elepaio, as well as all native Hawaiian forest birds (VanderWerf 1998b). Malaria and pox are transmitted by the night-biting mosquito, Culex quinquefasciatus, which uses wallows created by feral pigs as breeding grounds. Avian pox can also be spread through physical contact with infected birds or surfaces (VanderWerf 1998b). Avian pox causes lesions on the feet, legs, and bill. Five populations of O`ahu `elepaio sampled for disease had birds with pox-like lesions (VanderWerf 1998b). Culex mosquitos, and thus malaria and pox, are more abundant at lower elevations. Although larvae do not develop well at colder temperatures, mountain elevations on O`ahu are not high enough to preclude mosquitos; therefore, diseases may be more prevalent on this island (VanderWerf 1998b). According to VanderWerf (1998b), 70 percent of O`ahu `elepaio within low-elevation valleys have pox-like lesions. Although its effects on the O`ahu `elepaio remain unknown, malaria may also be an important factor for the species' decline (VanderWerf 1998a).

Avian pox is known to increase adult mortality and reduce reproductive success of O`ahu `elepaio (VanderWerf 1997, 1998a, and 1998b). O`ahu `elepaio with pox-like lesions are thought to be seriously affected by poxvirus and have lower survival than either healthy `elepaio or those with healed pox sores (VanderWerf 1998a). Birds with pox likely become more vulnerable to predation or exposure due to the virus weakening the bird (VanderWerf 1998b). Survival rates of birds with healed pox sores were compared with those of apparently healthy birds, and researchers found that if `elepaio can survive the initial infection, their future survival is not adversely affected (VanderWerf 1998a). Poxvirus also affects reproductive success. Pairs having at least one individual actively infected with pox produced fewer fledglings than healthy pairs or those consisting of at least one individual with healed pox lesions (VanderWerf 1998a).

Because disease, which in many cases is difficult to control, is a factor in the decline of the O`ahu `elepaio , the existence and survival of genetically resistant individuals is essential to the survival of this taxon. If captive propagation is necessary for the recovery of this species, capture of disease-resistant birds may improve the success of a captive propagation program and increase the survival of birds released into the wild.

A potential factor contributing to the spread of avian disease is the expansion of the range of introduced birds. Introduced birds may act as a reservoir for diseases such as avian pox. Thus, expansion of the range of introduced birds infected with avian pox into the range of O`ahu `elepaio is likely to have occurred and contributed to the decline of O`ahu `elepaio. Another potential factor contributing to the spread of avian disease is feral cats ( Felis catus ). Cats may be considered a significant carrier and/or vector of disease. For example, cats are known hosts of the parasite Taxoplasma gondii, which is known to be fatal to some native Hawaiian birds (e.g., Hawaiian crow ( Corvus hawaiiensis )) (Wallace 1973). Stray cats on O`ahu are known to carry Taxoplasma antibodies (Wallace 1973), however how this parasite affects O`ahu `elepaio is unknown.

The Hawaiian short-eared owl, or pueo ( Asio flammeus ), is the natural predator of O`ahu `elepaio, but given the limited number of pueo left on O`ahu, the pueo has very little impact on the O`ahu `elepaio. The main predator of O`ahu `elepaio nests is believed to be the black rat (VanderWerf 1998a). Predation of O`ahu `elepaio nests by black rats has lowered reproductive success and increased mortality of female O`ahu `elepaio (VanderWerf 1998a). Reproductive success of `elepaio, measured by the number of fledglings per pair, is higher in areas where rats were removed, compared to an area where rats were not removed (VanderWerf 1998a). Other known nonnative predators include barn owls ( Tyto alba ), feral cats, small Indian mongoose ( Herpestes auropunctatus ), Polynesian rats ( Rattus exulans ), and Norway rats ( Rattus norwegicus ) (VanderWerf 1998b). Research indicates that removal of predators ( e.g., rats, cats, and mongooses) from O`ahu `elepaio territories may increase the survival of female `elepaio. Available results indicate that survival of males was similar in areas where rat removal was conducted and where it was not conducted. For those same areas, female `elepaio survival appeared slightly higher in areas where rats were removed. However, sample sizes were not large enough, and more data are needed to verify these results (VanderWerf 1998a). Although male and female `elepaio share incubation responsibilities of the eggs during the day, only females incubate at night (VanderWerf 1998b). Thus, females are more vulnerable than males to predation on nests by rats, which are primarily nocturnal (VanderWerf 1998a).

Introduction of alien animals into Hawai`i is a major continual threat to all native flora and fauna. Predation associated with alien introductions could significantly and negatively affect the remaining populations of O`ahu `elepaio. The threat of the accidental introduction of the brown tree snake ( Boiga irregularis ) from Guam, Saipan, or the Solomon Islands is of particular concern. The brown tree snake is an aggressive predator of birds that has caused a significant decline in avifauna on Pacific islands where this snake has become established. In December 1994, a live brown tree snake was found in a Schofield Barracks warehouse on the island of O`ahu. This snake was associated with a shipment of U.S. Army materials from Tinian via Guam.

Currently, the O`ahu `elepaio is protected under State (Hawai`i Revised Statutes (HRS), Sect. 13-124-3A) and Federal laws (Migratory Bird Treaty Act of 1918, 16 U.S.C. 703-712, 40 Stat. 755, as amended). These laws protect the taxon from capture and collection (without appropriate permits) of individuals, nests, and eggs, but do not afford protection to the habitat of this species.

Storms with heavy rain and strong winds have been known to contribute to mortality of O`ahu `elepaio eggs and nestlings. On O`ahu, `elepaio nests, especially those high in trees, and their contents have been destroyed by March storms (VanderWerf 1998b). Prolonged heavy rain can also cause adults to abandon the nests; small fledglings are vulnerable to extended periods of intense rain (VanderWerf 1998b). For example, overall reproductive success in 1998 was lower than the previous year due to inclement weather experienced in late March and early April, when many nests contained eggs or small nestlings (VanderWerf 1998a). Several nests failed because they were blown out of the trees by winds in excess of 40 miles per hour (VanderWerf 1998a).

Naturally occurring events, such as hurricanes, may affect the continued existence of the O`ahu `elepaio. Because the subspecies now exists only as seven small isolated populations, rather than one large, continuous, interbreeding population, a population decline could be exacerbated by random genetic, environmental, and demographic events. Small population size can reduce reproductive rates, increase rates of inbreeding and inbreeding depression (the expression of deleterious recessive genes occurring in the population), and facilitate the loss of future plasticity or evolutionary potential. Loss of genetic variability through genetic drift reduces the ability of small populations to cope with ecological and environmental stresses such as habitat modification and alien species.

If populations continue to decline and become extremely small, demographic events take on greater significance. For example, if weather events ( e.g., El Nin o episodes) cause reproductive failure for one or more years, and are followed by a period of high predation, a small population has less resiliency and is vulnerable to extirpation. Hurricanes may cause large or total population loss through direct mortality, habitat destruction or modification, and dispersal of invasive alien plants. Although birds in the Hawaiian Islands have long endured hurricanes, major hurricanes in concert with low population numbers and other factors could severely affect the survival of O`ahu `elepaio.

Another potential factor contributing to the decline of the O‘ahu ‘elepaio may be the competition for food or space with introduced birds such as the Japanese white-eye ( Zosterops japonicus ), white-rumped shama ( Copsychus malabaricus ), and the red-vented and red-whiskered bulbuls ( Pycnonotus cafer and P. jocosus ) (VanderWerf et al. 1997; VanderWerf 1998). Although the extent of competition has not been carefully studied, limited anecdotal and circumstantial evidence indicate that competition occurs with any alien bird species (VanderWerf et al. 1997; VanderWerf 1998).

The Japanese white-eye, introduced to Hawai‘i in the 1930s, has expanded its range into remote areas within the last 2 decades. This species is probably the most abundant bird in Hawai‘i (Pratt et al. 1987). Scott et al. (1986) demonstrated that distribution of the Japanese white-eye was negatively correlated with the distributions of native birds, including ‘elepaio. ‘elepaio have frequently been known to chase Japanese white-eyes from the area surrounding their nest (Conant 1977). Additionally, the red-vented bulbul was introduced to O‘ahu in 1965 and greatly increased in numbers after 1970 (Williams 1987). This species is now extremely abundant in forested habitats. While primarily a fruit-eater, red-vented bulbuls take insect prey (Sheila Conant, pers. comm., 1995) and, as a particularly aggressive species, are known to chase other birds (Berger 1981).

In summary, 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 list the O‘ahu ‘elepaio as endangered. The most recent estimates indicate that 1,500 O‘ahu ‘elepaio remain, occurring in 7 small and geographically isolated populations (VanderWerf 1998 and 1999). This bird is primarily threatened by disease, including avian pox-virus and malaria, and predation by nonindigenous mammals. Other known threats include storms with high winds that destroy nests and their contents; habitat degradation and loss, including habitat fragmentation due primarily to human impacts; and destruction of foraging habitat by feral pigs. Potential threats include the introduction and spread of alien species, such as the brown tree snake, and alien plants that alter the structure and diversity of forested areas and competition with introduced birds. Small total population size, limited distribution, and population fragmentation make this taxon particularly vulnerable to reduced reproductive vigor and the effects of naturally occurring events. Because the O‘ahu ‘elepaio is in danger of extinction throughout all or a significant portion of its range, it fits the definition of endangered as defined in the Act. Therefore, the determination of endangered status for the O‘ahu ‘elepaio is appropriate.

Critical habitat is defined in section 3, paragraph (5)(A) of the Act as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection; and specific areas outside the geographical area occupied by a species at the time it is listed in accordance with the provisions of section 4 of the Act, upon a determination by the Secretary that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the Act is no longer necessary.

Critical habitat designation, by definition, directly affects only Federal agency actions through consultation under section 7(a)(2) of the Act. Section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species or destroy or adversely modify its critical habitat.

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, we designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that designation of critical habitat is not prudent when one or both of the following situations exist—(1) the species is threatened by taking or other activity and the identification of critical habitat can be expected to increase the degree of threat to the species or (2) such designation of critical habitat would not be beneficial to the species.

In the proposed rule, we indicated that designation of critical habitat for this species was not prudent because we believed a critical habitat designation would not provide any additional benefit beyond that provided through listing as endangered.

In this final rule, however, we find that designation of critical habitat is prudent for the O‘ahu ‘elepaio ( Chasiempis sandwichensis ibidis ). In the last few years, a series of court decisions have overturned Service determinations regarding a variety of species that designation of critical habitat would not be prudent (e.g., Natural Resources Defense Council v. U.S. Department of the Interior , 113 F. 3d 1121 (9th Cir. 1997); Conservation Council for Hawai‘i v. Babbitt, 2 F. Supp. 2d 1280 (D. Hawai‘i 1998)). Based on the standards applied in those judicial opinions, we believe that the designation of critical habitat for this species would be prudent.

In the absence of a finding that critical habitat would increase threats to a species, if any benefits would result from critical habitat designation, then a prudent finding is warranted. In the case of this species, some benefits may result from designation of critical habitat. The primary regulatory effect of critical habitat is the section 7 requirement that Federal agencies refrain from taking any action that destroys or adversely modifies critical habitat. While a critical habitat designation for habitat currently occupied by this species would not be likely to change the section 7 consultation outcome because an action that destroys or adversely modifies such critical habitat would also be likely to result in jeopardy to the species, in some instances section 7 consultation might be triggered only if critical habitat is designated. Examples could include unoccupied habitat or occupied habitat that may become unoccupied in the future. Designating critical habitat may also provide some educational or informational benefits. Therefore, we find that critical habitat is prudent for the O‘ahu ‘elepaio.

However, we cannot propose critical habitat designations for this subspecies at this time. Our Hawaiian field office, which would have the lead for such a proposal, is in the process of complying with the court order in Conservation Council for Hawai‘i v. Babbitt, CIV NO. 97-00098 ACK (D. Haw. Mar. 9 and Aug. 10, 1998). In that case, the United States District Court for the District of Hawai‘i remanded to the Service its “not prudent” findings on critical habitat designation for 245 species of Hawaiian plants. The court ordered us not only to reconsider these findings, but also to designate critical habitat for any species for which we determine on remand that critical habitat designation is prudent. Proposed designations or nondesignations for 100 species are to be published by November 30, 2000. Proposed designations or nondesignations for the remaining 145 species are to be published by April 30, 2002. Final designations or nondesignations are to be published within 1 year of each proposal. Compliance with this court order is a huge undertaking involving critical habitat determinations for over one-fifth of all species that have ever been listed under the Endangered Species Act, and over one-third of all listed plant species. In addition, we have agreed to include in this effort critical habitat designations for an additional 10 plants that are the subject of another lawsuit. See Conservation Council for Hawai‘i v. Babbitt, CIV. NO. 99-00283 HG. We cannot develop proposed critical habitat designations for the Oahu elepaio without significant disruption of the field office's intensive efforts to comply with the Conservation Council for Hawai‘i v. Babbitt remand.

To attempt to do so could also affect the listing program Region-wide. Administratively, the Service is divided into seven geographic regions. This subspecies is under the jurisdiction of Region 1, which includes California, Oregon, Washington, Idaho, Nevada, Hawaii, and other Pacific Islands. About one-half of all listed species occur in Region 1. Region 1 receives by far the largest share of listing funds of any Service region because it has the heaviest listing workload. Region 1 must also expend its listing resources to comply with existing court orders or settlement agreements. In fact, in the last fiscal year, all of the Region's funding allocation for critical habitat actions was expended to comply with court orders. If we were to immediately prepare proposed critical habitat designations for this subspecies notwithstanding the court order pertaining to 245 Hawaiian plant species, efforts to provide protection to many other species that are not yet listed would be delayed. While we believe some benefits may result from designating critical habitat for this subspecies, these benefits are significantly fewer in comparison to the benefits of listing a species under the Endangered Species Act because, as discussed above, the primary regulatory effect of critical habitat is limited to the section 7 requirement that Federal agencies refrain from taking any action that destroys or adversely modifies critical habitat.

As explained in detail in the Final Listing Priority Guidance for FY2000 (64 FR 57114), our listing budget is currently insufficient to allow us to immediately complete all of the listing actions required by the Act. We plan to employ a priority system for deciding which outstanding critical habitat designations should be addressed first. We will focus our efforts on those designations that will provide the most conservation benefit, taking into consideration the efficacy of critical habitat designation in addressing the threats to the species, and the magnitude and immediacy of those threats. Deferral of a proposal to designate critical habitat for the Oahu elepaio will allow us to concentrate our limited resources on higher priority critical habitat and other listing actions, while allowing us to put in place protections needed for the conservation of the Oahu elepaio without further delay. Therefore, given the current workload in Region 1 and, particularly, the Hawaiian field office, we expect that we will be unable to develop a proposal to designate critical habitat for the Oahu elepaio until FY2004.

Conservation measures provided to species listed as endangered or threatened under the Endangered Species Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain activities. Recognition through listing encourages public awareness and results in conservation actions by Federal, State, and private agencies, groups, and individuals. The Act provides for possible land acquisition and cooperation with the State and requires that recovery actions be carried out for all listed species. Funding may be available through section 6 of the Act for the State to conduct recovery activities. The protection required of Federal agencies and the prohibitions against certain activities involving listed animals are discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is being designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) requires Federal agencies to insure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with us, under section 7(a)(2) of the Act.

Federal agency actions that may require conference and/or consultation as described in the preceding paragraph include military activities, such as military training and troop movements, taking place on federally owned or leased lands; the involvement of the Army Corps of Engineers in projects subject to section 404 of the Clean Water Act and section 10 of the Rivers and Harbors Act of 1899, such as the construction of roads and bridges and dredging projects; U.S. Environmental Protection Agency-authorized discharges under the National Pollutant Discharge Elimination System; U.S. Department of Agriculture/Natural Resources Conservation Service projects; U.S. Department of Housing and Urban Development projects; and other activities with a possible Federal nexus, such as golf course and firebreak construction.

Several of the remaining populations of this bird are located on State land utilized for military training, particularly by the U.S. Army. In the Wai‘anae Mountains, those populations are found in the following areas: Pahole to Makaha, including both leeward and windward sides, and Schofield to Palehua, on the windward side. In the Ko‘olau Mountains, only a fraction of the area occupied by one ‘elepaio population (Aiea ridge south to the Kahauiki Stream) is under military control. Therefore, section 7 consultation will be required before any military activities that may impact the O‘ahu ‘elepaio , such as military training and troop movements, may take place.

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

Permits may be issued to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 and 17.23. Such permits are available for scientific purposes, to enhance the propagation or survival of the species, and/or for incidental take in the course of otherwise lawful activities. Requests for copies of the regulations regarding listed wildlife and inquiries about permits and prohibitions may be addressed to the U.S. Fish and Wildlife Service, Endangered Species Permits, 911 Northeast 11th Avenue, Portland, Oregon 97232-4181 (telephone 503-231-6241; facsimile 503-231-6243).

As published in the Federal Register on July 1, 1994, (59 FR 34272), our policy is to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not be likely to constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of the listing on proposed and ongoing activities within a species' range. Likely activities that we believe could potentially result in a violation of section 9 of the Act include, but are not limited to, the following: road or firebreak construction, military troop training, or other activities that disturb the normal behavior ( e.g., breeding, nesting, feeding) of O‘ahu ‘elepaio or damage habitat used by the species. Activities that we believe would not likely result in a violation of section 9 of the Act include, but are not limited to, nondestructive activities in areas occupied by O‘ahu ‘elepaio, such as hiking, collecting plants for cultural usage ( e.g., hula halau), and hunting game animals. Activities that occur under a valid incidental take permit or in accordance with a section 7 consultation would not violate section 9.

Questions regarding whether specific activities will constitute a violation of section 9 of the Act should be directed to the Manager of the Pacific Islands Ecoregion (see ADDRESSES section).

By giving the O‘ahu ‘elepaio Federal protection under the Act, the State of Hawai‘i Endangered Species Act (HRS, Sect. 195D-4(a)) is automatically invoked, prohibiting taking and encouraging conservation by State government agencies. Hawai‘i's Endangered Species law states, “Any species of aquatic life, wildlife, or land plant that has been determined to be an endangered species pursuant to the Act shall be deemed to be an endangered species under the provisions of this chapter and any indigenous species of aquatic life, wildlife, or land plant that has been determined to be a threatened species pursuant to the Act shall be deemed to be a threatened species under the provisions of this chapter.” Further, the State may enter into agreements with Federal agencies to administer and manage any area required for the conservation, management, enhancement, or protection of endangered species (HRS, Sect. 195D-5(c)). Funds for these activities could be made available under section 6 of the Act (State Cooperative Agreements). Thus, the Federal protection afforded to the O‘ahu ‘elepaio by listing as an endangered species will be reinforced and supplemented by protection under State law.

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

This rule does not contain any new collections of information other than those already approved under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , and assigned Office of Management and Budget clearance number 1018-0094. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number. For additional information concerning permit and associated requirements for endangered species, see 50 CFR 17.22.

A complete list of all references cited herein is available upon request from the Pacific Islands Ecoregion (see ADDRESSES section).

The primary author of this final rule is Leila Gibson, U.S. Fish and Wildlife Service (see ADDRESSES section). Recent data regarding the O‘ahu ‘elepaio were provided by Eric VanderWerf of the University of Hawai‘i.