The General Accounting Office Personnel Appeals Board performs for GAO employees the functions performed in the executive branch by the Merit Systems Protection Board, the Equal Employment Opportunity Commission, and the Federal Labor Relations Authority. In order to bring a case before the Board, except in cases involving a Reduction in Force, an employee must first file a charge with the Board's General Counsel. The General Counsel investigates the charge and determines whether there are reasonable grounds to believe that the employee's rights have been violated. At the end of the investigation, the General Counsel issues to the employee a “report and recommendation” that explains the results of the investigation. If the General Counsel finds that there are reasonable grounds to believe that the employee's rights have been violated, then the General Counsel offers to represent the employee in a proceeding before the Board. If the General Counsel does not find “reasonable grounds,” the General Counsel will not represent the employee. The employee, however, may still bring the case to the Board by representing him- or herself, or by obtaining private representation. Accompanying the report and recommendation, whether favorable or unfavorable, is a “Right to Appeal” Letter which permits the employee to file a petition for review with the Board.

Under the Board's current regulations, an employee may not bring his or her complaint to the Board until the General Counsel's investigation is completed and the employee has received a “Right to Appeal” Letter. In other agencies that hear employment-related appeals, employees are able to “opt-out” of the investigative phase and proceed directly to the hearing stage after they have waited a certain period of time.

The Board believes that the approach taken by these agencies is a reasonable and fair one. It therefore is adopting a similar approach for cases within its jurisdiction. The Board published this rule as a proposed rule on August 30, 2000 (65 FR 52674), and invited comments by October 30, 2000. One comment from a current litigant before the Board, supporting the proposed rule, was received within the comment period. The proposed rule is adopted as a final rule without change.

Under the final rule set forth below, GAO employees have the option of bringing their cases directly to the Board if 180 days have passed and the Board's General Counsel has not yet completed the investigation and issued a “Right to Appeal” Letter concerning their case. Thus, no employee will have to wait more than 180 days to have the opportunity to present his or her case to an administrative judge. The amendments do not require an employee to file with the Board as soon as the 180-day period has expired; he or she may file at any time after 180 days have passed, so long as no “Right to Appeal” letter has been issued. An employee still retains the right to wait for the General Counsel to complete the investigation, before going forward.

Under the final regulations, certain consequences flow from an employee's decision to file a petition for review with the Board before the completion of the General Counsel's investigation. First, the investigation by the Board's General Counsel would be terminated as soon as the employee files a petition for review with the Board. The General Counsel would not gather any further evidence after that point, and the employee would not receive a report from the General Counsel analyzing the facts or law relevant to the employee's case. Second, the Board's rules only permit the General Counsel to represent employees before the Board if the General Counsel completes the investigation and finds “reasonable grounds” to believe that the charge is true. Under the final regulations, therefore, an employee who “opts out” of the investigation after 180 days, and files directly with the Board, would forego the opportunity to have the General Counsel present his or her case to the Board. Such an employee could either represent him- or herself, or obtain private representation.

The Board believes that these consequences are necessary features of its final regulation. While the Board wishes to extend a choice to employees, it does not believe that it would be justifiable to permit employees to go forward before both the General Counsel's Office and the Board simultaneously. Nor would it be appropriate to permit an employee to be represented at public expense in the absence of a finding of reasonable cause by the General Counsel.

The Personnel Appeals Board certifies under 5 U.S.C. 605(b), enacted by the Regulatory Flexibility Act (Pub. L. 96-354), that this rule will not have a significant economic impact on a substantial number of small entities, because it applies exclusively to employees and applicants for employment at the General Accounting Office. For this reason, a regulatory flexibility analysis is not required.

On September 5, 2000, we published an interim rule (65 FR 53523) that amended the WIC Program regulations to incorporate certain nondiscretionary requirements of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. 104-103). We received ten comments on the interim rule.

Nine of the comments concerned the provision in § 246.7(c)(2) providing WIC State agencies the option to limit WIC participation to U.S. citizens, nationals, and qualified aliens contained in section 742 of Pub. L. 104-193 (8 U.S.C. 1615). In particular, the commenters suggested that we incorporate into the regulations our statement in the preamble concerning the effect of a provision to implement this option on the State agency's WIC-eligible population. In the preamble (65 FR 53524-25) we said:

We use the estimated WIC-eligible population for each State agency to determine the State agency's fair share allocation of food funds. We believe that adjusting the State agency's WIC-eligible population to reflect the more limited population eligible for that State agency's WIC Program is a logical result under the current regulations. As such, we have adopted the commenters' suggestion. Accordingly, this final rule amends § 246.16(c)(3)(i)(A) to provide that if a State agency chooses to exercise the option in § 246.7(c)(2), FNS will reduce the State agency's population of income eligible persons to reflect the number of aliens the State agency declares no longer eligible.

Another commenter raised two concerns. First, the commenter objected to the change in § 246.7(b)(3) that makes food assistance referrals optional. We had no discretion on this point as the change was required by Pub. L. 104-193. Second, the commenter encouraged FNS to provide State and local agencies with two years' advance notice when making changes to the data required for the participant characteristic reports. Traditionally, we have worked closely with our State, tribal, and local government partners on any changes to the reporting on participant characteristics. We recognize that system changes are often needed in order to collect different data and typically provide at least two years notice of any changes. We plan to continue this approach.

This final rule has been determined to be not significant and, therefore, was not reviewed by the Office of Management and Budget (OMB) under Executive Order 12866.

This final rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U. S. C. 601-612). Shirley R. Watkins, Under Secretary for Food, Nutrition and Consumer Services, has certified that this rule will not have a significant impact on a substantial number of small entities. This rule relates to a provision providing WIC State agencies with increased flexibility in determining which individuals to serve. Although some WIC local agencies are small entities, the effect of this flexibility on local agencies will not be significant.

This final rule imposes no new reporting or recordkeeping requirements that are subject to OMB review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-20).

The Special Supplemental Nutrition Program for Women, Infants and Children (WIC) is listed in the Catalog of Federal Domestic Assistance Programs under 10.557. For reasons set forth in the final rule in 7 CFR part 3015, subpart V, and related notice (48 FR 29115, June 24, 1983), this program is included in the scope of Executive Order 12372 which requires intergovernmental consultation with State and local officials.

This final rule has been reviewed under Executive Order 12998, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full implementation. This rule is not intended to have retroactive effect unless so specified in the EFFECTIVE DATE paragraph of this final rule. Prior to any judicial challenge to the application of provisions of this rule, all applicable administrative procedures must be exhausted.

FNS has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. As such, FNS has determined that the rule does not contain policies that have federalism implications as defined in the order and, consequently, a federalism summary impact statement is not required.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the FNS generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or tribal governments, in the aggregate, or the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires FNS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule.

This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector of $100 million or more in any one year. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Congress has progressively acted to restrict the release into the community of aliens convicted of certain crimes, beginning with amendments affecting aggravated felons in the Anti-Drug Abuse Act of 1988 (ADAA), Public Law 100-690, and the Immigration Act of 1990 (Immact), Public Law 101-649. Congress extended these restrictions to other categories of crimes in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Public Law 104-132, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208. Pursuant to these amendments, the Service's continued detention of aliens convicted of aggravated felonies has not been subject to the statutory time limits that apply in the case of certain noncriminal aliens. Under section 241(a)(6) of the Immigration and Nationality Act (Act), 8 U.S.C. 1231(a)(6), certain classes of aliens may be detained in the discretion of the Attorney General beyond the 90-day statutory removal period set forth in section 241(a)(1) of the Act, 8 U.S.C. 1231(a)(1), including aliens determined by the Attorney General to constitute a risk to the community or to be unlikely to comply with the order of removal. As a result of this change in the law and other factors, there has been a considerable increase in the number of aliens in immigration custody who have a final order of removal but who the Service is unable to remove during the 90-day removal period.

The Department of Justice (Department) has determined that a separate custody review process is appropriate for aliens who are detained beyond the 90-day removal period. This rule permits a comprehensive and fair review of such post-order detention by establishing an automatic, centralized, and multi-layered process to determine whether detainees may be released from custody and sets forth the procedures governing such release or continued detention. As was the case with the implementation of the Mariel Cuban Review Plan, this review process is intended to balance the need to protect the American public from potentially dangerous aliens who remain in the United States contrary to law with the humanitarian concerns arising from another country's unjustified delay or refusal to accept the return of its nationals. This provision also applies to criminal aliens granted withholding or deferral of removal for whom removal to a third country is impractical.

Currently, 8 CFR 241.4 provides the general procedures governing the detention of criminal, inadmissible, and other aliens who have received a final administrative removal order but whose departure has not been effected within the 90-day removal period specified in section 241(a)(1) of the Act, 8 U.S.C. 1231(a)(1). In 1999, pending promulgation of more specific procedures by regulation, and to institute a more uniform process nationwide, the Service issued a series of memoranda to provide specific guidance to field offices concerning implementation of interim procedures governing post-order custody cases. Detention Procedures for Aliens Whose Immediate Repatriation is Not Possible or Practicable, February 3, 1999; Supplemental Detention Procedures, April 30, 1999; Interim Changes and Instructions for Conduct of Post-Order Custody Reviews, August 6, 1999 (collectively “the Pearson memoranda”).

This rule establishes permanent procedures for post-order custody reviews. The rule assists the decision-maker in determining whether an alien is an appropriate candidate for release from custody after the expiration of the removal period. On December 21, 2000, these procedures will supersede the Pearson memoranda. The new procedures are modeled after those governing the Mariel Cubans at 8 CFR 212.12 and consist of a records review, the opportunity for a panel interview and recommendation, and a final decision by a separate Service Headquarters unit, the Headquarters Post-Order Detention Unit (HQPDU). Although Mariel Cuban procedures will continue to be conducted pursuant to 8 CFR 212.12, the review process is similar for both groups of aliens.

On June 30, 2000, the Department published in the Federal Register at 65 FR 40540 a proposed rule with request for comments to implement a permanent, periodic custody review process for aliens whose removal has not been effected at the expiration of the 90-day removal period pursuant to section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6). The initial comment period was for 30 days and expired on July 31, 2000. However, in response to several commenters' requests for an extension, the comment period was extended for 10 days until August 11, 2000.

The Department received numerous public comments recommending substantive modifications to the proposed rule. Many of the comments overlap or endorse the submissions of other commenters. For this reason, the Service will address the comments by issue rather than by reference to the individual comments.

After careful consideration of all comments, the Department will retain the basic structure of the proposed rule, with some modifications. This rule implements an important program in furtherance of congressional and executive policy to ensure the removal of aliens who commit serious crimes in this country and to protect the safety of our citizens and lawful residents against dangerous individuals or those posing a flight risk.

Numerous commenters expressed the view that the proposed rule is not authorized by statute or violates the Constitution of the United States. Post-order detention cases are the subject of on-going litigation. Two courts of appeals have upheld the Attorney General's authority to continue detention after the removal period. See Duy Dac Ho v. Joseph Greene, 204 F.3d 1045 (10th Cir. 2000); Zadvydas v. Underdown, 185 F.3d 279 (5th Cir. 1999), cert. granted, 121 S.Ct. 297 (2000).

The Ninth Circuit held, however, in Ma v. Reno, 208 F.3d 815, 822 (9th Cir. 2000), cert. granted, 121 S.Ct. 297 (2000), that detention may not be extended more than a “reasonable time” beyond the statutory removal period. The United States Supreme Court recently granted certiorari in the Zadvydas and Ma cases to resolve the disagreements in the courts of appeals.

In Ho, the Tenth Circuit upheld the detention of inadmissible and deportable criminal aliens under 8 U.S.C. 1231(a)(6) on statutory and constitutional grounds. 204 F.3d at 1055-1060. The court held, among other things, that section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6), expressly allows the Attorney General, in her discretion, to continue detaining certain aliens, including aliens who she has determined would pose a risk of danger or flight if released, beyond the 90-day removal period while efforts are being made to remove them from the United States. Id. at 1057. The court declined to impose a time limit on detention, stating that it will not “substitute its judgment for that of Congress by reading into the statute a time limit that is not included in the plain language of the statute.” Id. at 1057.

Like the Tenth Circuit, the Fifth Circuit, in Zadvydas, also rejected a constitutional challenge to continued detention under section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6). 185 F.3d at 294-97. The Fifth Circuit did not question the statutory authority of the Attorney General to detain a criminal alien beyond the 90-day period where the country to which the alien had been ordered removed declined to accept his return in the near future, and it held that the continued detention of a dangerous criminal alien in these circumstances does not violate substantive or procedural due process. The court analyzed the constitutional question on the premise that the detained alien is able to obtain periodic review of his detention under Service regulations, see 185 F.3d at 287-88 & n.9, and that the availability of such periodic review precluded characterization of the alien's detention as indefinite or permanent. Id. at 291 (citations omitted). While acknowledging that a deportable resident alien is entitled to greater procedural due process rights during the removal proceedings themselves than those accorded an excludable alien, the court in Zadvydas concluded that once a removal order has become final and the only act remaining to be carried out is the actual expulsion of the alien, no distinction exists between the constitutional rights of former resident aliens and those of excludable aliens. Id. at 294-97. Therefore, the continued detention of a deportable criminal alien who cannot be immediately removed under section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6), does not violate substantive due process where the government has an interest in protecting society from further criminal activity by the alien and in ensuring that he or she does not flee and thereby frustrate his or her eventual removal. Id. at 296-97.

The Ninth Circuit has interpreted the detention statute in a manner that presents a direct conflict with the decisions of the Tenth and Fifth Circuits. In Ma, the court stated that it could avoid deciding the constitutional issues by construing the statute to prohibit detention, in many cases, beyond the 90-day removal period. While recognizing that section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6), unambiguously authorizes the Attorney General to continue criminal aliens in custody “beyond the removal period,” the court nevertheless found that the statute does not specify a particular length of time for detention and therefore can be construed to permit detention “only for a reasonable time beyond the statutory removal period.” 208 F.3d at 821-22, 827. In Ma itself, because it concluded that there was not a reasonable likelihood that the alien would be returned to Cambodia in the reasonably foreseeable future, the court held that the Service was required to release him immediately upon the expiration of the statutory removal period. In reaching that result, the court relied on several Ninth Circuit decisions from the 1920's and 1930's interpreting a provision in the Immigration Act of 1917 and on international law. Id. at 822, 827-30. Because it concluded that detention beyond 90 days is not statutorily authorized in Ma's case, the court did not address the substantive and procedural constitutional issues that were addressed in Ho and Zadvydas.

In formulating the proposed custody review procedure, the Department did not follow the Ninth Circuit's statutory ruling because it is not supported by the statute's text or history. The Attorney General construes section 241(a)(6) to authorize her to continue to detain, beyond the 90-day removal period, criminal aliens and other aliens whose release would present a risk of harm to the community or of flight by the alien. That interpretation is supported by the text of section 241(a)(6), which unambiguously authorizes the Attorney General to detain the specified aliens “beyond the removal period” and imposes no time limit; by the related detention provisions in sections 235(c)and 241(a)(2), which make clear that granting the Attorney General even the discretion to release criminal aliens after a notice to appear has been filed is an exception to a general statutory rule of mandatory detention of such aliens; by section 241(a)(7), which makes clear that when Congress wanted to create a special exception for aliens whose countries will not immediately accept their return it did so explicitly ( see also IIRIRA §§ 303(b)(3)(B)(ii) and 307(a)) (referring to situations in which countries will not accept return of their nationals); and by the statutory history of the amendments to the Act leading up to the enactment of section 241(a)(6) in 1996, as well as the legislative history of that enactment itself.

The Attorney General's authority has been sustained by the Third, Fifth, and Tenth Circuits, which have upheld the constitutionality of post-order detention under section 241(a)(6)of the Act, 8 U.S.C. 1231(a)(6), and the Pearson procedures. According to these courts, detention under section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6), is not unconstitutional where the alien's removal cannot be effected immediately, the alien is determined to be a danger or a flight risk if released, and he or she is afforded a periodic and meaningful opportunity to seek release from custody. See, e.g., Ho, 204 F.3d at 1057-60; Ngo v. INS, 192 F.3d 390, 397 (3rd Cir. 1999); Zadvydas, 185 F.3d at 287-88. The final rule is structured to afford this type of review. It provides a custody review procedure that is comparable to the Pearson review scheme that two circuit courts have endorsed, see Ngo, 192 F.3d at 395-98; Zadvydas, 185 F.3d at 297, and the Mariel Cuban Plan that the Ninth Circuit approved in Barrera-Echavarria v. Rison, 44 F.3d 1441, 1448 (9th Cir. 1995) ( en banc ). It has the procedural mechanisms that those courts have sustained against procedural due process challenges.

Another commenter felt that the final rule should express commitment to protecting and restoring the alien's liberty. Notwithstanding their physical presence in the United States, aliens under final orders of removal have no greater constitutional rights with respect to their application to be released from custody than excludable aliens seeking admission to the United States for the first time. Ho, 204 F.3d at 1058-59; Zadvydas , 185 F.3d at 294-95. The government has a compelling interest in expelling aliens under final removal orders, just as it does excludable aliens. Ho, 204 F.3d at 1059; Zadvydas, 185 F.3d at 296. Furthermore, the failure of another government to agree to the return of its nationals does not divest the United States of its sovereign authority to enforce its immigration laws, nor does it confer on the alien a right to be released back into the United States. See Jean v. Nelson, 727 F.2d 957, 975 (11th Cir. 1984) (en banc), aff'd, 472 U.S. 846 (1985). To conclude otherwise would mean that an alien who has been ordered removed from the United States nonetheless enjoys a constitutional right to release from custody that is greater than what the alien had when he or she was still in proceedings. Zadvydas, 185 F.3d at 296.

Finally, a commenter opined that § 241.4(k)(1)(ii) is illegal and should be deleted in its entirety, as well as any other reference in the rule to the additional three-month period that the district director may retain detention authority after the expiration of the removal period. Section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6), plainly authorizes the Attorney General to exercise her discretion in determining whether to retain custody of criminal aliens beyond the 90-day removal period. See H.R. Rep. No. 104-469, pt.l, at 234 (1996). The Department, while carefully considering the views of the commenters, has determined that the government's statutory interpretation is consistent with the statutory text and history and will retain the basic structure of the proposed rule.

One commenter suggested changes to proposed §§ 241.4(a) and (a)(4) that would circumscribe the Attorney General's authority contrary to the express language of section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6). The commenter suggested inserting language that detention be permissible only if necessary to effectuate removal. The Department declines to limit the Attorney General's authority to exercise her discretion in the manner suggested by the commenter.

Some commenters objected to proposed § 241.4(a)(4) because the scope of the rule includes an alien who has been granted withholding or deferral of removal under 8 CFR 208. The nature of the comments suggest that there may be some confusion over the reference to withholding and deferral of removal in proposed § 241.4(a)(4). This section has been revised and paragraphs 241.4(a) and (b)(3) have been added to the final rule to clarify the applicability of these custody procedures.

Many commenters suggested that the rule should create a presumption of immediate release in the case of an alien granted withholding of removal under either section 241(b)(3) of the Act or under the Convention Against Torture. The Department declines to adopt this suggestion, as the decision to detain an individual granted withholding or deferral of removal requires a fact-specific analysis consistent with the provisions of section 241 of the Act. A grant of withholding or deferral of removal is limited to the specific country or countries designated in the order and does not protect an individual from removal to a third country. Moreover, a grant of withholding or deferral of removal does not constitute a grant of admission to the United States; decisions regarding detention and release are subject to section 241 of the Act. With respect to deferral of removal, 8 CFR 208.17(c) specifically provides that persons granted deferral who are otherwise subject to detention continue to be governed by section 241 of the Act. The grant of withholding or deferral is relevant, however, and the decision-maker may consider the grant of protection in reaching a custody determination.

Many commenters expressed concerns over the adequacy of procedural safeguards in the proposed rule and objected to the elimination of Board review of the Service's custody determinations. One commenter opined that the Board ensures consistency of decision making through publication of decisions and suggested that if Board review is eliminated by the final rule, then the Service should publish precedent decisions made available to the public to inform and bind decision-makers in subsequent cases. Further, the commenter noted the regulations should specify that the decisions are binding on the district directors and the Headquarter Post-order Detention Unit (HQPDU). First, the law does not require independent review by the Board. See Marcello v. Bonds, 349 U.S. 302, 310 (1955). Second, the rule contemplates individualized determinations where each case must be reviewed on its particular facts and circumstances, and affords aliens periodic reconsideration in a non-adversarial process. Appropriate guidance to the public and the Service officers involved is provided by the rules themselves. Appropriate exercise of discretionary authority and consistency in decision making are further achieved by transferring the detention authority from the various district directors nationwide to the centralized HQPDU and provision for specially trained Service officers who will administer the program and make the periodic custody determinations. The Service concurs with the commenter who expressed concern over training issues and recommended that the Service staff should be trained by non-law enforcement personnel. One of the basic requirements for quality decision making is specific training of officers who will be making custody recommendations or determinations. The Service already has an on-going training program for Service officers who participate in Cuban Review Panels and that training program includes non-law enforcement trainers. Training is being provided to Service officers who will administer the program, and will be maintained and routinely monitored with the implementation of the final rule. The commenter also advocated that the final rule provide an enforcement mechanism if the established procedures are not followed, such as a complaint procedure to the Executive Associate Commissioner for Operations, or Director of the HQPDU. Nothing in the rule prevents the detainee from notifying the HQPDU Director of delays in the processing of the detainee's custody review. The Service must maintain some flexibility in scheduling reviews, but any unusual delays or other problems should be brought to the Director's attention.

Several commenters expressed concern that the proposed rule does not give the alien a full opportunity to demonstrate why he or she should be released. The rule provides the alien the opportunity to submit advance documentation pertinent to consideration for release, and the alien has a full opportunity to supplement those materials during the panel interview. The panel will not proceed with or will interrupt an interview if it becomes apparent that the alien does not understand the proceedings. Further, the alien may advise the district director or HQPDU in advance of the scheduled review that he or she requests a translator, and, if appropriate, a competent interpreter will be provided.

Representation at no expense to the government is in accord with statutory requirements at section 292 of the Act, 8 U.S.C. 1362. Far from discouraging the alien from obtaining assistance for a custody review, the rule makes reasonable provision for the alien to secure legal services or assistance of his or her choosing at no expense to the government. The Service will provide detainees with a list of available pro bono or low cost legal representatives who may assist the alien in the custody review process.

The Service also received numerous comments that the district director and HQPDU custody reviews should be conducted by an independent adjudicator. Custody review procedures do not require an independent adjudicator. In Marcello , which dealt with deportation proceedings, the court noted that the fact that the special inquiry officer was subject to the supervision and control of Service officials charged with investigative and prosecuting functions did not so strip the hearing of fairness and impartiality as to make the procedure violative of due process. The court stated that: “The contention is without substance when considered against the long-standing practice in deportation proceedings, judicially approved in numerous decisions in the federal courts, and against the special considerations applicable to deportation which the Congress may take into account in exercising its particularly broad discretion in immigration matters.” 349 U.S. at 311.

As indicated, this rule is modeled after the Cuban Review Plan, at 8 CFR 212.12, an analogous statutory and regulatory framework providing for the continued custody of excludable criminal aliens when, subject to periodic reconsideration, the Attorney General determines that release of such aliens would pose a danger to the community. The experience of the Cuban Review Plan concretely demonstrates that these procedures provide sound decision making for both the Government and the alien. Because the Cuban Review Plan's inception in April 1988, parole has been granted in over 7,000 cases (some of these may be the same individuals who are reparoled).

Under the current post-order custody review procedures set forth in 8 CFR 241.4 and the Pearson memorandum, approximately 6,200 aliens have been provided custody reviews by district directors during the period from February 1999 through mid-November 2000, to determine whether detention of the alien beyond the 90-day removal period is warranted. Of those aliens, approximately 3,380 were released.

The Department has carefully considered the views of the commenters, and will retain the proposed procedures in the final rule.

The Service received numerous comments on the showing required of the alien under § 241.4(d)(1). These commenters believed that the Government should bear the burden of demonstrating why the alien should not be released. In other words, there should be a presumption of release. Some commenters objected to the standard of “to the satisfaction of the Attorney General” as confusing and also objected to the language that the alien's release not present a danger to the “safety of other persons or to property.” One commenter expressed the belief that this was a lesser standard than “clear and convincing evidence” and was therefore unacceptable.

One commenter proposed language for § 241.4(d)(1) based on a presumption in favor of release and no detention unless conditions identified in 18 U.S.C. 3142(c) cannot reasonably ensure the alien's appearance for removal and protect against dangers to the community, other persons, or property.

A presumption in favor of release along the lines suggested by the commenters would be contrary to recent legislation. Through a series of enactments over the past 13 years, Congress has manifested a serious and growing concern regarding aliens subject to removal who abscond or commit additional crimes while released from custody. Numerous provisions of the Act, as recently amended, address this concern. See generally 63 FR 27441 (May 18, 1998) (reviewing enactments and legislative history). Moreover, removal proceedings are civil in nature, and the Supreme Court has held consistently and in a variety of contexts that criminal procedures and legal standards are not applicable to such proceedings.

The language of section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6), the current provision governing post-order detention, does not create any such presumption of release, nor does an alien enjoy a right to liberty on account of the unwillingness of his or her own or another government to accept him or her. See Gisbert v. Attorney General, 988 F.2d 1437, 1443, 1447 (5th Cir.), amended , 997 F.2d 1122 (5th Cir. 1993); Garcia-Mir v. Smith, 766 F.2d 1478, 1484 (11th Cir. 1985).

The fact that an alien has been released on parole from a criminal sentence, and has not committed any additional offenses while on parole, may be considered by the Service in determining whether an individual alien may be released, but these facts are not dispositive. For example, an alien's release from criminal custody may be based on the expiration of his or her sentence or other factors such as overcrowding in the penal facility and not related to the alien's dangerousness to the community.

After full consideration of all pertinent comments, the Department will retain the required showing by the alien as provided in the proposed rule.

Several commenters felt that the alien's representative should have a more active role in the custody review process, including questioning the alien and making closing statements. It was also suggested that the panel interview should be modeled after asylum interviews pursuant to 8 CFR 208.9(d). Nothing in the final rule prohibits the representative from speaking and assisting the alien or making a closing statement; however, the procedures are not formal or adversarial in nature, nor is this a criminal proceeding. The representative may be of assistance in bringing factors in support of the alien's request for release to the attention of the decision-maker that the alien may have neglected to mention and which may assist in explaining any documentation that requires clarification. However, the representative is an advocate and does not replace the need for the initial decision-maker to evaluate the demeanor and credibility of the alien. The decision-maker will evaluate the alien's suitability for release based on observation as well as other relevant circumstances. If the representative could fulfill this function, there would be no need for an interview of the alien. Certainly it is within the decision-maker's discretion to order the alien released after hearing from counsel and receiving any written documentation in support of release just as the decision-maker can order release after a records review. It is not required that the alien participate in an interview, the rule requires that the opportunity be afforded to the alien, however, the decision-maker may draw negative inferences from the alien's failure to participate. The Department finds that it is not necessary to formalize the interview process as has been done with the asylum regulations and will retain the supplemental rule language as written.

A number of commenters objected to the language of §§ 241.4(h)(2) and (i)(3)(ii) referencing the discretion of the panel or the institution to exclude an alien's representative. The Department will modify the language of this section with language similar to that suggested by one of the commenters. To address any security concerns the panel or institution may have in regard to a particular representative, the final rule will reflect that the alien may obtain assistance from a person of his or her choice subject to the panel's and institution's reasonable security concerns.

One commenter also stated that assistance of counsel should be at no expense to the Service rather than at no expense to the Government. The Department has no authority to override the language of section 292 of the Act, 8 U.S.C. 1362, or to authorize expenditures by other government components, and will make no modification to this section of the rule.

Many commenters expressed the view that, at the alien's request, the Department should utilize professional interpreters only. One commenter added that interpreters should be utilized whenever one was used in the underlying criminal court case. The Department wishes to stress that wherever communication becomes problematic, the interview will be interrupted or postponed if necessary to secure competent translation. The panel members take notes during the interview process and are instructed during their training to ensure that the alien understands the nature of the proceedings and has every opportunity to address the panel members and ask questions. Advance notification that the alien desires a translator will enable the decision-maker to investigate the necessity of securing the services of a qualified interpreter and will facilitate conducting the interview as scheduled.

The Department declines to require a taped recording of the interview as some commenters urged. The district director (under § 241.4(c)(1)) and the HQPDU Director (under § 241.4(c)(3)) maintain appropriate files respecting each detained alien who is reviewed for possible release. The HQPDU panel members conducting an interview make contemporaneous notes of the interview, which are made part of the alien's A file. Similarly, when an alien is interviewed as part of the district director's custody review, any notes made of such interview are made part of the alien's A file. In addition, decision-makers may rely on a variety of materials, including those from public records, the Executive Office for Immigration Review's administrative record, and from the alien and his family members and friends. As explained herein, access to the alien's A file is currently provided and that policy remains in effect. Also, as noted below, much of the information in an alien's A file is already in the detainee's possession or is a public record (such as a conviction), and a Freedom of Information Act (FOIA) request can be made for additional items. Any documentation the alien submits will become part of the A file, as does the written recommendation and decision.

Some commenters observed that the proposed rule did not impose criminal standards on the custody procedures and suggested that the rule should mandate adherence to principles of criminal law. However, immigration proceedings are civil, not criminal, in nature and rules that are applicable to criminal cases are not so here. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984); Guti v. INS, 908 F.2d 495, 496 (9th Cir. 1992) ( per curiam ) (holding Bail Reform Act inapplicable to immigration proceedings).

Specifically, one commenter said that requiring responses from the alien during the panel interview, see § 241.4(i)(4), denies the right against self-incrimination. It is up to the alien to demonstrate that he or she does not constitute a danger to the public safety or a flight risk. While responses are not required, if the alien chooses not to answer questions put to him or her, negative inferences may be drawn from the alien's silence. See Bilokumsky v. Tod, 263 U.S. 149, 153-54 (1923).

Many commenters felt that § 241.4(d) did not require sufficiently comprehensive decisions detailing how and why a decision to continue custody was made. Several commenters offered replacement language for this section. The Department will retain the language of the proposed rule that mirrors that of 8 CFR 212.12. A decision to continue custody under this rule must specify the reasons for the continued detention. A particular format is not required.

Several commenters noted that the HQPDU Director should not be able to overrule a panel recommendation of release. One commenter expressed the view that the HQPDU be eliminated altogether. The Department will make no changes to the rule in this respect. The purpose of the HQPDU is to act as a reviewing authority. The HQPDU must have discretion to review the panel recommendation. This discretionary authority does not nullify the interview process as one commenter opined. Rather, the process gives the central reviewer crucial information about the alien that will provide a major focal point for the custody review. To ensure consistency, the HQPDU should be authorized to reverse a favorable as well as an unfavorable panel recommendation in the exercise of the Attorney General's discretion. The procedure of centralized review has been successfully used in the Cuban Review Plan. Experience with that program has demonstrated that the Headquarters decision sometimes overrules the recommendation below, whether that recommendation is in favor of release or continued detention.

One commenter stated that the transfer of detention authority to the centralized unit would cause delays in the process. The final rule provides for periodic reviews at scheduled intervals. The Service will adhere to these timetables as provided in the final rule. Other commenters contend that the process has inherent bias as the composition of the panels is selected from Service professionals who are law enforcement personnel rather than social workers, probation officers, or mental health professionals. Decision making authority regarding custody has traditionally been entrusted to officers of the Service. The Supreme Court has long recognized the ability of Service officers to make immigration determinations, including custody determinations, and Service officers have long carried out this responsibility. The present rule is intended to draw upon significant, specialized expertise and experience within the Service, particularly from the Mariel Cuban program, to assist the Department in reaching sound, well-considered custody decisions. The Department believes that this rule will improve the quality and consistency of post-order custody decisions, and will retain the pertinent provisions as currently drafted.

Several commenters stated that the district directors should be encouraged to interview the alien; that it is insufficient to rely on a records review that may not be complete. Under the final rule, the district director has the discretion to conduct a personal or telephonic interview.

Further, under the final rule the alien has the opportunity to submit any documentation that he or she feels supports his or her request for release. In that way, any recent and probative material including rehabilitative efforts may be considered in conducting the custody review. Also, the recent conclusion of immigration proceedings should mean that the A file maintained by the Service on the alien contains the most recent information available. The Department will not mandate a personal or telephonic interview by the district director for the 90-day custody review. It is impracticable to require a district director to personally interview every alien detained within his or her district. The district director must delegate many duties to the officers working for him or her in order to ensure that tasks for which he or she is responsible are carried out properly and as expeditiously as possible. The final rule provides for an interview after the HQPDU has conducted a records review and has not made an initial determination to order the alien's release.

Some commenters expressed the view that whether or not the Service could obtain a travel document was either irrelevant or of minimal relevance to the issue of whether the alien was eligible for release. In addition, several commenters suggested that travel documents would have to be in the Service's actual possession in order to trigger an inquiry into further detention. The Department will not change the final rule based on these comments. The comments are contrary to the congressional goal, enacted into law, to ensure that aliens ordered removed from the United States are available for prompt removal when travel documents are obtained. As indicated in the government's response to comments on the constitutionality of this rule and statutory interpretation, section 241(a)(6) of the Act grants the Attorney General specific authority to continue to detain an alien following the expiration of the removal period. An order of removal does not convert to a grant of admission or de facto admission because a foreign government delays or refuses to accept the return of one of its nationals. Similarly, an alien found deportable and ordered removed does not gain permission to remain in the United States simply because of the refusal of another country to admit the alien. Congress enacted the removal period at section 241(a) of the Act to facilitate the removal of criminal aliens, an objective of paramount importance. Detention has proven to be an effective enforcement tool in the removal of criminal aliens as nondetained aliens often fail to appear for pending immigration proceedings or removal after issuance of a final order. It is within the discretion of the Service to determine the likelihood of receipt of a travel document in the foreseeable future. A policy of automatic release pending the issuance of travel documents would thwart the intention of Congress that the Attorney General be vested with the discretion to detain certain aliens including those who pose a danger to the community or a risk of flight pending their removal. Such a policy could serve to encourage foreign governments to further delay or refuse to accept the return of their nationals if they expect the U.S. Government will release the alien. See Mezei, 345 U.S. at 216; Barrera, 44 F.3d at 1448.

Two commenters felt that the proposed rule improperly penalizes aliens who fail to cooperate with the Service in seeking a travel document. Although the purposes of immigration detention are not punitive, we wish to emphasize that cooperation in obtaining a travel document is required by law, and that failure of an alien subject to a final removal order to cooperate with the Service in obtaining a travel document is a felony punishable by imprisonment of four to ten years. See section 243(a)(1)(D) of the Act, 8 U.S.C. 1253(a)(1)(D) (Supp. IV 1998). An alien who fails or refuses to cooperate in obtaining a travel document not only engages in criminal conduct, but also helps to bring about the very condition he or she complains of— i.e., prolonged detention—by that criminal conduct. Moreover, the Act specifically provides for detention in the event that an alien subject to a final removal order fails or refuses to cooperate in obtaining a travel document. See section 241(a)(1)(C) of the Act, 8 U.S.C. 1231(a)(1)(C) (Supp. IV 1998). These provisions manifest a clear congressional policy with regard to cooperation in obtaining travel documents. The Department believes the rule as presently drafted is both consistent with this congressional policy and reasonable in allowing for consideration of the alien's cooperation and compliance with the law. The pertinent provisions will be retained without modification.

The Department received several comments objecting to the criteria specified in § 241.4(e) because they differ from the statutory criteria. Other commenters found it confusing to require two separate findings regarding risk to the community and opined that the focus of inquiry should be on prospective behavior in the community. Some commenters found this section gave too much discretion to the decision-maker whereas another felt there was too little discretion. The criteria in this section are consistent with the Mariel Cuban parole regulation at 8 CFR 212.12 and will assist the decision-maker in identifying and evaluating factors relevant to the exercise of discretion regarding continuation of custody. The criteria set out in § 241.4(e) provide essential guidance to the decision-maker in assessing future risk to the community. In making this determination, both past and present behavior are relevant. Restricting the custody review inquiry to behavior subsequent to the alien's release from incarceration or from the time of detention in Service custody would place unacceptable limitations on the decision-maker's ability to fully review the circumstances of an alien's case in making a custody decision.

One commenter suggested additional language for the end of § 241.4(e)(1) (suggested change in italics): “* * * immediate removal, while proper, is otherwise not practicable or not in the public interest, or potentially detrimental to the health or well being of the alien. ” The humanitarian concerns expressed by the commenter are encompassed within the rule's current language of “not practicable or not in the public interest” and additional language is not necessary. The Service has the discretion to release a detainee or even to delay removal for humanitarian reasons.

One commenter suggested that the criteria of § 241.4(e)(3) that “the detainee is likely to remain nonviolent” be replaced with the detainee has expressed an intent to remain nonviolent. The Department believes that the proposed rule correctly captures the relevant inquiry. An expression of intent to refrain from violence, though potentially relevant to a release determination, is not in itself necessarily determinative or even persuasive. Indeed, one of the aims of the process is to assess the detainee's credibility regarding rehabilitation. The language of the proposed rule will be retained, therefore, without modification.

Several comments expressed the view that the commission of disciplinary infractions should not preclude a finding that the alien is not a risk to the community. Other commenters felt that their commission should be afforded minimal weight in the risk assessment because of disparity in detention standards and requirements, constant transfers, and language barriers. There is nothing in the rule that prohibits release in a case where the alien has been involved in the commission of disciplinary infractions. Disciplinary infractions represent one of several factors that are to be considered and afforded appropriate weight in making a recommendation or decision. Some infractions are more serious than others and will be weighed as warranted by the circumstances in each case. As a general matter, however, disciplinary infractions are relevant to danger to the community, because they reflect the alien's present ability to follow rules, respect the rights of others, and act appropriately on his or her own if released into a less structured environment.

The Department received some comments stating that consideration of the detainee's criminal conduct and other criminal history was too broad an inquiry because it allows consideration of unverified charges not resulting in a criminal conviction. However, under the immigration law, grounds of removability may include criminal conduct that does not result from a criminal conviction. Because such conduct is sufficient to support a finding of removability from the United States, it may also be considered for detention purposes. Consideration of criminal history is probative of the threat to the community posed by the alien's potential release. It is relevant to consider the alien's entire criminal history although the weight given to each factor will vary according to the individual facts and circumstances of a particular case. The rule adequately provides, without additional specificity, for consideration of the nature and severity of the convictions, factors in mitigation of a criminal sentence, the sentence imposed, state parole findings, probation, and other criminal history. Moreover, to the extent that non conviction criminal history information may exist, the decision-maker can make clarifying inquiries with the alien or the alien's representative, as appropriate, and can give criminal history information whatever weight is appropriate in light of the information available.

Commenters suggested that the body of the rule as well as the supplemental information section should state that no negative inference will be made from non-participation in rehabilitation programs if such programs are not available in the facility where the alien is housed. Some commenters wanted the body of the rule to add that (1) barriers to participation include long waiting lists, waiting periods for new detainees, and the unavailability of some programs to detainees, and (2) that program availability at state and local institutions prior to Service detention may be considered.

The Department understands the concerns reflected in these comments, but does not believe that a change in the regulatory text is necessary or appropriate to address them. The relevance of nonparticipation in rehabilitative programs is a proper subject of internal training. It is not necessary, therefore, to reinforce this message through an alteration of regulatory text. Moreover, detainees seeking release are free to submit materials indicating the impossibility or difficulty of enrolling in rehabilitative programs if they wish.

Two commenters felt that the rule should specify the nature of participation in rehabilitation programs, freedom from disciplinary infractions, and other indicia of commitment to good conduct required to secure the alien's release, particularly after commission of violent crimes. In other words, these commenters invite the Department to specify criteria the satisfaction of which would require release from custody.

In general, the custody review determination involves highly individualized case reviews for which mandatory release pursuant to pre-established formulas would not be appropriate. Rather, the Department prefers an approach based on the consideration of factors included in the rule instead of mandatory criteria. The regulation cannot cover every conceivable circumstance and provide enough flexibility to accommodate multiple issues considered in the exercise of discretion under section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6). To avoid what the commenter terms “rubber stamp denials,” the listed factors and other pertinent information will be evaluated in relation to the alien's character, and ability to adjust in the community. The Department declines to change the rule based on this comment.

Similarly, the Department received numerous comments stating that the only factors that should be considered are the enumerated ones and that no single factor should be weighed so as to exclude all others. The Department declines to make any changes to the final rule based on these comments. Maintaining flexibility is essential to the exercise of discretion. The decision-maker may weigh the same factors differently depending on the circumstances of the individual case. Further, the list of factors for consideration provides a guideline (not an exclusive list) for the decision-maker to utilize in reaching a custody determination. If other relevant circumstances are present in a particular case, the decision-maker must be free to consider them. Several commenters suggested that favorable factors should be set out with more specificity in the rule, including prospects for employment, community care placement opportunities, ties to clergy or community organizations, and sponsorship. Such specificity is not needed in the final rule because the rule already addresses sponsorship and provides for consideration of community ties and other factors whether favorable or unfavorable.

Several commenters suggested that the body of the final rule state that there is no presumption of dangerousness due to the existence of a criminal record. The decision-maker's responsibility is to weigh the severity and circumstances of the criminal conduct along with other material considerations, whether favorable or unfavorable, in making a custody determination. The Department will not mandate a result either for release or detention based on the presence or lack of a particular factor for consideration. As discussed above, it is up to the alien ordered removed to demonstrate a lack of danger to the community and flight risk upon release.

Other commenters suggested that only immigration violations relevant to flight risk should be considered and only willful failures to appear. Failure to appear for probation appointments, court hearings, and other mandated proceedings is highly probative of flight risk. As with any other factor, the specific circumstances surrounding the failure to appear will determine how much weight the decision-maker gives it. It is unnecessary to amend the final rule and address this with more specificity.

Two commenters wanted to add as a factor for consideration the length of time the detainee has been in immigration custody. The final rule does not exclude this factor, if relevant, from the decision-maker's consideration, but an explicit mention of this has not been included in the rule.

One commenter suggested that favorable factors such as ties to the United States and availability of work or other programs should not be considered because removable aliens may be deported from this country without regard to such considerations. The Department will not change the final rule based on this comment. The crux of this program is to make a custody determination based on an analysis and weighing of factors that may permit the alien's release into the community until such time as his or her removal can be effected. Ties to the community, work opportunities, and rehabilitative programs are relevant to making a custody determination.

Several commenters suggested the addition of a factor to be weighed heavily in favor of the alien: that the alien cannot be returned to his or her country of origin. Although nothing in the rule prevents a decision-maker from considering such a circumstance in rendering a custody decision, the overriding concerns of the rule are public safety and flight risk, and the likelihood of the alien's successful reintegration into the community pending removal. The Department feels that the list of discretionary factors properly focuses on these issues, but leaves decision-makers with broad discretion to consider other circumstances as may be appropriate in each case. Therefore, the text of the rule will not be modified.

Several commenters believed that the sponsorship provision should be deleted or modified. The suggested language authorizes the district director or Executive Associate Commissioner, in the exercise of discretion, to condition release on the detainee's having a sponsor or participating in an approved halfway house or mental health or community project, whether residential or not. The language of the rule is sufficiently broad to allow the decision-maker to consider a wide range of sponsorship possibilities. Given that sponsorship is a permissive rather than a mandatory condition of release, the Department will not expand the language of § 241.4(j)(2).

One commenter suggested that the rule should encourage employment authorization and mandate a grant or denial decision within 30 days of application. Such specificity is not required in the final rule. As with other provisions of the final rule, each case will receive individual consideration. The Service will make decisions on work authorization as expeditiously as possible. It was also suggested that the rule should authorize the presence of the sponsor at the panel interview. The Department has no objection to the sponsor's being selected as the alien's representative, subject to the security concerns of the panel or institution. If the alien desires the presence of his or her sponsor in addition to the presence of counsel or other representative, the alien must make advance arrangements with the panel and the facility.

One commenter asked whether the release of an inadmissible alien constitutes a release on parole pursuant to section 212(d)(5) of the Act, 8 U.S.C. 1182(d)(5), and 8 CFR 212.5(d)(2)(i) or under an order of supervision pursuant to section 241(a)(3) of the Act, 8 U.S.C. 1231(a)(3), and 8 CFR 241.5. Reference to the parole statute and regulations is correct and will not be revised. An alien who has been denied admission to the United States continues to be an applicant for admission and pending removal is subject to release in accordance with the Attorney General's parole authority both before and after a final order of exclusion or removal on grounds of inadmissibility. See, e.g., Leng May Ma v. Barber, 357 U.S. 185, 188 (1958); Palma v. Verdeyen , 676 F.2d 100, 103 (4th Cir. 1982); see also sections 101(a)(13) and 212(d)(5) of the Act, 8 U.S.C. 1101 (a)(13), 8 U.S.C. 1182(d)(5)(A); 8 CFR 212.12. As in the Mariel Cuban program at 8 CFR 212.12, the Attorney General may impose a reporting requirement or other conditions of release in the case of an inadmissible alien who is detained pursuant to section 241(a)(6) of the Act and approved for parole.

Numerous commenters objected to the change from review of custody status every six months under the Pearson memoranda to annual reviews. The Department has fully considered this issue and will retain the annual review structure. The final rule is modeled after the Cuban Review Plan, which also operates on an annual review schedule. The Pearson reviews were structured on an interim basis until more permanent procedures could be put in place. The final rule will allow sufficient time between reviews for interview scheduling and compiling of the materials for review. Further, interim reviews are not foreclosed by the annually scheduled custody review. Under § 241.4(k)(2)(iii), the HQPDU will respond to the alien's written request for release based on a showing of a material change in circumstances since the last annual review. One commenter asked why there were no sanctions in the rule if a review is late. The remedy if a review is late is a full review as soon as possible. The Department must preserve flexibility for redeployment of Service staff for national immigration emergencies or other mandates requiring immediate attention. Extreme weather conditions, or other transportation problems may delay a panel's visit to a particular facility. A panel member's illness or other personal emergency, a prison lock-down situation, or the alien's transfer to another facility are some other reasons that interviews might be delayed.

Several commenters objected to § 241.4(k)(3) of the rule allowing for suspension of reviews for removal or good cause. Other commenters urged that this section provide for notice and a right of appeal. The Department will retain this section in the rule as written. This section is essential for administration of the program and in furtherance of removal where practicable. Release under section 241(a)(6) of the Act is a privilege and can be revoked. As provided in the rule, if further review is appropriate after suspension, it will be rescheduled. Any administrative appeal and hearing would only delay the review further and would be inappropriate in cases where prompt removal is practicable.

Several commenters suggested that transfer of detention authority from the district director to the HQPDU should occur upon expiration of the removal period. The Department will retain the rule provisions regarding transfer as written. The rule provides for an orderly transfer of authority and fully sets out the procedures for automatic, periodic review.

One commenter noted that the rule is a tremendous improvement in providing for meaningful and periodic reviews. The balance of comments pertaining to § 241.4(k) concern requiring mandatory deadlines for conducting custody reviews, writing decisions, and serving them on the alien. The Department will not make any changes to the final rule as a result of these comments. As indicated in previous responses, the Service must maintain flexibility for allocation of resources and for working cooperatively with other federal agencies as well as state and local authorities. The Service is obligated to make every reasonable effort to ensure that reviews are held timely and professionally.

Two commenters suggested revision of § 241.4(k)(2)(iii) to allow for quarterly interim reviews at the alien's request without restriction. The Department understands the commenters' concerns; however, implementing such a program would severely strain Service resources, which do not permit more frequent reviews without cause. The Service would scarcely have completed a review before it would be time to begin another. Frequent re-review of the same facts without any change in circumstances in support of release would merely serve to misdirect Service resources that otherwise could be more usefully employed and would result in delay of reviews in other cases. The Department disagrees with the comment that circumstances cannot change because the alien is detained. For example, an appropriate sponsor might be located, the alien might receive an employment offer, remain incident free, or become eligible for or successfully complete rehabilitative programs that might influence the decision-maker to approve release.

Some commenters requested that the notification of custody review be extended to 45 or 60 days prior to the review. The Department declines to extend this notification period. If the alien requires additional time to prepare for a custody review, it may be granted in accordance with the provisions of the final rule. The Department agrees with the commenter who suggests that the alien be given the address of the HQPDU. That information will be supplied to the alien with written notification of the Headquarters custody review.

Some commenters felt that § 241.4(h)(4) should specifically advise the alien if the district director is retaining jurisdiction over the case for the additional three-month period, rather than referring the case to the HQPDU at the expiration of the 90-day removal period. The structure of the final rule permits the district director flexibility in determining what options are available to him or her during the initial period when the Service has assumed physical custody over the alien. During this additional three-month period, the district director may be able to execute the removal order, may order the alien's release pending removal, or may refer the case to the HQPDU for further review. The rule's notice requirements advise the alien of the results of the 90-day review while maintaining the district director's flexibility to determine what further action the case requires.

Numerous commenters requested full disclosure to the detainee and the representative of the alien's A file and the file of the detention facility. Others requested copies of all documents relied on by the Service at the custody review. Access to the alien A file will be provided to the detainee and the representative in accordance with current Service policy and practice as developed under the Cuban Review Plan, and subject to limited exceptions such as the identities of confidential informants, law enforcement personnel, and documents that cannot be released because the information therein would adversely effect an ongoing investigation.

Because access to the A file is provided, the Service will not provide copies as a matter of course. In any event, much of the information in the A file is already in the detainee's possession as it was originally obtained from the detainee or is a public record (such as conviction documents). A FOIA request can be made for additional items. The detainee or representative must make arrangements for access to files of the detention facility from the custodian of those records in advance of when the party wishes to review them. The Service is not the custodian of files maintained by a non-Service detention facility and has no authority to grant or deny access to such files.

One commenter proposed language changes to the provisions concerning service of notices and decisions to the alien and the representative of record. The Department will not change the wording of §§ 241.4(d)(2) or (d)(3). Section 241.4(d)(3) adequately ensures that the representative of record will receive a copy of any notice or decision.

One commenter requested that the notice required by § 241.4(h)(2) for the district director's 90-day review advise the alien of the criteria of § 241.4(e) and the factors in § 241.4(f). The Department will adopt this recommendation. The notice of a district director or HQPDU custody review will advise the alien of the criteria of § 241.4(e) (conclusions that must be drawn by the decision-maker before approving a release) and factors in § 241.4(f) to assist the alien in preparing for the review. A notice of custody review, whether by the district director or the HQPDU, will briefly advise the alien of the review procedures and display the correct address for submission of any documents. For a more detailed explanation of review procedures, the detainee may consult the final rule.

The Department will not accept the recommendation of a commenter to amend the language of § 241.4(h)(2) so that the alien's request for additional time to submit documentation to the district director extends the time for conducting the custody review only until the additional information has been received. The custody review will be conducted as promptly as scheduling permits.

One commenter objected to § 241.4(l)(2) (Determination by the Service). Other commenters recommended limiting § 241.4(j)(4) (Withdrawal of release approval) to cases where removal is practicable or there is a material change in the detainee's conduct, indicating he poses a risk to the community. Commenters also requested written notice of withdrawal of release approval and provisions for a hearing process. Upon revocation, commenters suggested that the next review be conducted within 3 months. Depending on the circumstances of a particular case, revocation or withdrawal of release authorization under section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6), may be appropriate for any of the reasons listed in section 241.4(l)(2) of the rule, including the alien's violation of a condition of release. Cf. section 243 of the Act, 8 U.S.C. 1253(b) (authorizing criminal sanctions for violation of release conditions). Section 241.4(l)(1) of the rule provides that, upon revocation, the alien will be provided notice of the reasons for the revocation. In addition, the rule is being modified to provide that the alien will be afforded an initial informal interview promptly after his return to Service custody to provide the alien an opportunity to respond to the reasons for the revocation. The rule currently provides at § 241.4(l)(3) for a full custody review, including an interview, to be conducted within three months of the revocation of release. The rule is being modified to clarify that the custody review will include a final evaluation of any contested facts relevant to the revocation and a determination whether the facts as determined warrant revocation and further denial of release.

Several commenters stated that the district director should forward all documents submitted by the alien to the HQPDU. The Department agrees with this recommendation. The alien's submissions will be included in the HQPDU custody review file.

Several commenters endorsed a recommendation that the Service compile statistics on nationality, length and place of detention, and dates of review, and that these statistics be made available for independent review. The Service will maintain statistics on the detained post-order population. Such statistics may be available through authorized pre-existing procedures. The Department declines to appoint a separate ombudsman to oversee the implementation of the program and keep statistics. The Service has a Headquarters managerial position in the Detention and Removals Branch that fulfills the functions of an ombudsman.

Some commenters wanted the rule to permit federal court stays. See 8 CFR 241.6 (Administrative stay of removal). This rule concerns the delegation and exercise of powers by the Attorney General, not the courts. Thus, the rule will not be modified to account for judicial stays.

One commenter predicted that the rule will prolong litigation with a corresponding increase in costs if promulgated. The commenter also noted the Government's litigation and detention costs. These comments concern policy determinations made by Congress, which sets immigration policy and passes legislation allocating expenditures within the federal budget. This is not an executive or judicial function.

This commenter also stated that the rule affects the relationship between the states and the federal government by nullifying prior determinations (to release) by state court judges, probation officers, prison authorities, and parole administrators. The commenter stated that the rule requires a federalism summary impact statement. The Department disagrees with the need for an impact statement. States have no authority to regulate immigration. This function is solely within the province of the federal government. This rule concerns civil immigration, not criminal law. The statutes and policies being implemented by state courts, probation and parole departments, and penal authorities' release determinations are based on different goals and responsibilities than those that govern a release or detention decision affecting an alien under a final order of removal. For example, release from a term of imprisonment is mandated when an individual has been sentenced for commission of a criminal offense and that sentence has been served. There is no authority to detain the individual longer under that criminal sentence. Also, a particular sentence may be mandated by statute irrespective of the risk that the criminal poses to the community upon release. This is exemplified in “truth-in-sentencing” jurisdictions. There have also been various instances where a court order mandates the release of criminals because of prison overcrowding. Thus, the Department believes that no impact study is required.

Two commenters stated that panel reviews should be conducted at district processing centers to allow attorney representatives and family to attend. The Department cannot implement this suggestion. The rule already permits the attendance of the attorney representative. Panel interviews will be conducted at the facility where the alien is detained. Moving detainees for interviews would involve significant additional expenditures and security concerns that would detract from the expeditious and efficient operation of the program.

The Department will retain the transition provisions as written. Two commenters requested that transitional cases receive an interview irrespective of whether the last review was a records review or included an interview and that the reviews should be held more frequently than specified in the rule. The transition provisions of the rule more closely mirror the permanent procedures than do the commenters' suggestions, which in timing resemble the interim Pearson provisions. The provisions allow the Service to give full consideration to cases that have not yet received any review and advance equal treatment of all cases more expeditiously than the commenters' proposal.

A commenter noted that the proposed rule did not mention the Vera Institute of Justice study recommending alternatives to detention for aliens ordered removed. The Service recently received the final report of the Vera Institute Appearance Assistance Program, and is currently reviewing it. The Service agrees that there is potential for use of the processes and information from the study in the area of detention of aliens with final removal orders. The Service intends to establish additional pilot projects in several districts in the next year. The projects may include contract or governmental personnel and will test various levels of supervision. Supervised release of post-order detainees will be examined in some of the test sites. These projects may involve halfway houses or other support and rehabilitation programs to prepare detainees for release or for future consideration.

Several commenters suggested deletion of the language in the supplementary information addressing foreign and domestic affairs, availability of resources, public policy, and humanitarian concerns. The Attorney General must be able to take these factors into account and assess their impact on individual and institutional decision making. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999).

This rule establishes a permanent review procedure applying to aliens who are detained following expiration of the 90-day removal period. It also applies to aliens released under the provisions of the final rule upon a finding that they do not constitute a risk to the community or a flight risk. The Attorney General is authorized to detain these aliens beyond the removal period consistent with section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6). This permanent review procedure governs all post-order custody reviews inclusive of aliens who are the subjects of a final order of removal, deportation, or exclusion, with the exception of inadmissible Mariel Cubans whose parole under section 212(d)(5) of the Act, 8 U.S.C. 1182(d)(5), is governed by the provisions of 8 CFR 212.12. Mariel Cuban custody reviews will continue to be conducted pursuant to those provisions.

Under the final rule, the district director maintains the responsibility for the initial custody review when the alien's immediate removal is proper but not practicable at the expiration of the removal period. For the initial post-order custody review at the expiration of the removal period (the 90-day custody review), the district director will conduct a records review. In most cases, it will be unnecessary for the district director to undertake a personal interview because the alien's immigration proceedings have recently concluded, and his or her records are therefore up-to-date. The district director has the discretion to conduct a personal or telephonic interview if he or she finds that it will assist him or her in making a custody determination. Further, the alien will be provided with the opportunity to present any relevant written information the alien desires in support of his or her release into the community.

After the 90-day custody review, the district director will notify the alien in writing that he or she is to be released from custody, or that the alien will be continued in detention pending removal or further review of his or her custody status.

Where the district director has notified the alien that he or she will continue to be detained pending removal, the district director's authority to reconsider an alien's custody status may be extended for an additional period of up to three months after expiration of the removal period. The additional three-month period will allow the district director to continue efforts to obtain the necessary travel documents to effect the alien's removal before the detention authority is transferred to Service Headquarters.

During the additional three-month period, the alien may submit a written request to the district director for further review of his or her custody status. The district director shall consider information that the alien submits in support of his or her release from detention demonstrating a material change in circumstances. The district director will provide a written response as appropriate to the alien's submission of such new information and may, in the exercise of discretion, conduct any further review of the alien's custody status that he or she deems appropriate. The district director retains the authority to release the alien during this period as well.

If the alien has not been removed or released from detention, detention authority transfers to the newly designated Service component, the HQPDU, under the authority of the Executive Associate Commissioner, Field Operations (Executive Associate Commissioner), either at the end of the 90-day removal period or at the expiration of the three-month extension period. Under either circumstance, the HQPDU will ordinarily commence a custody review within 30 days of the transfer of detention authority or as soon as possible thereafter should unforeseen or emergent circumstances arise. The alien will receive written notice of the custody review approximately 30 days prior to the scheduled review. The HQPDU will conduct all further custody determinations as long as the alien remains in custody pending removal. Subsequent custody reviews will be conducted at annual intervals (or more frequently in the sole discretion of the HQPDU).

When the detention authority transfers to the HQPDU, that unit will conduct a records review for each alien previously ordered detained by the district director. If the records review does not result in a release decision, the alien will be given the opportunity for a panel interview. The two-member panel will be chosen from professional staff of the Service. The interview will be conducted in person and a translator will be provided if the Service official determines that a translator's assistance is appropriate. As under the Mariel Cuban Review Plan, the interviewing panel will make a custody recommendation to the HQPDU. Upon receipt of the panel's recommendation, the HQPDU shall determine whether to detain the alien or grant release consistent with the delegation of discretionary authority. The decision of the HQPDU will be final and will not be subject to further administrative review.

The HQPDU is not bound by the panel's recommendation. The HQPDU retains full statutory authority for custody determinations under sections 241(a)(6), 8 U.S.C. 1231(a)(6), and (for inadmissible aliens) 212(d)(5) of the Act, 8 U.S.C. 1182(d)(5). The panel's recommendation is designed to serve as an important guide to the exercise of discretion for the HQPDU, but the decision-maker must be free to assess all of the circumstances in arriving at a final custody determination. The decision-maker must also take into consideration changes in foreign and domestic affairs, the availability of fiscal resources, public policy and humanitarian concerns, and other factors that could weigh for or against the decision in an individual case.

The subsequent HQPDU periodic review, to be conducted within one year of a decision declining to grant release under these procedures or as soon as practicable thereafter in case of unforeseen circumstances or an emergent situation, will address whether the alien can be released into the community if the alien has not been removed since the last review. The HQPDU may conduct a custody review at more frequent intervals at its sole discretion and consider written submissions demonstrating any material change in circumstances that supports the alien's release during the interval between reviews. Material change does not include mere disagreement with the decision denying release. The HQPDU will give a written response to the alien's submission of new information as appropriate under the rule. Written submissions, whether to the district director or the HQPDU, must be in English or they may not be given consideration.

The alien may be assisted by a person of his or her choice in preparing or submitting information in response to the notice of custody review. The Service has followed the guidelines set forth in 8 CFR 212.12(d)(4)(ii) (regarding representation of an alien before a Mariel Cuban parole panel) rather than the more formal rules regarding attorney representatives at 8 CFR 292.1. Both 8 CFR 212.12 and this final rule allow the alien to be accompanied by a person of his or her choice at the panel interview (subject to the discretion of the institution and panel). It may be difficult for the detained alien to secure the services of a licensed attorney for each annual review, or counsel may change between reviews. Further, giving the alien discretion in selecting who will assist him or her in preparation of materials for submission to the district director and who will accompany him or her to the panel proceeding promotes two important Service objectives. These objectives are to make this process as flexible and nonadversarial as possible and to promote the alien's level of comfort with the proceedings. The alien's representative will be required to complete a Form G-28, Notice of Entry of Appearance as Attorney or Representative, at the time of the interview or prior to reviewing the detainee's records. Attached to any notice of a records review or interview, the Service will provide a list of free or low cost attorneys and representatives who are located near the alien's place of confinement.

Although the Service will forward a copy of all notices and decisions relating to the custody review to counsel or other representative of record through regular mail, the alien bears primary responsibility for ensuring that the individual providing assistance to him or her is aware of any notices, decisions, or other documentation relating to the custody review. Experience with the Cuban Review Plan has demonstrated that an alien may have several representatives successively, or may be assisted by an attorney, other person, or organization whose representation is not known to the Service.

Any person assisting the alien should not answer for the alien but should assist the alien in the latter's presentation of information supporting a release decision. Whether the alien's case is before the district director for review or the panel for an interview, the purpose of the review process is to collect information. Because the decision-maker must evaluate the suitability of the alien for release, it is important for the alien to address the district director or panel directly and be able to speak freely. The district director and panel need to hear from the alien rather than his or her representative.

Both the Executive Associate Commissioner through the HQPDU and the district director have the authority to withdraw approval for release and to revoke release or parole in the exercise of discretion. Reasons for withdrawal of approval for release or revocation include the Service's ability to obtain a travel document and remove the alien, the alien's adverse conduct while awaiting release, the decision-maker's belief that the alien's actions while in the community pose a threat to public safety, or any other circumstance that indicates that release would no longer be appropriate. If the decision-maker withdraws release approval or revokes the alien's release or parole, the alien will receive written notification specifying the reasons for the withdrawal of approval for release or revocation of post-order release or parole. The alien will be afforded an initial informal interview promptly after his or her return to Service custody to afford the alien an opportunity to respond to the reasons stated in the notice. A full custody review, including an interview, will be conducted within three months of the revocation of release and will include a final evaluation of any contested facts relevant to the revocation, and a determination whether the facts as determined warrant revocation and further denial of release.

This rule addresses Service procedures for conducting post-order custody reviews. It does not circumscribe the exercise of the Commissioner's authority to direct otherwise, as appropriate. Section 2.1 delegates the authority vested with the Attorney General to the Commissioner. Section 241(a)(3) of the Act vests authority with the Attorney General to promulgate regulations governing supervision of aliens beyond the removal period and section 241(c)(2) of the Act vests authority with the Attorney General to grant stays of removal. Therefore, the Commissioner already has the authority to release certain aliens from Service custody, issue orders of supervision, and grant stays of removal. As directed by the Commissioner or Deputy Commissioner, Service officials have authority to release certain aliens from Service custody, issue orders of supervision, and grant stays of removal. Therefore, this rule also amends 8 CFR 241.4, 241.5, and 241.6 to reflect the concurrent authority of the Commissioner and other designated Service officials.

This rule terminates the existing procedure of appeal to the Board of Immigration Appeals (Board) under 8 CFR 236.1 for an alien who receives an unfavorable custody decision from the district director. See Matter of Saelee, Interim Decision 3427 (BIA 2000). Because these aliens have final orders of removal, all legal issues involving removability (and any relief from removal, if available) have been resolved through the Executive Office for Immigration Review or through alternate procedures. Custody determinations at this stage of the process involve separate and distinct issues, and the Service has the knowledge and expertise required to make these custody decisions.

This rule for permanent procedures provides for an automatic multi-tiered annual review process subsequent to the district director's 90-day review as long as the alien remains in custody. The detainee is assured a periodic and thorough review that does not depend on the alien's request for a custody review or the filing of an appeal, but is required at regular intervals by regulation. This review process will ensure timely, scheduled reviews of each alien's custody status.

Accordingly, in order to implement a single comprehensive review process for post-order custody cases, this rule removes all references to post-order detention from 8 CFR 236.1. As revised, 8 CFR 236.1 would govern detention issues only for aliens who have not yet received a final removal order.

Any case pending before the Board on December 21, 2000 will be completed by the Board. Should the alien decide to withdraw his or her appeal, the Service shall continue to conduct custody reviews under the provisions of this rule.

This rule also removes 8 CFR 212.13 and any references to that section in 8 CFR 212.5 and 8 CFR 212.12. Section 212.13 established a single Departmental parole review for all excludable Mariel Cubans who on December 21, 2000 were detained by virtue of the Attorney General's authority under the Act and whose parole had been denied after the exhaustion of the review procedures of 8 CFR 212.12. The Departmental Review Panels have completed the review of the cases of detainees eligible for such review. Thus, there is no longer a need for 8 CFR 212.13. This action will not otherwise affect the Cuban Review Plan set forth in 8 CFR 212.12.

The alien must be able to show to the satisfaction of the decision-maker that he or she does not constitute a danger to public safety or a flight risk pursuant to the criteria set forth in this rule.

Detention or release of aliens with a final order of removal is tied to the Service's mission to enforce the immigration laws and protect the interests of the United States, pending the aliens' eventual removal from the United States. Accordingly, district directors will continue to make efforts to obtain travel documents even after review authority has transferred to the HQPDU. Headquarters Detention and Removals, Office of Field Operations will also assist in the effort to secure travel documents.

The ability to secure a travel document by itself supports a decision to continue detention pending the removal of the alien and obviates the need for further custody review because it means the alien can be deported promptly. See 8 CFR 212.12(g)(1). Custody reviews may be pretermitted in the case of an alien for whom travel documents are available. Pending litigation, an administrative or judicial stay, or other barrier to removal does not entitle a removable alien to be released within the United States pending resolution of the underlying action or event. Aliens whose removal is withheld under 8 CFR 208.16 or deferred under 8 CFR 208.17 may be considered for release.

Release conditions and work authorization for aliens subject to a final order of removal will continue to be governed by 8 CFR 241.5. The district director or HQPDU may wish to impose conditions, in addition to those enumerated by regulation, such as that the alien obey all laws, not associate with any persons involved in criminal activity, not associate with anyone convicted of a felony without permission, not carry firearms or other dangerous weapons, and such other conditions as the decision-maker deems appropriate. Under 8 CFR 241.5(c), a grant of work authorization is discretionary but requires the decision-maker to make an initial finding that the alien cannot be immediately removed because no country will accept the alien or that the alien's removal is impracticable or contrary to the public interest.

Sponsorship and evidence of financial support may be required as a precursor to release under the rule. The Service has determined that appropriate sponsorship is in the best interest of the alien and community when an alien is approved for release pending removal. See, e.g., Fernandez-Roque v. Smith , 734 F.2d 576, 583 (11th Cir. 1984). Although the Service reserves the authority to impose conditions of release, including appropriate sponsorship, this rule does not compel the Government to tailor existing programs to the needs of individual aliens or to create or fund additional programs if suitable sponsorship is not located or available for an alien.

If an alien is detained in a facility that does not provide any rehabilitative programs, no negative inference respecting release will be drawn against the alien in making a custody determination based on the fact that the alien did not participate in such programs. However, if the facility has such programs available to the alien but the alien refuses to participate, that fact may be considered by the decision-maker.

The Department's implementation of this final rule effective upon publication in the Federal Register is based upon the “good cause” exception found at 5 U.S.C. 553(d)(3). The Pearson reviews were intended for interim use only; through this rule, the agency has now adopted permanent and more comprehensive procedures for post-order detainees. Implementation upon publication affords both the Government and detainees the benefits of the new procedures as soon as possible. Delaying the effective date of this rule would be contrary to the public interest.

The Attorney General, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule would provide a more uniform review process governing the detention of certain aliens who have received a final administrative removal order but whose departure has not been effected within the 90-day removal period. This rule does not affect small entities as that term is defined in 5 U.S.C. 601(6).

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

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Act of 1996, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

This rule is considered by the Department, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this rule has been submitted to the Office of Management and Budget for review.

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. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

The CDRLP is intended to support the community development activities of participating credit unions. It does this by making low interest loans and providing technical assistance to those credit unions. This increases economic and employment opportunities for the credit unions' low-income members.

The Act authorizes the NCUA Board to use interest earned by the CDRLP to provide technical assistance to participating credit unions. 12 U.S.C. 1772c-1. The regulation implementing this authority provides: “Based on available earnings, NCUA may contract with outside providers to render technical assistance to participating credit unions.” 12 CFR 705.10. When this rule was initially adopted, the rule's preamble noted, “NCUA plans to contract with a provider that can render necessary technical assistance to credit unions selected for participation in the [Community Development Revolving Loan] Program.” 52 FR 34891, September 16, 1987. The NCUA Board later amended the regulation to allow the agency to contract with more than one technical assistance provider. 58 FR 21648, April 23, 1993. The technical assistance provision in the regulation is more restrictive than the statutory authority granted to the NCUA Board by the Act.

Congress has recently appropriated an additional $1 million to the CDRLP, $350,000 of which is specifically earmarked for technical assistance. NCUA has determined that, in conjunction with this additional funding, it is an appropriate time to amend § 705.10. The NCUA Board has determined that § 705.10 is unnecessarily restrictive and may interfere with the CDRLP's ability to provide technical assistance to participating credit unions efficiently. Specifically, the CDRLP should have the flexibility to provide technical assistance to participating credit unions directly or through outside providers selected by the credit unions or NCUA. Applications for CDRLP technical assistance are available from NCUA and will be processed in accordance with established NCUA procedures and guidelines.

The NCUA Board is issuing this rule as an interim final rule because there is a strong public interest in having in place rules that make CDRLP technical assistance as readily accessible and easily deliverable to participating credit unions as possible. This interim rule provides additional benefit to participating credit unions with no additional burden. Accordingly, for good cause, the Board finds that, pursuant to 5 U.S.C. 553(b)(3)(B), notice and public procedures are impracticable, unnecessary, and contrary to the public interest; and, pursuant to 5 U.S.C. 553(d)(3), the rule shall be effective immediately and without 30 days advance notice of publication. Although the rule is being issued as an interim final rule and is effective immediately, the NCUA Board encourages interested parties to submit comments.

The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact any regulation may have on a substantial number of small entities. For purposes of this analysis, credit unions under $1 million in assets will be considered small entities.

The NCUA Board has determined and certifies that this rule will not have a significant economic impact on a substantial number of small entities. The reason for this determination is that the revision provides the CDRLP with more options and flexibility in providing technical assistance to participating credit unions without any additional regulatory burden or expense to credit unions. Accordingly, the NCUA has determined that a Regulatory Flexibility Analysis is not required.

NCUA has determined that the revision does not increase paperwork requirements under the Paperwork Reduction Act of 1995 and regulations of the Office of Management and Budget.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their regulatory actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. This rule will apply to some state-chartered credit unions, but it will not have 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. NCUA has determined that this rule does not constitute a policy that has federalism implications for purposes of the executive order.

NCUA's goal is to promulgate clear and understandable regulations that impose minimal regulatory burden. We request your comments on whether this rule is understandable and minimally intrusive.

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 all Airbus Model A300 and A300-600 series airplanes was published in the Federal Register on September 8, 2000 (65 FR 54445). That action proposed to require verifying the correct location of the labels of the hydraulic pipes supplying the strut unlocking actuator of the left-hand main landing gear (MLG), and of the pipes of the left- and right-hand cross brace; reidentifying the pipes; and replacing any incorrectly located label with a new label.

Since the issuance of the proposed AD, the FAA has changed the manner in which it identifies the airplane models referred to as “Airbus Model A300 and A300-600 series airplanes” to reflect the model designation specified on the type certificate data sheet. This final rule has been revised to show the appropriate model designations for those airplanes.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

After careful review of the available data, 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 87 Model A300 and A300-600 series airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. Required parts will be provided by the vendor at no cost to operators. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $5,220, or $60 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 cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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 .

Airworthiness Directive (AD) 2000-23-16, amendment 39-11988, applicable to certain Boeing Model 747 series airplanes, was published in the Federal Register on November 21, 2000 (65 FR 69862). That AD requires repetitive inspections and torque checks of the hanger fittings and strut forward bulkhead of the forward engine mount and adjacent support structure, and corrective actions, if necessary. That AD also provides for optional terminating action for the repetitive inspections and checks.

As published, the amendment contained a minor error in Note 4 which identifies installation of two “BACW10BP* auxiliary power unit” washers. However, this part number does not exist, the correct part number is “BACW10BP*APU.” The letters “APU” were inadvertently defined as an acronym meaning “auxiliary power unit.” In all other respects, the original document is correct.

Since no other part of the regulatory information has been changed, the final rule is not being republished.

The effective date of this AD remains December 6, 2000.

Federal Register Document 00-24933, Airspace Docket No. 00-ACE-31, published on September 29, 2000 (65 FR 58343) revised the description of the Dexter, MO, Class E airspace. An error was inadvertently made in describing the length of the airspace extension. This action corrects the error and confirms the effective date of the direct final rule. After careful review of all available information related to the subject presented above, the FAA has determined that air safety and the public interest require adoption of the rule. The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on January 25, 2001. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

Accordingly, pursuant to the authority delegated to me, the Dexter, MO, Class E airspace description as published in the Federal Register on September 29, 2000 (65 FR 58343), ( Federal Register Document 00-24933; page 58344), column 3, is corrected as follows.

The FAA published this direct final rule with a request for comments in the Federal Register on September 29, 2000 (65 FR 58344). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on January 25, 2001. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

On January 29, 1998, the United States formally joined with fourteen nations in an unprecedented international partnership for cooperative space exploration and development, known as the ISS. The Agreement Among the Government of Canada, Governments of Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America Concerning Cooperation on the Civil International Space Station, which forms the foundation of the ISS partnership, provides in Article 11, that each partner, in exercising its right to provide ISS crew, shall ensure that its crewmembers observe a Code of Conduct to be developed and approved by the partners for the maintenance of order and conduct of crew activities in or on the Space Station.

At the present time, the Governments of the United States, Japan, and Canada have deposited instruments indicating their adherence to the IGA, and upon deposition of a similar instrument by the Government of the Russian Federation, the IGA will become operative. The signatory governments to the IGA (with the exception of three governments of the European Partner governments) have also signed a Provisional Arrangement committing themselves to abide by the terms and conditions of the IGA pending its formal entry into force.

In accordance with the underlying ISS Memoranda of Understanding (MOU) and other agreements concluded between NASA and each of the ISS partners and other participating states, the ISS Code of Conduct is intended to: establish a clear chain of command on-orbit; establish a clear relationship between ground and on-orbit management; establish a management hierarchy; set forth standards for work and activities in space, and, as appropriate, on the ground; establish responsibilities with respect to elements and equipment; set forth disciplinary regulations; establish physical and information security guidelines; and define the ISS Commander's authority and responsibility, on behalf of all the Partners, to enforce safety procedures, physical and information security procedures, and crew rescue procedures for the ISS.

Consistent with the provisions of the IGA and MOU's, and in order to ensure that NASA-provided ISS crewmembers are apprised of and observe the ISS Crew Code of Conduct, this interim final rule establishes a requirement that each such crewmember observe the Code of Conduct for the ISS Crew. Certain NASA-provided ISS crewmembers are further required to enter into an agreement with NASA in which they agree to accept and be governed by the standards specified in the ISS Crew Code of Conduct. This requirement is in addition to other responsibilities to which certain ISS crewmembers may be subject, including obligations regarding Space Shuttle standards of conduct agreements. Nothing in the ISS Code of Conduct or this rule limits or modifies the rights and obligations of NASA-provided ISS crewmembers under the Constitution or laws of the United States.

Additionally, this rule amends the title of 14 CFR part 1214, from “Space Shuttle” to “Space Flight,” in order to more accurately reflect the scope of the provisions contained therein, including subpart 1214.4, as added by this rule.

Since this action is administrative in nature and involves Agency policy management procedures, no public comment period is required.

This rule is not subject to the requirements of the Regulatory Flexibility Act, since it will not exert a significant economic impact on a substantial number of small entities.

This rule is not a major rule as defined in Executive Order 12866.

The Federal Energy Regulatory Commission (Commission) is amending 18 CFR Part 260 to change the official to whom natural gas pipeline companies must submit reports on service interruptions. This change is necessitated by changes in the Commission's internal organization and will avoid confusion on the part of companies filing such reports.

Currently, 18 CFR 260.9(b) and (c) require natural gas pipeline companies to submit reports on service interruptions to the Director, Division of Environmental and Engineering Review, Office of Pipeline Regulation. As a result of internal reorganization, however, the Office of Pipeline Regulation no longer exists. The relevant responsibilties now are handled by the Director, Division of Pipeline Certificates, Office of Energy Projects.

This revision changes the title of the official to whom reports are made.

The Commission is issuing this rulemaking as a final rule, without a period for public comment. Under 5 U.S.C. 553(b), notice and comment procedures are unnecessary for rulemakings that concern only matters of agency practice and procedure. This rulemaking fits that description.

The Regulatory Flexibility Act (RFA) requires agencies to prepare certain statements, descriptions and analyses of rules that will have a significant impact on a substantial number of small entities. 1 The Commission is not required to make such analyses if a rule would not have such an effect. The Commission certifies that this rule will not have such an impact on small entities.

Commission regulations require that an environmental assessment or an environmental impact statement be prepared for any Commission action that may have a significant adverse effect on the human environment. 2 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. Among these are rules that are clarifying, corrective, or procedural, or that do not substantively change the effect of the regulations being amended. 3 This rule is procedural in nature and therefore falls under this exception; consequently, no environmental consideration is necessary.

The Office of Management and Budget's (OMB) regulations require OMB to approve certain information collection requirements imposed by agency rule. 4 Respondents subject to the filing requirements of this Rule will not be penalized for failing to respond to these collections of information unless the collections of information display a valid OMB control number. This final rule does not contain any information collection subject to the Paperwork Reduction Act of 1995. 5

In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page (http://www.ferc.fed.us) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street, N.E., Room 2A, Washington, DC 20426. From FERC's Home Page on the Internet, this information is available in both the Commission Issuance Posting System (CIPS) and the Records and Information Management System (RIMS).

• CIPS provides access to the texts of formal documents issued by the Commission since November 14, 1994.

• CIPS can be accessed using the CIPS link or the Energy Information Online icon. The full text of this document is available on CIPS in ASCII and WordPerfect 8.0 format for viewing, printing, and/or downloading.

• RIMS contains images of documents submitted to and issued by the Commission after November 16, 1981. Documents from November 1995 to the present can be viewed and printed from FERC's Home Page using the RIMS link or the Energy Information Online icon. Descriptions of documents back to November 16, 1981, are also available from RIMS-on-the-Web; requests for copies of these and other older documents should be submitted to the Public Reference Room.

User assistance is available for RIMS, CIPS, and the Website during normal business hours from our Help line at (202) 208-2222 (E-Mail to WebMaster@ferc.fed.us) or the Public Reference at (202) 208-1371 (E-Mail to public.referenceroom@ferc.fed.us). During normal business hours, documents can also be viewed and/or printed in FERC's Public Reference Room, where RIMS, CIPS, and the FERC Website are available. User assistance is also available.

This regulation becomes effective January 22, 2001. The Commission has concluded that this rule is not a “major rule” as defined in section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. The provisions of 5 U.S.C. 801, regarding Congressional review of rulemakings, do not apply to this rulemaking because it concerns agency procedure and practice and will not substantially affect the rights and obligations of non-agency parties. 5 U.S.C. 804(3)(C).

On February 11, 1997, we published interim final rules with a request for comments to implement the Supplemental Security Income (SSI) childhood disability provisions of sections 211 and 212 of Public Law (Pub. L.) 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. On September 11, 2000, we published revised final rules in response to public comments. We also conformed our rules to amendments to Pub. L. 104-193 made by the Balanced Budget Act of 1997, Pub. L. 105-33.

In our preamble, we found that we had inadvertently published an incorrect Internet address for a report on the effects of the new childhood disability legislation. We are correcting that address as shown below.

Additionally, we are correcting the regulatory language in two places. We found the need to make both an editorial change and a change needed to clarify our original intent. We are also correcting two invalid references shown elsewhere in the Code of Federal Regulations.

On January 21, 1981, the Secretary of the Interior conditionally approved the West Virginia program. You can find background information on the West Virginia program, including the Secretary's findings, the disposition of comments, and the conditions of the approval in the January 21, 1981, Federal Register (46 FR 5915-5956). You can find later actions concerning the West Virginia program and previous amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

By letter dated March 14, 2000 (Administrative Record Number WV-1147) and March 28, 2000 (Administrative Record Number WV-1148), and electronic mail dated April 6, 2000 (Administrative Record Number WV-1149), the WVDEP submitted an amendment to its program. The amendment concerns changes to the West Virginia surface mining reclamation regulations made by the State Legislature in House Bill 4223, and changes made to the Code of West Virginia in Senate Bill 614. Most of the amendment is intended to comply with the Consent Decree that was agreed to by the plaintiffs and the WVDEP and approved by the U.S. District Court for the Southern District of West Virginia on February 17, 2000, in the matter of Bragg v. Robertson, Civil Action No. 2:98-0636 (S.D.W.Va.).

We announced receipt of the proposed amendment in the April 25, 2000, Federal Register (65 FR 24158-24162), invited public comment, and provided an opportunity for a public hearing on the adequacy of the proposed amendment. The public comment period closed on May 25, 2000. Since no one requested a public hearing, none was held.

To expedite our review of the amendment, we separated the amendment into two parts: (1) Amendments to the proposed rules at new section CSR 38-2-7.5 concerning “homesteading” as a postmining land use for mountaintop removal mining permits that meet the requirements for a variance from the approximate original contour (AOC) provisions at section 22-3-13(c) of the W.Va. Code. These provisions are the subject of this notice; and (2) Changes to the W.Va. Code in Senate Bill 614 and the regulatory changes at CSR 38-2-7.4 concerning commercial forestry postmining land use for mountaintop removal mining operations receiving an AOC variance, and various other regulatory changes. We published our final decision on those amendments in the Federal Register on August 18, 2000 (65 FR 50409).

Set forth below, pursuant to SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17, are the Director's findings concerning the proposed amendment. Any revisions that we do not specifically discuss below concern nonsubstantive wording changes or revised paragraph notations to reflect organizational changes that result from this amendment.

1. CSR 38-2-7.5 Homestead land use.

This subsection is new and contains the following subdivisions.

7.5. The Homestead land use meets the requirements for a variance from the AOC requirements of the Act (W.Va. Code 22-3-13(c)). An appropriately planned Homestead will promote sustainable settlement patterns that protect the environment and support the region's economic development.

7.5.a. Operations receiving a variance from AOC for this use shall establish homesteading on at least one-half ( 1/2 ) of the permit area. The remainder of the permit area shall support an alternate AOC variance use.

The W.Va. Code at section 22-3-13 contains the general environmental protection performance standards for surface mining operations. Specifically, subdivision 13(c)(2) authorizes the Director of the WVDEP to grant approval of AOC variances for mountaintop removal mining operations. Subdivision 13(c)(3) identifies the following postmining land uses that are approvable for mountaintop removal mining operations: industrial, commercial, agricultural, commercial forestry, residential, public facility including recreational uses. Homestead is considered to be a “residential” postmining land use under W. Va. Code 22-3-13(c). It is important to note that Homestead is limited to mountaintop removal mining operations, and does not apply to steep slope mining operations with AOC variances as provided in section 22-3-13(e) of the W.Va. Code and CSR 38-2-14.12.a.1.

SMCRA at section 515(c)(3) and the Federal regulations at 30 CFR 784.14(c)(1) provide for the following postmining land uses for mountaintop removal operations: industrial, commercial, agricultural, residential, and public facility (including recreational facilities). The Federal regulations define “residential” under the definition of “land use” at 30 CFR 701.5 to mean, “land used for single- and multiple-family housing, mobile home parks, or other residential lodgings.” In a similar fashion, the State regulations at CSR 38-2-7.2.d define residential use to be single and multiple-family housing (other than apartment houses) with necessary support facilities. Support facilities may include commercial services incorporated in and comprising less than five percent (5%) of the total land area of housing capacity, associated open space and minor vehicle parking and recreation facilities supporting the housing.

The proposed Homestead postmining land use is a residential use as defined at 30 CFR 701.5. Therefore, we find that the introductory language at CSR 38-2-7.5 which states that Homestead postmining land use meets the requirements for a variance from the AOC requirements of the W.Va. Code at 22-3-13(c) to be no less stringent than section 515(c)(3) of SMCRA and no less effective than the Federal regulations at 30 CFR 785.14(c)(1) and 701.5 and can be approved. We note that prior to authorizing “homestead” as a postmining land use for a mountaintop removal mining operation, the applicant must submit specific plans and assurances and the State regulatory authority must approve them in accordance with the requirements of W.Va. Code 22-3-13(c)(3) and CSR 38-2-14.10, and 14.12 to the extent that it applies to mountaintop removal mining operations. Therefore, and except as noted below, we are approving the use of Homestead as a postmining land use as provided at CSR 38-2-7.5. to the extent that it supplements or is more stringent than existing State requirements, but is not inconsistent with any existing Federal program requirements.

There is no Federal counterpart to the new language at CSR 38-2-7.5.a. concerning the percentage of the AOC variance land that must contain either the Homestead or an alternate AOC variance postmining land use. We find that this provision is not inconsistent with SMCRA or the Federal regulations and can be approved.

2. CSR 38-2-7.5.b. This provision defines the terms that are applicable only to homestead land use. This subdivision provides the following.

7.5.b. The following terms are applicable only to this subsection of this rule.

7.5.b.1. Building Pad means an accessible, designated, and properly drained area where the soil and/or mine-spoil has been specially placed and compacted to minimize post-mining surface settlement. After the building pad is completed, a registered professional engineer shall certify that the building pad was constructed as designed. This certification shall accompany the deed of conveyance.

7.5.b.2. Civic Parcel means a parcel designated in the Land Plan for public use.

7.5.b.3. Commercial Parcel means a parcel retained by the Landowner of record and incorporated within the Homestead Area on which the landowner or its designee may develop commercial uses. The size and location of commercial parcels shall comply with the requirements of this regulation.

7.5.b.4. Community Association means an association of all the homesteaders. This association shall receive title to the civic parcels, conservation easements and nurseries at the time of final bond release.

7.5.b.5. Conservation Easement means an area, typically a strip no less than 200 feet wide, designated in the land plan for the purpose of establishing a natural habitat for the development and migration of native species of fauna and flora. These easements shall extend through the mined areas of the land, starting and ending in natural, undisturbed land. These areas shall be permanent easements maintained for conservation and not commercial purposes.

7.5.b.6. Entity Administering The Civic Parcels means the Community Association or its designee shall administer the civic parcels.

7.5.b.7. Escrow Agent means the Attorney General of the State of West Virginia shall be the Escrow Agent.

7.5.b.8. Homesteader means a citizen of the State that fulfills the requirements of this regulation and who is selected by lottery to reside on a designated homestead parcel.

7.5.b.9. Homestead Area means the entire area designated for homestead use, including roads.

7.5.b.10. Homestead Infrastructure means the facilities necessary to sustain residential use, including roads, electricity, telephone, water and sewage or septic systems.

7.5.b.11. Homestead Parcel means an individual segment of a homestead area designated as either a rural or village parcel. The permittee shall assure that each parcel has been surveyed by a licensed land surveyor before Phase I bond release.

7.5.b.12. Homestead Plan means all the required documentation, engineered drawings, authorizations, agreements and schedules which are to be submitted and approved by the Director.

7.5.b.13. Homestead Selection Lottery means a lottery sanctioned by the State, operated under rules established and administered by the Director or the Director's designee as soon as practicable after Phase I bond release.

7.5.b.14. Landowner Of Record means the surface estate owner at the time the mining permit is submitted to the Director. More than one Landowner of Record may be involved in a Homestead Plan. The Landowner of Record shall transfer the title to the surface estate of the Homestead Area to the Escrow Agent prior to the beginning of mining. The cost of transfer shall be paid by the Landowner of Record.

7.5.b.15. Land Plan means the depiction, with supporting documentation, including surveys and narratives, of the homestead parcels, building pads, roads, easements, civic parcels, commercial parcels, and other features of the Homestead Area.

7.5.b.16. Machine Passable Grade means the maximum grade that can be safely accommodated by commonly used, self-propelled, rubber-tired farming equipment.

7.5.b.17. Rural Parcels means homesteading parcels planned to promote rural uses such as farming, orchard growing, timber management, viticulture, and Morret gardening. The rural parcels shall be an appropriate size for the designated use and may be up to 40 acres. Rural homesteaders may receive title only to that portion of the land that they have improved over the five-year period.

7.5.b.18. Service Drop means the overhead service conductors from the last pole or other aerial support to and including the splices, if any, connecting to the service-entrance conductors at the building or other structure.

7.5.b.19. Service-Entrance Conductors, Overhead System means the service conductors between the terminals of the service equipment and a point usually outside the building, clear of building walls, where joined by tap or splice to the service drop.

7.5.b.20. Service-Entrance Conductors, Underground System means the service conductors between the terminals of the service equipment and the point of connection to the service lateral.

7.5.b.21. Service Lateral means the underground service conductors between the street main, including any risers at a pole or other structure or from transformers, and the first point of connection to the service-entrance conductors in a terminal box or meter or other enclosure with adequate space, inside or outside the building wall. Where there is no terminal box, meter, or other enclosure with adequate space, the point of connection shall be considered to be the point of entrance of the service conductors into the building.

7.5.b.22. Soil Plan means the maps and descriptions of premining and postmining soil included in the Homestead Plan.

7.5.b.23. Village Parcels means homesteading parcels that provide a higher density of residential population than rural parcels.

There are no specific counterparts to these definitions. We find that, except as noted below, the definitions are not inconsistent with SMCRA at section 515(c)(3) or the Federal regulations at 30 CFR 785.14(c)(1) concerning the approval of AOC variances for proposed postmining land use for mountaintop removal mining operations and can be approved.

The definition of “Commercial Parcel” at CSR 38-2-7.5.b.3. provides that “Commercial Parcel” means a parcel retained by the landowner of record and incorporated within the Homestead area on which the landowner or its designee may develop commercial uses. In addition, the size and location of commercial parcels shall comply with the requirements of this regulation. Under this definition, therefore, a commercial postmining land use may be incorporated within the Homestead postmining land use. SMCRA at section 515(c)(3) and the Federal regulations at 30 CFR 785.14(c)(1) provide that commercial postmining land use may be approved for mountaintop removal mining operations. Therefore, the incorporation of a commercial postmining land use within a homestead (residential) postmining land use does not render the West Virginia program less stringent than SMCRA nor less effective than the Federal regulations and can be approved. However, since the language of this provision states that the landowner “may” develop a parcel for commercial purposes, it is not clear what must be done if a landowner retains a parcel but does not develop that parcel for commercial uses. Therefore, we are requiring that CSR 38-2-7.5.b.3. be amended to clarify that parcels retained by the landowner for commercial development and incorporated within the Homestead area must be developed for commercial uses as provided by subsection CSR 38-2-7.5.g.5.

The definition of “Conservation Easement” at CSR 38-2-7.5.b.5. allows the creation of natural habitat areas within the Homestead postmining land use. Conservation easements are to comprise at least 10 percent of the Homestead area, including commercial parcels. Neither SMCRA at section 515(c)(3) nor the Federal regulations at 30 CFR 785.14(c)(1) specifically authorize conservation easements or the creation of natural habitat areas as approvable postmining land uses for mountaintop removal mining operations. However, such natural areas may play a supporting role in the developmental plans of a proposed postmining land use that is approvable under SMCRA and the Federal regulations. This is consistent with the Federal regulations at 30 CFR 816.97 which encourages the enhancement of fish and wildlife in postmining land uses. Specifically, 30 CSR 816.97(i) provides that where residential, public service, or industrial uses are to be the postmining land use, and where consistent with the approved postmining land use, the operator shall intersperse reclaimed lands with green belts utilizing species of grass, shrubs and trees useful as food and cover for wildlife. As explained under the definition of “Conservation Easement,” the use of natural habitat areas plays an appropriate supporting role in the Homestead postmining land use. Therefore, we find CSR 38-2-7.5.b.5. to be no less stringent than SMCRA and no less effective than the Federal regulations and can be approved.

The definition of “Homestead Area” means the entire area designated for homestead use, including roads. As discussed above at Finding 1., Homestead postmining land use is a residential postmining land use that qualifies for an AOC variance for mountaintop removal mining operations under SMCRA section 515(c)(3) and the Federal regulations at 30 CFR 785.14(c)(1). The definition of “Homestead Area” as meaning the entire area designated for homestead use, including roads is therefore also consistent with the Federal “residential” postmining land use. Therefore, we find that the definition of “Homestead Area” is consistent with and no less stringent than SMCRA section 515(c)(3) and the Federal regulations at 30 CFR 785.14(c)(1) and can be approved.

The definition of “Rural Parcels” at CSR 38-2-7.5.b.17. means homesteading parcels planned to promote rural uses such as farming, orchard growing, timber management, viticulture (grape growing), and Morret gardening. We note that the term “Rural Parcels” includes “timber management” use as one of the uses that are promoted for these rural parcels. Timber management should not be confused with the “commercial forestry and forestry” postmining land use for AOC variances for mountaintop removal mining operations that we recently approved (65 FR 50409). Homesteading postmining land use, which is a residential use under SMCRA section 515(c)(3) and 30 CFR 785.14(c)(1), is an approvable postmining land use. Timber management is one of many uses to which the homeowners of the rural Homestead parcels may develop their land. In addition, the size of each rural parcel can be up to 40 acres, and the homesteaders may receive title only to that portion of the land that they have improved over the five-year period. Therefore, we find that the definition of “Rural Parcels” is not inconsistent with SMCRA section 515(c)(3) nor with the Federal regulations at 30 CFR 785.14(c)(1) and can be approved. In addition, we recommend that the West Virginia program be amended to define the term “Morret gardening.”

3. CSR 38-2-7.5.c. This provision concerns the eligibility requirements and responsibilities for homesteaders. This subdivision provides as follows.

7.5.c.Eligibility Requirements And Responsibilities For Homesteaders;

7.5.c.1. Homesteader shall meet the following eligibility requirements:

7.5.c.1.A. Be a resident of the State of West Virginia and be at least 18 years old;

7.5.c.1.B. Apply for a homestead as required by this rule;

7.5.c.1.C. Abide by the rules of the Homestead Selection Lottery;

7.5.c.1.D. Reside on the subject parcel within 12 months after the property is certified as ready for use. Provided that subject to the approval of the Escrow Agent, occupancy may be delayed up to 6 additional months for good cause shown.

There are no Federal counterparts to the provisions at CSR 38-2-7.5.c. concerning eligibility requirements and responsibilities for homesteaders. However, we find that they are not inconsistent with SMCRA or the Federal regulations and can be approved.

4. CSR 38-2-7.5.d. This provision concerns the rules for the homestead lottery. This subdivision contains the following requirements.

7.5.d. Rules For The Lottery;

7.5.d.1. The rules for the Lottery are as follows:

7.5.d.1.A. Each household may receive no more than one homestead.

7.5.d.1.B. Homestead parcels shall be distributed by anonymous lottery.

7.5.d.1.C. For any given Homestead, the lottery shall first be opened only to West Virginians living within three (3) miles of the permitted area within five years of the date of the filing of the permit application. Provided, however, that if parcels remain after an initial lottery, subsequent lotteries shall be held in the following order. The first subsequent lottery shall be open to any resident of a county (or counties, if more than one) in which the mine is located. Further, lotteries, if necessary, shall be open to any resident of West Virginia, and shall be held at six (6) month intervals.

7.5.d.1.D. The lottery shall be held as soon as practicable after Phase I bond release is approved. Adequate notice shall be provided at least six (6) months in advance of the lottery.

7.5.d.1.E. The lottery shall be fair, impartial, and open to the public.

7.5.d.1.F. A lottery participant who receives a parcel may decline a parcel, but may not sell the right to homestead on the parcel.

7.5.d.1.G. The right to participate in the lottery is not assignable or saleable.

7.5.d.1.H. Each lottery participant shall, before the lottery, apply for either a rural or a village parcel.

There are no Federal counterparts to the provisions at CSR 38-2-7.5.d. concerning rules for a lottery. However, we find that they are not inconsistent with SMCRA or the Federal regulations and can be approved.

5. CSR 38-2-7.5.e. This provision concerns the homestead plan development. This subdivision contains the following requirements.

7.5.e. Homestead Plan Development.

7.5.e.1. The Director may authorize Homesteading as a post-mining use only if the following conditions have been satisfied.

7.5.e.1.A. The Homestead Plan and any subsequent modifications shall be prepared under the direction of and certified by a professional engineer, a soil scientist, and a design professional that is either a licensed architect, landscape architect, or AICP certified land planner. [Note: AICP means American Institute of Certified Planners].

7.5.e.1.B. The Homestead Plan shall identify each member of a specialty group that contributed to the plan. The Plan shall be sufficiently detailed to ensure success in achieving the designated use of each homestead panel [sic] and to ensure sound future management of the homestead.

7.5.e.1.C. Homestead plan may be used alone or in conjunction with any other alternate land use plan. The Homesteading area, minus commercial parcels, shall occupy at least 50% of the permitted area. In the event that the Homestead use is used in conjunction with another land use, the Landowner of Record shall provide for the Homestead use at least as much land on the mining bench as it retains for alternate land use.

7.5.e.1.D. The Permittee shall submit plans prepared at a preferred scale of at least 1 inch = 200 feet, which include the following:

7.5.e.1.D.1. A Land Plan showing the homestead boundaries, homestead parcels, building pads, roads, easements, civic parcels, and commercial parcels, as applicable.

7.5.e.1.D.2. A Site Plan and description of the following:

7.5.e.1.D.2.(a) wastewater and sewage systems,

7.5.e.1.D.2.(b) potable water supply,

7.5.e.1.D.2.(c) non-potable water supply (if applicable).

7.5.e.1.D.2.(d) electrical service, and

7.5.e.1.D.2.(e) telephone service.

7.5.e.1.D.3. A grading plan showing contours at an interval appropriate for the map scale and slopes, and including surface drainage and stormwater provisions. The Director shall require maps at specific scales and contour intervals to satisfy the designated uses of the homestead parcels and the land plan.

7.5.e.1.D.4. A map showing all off-bench fill areas and the outcrop of the lowest coal bed.

7.5.e.1.D.5. A Soil Plan showing soil and weathered spoil storage areas. The plan shall describe the methods to be used to distribute, protect, and enhance the stored material upon final regrading of the disturbed surfaces. The plan shall identify the proposed depths of soil and subsoil for each specific use within the Homestead Area. These specific uses may include, but shall not be limited to, the following:

7.5.e.1.D.5.(a) Haul roads;

7.5.e.1.D.5.(b) Conservation Easements;

7.5.e.1.D.5.(c) Building Pads;

7.5.e.1.D.5.(d) Garden Plots;

7.5.e.1.D.5.(e) Waste Water and Sewage Disposal Facilities;

7.5.e.1.D.5.(f) Storm Drainage Facilities;

7.5.e.1.D.5.(g) Wetland Facilities;

7.5.e.1.D.5.(h) Utility Easements;

7.5.e.1.D.5.(I) Civic/Public Facilities;

7.5.e.1.D.5.(j) Commercial Areas;

7.5.e.1.D.6. Soil maps.

SMCRA at section 515(c)(3)(B), and the Federal regulations at 30 CFR 785.14(c), like W.Va. Code 22-3-13(c)(3), provide that an applicant for a mountaintop removal mining permit must present specific plans for the proposed postmining land use. SMCRA and the Federal regulations do not, however, contain the same level of specificity as do these regulations with respect to the plans that must be submitted to support a particular authorized postmining land use. The provisions at CSR 38-2-7.5.e. provide detailed requirements concerning the specific plans that must be submitted for a Homesteading postmining land use. The new provisions are not inconsistent with the requirements of SMCRA at section 515(c)(3)(B) and the Federal regulations at 30 CFR 785.14(c), which require that an applicant for a mountaintop removal mining permit present specific plans for the proposed postmining land use. The new subdivisions at 7.5.e.1.D.3. and D.5. require the submittal of a grading plan (7.5.e.1.D.3.) and a soil plan (7.5.3.1.D.5.). However, these new requirements do not make it clear that the permittee must also submit maps, cross sections and operations plans that comply with CSR 38-2-3.4, 3.5, and 3.6. Therefore, we find that the provisions at CSR 38-2-7.5.e. are no less stringent than SMCRA nor less effective than the Federal regulations and can be approved to the extent that its provisions supplement, but do not supersede, the approved State provisions concerning maps and cross sections, and operation plans at CSR 38-2-3.4, 3.5, and 3.6.

6. CSR 38-2-7.5.f. This subdivision concerns the provisions for financial commitments. This subdivision contains the following requirements.

7.5.f. Financial Commitments.

7.5.f.1. A contract between the Permittee and the Director, binding the Permittee to complete the homestead use as soon as practicable but no later than two years after the completion of mining, shall be required.

7.5.f.2. The contract between the Permittee and the Director shall, at a minimum, require the Permittee to follow the homesteading reclamation plan.

7.5.f.3. To receive approval for a homestead use, the Permittee shall demonstrate that it has the financial capability to achieve the use and carry out the reclamation plan. The Permittee shall submit signed statements containing financial information and data sufficient to demonstrate that the Permittee has the financial capability to achieve the homesteading use.

7.5.f.4. Before approving the Permit, the Director shall find, in writing, that the Permittee has the financial capability to achieve the use.

We find that the provisions at CSR 38-2-7.5.f. are consistent with SMCRA section 515(c)(3)(B)(v), and the Federal regulations at 30 CFR 785.14(c)(1)(iii)(E) which require an applicant for a mountaintop removal permit provide appropriate assurance that the proposed postmining land use is practicable with respect to private financial capability for completion of the proposed use. In addition, new CSR 38-2-7.5.f.1. is consistent with 30 CFR 816.133(c)(3)(iii), which provides that a proposed alternative postmining land use may be approved if, among other requirements, the regulatory authority finds that the proposed use will not “Involve unreasonable delay in implementation.” Compliance with 30 CFR 816.133(a) through (c) is required by 30 CFR 824.11(a)(4). Therefore, the new provisions at CSR 38-2-7.5.f. can be approved. We note that W.Va. Code section 22-3-13(c)(3), concerning mountaintop removal mining operations, provides that the Director of the WVDEP must make other written findings in addition to a finding concerning financial capability to achieve the proposed postmining land use. Therefore, we are approving CSR 38-2-7.5.f. to the extent that compliance with W.Va. Code section 22-3-13(c)(3) is also required.

7. CSR 38-2-7.5.g. This provision concerns the required elements for all homestead plans and contains the following requirements.

7.5.g. Required Elements For All Homestead Plans.

7.5.g.1. Boundary of the homestead area:

7.5.g.1.A. The Homestead Area shall be defined by a metes and bounds description prepared and certified by a Professional Engineer or Licensed Land Surveyor registered with the State of West Virginia.

7.5.g.1.B. Non-mined areas may be included in the Homestead Area.

7.5.g.1.C. In the event that any portion of the land transferred to the Escrow Agent is not mined, that land may revert to the Landowner of Record.

7.5.g.2. General Requirements of all Parcels:

7.5.g.2.A. Each individual parcel shall be delineated by metes and bounds description prepared by a Professional Engineer or Licensed Land Surveyor registered with the State of West Virginia.

7.5.g.2.B. Parcels shall support their designated land uses.

7.5.g.2.C. Parcels shall be configured and arranged to minimize adverse environmental impacts.

7.5.g.2.D. The Permittee shall provide adequate road frontage for access to each Homestead, Public Nursery, Civic and Commercial Parcel.

7.5.g.2.E. Houses and appurtenant facilities shall be no closer than 50 feet from the edge of a designated Conservation Easement.

7.5.g.3. Homestead parcels:

7.5.g.3.A. Homestead Parcels shall be designated as either rural or village parcels. All parcels shall contain machine passable land appropriate to the designated use.

7.5.g.3.B. Each rural homestead parcel shall be provided with a garden area of at least 5,000 square feet. Each village homestead parcel shall be provided with a garden area of at least 600 square feet. The garden areas shall be constructed in compliance with the soil requirements set forth in subdivision 7.5.j. of this rule.

7.5.g.3.C. Each rural and village homestead parcel shall contain a building pad of a minimum of 2,500 square feet for a dwelling. Each rural homestead parcel shall also contain a building pad of a minimum of 2,500 square feet for an outbuilding.

7.5.g.4. Civic Parcels:

7.5.g.4.A. The Homestead Plan shall delineate one or more appropriate sites within the total proposed Homestead area for Civic Parcels. These uses may include, but are not limited to, the following: park land, playing fields, schools, post office, and community administrative facilities. This area shall occupy at least 10% of the post-mining permit area.

7.5.g.4.B. The Civic Parcels may be one contiguous parcel or appropriately sized non-contiguous parcels.

7.5.g.4.C. The Civic Parcels shall be deeded at no charge to the duly recognized Community Association.

7.5.g.4.D. The Civic Parcels shall be provided with an access road and utilities that are consistent with the proposed civic land use.

7.5.g.5. Commercial Parcels:

7.5.g.5.A. The Landowner of Record may elect to retain up to 15% of the land in the proposed Homestead Area for the purpose of commercial development; provided that the Landowner of Record may retain no more than 50% of the permitted area.

7.5.g.5.B. The retained commercial area may be comprised of one or more parcels and shall be indicated on the Land Plan.

7.5.g.5.C. In the area for the Commercial Parcel the mine-spoil shall be placed, compacted, and regraded in a manner consistent with the proposed commercial land use.

7.5.g.6. Approval:

7.5.g.6.A. Before approving a homesteading reclamation plan, the Director shall assure that Homestead Plan is reviewed and approved by either a licensed architect, landscape architect, or AICP certified land planner employed by or under contract to the Director. In addition, the Director shall assure that the plans for Rural Parcels are reviewed and approved by an agronomist employed by or under contract with the Director. The applicants shall pay for any review under this subsection.

There are no direct Federal counterparts to the provisions at CSR 38-2-7.5.g. We find that the new provisions are not inconsistent with section 515(c)(3)(B) of SMCRA which provides that the applicant must provide specific plans for the proposed postmining land use, and can be approved. However, these provisions are only approved to the extent that compliance with the State's approved postmining land use requirements at CSR 38-2-7 is also required. We note that the term “Public Nursery” as used at subdivision CSR 38-2-7.5.g.2.D. is not defined. For clarity, we recommend that the State add a definition of this term.

8. CSR 38-2-7.5.h. This subdivision concerns the construction and conveyance of homestead parcels, and contains the following requirements.

7.5.h. Construction And Conveyance Of Homestead Parcels. All construction projects not performed by the homesteaders on Homestead Areas shall be performed by the Permittee, using a West Virginia licensed contractor.

7.5.h.1. Stabilization of the Homestead Area:

7.5.h.1.A. The Homestead Plan shall describe the methods that will be used during the placement of mine spoil to minimize mine spoil consolidation and its associated ground settlement, where such settlement will adversely affect the use of the homestead. Conditions relating to the placement of structures on the mine-spoil shall be clearly identified in the Plan.

7.5.h.1.B. The Plan must delineate the areas on each parcel where the mine-spoil will be placed in a manner to minimize post-mining land surface settlement on Building Pads, roads and other appropriate areas.

7.5.h.1.C. The placement methodology shall be specified by a qualified engineer. The Plan shall indicate the type and style of structure appropriate for each building pad. The Plan shall include the requirement that a professional engineer will monitor the construction of the building pads to certify compliance with the specifications of the plan.

7.5.h.2. Construction Of The Building Pad:

7.5.h.2.A. Building Pads shall be designed by a registered professional engineer.

7.5.h.2.B. The registered professional engineer shall supervise the placement of the uppermost 20 feet of spoil for Building Pads to minimize consolidation.

7.5.h.2.C. The engineer shall certify the integrity of the Building Pad and that the Building Pads will not settle more than 1/2 inch after the expected structure is in place.

7.5.h.2.D. Building Pads shall be designed to accommodate the type of building expected to be placed on the pad.

7.5.h.2.E. Building Pads shall not be placed on valley fills.

7.5.h.3. Conveyance Of Homestead Parcels:

7.5.h.3.A. Estimated short and long-term costs to Homesteaders shall be designated in the Homestead Plan and presented to Homesteaders immediately after the Lottery on a parcel specific basis.

7.5.h.3.B. The rights to the surface estate shall be deeded to each Homesteader free and clear of all liens and encumbrances as soon after bond release as the Escrow Agent determines that the property is ready for use. The deeds shall not retain right of entry onto the homestead parcels to conduct future surface mining activities.

7.5.h.3.C Consistent with State and federal law, the transfer of the surface to the Escrow Agent may be for surface rights only and need not include any minerals, oil or gas and shall be subject to usual and customary mining or extraction rights.

7.5.h.3.D. Before receiving the Homestead Parcel, each homesteader shall:

7.5.h.3.D.1. Install and reside in a dwelling whose structure complies with the Homestead Plan community association rules, and all applicable local, county and state laws;

7.5.h.3.D.2. Reside on the parcel for at least forty-five weeks each year for five (5) consecutive years prior to receipt of title to the land;

7.5.h.3.D.3. Use and improve the parcel by completing a dwelling that complies with this rule, installing an approved septic system and maintaining vegetative cover on all parts of the homestead parcel and plant trees from the Public Nursery in accordance with subdivision 7.5.l.4. of this rule.

7.5.h.3.E. In the event extreme hardship causes a homesteader to be forced to sell his property before the five-year occupancy period has expired, the Escrow Agent shall convey title early. The Escrow Agent's determination of extreme hardship shall be reasonable by the Circuit Court of County in which the homestead parcel is located.

There are no direct Federal counterparts to the provisions at CSR 38-2-7.5.f. However, we find that the new provisions are not inconsistent with section 515(c)(3)(B) of SMCRA which provides that the applicant must provide specific plans for the proposed postmining land use. We note, however, that there is an apparent editorial error at subdivision 7.5.h.2.B. Subdivision 7.5.h.2.B. provides that the registered professional engineer shall supervise the placement of the uppermost 20 feet of spoil for Building Pads to “minimize” compaction. The term “minimize” should be “maximize.” The new rules at both CSR 38-2-7.5.b.1. and 7.5.j.4.A. clearly require that the mine soil under Building Pads must be properly compacted. Without such compaction, the settlement standard for Building Pads at CSR 38-2-7.5.h.2.C. would not be achievable. Therefore, we are approving new CSR 38-2-7.5.h. to the extent that subdivision 7.5.h.2.B. means that consolidation of the uppermost 20 feet of spoil for Building Pads must be maximized. Further, we recommend that the editorial error be corrected to clarify this apparent contradiction, otherwise, it may not be possible to achieve the homestead postmining land use.

9. CSR 38-2-7.5.i. This subdivision concerns required infrastructure, and contains the following requirements.

7.5.i. Required Infrastructure.

7.5.i.1. Roads:

7.5.i.1.A. The Land Plan shall designate an all-weather road connecting the Homestead Area to a public road or highway. The road shall meet State Department of Highways' standards, and shall be certified as safe for passenger car traffic by registered professional engineer.

7.5.i.1.B. The Land Plan shall incorporate adequate road frontage to all parcels. Such roads shall be designated in the plan and referred to as “main roads.” Main roads shall meet State Department of Highways standards, and shall be certified as built as safe for passenger car traffic by registered civil engineer.

Before the Director may approve a surface mining application for this use, the County or State road authority shall conditionally agree to accept responsibility for maintaining the all-weather and main roads after mining is complete.

7.5.i.1.C. The Land Plan shall provide an entrance from the main road to each parcel, complete with culvert as needed. The Homesteader shall be responsible for extending the driveway from the entrance to the building pad.

7.5.i.2. Wastewater And Sewage:

7.5.i.2.A. The Homestead Plan shall incorporate a wastewater and sewage disposal plan conditionally approved by the Director, the West Virginia Bureau of Public Health or the public health authority of the county. The wastewater/sewage disposal system shall be approved by the appropriate entities before Phase II bond release shall be authorized. No such approval may be granted unless the system meets local health department standards.

7.5.i.2.B. A variety of wastewater and sewage disposal systems, including individual septic systems, may be proposed. Alternative/innovative systems shall be consistent with all State and federal regulations. The reclamation, topsoiling, grading, and revegetation plan of each parcel shall be designed to accommodate the proposed wastewater/sewage system.

7.5.i.2.C. The Homestead Plan shall provide a functional wastewater and sewage system for each Civic, Commercial or Homestead Parcel. The system shall describe an approved hookup/cleanout point no more than 50 feet from such homestead and civic Building Pads.

7.5.i.2.D. Each Homesteader shall be responsible for all costs incurred to connect structures on the Homestead parcel to the wastewater and sewage system. Additionally, if necessary, each homesteader shall be responsible for all costs incurred to install an individual septic system.

7.5.i.2.E. The entity administering the Civic Parcel shall be responsible for all costs incurred to connect structures on the Civic Parcel to the wastewater and sewage system.

7.5.i.2.F. The Homestead Plan shall describe the maintenance and upkeep demands of any proposed sewage disposal system, and shall designate the entity responsible for such maintenance. Phase III bond release may not be approved until the designated entity has accepted responsibility for such maintenance.

7.5.i.3. Water Supply:

7.5.i.3.A. The Homestead Plan shall include a potable water supply source or sources adequate for each Homestead Parcel. The supply of water shall be provided by one of the following methods in the following order of priority: a) water piped from an existing public water supply; b) from wells; or c) from reservoirs with catchment basins adequate to supply the homestead area. Before authorizing any system of potable water supply that is not piped from an existing water supply, the Director shall find, in writing, that the higher order methods of delivery of potable water are not feasible. The Director may rely on the sewers if an appropriate Public Health Authority.

7.5.i.3.B. The Permittee shall establish and pay for the potable water supply system.

7.5.i.3.C. The water shall be delivered at a constant rate and at water industry accepted pressure and flow.

7.5.i.3.D. The Homestead Plan shall describe the future maintenance of the water supply system. If the water system is public, the plan shall designate the entity responsible for its upkeep. Homesteaders may be required to pay a fair market price for the water. Homesteaders shall not be charged for water from their own individual well, although Homesteaders shall be responsible for maintenance of their own wells.

7.5.i.3.E. Individual supply systems shall, at a minimum, meet all applicable health standards, comply with all state and federal laws, and be approved by the appropriate public health authority. Appropriate wellhead protection or watershed protection practices shall be incorporated into the Homestead Plan, and shall be protect water from potential vulnerability from future land use.

7.5.i.3.F. The source or sources of potable water must be identified within the Homesteading Plan, along with a demonstration of the adequacy of quantity and quality. Upon completion of the reclamation plan, the Permittee shall install and demonstrate the quality and adequacy of the supply. If the originally proposed water supply system proves to be inadequate or unsuitable, the Permittee shall immediately make application with the Director for approval of alternate supplies or adequate improvements to the water supply system. The resulting improvements and/or alternate supplies shall comply with the requirements in this rule and shall be subject to the approval of the appropriate public health authority. Phase I bond release may not be approved until the Director finds that the installed water supply complies with this rule and applicable State and federal law.

7.5.i.3.G. The Homestead Plan shall describe a water supply plan that is adequate to meet the needs of the Homestead Area. The water supply plan shall address the anticipated future land use of the Homestead Area, and must be reviewed and approved by the Director and the appropriate public health authorities.

7.5.i.3.H. The potable water supply sources shall meet the Federal Primary Drinking Water Maximum Contaminant Level standards. (40 CFR 141, Subpart B). Verification of such quality shall be provided to the appropriate public health authority.

7.5.i.3.I. The supply source means the contiguous water body or contiguous aquifer from which supplies are drawn. If multiple homestead unit supplies are withdrawn from the same source, determination of water quality of the source shall be made at points that are representative of the water that will be withdrawn from the source.

7.5.i.3.J. The potable water supply shall provide for a minimum quantity of 12,500 gallons per month per homestead unit. The supply may incorporate one or a combination of sources and storage facilities demonstrated to provide an adequate supply for each homestead parcel.

7.5.i.3.K. If a ground water source is to be used, the plan and the confirmation of the installed ground water supply system shall be conducted under the direction of a qualified ground water professional. The locations of drilled wells shall be consistent with appropriate public health requirements.

7.5.i.3.L. The water supply shall be developed (or extended as applicable) free of charge to the homesteader to a point within 50 feet of the designated residence and civic parcel construction pads for each homestead unit.

7.5.i.3.M. After initial establishment of compliant water quality and quantity, responsibility for maintenance of the water supply shall revert to the homesteader or, in the event that the supply is community- or publicly-controlled, to the appropriate and capable public authority.

7.5.i.3.N. When the potable water supply is insufficient to meet the needs of the proposed use for rural homestead parcels, the Homestead Plan shall include nonpotable water supplies for uses that do not require potable water. Before approving Phase I bond release, the Director shall find that the non-potable water supply is sufficient in both quality and quantity for such uses, including agricultural uses. The plan for the system shall indicate the provisions that will be taken to assure that the potable water supply shall not be compromised. The approval of nonpotable water supplies distribution and handling system shall be consistent with State and federal law.

7.5.i.3.O. Each Homesteader shall be responsible for costs incurred to connect dwellings to water facilities.

7.5.i.3.P. The entity administering the civic parcel shall be responsible for costs incurred to connect structures on the civic parcel to water facilities.

7.5.i.3.Q. If a reservoir is used, a registered professional engineer shall certify its integrity. The engineer shall also certify that, taking account of inflow, seepage and evaporation, the reservoir will provide the amount of water and water pressure required by the Homestead use.

7.5.i.4. Electrical Utilities:

7.5.i.4.A. The Homestead Plan shall provide access to electrical power for all Homestead Parcels and for all Civic Parcels requiring electric power. The quantity of electricity supplied shall be sufficient to support the proposed use. Phase II bond release may not be approved until all the necessary facilities have been rendered operational and extended to a point where the service drop for the Homestead or Civic Parcel can be accomplished in no more than one span. If a service lateral is proposed, access to electrical power shall be deemed to have been satisfactorily provided when the service lateral is no more than 50 feet in length. Such electrical power facilities shall be designated in the plan and referred to as “main electrical power facilities”.

7.5.i.4.B. All line work shall conform to the practices of the electric power utility servicing the area. The installed main utilities and associated equipment shall be conveyed to the electric power utility servicing the area.

7.5.i.4.C. Each Homesteader shall be responsible for all costs incurred to install a service drop or service lateral the building pads.

7.5.i.4.D. The entity administering the Civic Parcel shall be responsible for all costs incurred to install a service drop or service lateral to structures on the Civic Parcel.

7.5.i.4.E. Each Homesteader shall be responsible for cost of electrical service.

7.5.i.5. Communication Services:

7.5.i.5.A. The Permittee shall provide access to telephone service for all Homestead Parcels and for all Civic Parcels requiring telephone service. Phase II bond release may not be approved until access to telephone service has been rendered operational and extended to a point within 50 feet of the Parcel's building pads. Such telephone or equivalent utilities shall be designated in the plan and referred to as “main telephone facilities”.

7.5.i.5.B. All service line work shall conform to the practices of the telephone service provider of the area. All line work and associated equipment shall be conveyed to the local telephone service provider.

7.5.i.5.C. Each Homesteader shall be responsible for all costs incurred to extend and connect main telephone facilities to the building pads.

7.5.i.5.D. The entity administering the Civic Parcel shall be responsible for all costs incurred to extend and connect main telephone facilities to the Civic Parcels.

7.5.i.5.E. Each Homesteader shall be responsible for the cost of telephone service.

7.5.i.6. Solid Waste:

7.5.i.6.A. The Homestead Plan shall contain a plan for the off-site disposal of solid waste that is acceptable to the Director and the appropriate public health authority.

7.5.i.7. Surface Drainage And Stormwater:

7.5.i.7.A. The Homestead Plan shall contain a detailed surface drainage pattern and stormwater runoff control plan. This plan shall be certified by a registered professional engineer.

7.5.i.7.B. The surface drainage pattern and stormwater plan shall be consistent with a surface drainage pattern that would be found on natural topography similar to the post-mining topography proposed in the Homestead Plan. The beds of the surface and stormwater drainways shall contain material that is as natural as practicable.

7.5.i.8. Reforested Conservation Easements:

7.5.i.8.A. The Homestead Plan shall identify areas within the Homestead Area reserved for reforested Conservation Easements. These areas shall be reforested by the Permittee at no cost to Homesteaders.

7.5.i.8.B. In the event that an isolated forest patch exists as a result of mining activities, the Conservation Easement shall serve as a corridor to establish a wind break and a forested connection with the isolated forest patch and to facilitate the adequate movement of fauna out of and into the isolated forest patch.

7.5.i.8.C. Conservation Easements may serve the purpose of a stormwater management systems. In such case, the technical specifications applicable to the design and construction of the storm water channels and their associated structures shall be satisfied.

7.5.i.8.D. Conservation Easement shall compromise [sic] at least 10% of the Homestead Area, including the Commercial Parcels.

7.5.i.8.E. The Director shall assure that all areas suitable for hardwoods in the Conservation Easement are planted with native hardwoods at a rate of 500 seedings per acre in continuous mixtures across the conservation easement with at least six (6) species from the following list: white and red oaks, other native oaks, white ash, yellow-poplar, black walnut, sugar maple, black cherry, or native hickories. Plants shall be a minimum of 3/4 ″ in diameter at breast height at planting.

7.5.i.8.F. Each of the species shall not be less than 10% of the total planted composition and at least 75% of the total planted woody plant composition shall be from the above list of species. Species shall be selected based on their compatibility and expected site-specific long-term dynamics.

7.5.i.8.G. At least 10% of the required number of woody plants shall be a planted continuous mix of three or more nurse tree and shrub species that improve soil quality and habitat for wildlife. They shall consist of black alder, black locust, bristley locust, redbud, or bi-color lespedeza.

7.5.i.8.H. On areas unsuitable for hardwoods, the Director may authorize the following conifers: Virginia pine, red pine, white pine, pitch pine, or pitch x loblolly hybrid pine. Areas unsuitable for hardwoods shall be limited to southwest-facing slopes of greater than 10% or areas where the soil pH is less than 5.5. These conifers shall be planted as single-species stands less than 10 acres in size at the same rate as the hardwood requirements in this rule. The Director shall assure that no Conservation Easement area contains a total of more than 15% conifers.

7.5.i.8.I. The Director shall assure that the specific species and selection of trees and shrubs shall be based on the suitability of the planting site for each species site requirements based on soil type, degree of compaction, ground cover, competition, topographic position, and aspect.

7.5.i.8.J. The Director shall assure that the total planting rate of trees and nurse plants is not less than 500 stems per acre.

7.5.i.9. Perpetual Easements:

7.5.i.9.A. The Homestead Plan shall describe areas within the Homestead reserved for perpetual easements relating to storm water management, protection of outslopes and steep slopes, protection of water sources, public roads of all kinds, and utilities. These areas shall be included within Homesteader's deeded parcels and may have permanent development restrictions included within the Homesteader's deeds of conveyance.

7.5.i.9.B. Fill faces shall be placed under perpetual easements that prohibit activities that may lead to instability or erodability. Trees may be planted on the faces of the fills.

7.5.i.10. Wetlands: Each Homestead Plan may describe areas within the Homestead Area reserved for created wetlands. These created wetlands may be ponds, permanent impoundments or wetlands created during mining. They may be left in place after final bond release.

The provisions at CSR 38-2-7.5.i. provide detailed requirements concerning infrastructure that must be included in a Homesteading postmining land use. SMCRA at section 515(c)(3)(B), and the Federal regulations at 30 CFR 785.14(c) provide that an applicant for a mountaintop removal mining permit must present specific plans for the proposed postmining land use. SMCRA and the Federal regulations do not, however, contain the same level of specificity as do these regulations with respect to the infrastructure required to support a Homesteading postmining land use. Except as noted below, we find the new provisions are not inconsistent with the requirements of SMCRA at section 515(c)(3)(B) and the Federal regulations at 30 CFR 785.14(c), which require that an applicant for a mountaintop removal mining permit present specific plans for the proposed postmining land use, and can be approved.

CSR 38-2-7.5.i.1.B. provides that main roads shall meet State Department of Highway standards and shall be certified as built as safe for passenger car traffic by a registered civil engineer. However, such main roads that meet the definition of road at CSR 38-2-2.59 and 38-2-4.1 and that are to be retained as part of the postmining land use must be designed and constructed to meet the primary road requirements of CSR 38-2-4. Therefore, we are requiring WVDEP to amend its program to clarify that roads which meet the definition of road at CSR 38-2-2.59 and 38-2-4.1 and that are to be retained as part of the postmining land use must be designed and constructed to meet the primary road requirements of CSR 38-2-4. In addition, we are approving CSR 38-2-7.5.i.1.B. to the extent that the word “conditionally” means that the County or State road authorities will accept responsibility for maintaining the all-weather and main roads after mining and reclamation is complete, and the road(s) is built.

CSR 38-2-7.5.i.2.A. provides that the Homestead Plan shall incorporate a wastewater and sewage disposal plan conditionally approved by the Director, the West Virginia Bureau of Public Health or the public authority of the county. The U.S. Environmental Protection Agency (EPA) stated in its comments concerning this provision (Administrative Record Number WV-1166) that discharges from any wastewater/sewage system must also meet Federal requirements under the Clean Water Act, specifically the NPDES permit requirements which are implemented by the State Office of Water Resources, WVDEP. The EPA recommended, so that there would be no misunderstanding, that either a statement to this effect be included in CSR 38-2-7.5.i.2.A., or, a statement be included which indicates that disposal systems shall be consistent with all State and Federal regulations. We note that there is nothing in the new provision which indicates that NPDES permit requirements would not be complied with where applicable. However, for the sake of clarity, we are approving this provision to the extent that the applicable NPDES permit requirements would be complied with.

CSR 38-2-7.5.i.2.B. provides that a variety of wastewater and sewage disposal systems, including individual septic systems, may be proposed in the wastewater and sewage disposal plan. The EPA commented on this provision and stated that since homestead sites are planned to be constructed on somewhat porous backfilled areas, there may be a higher potential for leachate to pass relatively unabsorbed through the fills to streams, presenting possible high fecal coliform levels and associated health risks. The EPA urged close review of this potential when considering any proposals for septic tank systems at homestead sites. We concur with EPA's recommendation.

CSR 38-2-7.5.i.3.A. provides that the Director of the WVDEP may rely on the sewers “if an appropriate Public Health Authority.” It appears that the words “approved by” are missing from this provision. The final sentence should read, “The Director may rely on the sewers if approved by an appropriate Public Health Authority.” We recommend that this provision be amended to correct this editorial omission.

CSR 38-2-7.5.i.3.H. provides that the potable water supplies shall meet the Federal Primary Drinking Water Maximum Contaminant Level standards of 40 CFR 141 Subpart B. The EPA stated in its comments concerning this provision that “community water systems as defined by 40 CFR 141 (those serving 25 or more people or which have 15 or more service connections) must also comply with all subparts of 40 CFR 141, A. through J.” The EPA recommended that, to avoid any misunderstanding, section CSR 38-2-7.5.i.3.H. should be amended to clarify that community water systems must comply with 40 CFR 141 in its entirety. Therefore, we are approving this provision to the extent that the provisions of 40 CFR 141, A. through J. apply to community water systems as defined by 40 CFR 141 (those serving 25 or more people or which have 15 or more service connections).

CSR 38-2-7.5.i.3.Q. provides that if a reservoir is used as a water facility, a registered professional engineer shall certify its integrity. To be no less effective than the Federal regulations concerning permanent impoundments, CSR 38-2-7.5.i.3.Q. must also require compliance with the West Virginia rules concerning permanent impoundments at CSR 38-2-5.5. Therefore, we are approving CSR 38-2-7.5.i.3.Q. only to the extent that all permanent impoundments approved for Homestead postmining land use must comply with CSR 38-2-3.6.b.1. and 38-2-5.5 concerning permanent impoundments. In addition, we are requiring that the West Virginia program be amended to require that all permanent impoundments approved for Homestead postmining land use must comply with CSR 38-2-3.6.b.1. and 38-2-5.5 concerning permanent impoundments.

CSR 38-2-7.5.i.7.A. provides for a detailed surface drainage pattern and storm water runoff control plan. The EPA commented on this provision and stated that storm water discharges resulting from construction of the homestead sites and supporting streets, depending on the acreage disturbed, may be subject to Federal National Pollutant Discharge Elimination System (NPDES) storm water requirements at 40 CFR 122.26. The EPA recommended that either a statement to this effect be included in section CSR 38-2-7.5.i.7., or a statement be included which indicates that storm water discharges shall be consistent with all State and Federal regulations. The EPA also recommended that the site developers contact the State Office of Water Resources, WVDEP, regarding the applicability of storm water regulations for specific sites. We note that there is nothing in the new provision which indicates that NPDES storm water requirements would not be complied with where applicable. However, for the sake of clarity, we are approving this provision to the extent that the applicable NPDES storm water requirements would be complied with.

CSR 38-2-7.5.i.8.D. concerns conservation easements. This provision contains the word “compromise.” It appears that the word should be “comprised.” We recommend that this provision be amended to correct this editorial error.

CSR 38-2-7.5.i.10. concerns wetlands. CSR 38-2-7.5.i.10. should be amended to reference CSR 38-2-3.5.d. which requires the submittal of cross sectional areas and profiles of all drainage and sediment control structures including ponds, impoundments, diversions, sumps, etc. which are created during mining and may be left after final bond release. Therefore, we are approving CSR 38-2-7.5.i.10. to the extent that the permit requirements at CSR 38-2-3.5.d. continue to apply. In addition, we are requiring that CSR 38-2-7.5.i.10. be amended to require compliance with the permit requirements at CSR 38-2-3.5.d.

10. CSR 38-2-7.5.j. This subdivision concerns soils, soil placement and grading, and contains the following requirements.

Subdivision 7.5.j. concerns soils, soil placement and grading.

7.5.j. Soils, Soil Placement And Grading;

7.5.j.1. General Requirements:

7.5.j.1.A. Phase I bond release shall not be approved until a soil scientist certifies and the Director finds that the soil meets the criteria established in this rule and has been placed in accordance with this rule.

7.5.j.1.B. The Homestead Plan shall include a topographic map of the permit area, 1:12000 or finer, showing the location of pre-mining native solids, weathered slightly-acidic brown sandstone and drainages which includes site index for common native tree species. A profile description of each soil mapping unit that includes, at minimum, soil horizons, including the O. horizon depths, soil texture, structure, color, reaction and bedrock type. A certified professional soil scientist shall conduct a detailed on-site survey, create the maps, and provide the written description of the soils and sandstones.

7.5.j.1.C. The Homesteading Plan shall include a description of the present soils and soil substitutes to be used as the plant medium, and a description of the proposed handling, and placement of these materials. The handling plan shall include procedures to:

7.5.j.1.C.1. Protect native soil organisms and the native seed pool;

7.5.j.1.C.2. Include organic debris such as litter, branches, small logs, roots and stumps in the soil;

7.5.j.1.C.3. Inoculate the minesoil with native soil organisms; and

7.5.j.1.C.4. Increase soil fertility.

7.5.j.1.D. A surface preparation plan which includes a description of the methods for replacing and grading the soil and other soil substitutes and their preparation for homesteading.

7.5.j.2. Landscape Criteria:

7.5.j.2.A. The Director shall assure that the postmining landscape is rolling, and diverse. The backfill on the mine bench, shall be configured to create a postmining topography that includes the principles of landforming to reflect the premining irregularities in the land. Postmining landform shall provide a rolling topography with slopes of between 5% and 15%. The elevation change between the ridgeline and the valleys shall be varied. The slope lengths shall not exceed 500 feet. The minimum thickness of backfill, including minesoil, placed on the pavement of the basal seam mined in any particular area shall be 10 feet.

7.5.j.2.B. At least 3 ponds, permanent impoundments or wetlands totaling at least 3.0 acres shall be created on each 200 acres of permitted area. They shall be dispersed throughout the landscape and each water body shall be no smaller than 0.20 acres. All ponds, permanent impoundments or wetlands shall comply with all requirements of this rule, and shall be left in place after final bond release.

7.5.j.2.C. All ponds and impoundments created during mining shall be left in place after bond release and shall comply with all the requirements of this rule.

7.5.j.2.D. The ponds, permanent impoundments, surface water channels and wetlands on the Permit Area shall be vegetated on the perimeter with at least six native herbaceous specifies typical of the region at a density of not less than 1 plant per linear foot of edge, and at least 4 native shrub species at a density of not less than 1 shrub per 6 linear feet of edge. No species of herbaceous or shrub species shall be less than 15% of the total for its life form.

7.5.j.2.E. The landscape criteria in this rule do not apply to valley fills.

7.5.j.3. Soil:

7.5.j.3.A. Soil is defined as and shall consist of the O, A, B, C, and Cr horizons.

7.5.j.3.B. The Director shall require the operator to recover and use all the soil on the mined area, as shown on the soil maps, except for those areas with a slope of at least 50%, and other areas from which the applicant affirmatively demonstrates and the Director finds that soil cannot reasonably be recovered. The Director shall assure that all saved soil includes all of the material from the O and A horizons.

7.5.j.3.C. When the Director determines that available soil volume on the permit area is not sufficient to meet the depth requirements, selected overburden materials may be used as soil substitutes. Soil substitutes shall consist of weathered, slightly acid, brown sandstone from within 10 feet of the soil surface if the Director determines that such material is available. Material from this layer maybe removed with the soil and mixed with the soil in order to meet the depth requirement.

7.5.j.3.D. If the applicant affirmatively demonstrates and the Director finds that weathered, slightly acid, brown sandstone from within 10 feet of the soil surface cannot reasonably be recovered, weathered, slightly acid, brown sandstone taken from below 10 feet of the soil surface from anywhere in the permit area may be substituted. Materials may be suitable for this purpose only if their bulk pH in water is between 5.0 and 7.0. Materials with net potential acidity greater than 5 tons of calcium carbonate equivalence per 1000 tons may not be used.

7.5.j.3.E. Before approving the use of soil substitutes, the Director shall require the permittee to demonstrate that the selected overburden material is suitable for restoring land capability and productivity. This will be demonstrated by the results of chemical and physical analyses, including pH, total soluble salts, phosphorus, potassium, calcium, texture class, acid-base accounting, and other such analyses as necessary.

7.5.j.3.F. The final surface material used on all parts of the permit area except roads, building pads, and valley fill faces shall consist of a minimum of 4 feet of soil, or a mixture of soil and suitable soil substitutes. Homesteading soil depth shall contain at least 33% soil. If the applicant affirmatively demonstrate and the Director finds, that sufficient weathered slightly acid brown sandstone cannot reasonably be recovered from the mined area to satisfy the mine soil depth requirement, then up to one quarter of the total volume of the minesoil may consist of highly-fractured sandstone, as long as it has been demonstrated that the physical and chemical quality of this material is suitable.

7.5.j.3.G. If the applicant does not demonstrate that there is sufficient material available on the permit area to satisfy the requirements of this rule, then the Director may not authorize a Homesteading variance.

7.5.j.3.H. The Director may require the operator to include as part of the minesoil mix organic debris such as forest litter, branches, small logs, roots and stumps in the soil to help reseed the native vegetation, inoculate the minesoil with native soil organisms and increase soil fertility.

7.5.j.3.I. The Director shall require that soil be removed and reapplied in a manner that minimizes stockpiling such that seed pools and soil organisms remain biological viable. No more than 10% of the available soil, described in the Director's findings, may be placed in a long-term stockpile, soil redistribution shall be done within one month of soil removal. Except for soil in a long-term stockpile, soil shall be stored for less than one month in piles less than six feet high and 24 feet wide in a stable area within the permit area where it will not be disturbed and will be protected from water or wind erosion or contaminants that lessen its capability to support vegetation. Long-term stockpiles shall be seeded with ground cover mixes used for reforestation.

7.5.j.4. Soil Placement And Grading:

7.5.j.4.A. Except for valley fill faces, building pads, roads, and other areas that must be compacted, the Director shall require the Permittee to place minesoil loosely and in a non-compacted manner while meeting static safety factor requirements. Grading the final surface shall be minimized to reduce compaction. Once the material is placed, light grading equipment shall be used to grade the tops of the piles, roughly leveling the area with no more than one or two passes. Tracking in and rubber-tired equipment shall not be used. Non-permanent roads, equipment yards and other trafficked areas shall be deep-ripped (24″ to 36″) to mitigate compaction.

7.5.j.4.B. Soil physical quality shall be inadequate if it inhibits water infiltration or prevents root penetration or if their physical properties or water-supplying capacities cause them to restrict root growth of trees. Slopes greater than 50% shall be compacted no more is necessary to achieve stability and non-erodability.

7.5.j.4.C. The Director shall require the permittee to leave soil surfaces rough with random depressions across the entire surface to catch seed and sediment, conserve soil water. Organic debris such as forest litter, logs, and stumps may be left on and in the soil.

7.5.j.5. Limiting And Fertilizing: The Permittee shall submit a liming and fertilizing plan. The Director shall assure that the liming and fertilizing plan is appropriate for establishing the ground cover vegetation.

7.5.j.6. Ground Cover Vegetation:

7.5.j.6.A. The Director shall require the permittee to establish a temporary vegetative cover as contemporaneously as practicable with backfilling and grading. This cover shall consist of a combination of native and domesticated non-invasive cool and warm season grasses and other herbaceous vine or shrub species including legume species and ericaceious [sic] shrubs. All species shall be slow growing. The ground cover vegetation shall be capable of stabilizing the soil from excessive erosion. Seeding rates and composition must be in the Homestead Plan. The following ground cover mix and seeding rates (pounds/acre) shall be used: winter wheat (15 lbs/acre, fall seeding), foxtail millet (5 lbs./acre, summer seeding), redtop (2 lbs/acre), perennial ryegrass (2 lbs/acre), orchardgrass (5 lbs/acre), weeping lovegrass (2 lbs/acre) kobe lespedeza (5 lbs/acre), birdsfoot trefoil (10 lbs./acre), and white clover (3 lbs/acre). Kentucky-31 fescue, serecia [sic] lespedeza, all vetches, clovers (except ladino and white clover) and other aggressive or invasive species shall not be used. On south- and west-facing slopes with a soil pH of 6.0 or greater, the four grasses in the mixture shall be replaced with 20 lbs/acre of warm-season grasses consisting of the following specifies: Niagara big bluestem (95 lbs/acre), Camper little bluestem (2 lbs/acre), Indian grass (2 lbs/acre), and Shelter switch grass (1 lb/acre), or other varieties of these specifies approved by the Director. Also, a selection of at least 3 ericaceous shrub species shall be included in the ground cover mix.

7.5.j.6.B. The Permittee may regrade and reseed only those rills and gullies that are unstable.

7.5.j.7. Front Faces Of Valley Fills:

7.5.j.7.A. Front faces of valley fills shall be exempt from the requirements of this rule except that:

7.5.j.7.A.1. They shall be graded and compacted no more than is necessary to achieve stability and non-erodability;

7.5.j.7.A.2. No shales may be present in the upper four feet of surface material;

7.5.j.7.A.3. The upper four feet of surface material shall be composed of soil and weathered brown sandstone when available, unless the Director determines other material is necessary to achieve stability;

7.5.j.7.A.4. The groundcover mixes described in subparagraph shall be used unless the Director requires a different mixture.

7.5.j.7.A.5. Kentucky 31 fescue, serecia [sic] lespedeza, vetches, clovers (except ladino and white clover) or other invasive species may not be used; and

7.5.j.7.B. Although not required by this rule, native, non-invasive trees may be planted on the faces of fills.

There are no specific counterparts to the provisions at CSR 38-2-7.5.j. for Homesteading at SMCRA section 515(c) nor the Federal regulations at 30 CFR 785.14 concerning mountaintop removal mining operations. There is nothing in these provisions that replace the existing State requirements concerning mountaintop removal mining operations at W.Va. Code 22-3-13(c) or the State regulations at CSR 38-2-14.10. Except as noted below, we find that CSR 38-2-7.5.j. is no less stringent than SMCRA and no less effective than the Federal regulations and can be approved.

CSR 38-2-7.5.j.2.C. provides that all ponds and impoundments created during mining shall be left in place after bond release and shall comply with all the requirements of this rule. In addition to complying with the provisions of CSR 38-2-7.5., all ponds and impoundments created during mining and which will be left in place following mining must comply with the State permanent impoundment rules at CSR 38-2-5.5. Therefore, we are approving CSR 38-2-7.5.j.2.C. to the extent that all ponds and impoundments created during mining and which will be left in place following mining must comply with the State permanent impoundment rules at CSR 38-2-5.5.

CSR 38-2-7.5.j.2.E. provides that the landscape provisions of CSR 38-2-j.2. do not apply to valley fills. The use of the term “valley fills” in this provision does not make it clear that the landscaping provisions of CSR 38-2-7.5.j.2. do not apply to any fills, not just valley fills. Ponds, permanent impoundments or wetlands cannot be allowed on completed fills. Therefore, we are approving CSR 38-2-7.5.j.2.E. to the extent that the landscape criteria of CSR 38-2-7.5.j.2. do not apply to any fills.

CSR 38-2-7.5.j.3.A. defines soil as consisting of the O, A, B, C, and Cr horizons. The Federal regulations at 30 CFR 701.5 define topsoil to mean the A and E soil horizon layers of the four master soil horizons, which include the A, E, B and C horizons. The State rules at CSR 38-2-2.125 defines topsoil to mean the A and E horizons. In addition, the Federal regulations at 30 CFR 816.22(a)(1)(i) require that, prior to mining, all topsoil be removed as a separate layer and segregated. As an alternative, 30 CFR 816.22(a)(2) provides that if the topsoil is less than six inches thick, the operator may remove the topsoil and the unconsolidated materials immediately below the topsoil and treat the mixture as topsoil. The new provisions at subdivision CSR 38-2-7.5.j.3.A., however, lack a reference to the “E” horizon. Therefore, we are requiring the State to add “E” horizon to CSR 38-2-7.5.j.3.A.

The new State provisions at CSR 38-2-7.5.j.3.B. require the operator to recover and use the soil on the mined area, as shown on the soil maps, except for those areas with a slope of at least 50%, and other areas from which the applicant affirmatively demonstrates and the Director of the WVDEP finds that soil cannot reasonably be recovered. The Federal regulations at 30 CFR 816.22, however, like the State rules at CSR 38-2-14.3, require an operator to save and redistribute all topsoil. Therefore, we are not approving the phrase, “except for those areas with a slope of at least 50%,” and we are not approving the phrase, “and other areas from which the applicant affirmatively demonstrates and the Director of the WVDEP finds that soil cannot reasonably be recovered.” In addition, we are requiring the State to delete these phrases from its regulations at CSR 38-2-7.5.j.3.B.

New CSR 38-2-7.5.j.3.E. provides that, before approving the use of soil substitutes, the Director of the WVDEP shall require the permittee to demonstrate that the selected overburden material is suitable for restoring land capability and productivity on the basis of chemical and physical analyses. In order to be no less effective than the Federal regulations at 30 CFR 816.22(b), the proposed State rule must also provide that the substitute material is equally suitable for sustaining vegetation as the existing topsoil and the resulting medium is the best available in the permit area to support vegetation. Therefore, we are requiring that CSR 38-2-7.5.j.3.E. be amended to provide that the soil substitute material must be equally suitable for sustaining vegetation as the existing topsoil and the resulting medium is the best available in the permit area to support vegetation.

CSR 38-2-7.5.j.3.H. provides that the Director may require the operator to include as part of the soil mix organic debris such as forest litter, branches, small logs, roots and stumps in the soil to help reseed the native vegetation, inoculate the mine soil with native soil organisms and increase soil fertility. The Federal regulations at 30 CFR 816.22(d) provide that topsoil and topsoil substitute materials must be redistributed in a manner that achieves an approximately uniform and stable thickness consistent with the approved postmining land use, contours and surface water drainage systems. These regulations further provide that the regraded land must be treated if necessary to reduce potential slippage of the redistributed material and to promote root penetration. The Federal regulations also address the presence of organic materials in both backfills and excess spoil fills. For example, the Federal regulations at 30 CFR 816.102 (d) concerning backfilling and grading require the removal of all organic material before placement of spoil on slope areas. Likewise, 30 CFR 816.71(e) concerning the placement of excess spoil provides that all vegetative and organic materials shall be removed from the disposal area prior to placement of the excess spoil. 30 CFR 816.107(d) concerning the backfilling and grading of steep slopes provides that woody materials may not be placed in the backfill of steep slope areas unless the regulatory authority determines that the proposed method for placing woody material within the backfill will not deteriorate the stable condition of the backfilled area. 30 CFR 816.71(e) also provides that organic material may be included in the topsoil to control erosion, promote growth of vegetation, or increase the moisture retention of the soil. Because the proposed and existing State rules will limit the placement of organic material, such as branches, roots, and stumps, in the soil mix for redistribution, while still requiring compliance with the static safety factor (see CSR 38-2-7.5.j.4.A.), we find that proposed CSR 38-2-7.5.j.3.H. is consistent with and no less effective than the Federal soil redistribution and stability requirements at 30 CFR 816.22(d), 816.71(e), 816.102(d), 816.107(d) and can be approved.

CSR 38-2-7.5.j.4.A. provides that, except for valley fill faces, building pads, and other areas that must be compacted, mine soil shall be placed loosely and in a non-compacted manner while meeting static factor requirements. Subdivision 7.5.j.4.B. provides that soil physical quality shall be inadequate if it inhibits water infiltration or prevents root penetration or restricts root growth of trees. Slopes greater than 50 percent shall be compacted no more than is necessary to achieve stability and non-erodability. Subdivision 7.5.j.4.C. provides that the soil surface shall be left rough with random depressions across the entire surface to catch seed and sediment, and conserve soil water. Organic debris such as forest litter, logs, and stumps may be left on and in the soil.

These provisions are consistent with the Federal requirements for soil redistribution at 30 CFR 816.22(d) and the final grading requirements at 30 CFR 816.102(h) and (j) which allow for the construction of small depressions to retain moisture, minimize erosion and assist revegetation and for the preparation of the final graded surfaces in a manner that minimizes erosion and provides a surface for replacement of topsoil that will minimize slippage. The emphasis in the State provisions toward minimizing compaction is consistent with the requirements at 30 CFR 816.22(d). In addition, the provisions at CSR 38-2-7.5.j.4.A. require compliance with the static safety requirements for stability of the replaced soil. Therefore, we are approving the new provisions at CSR 38-2-7.5.j.4. to the extent that these provisions do not supersede the State's general backfilling and grading requirements at CSR 38-2-14.15.a. which are no less effective than the Federal requirements at 30 CFR 816.102(a).

SCR 38-2-7.5.j.5 provides for a liming and fertilizing plan. The Federal revegetation regulations at 30 CFR 816.111 do not contain specific liming or fertilization standards. The Federal regulations do require that the permittee establish a diverse, effective, and permanent vegetative cover that is in accordance with the approved permit and reclamation plan. The State must use its technical judgement to determine the appropriate rate of fertilizer application. We find that the proposed provisions at CSR 38-2-7.5.j.5. are not inconsistent with the Federal revegetation standards and can be approved.

CSR 38-2-7.5.j.6. provides for ground cover vegetation. The Federal regulations at 30 CFR 816.111 require that the permittee establish a diverse, effective, and permanent vegetative cover that is capable of stabilizing the soil from erosion. Furthermore, the Federal requirements at 30 CFR 816.114 provide that mulch and other soil stabilizing practices must be used on all areas that have been regraded and covered by topsoil or topsoil substitutes. The proposed provisions at CSR 38-2-7.5.j.6. are not inconsistent with these Federal revegetation standards with the following exceptions.

CSR 38-2-7.5.j.6.A. provides that ground cover vegetation shall be capable of stabilizing the soil from excessive erosion. SMCRA at section 515(b)(10)(B)(i) provides that coal mining operations must be conducted so as to prevent, to the extent possible using the best technology currently available, additional contributions of suspended solids to streamflow, or runoff outside the permit area, but in no event shall contributions be in excess of requirements set by applicable State or Federal law. Therefore, to be no less stringent than SMCRA, the term “excessive erosion” may not be interpreted to allow additional contributions of suspended solids to streamflow, or runoff outside the permit area in excess of requirements set by applicable State or Federal law. We note that, except for the phrase, “excessive erosion,” there is nothing in new CSR 38-2-7.5.j.6 that supersedes or negates the approved State provisions at CSR 38-2-14.5.b. concerning effluent limitations. However, under the proposed State rule, erosion could be allowed as long as it was not excessive, even though the erosion might provide sediment to streams that could violate State or Federal water quality standards. CSR 38-2-14.5.b., like 30 CFR 816.42, provides that discharge from areas disturbed by surface mining shall not violate effluent limitations or cause a violation of applicable water quality standards.

As proposed, CSR 38-2-7.5.j.6.A. is less effective than the Federal requirements at 30 CFR 816.111 because the proposed standard to stabilize the soil from erosion is modified by the undefined phrase, “excessive erosion.” To be no less effective than the Federal requirements, the Director can only be allowed to approve ground cover vegetation that is sufficient to control erosion and air pollution attendant to erosion. Therefore, we are not approving the word “excessive” in the phrase “excessive erosion” at CSR 38-2-7.5.j.6.A. Furthermore, we are requiring the deletion of the word “excessive” from the State rule at CSR 38-2-7.5.j.6.A. to ensure compliance with State water quality requirements at CSR 38-2-14.5.b.

CSR 38-2-7.5.j.6.B. only authorizes the regrading and reseeding of rills and gullies that are unstable. Normally, the presence of unstable rills and gullies indicates that excessive erosion has occurred. The Federal regulations at 30 CFR 816.95(b) require the regrading of all rills and gullies that disrupt the approved postmining land use or the establishment of vegetative cover or cause or contribute to a violation of water quality standards for the receiving stream. Therefore, we are approving CSR 38-2-7.5.j.6.B. only to the extent that it is interpreted to require the repair of all rills and gullies that disrupt the approved postmining land use or the establishment of vegetative cover or cause or contribute to a violation of water quality standards for the receiving stream. In addition, we are requiring that CSR 38-2-7.5.j.6.B. be amended to require the repair of all rills and gullies that disrupt the approved postmining land use or the establishment of vegetative cover or cause or contribute to a violation of water quality standards for the receiving stream.

The new provisions at CSR 38-2-7.5.j.7. concerning the front faces of valley fills do not add any provisions to the West Virginia program that render the State program less stringent than the Federal provisions concerning excess spoil disposal fills in SMCRA at section 515(b)(22) and the Federal regulations at 30 CFR 816.71 and 816.72. However, new CSR 38-2-7.5.j.7. does not make it clear that the proposed State standards are in addition to the excess spoil disposal requirements at W.Va. Code 22-3-13(b)(22) and CSR 38-2-14.14 which apply to all fills, including valley fills. We are approving new CSR 38-2-7.5.j.7. to the extent that the proposed State standards are in addition to the excess spoil disposal requirements at W.Va. Code 22-3-13(b)(22) and CSR 38-2-14.14 and apply to all fills, including valley fills.

11. CSR 38-2-7.5.k. This subdivision concerns requirements for reclamation maps, and contains the following requirements.

7.5.k. Requirements For Reclamation Maps. An appropriately scaled, “as-built” topographic map of the Homestead Area shall be prepared and submitted as part of the permit application. An identically scaled *overlay* map showing the elevation contours at the base of all mined areas as well as the original ground contour of all excess mine spoil storage areas shall accompany the as-built map. The overlay map shall identify all backfilled mine sites and excess mine-spoil storage areas. The overlay map shall depict the boundaries of all parcels, areas of mine spoil specifically compacted for the placement of structures, easements, and areas that the Director may designate for special or limited uses. All post-reclamation maps shall be prepared under the direction of and certified by a registered professional engineer and shall be recorded with the county within one year following the final reclamation of the proposed Homestead Area.

There are no Federal counterparts to the provisions at CSR 38-2-7.5.k. concerning the requirements for reclamation maps for the homestead postmining land use. Except as follows, we find that they are not inconsistent with SMCRA or the Federal regulations and can be approved. The proposed rule does not require that all maps, including “as-built” or post reclamation maps, be approved by the Director as required by CSR 38-2-3.4 and 38-2-3.28.c.

Therefore, we are approving CSR 38-2-7.5.k. to the extent that any as-built or post reclamation maps that depict reclamation which varies from that approved by the Director in the permit application shall be submitted to and approved by the Director under CSR 38-2-3.28.c.

12. CSR 38-2-7.5.l. This subdivision concerns homestead village. This subdivision contains the following requirements.

7.5.l. Homestead Village:

7.5.l.1. Homestead Village: The Homestead Village provides for a residential development at a higher density than in rural Homestead parcels. The Village is intended to:

7.5.l.1.A. Encourage mixed residential and commercial land uses, and 7.5.l.1.B. At least 20% of the Homestead Area shall be composed of Village parcels.

7.5.l.2. Village Parcel Requirements:

7.5.l.2.A. Each Village homestead parcel shall be no larger than one acre in size.

7.5.l.2.B. Each parcel shall have a minimum road frontage of 40 feet. No pipe stem parcel arrangements are permitted.

7.5.l.2.C. Each parcel shall be graded evenly to 5% maximum.

7.5.l.3. Common Lands: In addition to the Civic Parcels and Conservation Easements, each Homestead Area shall include a reserve of 10% of the land as a common area. The Common Land shall be conveyed to the Community Association. The planning and maintenance of the Common Land shall be the responsibility of the Community Association.

7.5.l.4. Public Nursery: Each Village Homestead shall designate an area for a Public Nursery constructed and planted by the Permittee at no cost to the Homesteaders. The nursery may be located adjacent to the Common Land but shall not constitute the required Common Land area. The Nursery shall provide woody plants of high quality and appearance for the use of the Homesteaders as specified below.

7.5.l.4.A. The nursery shall be 1 acre per 30 acres of Homestead Area. The Public Nursery shall be a civil [sic] parcel. The Permittee shall plant the nursery with the same species and to the same standards as required in the Conservation Easement. Once bond is released, the Community Association shall be responsible for maintaining the nursery. Success standards shall be the same as for the conservation easements.

7.5.l.4.B. The nursery plants shall consist of at least six species from the following list: White oak, red oak, other native oaks, white ash, yellow poplar, black walnut, sugar maple, black cherry, or native hickories.

7.5.l.4.C. Adequate water supply shall be provided for the nursery. This may be achieved through any of the water supply means specified or through the stormwater drainage system.

7.5.l.4.D. The nursery shall be maintained in manner consistent with the healthy development of the plants. The nursery plants shall meet the following criteria upon conveyance: (1) In regular form for the species, (2) 80% live branches, and (3) color consistent with the species. Materials not meeting the specifications shall be replaced with like species by the permittee. After final bond release, the nursery shall be conveyed to the Community Association.

7.5.l.4.E. Each Homesteader shall be allowed to take trees from the nursery as determined by the Community Association. The remainder of the trees shall be for the common landscapes.

There are no direct Federal counterparts to the provisions at CSR 38-2-7.5.l. concerning homestead village. However, we find that they are not inconsistent with SMCRA or the Federal regulations and can be approved because Homestead is a residential postmining land use consistent with SMCRA section 515(c)(3).

13. CSR 38-2-7.5.m. concerns community association. This subdivision contains the following requirements.

7.5.m. Community Association:

7.5.m.1. At the completion of the lottery, a Community Association shall be established among the designated Homesteaders for each Homestead Area. The Association shall maintain and administer the public areas, Conservation Easements and Civic Parcels of the Homestead and may levy membership fees.

7.5.m.2. By-laws for the Community Association shall be developed by the Escrow Agent, working with the Homesteaders and a qualified design professional as defined by this rule. The permittee shall pay the qualified land designer for such services. The by-laws may establish rules for building standards and other Homestead Area rules, as appropriate.

7.5.m.3. Membership in the association is mandatory for all Homesteaders and their successors.

7.5.m.4. The association shall obtain liability insurance for its property and shall be responsible for maintenance of insurance and taxes on undivided open space. The association may place liens on the homes or houselots of its members who fail to pay their association dues in a timely manner. Such liens may require the imposition of penalty interest charges.

7.5.m.5. The association shall administer common facilities and pay for maintaining and developing such facilities.

There are no Federal counterparts to the provisions at CSR 38-2-7.5.m. concerning community association. However, we find that they are not inconsistent with SMCRA or the Federal regulations and can be approved.

14. CSR 38-2-7.5.n. This subdivision concerns interim homestead management. This subdivision contains the following requirements.

7.5.n. Interim Homestead Management

7.5.n.1. The Director or the Director's designee shall administer the Homestead Selection Lotteries.

7.5.n.2. The Escrow Agent shall monitor the 5-year occupancy requirement for each Homestead Parcel and transfer of the titles of the surface estates to the qualified Homesteaders.

7.5.n.3. The Escrow Agent shall manage and administer the homestead between final bond release and the time when all of the titles to the Homestead Parcels have been transferred and duly recorded with the Clerk of the County.

7.5.n.4. Funding these services shall be guaranteed by an insured Bank account established by the Permittee.

7.5.n.5. Before approving any Homestead variance, the Director shall find, in writing, that the funds in the account are sufficient to pay for these services.

7.5.n.6. After final bond release, this account shall be administered by the Escrow Agent.

7.5.n.7. The Escrow Agent shall receive the surface rights to the entire Homestead Area and all-weather and main roads before mining begins.

7.5.n.8. The Escrow Agent shall be charged with responsibility for transferring the surface rights in escrow to the Homesteaders, the Community Association, or the State or county road authority.

7.5.n.9. Such transfers shall promptly occur upon certification by the Escrow Agent that the Homesteader has met the requirements of this rule.

7.5.n.10. Before the homesteader receives title, property may revert to the Escrow Agent, when after notice and hearing, the Escrow Agent determines that the homesteader has not abided by this rule. The Escrow Agent's determination shall be reviewable by the Circuit Court of the County in which the homestead parcel is located.

7.5.n.11. If developed property reverts to Escrow, the Escrow Agent shall promptly sell the property and remit proceeds, less costs, to the homesteader, up to the value of the homesteader's investment.

7.5.n.12. Because deeds to Homestead Parcels will not be transferred to Homesteaders before a Homesteader has lived on a parcel for five years, lending institutions may be reluctant to make loans to Homesteaders before the five-year period has expired. Accordingly, to assure that lending institutions are willing to make loans to Homesteaders during this period, the Escrow Agent shall establish a system to provide mortgage insurance to homesteaders so that lenders will be able to finance private development of homestead parcels. The Escrow Agent shall have all powers necessary to structure loans and other necessary transactions so lenders are reasonably secure.

There are no Federal counterparts to the provisions at CSR 38-2-7.5.n. concerning interim homestead management. However, we find that they are not inconsistent with SMCRA or the Federal regulations and can be approved.

15. CSR 38-2-7.5.o. This subdivision concerns bond release, and contains the following requirements.

7.5.o. Bond Release:

7.5.o.1. Before approving Phase I bond release, the Director shall assure that the soil is in place, the vegetative cover has been established, that the water system has been completed, that the roads have been completed and transferred to the State or county road authority, and that the main electricity transmission line is in place.

7.5.o.2. Phase II bond release may not occur before two years have passed since Phase I bond release. Before approving Phase II bond release, the Director shall assure that the vegetative cover is still in place. The Director shall further assure that the tree survival on the Conservation Easements and Public Nurseries are no less than 300 trees per acre (80% of which must be species from the approved list). Furthermore, in the Conservation Easement and Public Nursery areas, there shall be a 70% ground cover where ground cover includes tree canopy, shrub and herbaceous cover, organic litter, and rock cover. Trees and shrubs counted in considering success shall be healthy and shall have been in place at least two years, and no evidence of inappropriate dieback. Phase II bond release shall not occur until the service drops for the utilities and communications have been installed to each Homestead Parcel.

7.5.o.3. The Director may authorize Phase III bond release only after all parcels in the Homestead Areas are certified and ready for occupancy.

7.5.o.4. Once final bond release is authorized, the Permittee's responsibility for implementing the Homestead Plan shall cease.

SMCRA at section 519(c) and the Federal regulations at 30 CFR 800.40(c) provide for the release of performance bonds. The approved West Virginia program provisions for bond release are at W.Va. Code 22-3-23 and in the rules at CSR 38-2-12.2.c. Except as follows, the new provisions at CSR 38-2-7.5.o. are consistent with and no less stringent than the revegetation success and bond release provisions of SMCRA at sections 515(b)(19) and (20), and 519(c) and no less effective than the Federal bond release and revegetation success regulations at 30 CFR 800.40 and 816.116 and can be approved. However, we are approving these provisions to the extent that they supplement but do not conflict the State provisions at CSR 38-2-12.2.

The Federal regulations at 30 CFR 816.97 concern the protection of fish, wildlife, and related environmental values. Subsection (i) at 30 CFR 816.97 provides that where residential, public service, or industrial uses are to be the postmining land use, and where consistent with the approved postmining land use, the operator shall intersperse reclaimed lands with greenbelts utilizing species of grass, shrubs, and trees useful as food and cover for wildlife. The Federal standards for evaluating the success of the revegetation of areas to be developed for fish and wildlife habitat, recreation, shelter belts, or forest products are at 30 CFR 816.116 (b)(3). Subdivision 816.116(b)(3) provides that the minimum stocking and planting arrangements must be specified by the regulatory authority on the basis of local and regional conditions and after consultation with and approval by the State agencies responsible for the administration of forestry and wildlife programs. In addition, subdivision 816.116 (b)(3)(iii) provides that vegetative cover must not be less than that required to achieve the postmining land use. Furthermore, 30 CFR 816.95 requires all exposed surface areas to be protected and stabilized to effectively control erosion and air pollution attendant to erosion.

The West Virginia Division of Forestry has approved the State's existing tree stocking and ground cover standards at CSR 38-2-9.3.g. However, there is no evidence that the West Virginia Division of Forestry has reviewed and approved the proposed tree stocking standards at CSR 38-2-7.5.o.2. as is required by 30 CFR 816.116(b)(3)(i). Nor is there evidence that the Wildlife Resources Section of the Division of Natural Resources has approved the shrub and planting arrangements as is required by 30 CFR 816.116(b)(3)(i). Therefore, we are not approving these planting arrangements and stocking standards at this time. In addition, we are requiring the WVDEP to consult with and obtain the approval of the West Virginia Division of Forestry and the Wildlife Resources Section of the Division of Natural Resources on the new planting arrangements and stocking standards at CSR 38-2-7.5.o.2. Under the Federal regulations, this approval can be on a program-wide or permit-specific basis. Since a program-wide approval has not yet been granted by the Division of Forestry, the WVDEP must obtain approval on a permit-specific basis until such time that it receives program-wide approval by the Division of Forestry. In addition, the new rules at CSR 38-2-7.5.o.2. do not provide revegetation standards at the time of bond release for Commercial Parcels, Village Parcels, Rural Parcels, Civic Parcels and Common Lands. Therefore, we are requiring that CSR 38-2-7.5.o.2. be amended, or the West Virginia program otherwise be amended, to identify the applicable revegetation success standards for each phase of bond release on Commercial Parcels, Village Parcels, Rural Parcels, Civic Parcels and Common Lands. In the meantime, no bond release for Commercial Parcels, Village Parcels, Rural Parcels, Civic Parcels or Common Lands can be approved until a revegetation standard is approved.

The new provision at CSR 38-2-7.5.o.2. defines ground cover to include tree canopy, shrub and herbaceous cover, organic litter, and rock cover. Under the Federal definition of ground cover at 30 CFR 701.5, ground cover means the area of ground covered by the combined aerial parts of vegetation and the litter that is produced naturally on site. The Federal definition includes only naturally produced organic material, and it does not include “rock cover.” In addition, the approved State standards for evaluating vegetative cover at CSR 38-2-9.3 do not refer to either rocks or litter as being included in the term “vegetative cover.” Despite these differences, the Federal standard for revegetation success at 30 CFR 816.116(b)(3)(iii) provides that vegetative ground cover shall not be less than that required to achieve the approved postmining land use. At a minimum, the vegetative ground cover must not be less than that required to achieve the approved use whether or not rocks are included within the State's definition of ground cover. Therefore, we are not approving the words “rock cover” as a component of the 70 percent ground cover standard at CSR 38-2-7.5.o.2. In addition, we are requiring that the West Virginia program be further amended to delete the words “rock cover” from CSR 38-2-7.5.o.2.

Under the proposed rule, homesteading is a concept which allows for the development of planned communities on mountaintop removal sites that are not returned to approximate original contour (AOC). The homestead area is made up of village and rural parcels primarily for residential use with other secondary postmining land uses that consist of conservation easements, nurseries, civic parcels, common areas and commercial parcels. The new provisions at CSR 38-2-7.5. provide the details of the Homestead postmining use. However, the details are not perfectly clear, leaving some confusion as to the intended minimum size of these supporting elements. The Homestead and supporting areas are discussed below.

CSR 38-2-7.5.a. provides that operations receiving a variance from AOC must establish homesteading on at least 50 percent of the permit area, and the remainder of the permit area must support an alternate AOC use. Subsection 7.5.g.5.a. provides that the landowner can retain up to 15 percent of the homestead area for commercial development. This provision appears to be a means for limiting the size of the commercial parcel within the homestead (homestead area × 15 percent = maximum size of the commercial parcel). It should be noted, however, that subsection 7.5.g.5.A. allows the landowner to retain up to 50 percent of the permitted area for commercial development. Subsection 7.5.e.1.C. provides that the homestead area, minus the commercial parcels, must occupy at least 50 percent of the permitted area. We conclude, therefore, that the commercial area is in addition to the homestead area, and can be no larger than 15 percent of the size of the homestead area (which is at least 50% of the permit area). However, other commercial development can occur within the permitted area outside the homestead area as described above.

Subsection 7.5.l.1.B. provides that at least 20 percent of the homestead area must be composed of village parcels. Subsection 7.5.l.2.A. provides that village parcels can be no larger than one-acre in size. Subsections 7.5.g.3.B. and C. provide that village parcels must contain a garden area of at least 600 square feet and a building pad of a minimum of 2,500 square feet for a dwelling.

As discussed above, commercial parcels are actually not part of the homestead area, but are in addition to the minimum area to be allotted for Homestead use. Subsection 7.5.g.5.A. also provides that the landowner may not retain more than 50 percent of the permitted area. This provision allows for additional commercial development outside the homestead area.

Subsection 7.5.i.8.D. provides that at least 10 percent of the homestead area, including the commercial parcels, shall be conservation easements. We interpret this to mean that the area for conservation easements shall be 10 percent of the total area of homestead plus commercial parcels. Subsection 7.5.b.5. provides that conservation easements shall typically be a strip no less than 200 feet wide and shall extend through the mined areas of the land, starting and ending in natural, undisturbed land. Such easements are for the purpose of establishing a natural habitat for wildlife, windbreaks, and storm water management.

Subsection 7.5.l.3 provides that 10 percent of the homestead area must be used as common areas.

Subsection 7.5.g.4.A. provides that civic parcels consisting of schools, parks and other community facilities must occupy at least 10 percent of the postmining permitted area. We interpret the phrase “postmining permitted area” to mean the entire permit area, and not limited to just the Homestead area plus the commercial parcels.

The new rules do not specify a minimum size area for rural parcels. Therefore, Rural parcels must be the remaining acreage of the homestead land after the minimum acreage of the supporting areas (e.g., Civic parcel) have been satisfied. Subsections 7.5.b.17 and 7.5.g.3.B.and C. provide that rural parcels are planned to promote farming or timber management and may be up to 40 acres. Rural parcels must contain a garden area of at least 5,000 square feet and building pads for a dwelling and outbuilding of 2,500 square feet each.

Subsection 7.5.l.4. provides that each village homestead shall designate an area for a public nursery constructed and planted by the permittee at no cost to the homesteaders. Subsection 7.5.l.4.A. provides that the nursery must be one acre per 30 acres of homestead area. The public nursery shall be a civic parcel. As proposed, it is not clear if the public nursery is limited in size due to the village parcel, the civic parcel or the total homestead area. Given the requirements of subsection 7.5.i.4.A., we believe that the public nursery is a separate component of the homestead area, and is not a subcomponent of the village parcel. Furthermore, we believe the reference to civic parcel is merely to clarify that the nursery will be accessible to and used primarily to benefit the homesteaders. However, given the conflicting nature of these requirements, we recommend that the State clarify these provisions.

In summary, a minimum of 20 percent of the Homestead area must be used for one-acre village parcels, and 10 percent for common land. A minimum of 10 percent of the Homestead area plus commercial parcels must be used for conservation easements, and 10 percent of the permitted area for civic parcels. An additional area, equivalent to up to 15 percent of the Homestead area may be retained for commercial development. The remaining area is to be used for 40-acre rural parcels and public nurseries. Our concern is not that the percentages are inconsistent with SMCRA, for they appear not to be, but to demonstrate how we expect implementation of these provisions might work.

To understand how these requirements interrelate, we need to apply them to a typical mountaintop-removal mining situation. For example, in order to permit a 1,000 acre mountaintop removal mining operation with an AOC variance, the operator would have to select one or more of the approvable postmining land uses set forth in Section 22-3-13(c)(3) of the W.Va. Code. If homesteading is selected, the operator would have to establish homesteading on at least 50 percent of the permitted area, or 500 acres. If the operator also plans a commercial development, the commercial parcel could not exceed 75 acres (15 percent of 500 acres). The homestead area would then have to be considered to be 575 acres to ensure that the homestead area minus the commercial parcel is at least 50 percent of the permitted area as is required by Subsection 7.5.e.1.C. The remaining portion of the permitted area would have to support an alternate AOC postmining use as provided in Section 22-3-13(c)(3) of the W.Va. Code.

Under this example, the village parcel would occupy 115 acres of the homestead area (20 percent × 575 acres). The conservation easement and the common areas would occupy 58 acres each (10 percent × 575 acres). The civic parcel would occupy 100 acres of the homestead area, which is equal to 10 percent of the 1000-acre permitted area. The public nursery must consist of one acre for every 30 acres of homestead area and would occupy 19 acres (575÷30). Finally, the rural parcel would occupy the remainder of the homestead area or 150 acres. Therefore, the rural parcel would amount to 26 percent of the homestead area (150 ÷ 575).

Based on these requirements and as shown above in the example, when a landowner chooses to retain a portion of the homestead area for commercial development, the homestead area will have to comprise 58 percent of the permitted area, not 50 percent as provided in Subsection 7.5.a. While the rules provide that the conservation easements, common area, and village parcels are to be a percentage of the homestead area, it is not clear if these calculations are to include or exclude the commercial parcels, which can comprise 15 percent of the homestead area. This is further complicated by the fact that Subsection 7.5.i.8.D. provides that conservation easements are to comprise at least 10 percent of the homestead area, including the commercial parcels, civic parcels are to be 10 percent of the permitted area, and the public nursery could be considered a component of the homestead area, village parcel or civic parcel.

Given the apparent inconsistencies and the resulting difficulty in understanding the intended application of the percentages of the various components of the Homestead Area, the State needs to clarify how the acreage for each of the components of a Homestead Area will be calculated. Specifically, we are requiring that: (1) CSR 38-2-7.5.a. be amended to clarify whether or not the calculated acreage of the Commercial Parcel(s) is to be summed with the total Homestead acreage for the purpose of calculating the acreage of other various components of the Homestead Area (such as Common Lands, Village Parcels, Conservation Easement, etc.); and (2) CSR 38-2-7.5.l.4 be amended to clarify whether or not the acreage for Public Nursery is to be calculated based on the amount of acreage available for the Village Homestead, the Civil Parcel, or the entire Homestead Area.

On April 12, 2000, we asked for comments from various Federal agencies that may have an interest in the West Virginia amendment (Administrative Record Number WV-1152). We solicited comments in accordance with section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of the Federal regulations. The U.S. Department of Labor, Mine Safety and Health Administration responded and stated that it had no comments (Administrative Record Number WV-1162). The U.S. Department of Army, Corps of Engineers responded and stated that they found the amendments to be satisfactory (Administrative Record Number WV-1164). The U.S. Fish and Wildlife Service (USFWS) responded (Administrative Record Number WV-1161), but did not provide any comments concerning CSR 38-2-7.5.

Pursuant to 30 CFR 732.17(h)(11)(i) and (ii), OSM is required to solicit comments and obtain the written concurrence of the EPA with respect to those provisions of the proposed amendment that relate to air or water quality standards promulgated under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). By letter dated April 10, 2000, we requested comments and concurrence from EPA (Administrative Record No. WV-1151) on the State's proposed amendment of March 14, 2000 (Administrative Record Number WV-1147) and March 28, 2000 (Administrative Record Number WV-1148), and electronic mail dated April 6, 2000 (Administrative Record Number WV-1149).

By letter dated June 21, 2000 (Administrative Record Number WV-1166), the EPA responded and stated that it has reviewed the proposed revisions and has determined that they comply with the Clean Water Act. The EPA further stated that its review indicates that the proposed revisions do not appear to relate to air emissions or other issues which EPA would regulate under the Clean Air Act. Therefore, the EPA concurred with the proposed revisions.

In addition, the EPA provided comments and recommendations on several concerns regarding potential water quality impacts. EPA also noted that the State indicated that the new rules are intended to comply with the Consent Decree between WVDEP and the Plaintiff in Civil Action No. 2:98-0636. The EPA stated that it is not a party to that Consent Decree. Accordingly, the EPA stated, its comments are not intended and should not be construed as a determination by EPA as to whether any particular provision does or does not comply with the referenced Consent Decree.

EPA submitted several comments, including comments on the standards applicable to AOC variance operations with a postmining land use of commercial forestry and forestry at CSR 38-2-7.4, and postmining land use of homestead at CSR 38-2-7.5. We addressed EPA's comments which concern the postmining land use of commercial forestry and forestry at CSR 38-2-7.4 in a previous notice in the Federal Register (August 18, 2000; 65 FR 50409, 50425-50427) (Administrative Record Number WV-1174). EPA's comments concerning the homestead postmining land use at CSR 38-2-7.5. are addressed below.

1. Applicable State and Federal laws/regulations —The EPA stated that there are a number of Federal and State statutes and regulations protective of air and/or water quality which may apply to homesteading activities. For example, a National Pollutant Discharge Elimination System (NPDES) permit may be required for the discharge of pollutants in storm water associated with construction activity related to the homesteading activities. The EPA recommended that the regulations governing each postmining land use include a statement that activities performed in connection with the postmining use must comply with all applicable State and Federal laws and regulations.

In response, we agree that the State regulations governing each postmining land use could be improved by including a statement that the provisions must comply with all applicable State and Federal laws and regulations. However, there is nothing in the new provisions that precludes or prohibits compliance with all applicable State and Federal laws and regulations. Therefore, the lack of such a statement in the State's provisions does not render the new provisions less effective than the Federal regulations.

2. Erosion and sedimentation control —The EPA stated that it has concerns about possible excessive erosion and runoff at homestead sites. CSR 38-2-7.5.j.6.B. indicates that at homestead sites, regrading and reseeding may take place only on those rills and gullies which are unstable. While it is understood, the EPA stated, that porous soil must be provided for effective tree growth, the requirement of uncompacted backfills, as well as unseeded rills and gullies, appear to increase the potential for sediment runoff and resulting stream degradation during storm periods. The EPA recommended consideration of options to avoid such situations, including limiting uncompacted areas to just the areas immediately around the tree plantings, maintaining effective sedimentation control ponds below these areas, and providing extensive vegetative cover in all areas except directly adjacent to tree plantings.

In response, and as noted above in Finding 10., CSR 38-2-7.5.j.6.A., SMCRA at section 515(b)(10)(B)(i) provides that coal mining operations must be conducted so as to prevent, to the extent possible using the best technology currently available, additional contributions of suspended solids to streamflow, or runoff outside the permit area, but in no event shall contributions be in excess of requirements set by applicable State or Federal law. Therefore, to be no less stringent than SMCRA, the term “excessive erosion” may not be interpreted to allow additional contributions of suspended solids to streamflow, or runoff outside the permit area in excess of requirements set by applicable State or Federal law. Except for the phrase, “excessive erosion,” there is nothing in new CSR 38-2-7.5.j.6.A. that supersedes or negates the approved State provisions at CSR 38-2-14.5.b. concerning effluent limitations. It appears that the effluent limitations at CSR 38-2-14.5.b. would continue to apply. However, under the proposed State rule, erosion would be allowed as long as it was not excessive, even though that erosion would be allowed to provide sediment to streams. Subdivision CSR 38-2-14.5.b., like 30 CFR 816.42, provides that discharge from areas disturbed by surface mining shall not violate effluent limitations or cause a violation of applicable water quality standards.

We have determined that as proposed, CSR 38-2-7.5.j.6.A. is less effective than the Federal requirements at 30 CFR 816.111 because the proposed standard to stabilize the soil from erosion is modified by the undefined phrase, “excessive erosion.” To be no less effective than the Federal requirements, the Director can only be allowed to approve ground cover vegetation that is sufficient to control erosion and air pollution attendant to erosion. Therefore, we are not approving the word “excessive” in the phrase “excessive erosion” at CSR 38-2-7.5.j.6. Furthermore, we are requiring the deletion of the word “excessive” from the proposed State rule at CSR 38-2-7.5.j.6.A. to ensure compliance with State water quality requirements at CSR 38-2-14.5.b.

CSR 38-2-7.5.j.6.B. only authorizes the regrading and reseeding of rills and gullies that are unstable. Normally, the presence of unstable rills and gullies indicates that excessive erosion has occurred. The Federal regulations at 30 CFR 816.95(b) require the regrading of all rills and gullies that disrupt the approved postmining land use or the establishment of vegetative cover or cause or contribute to a violation of water quality standards for the receiving stream. Therefore, we are approving CSR 38-2-7.5.j.6.B. only to the extent that it is interpreted to require the repair of all rills and gullies that disrupt the approved postmining land use or the establishment of vegetative cover or cause or contribute to a violation of water quality standards for the receiving stream. In addition, we are requiring that CSR 38-2-7.5.j.6.B. be further amended to require the repair of all rills and gullies that disrupt the approved postmining land use or the establishment of vegetative cover or cause or contribute to a violation of water quality standards for the receiving stream.

3. Wastewater and sewage disposal plans —The EPA stated that section 38-2-7.5.i.2.A. states that wastewater/sewage disposal plans for homestead sites must be approved by the West Virginia Bureau of Public Health or the public health authority of the county, and that the wastewater/sewage systems must meet local health department standards. In addition, the EPA stated, discharges from any wastewater/sewage system must also meet Federal requirements under the Clean Water Act, specifically the NPDES permit requirements which are implemented by the Office of Water Resources, WVDEP. The EPA recommended, so there would be no misunderstanding, that either a statement to this effect be included in section 38-2-7.5.i.2.A., or a statement be included which indicates that disposal systems shall be consistent with all State and Federal regulations. In response, and as we stated above at Finding 9, we are approving the provisions to the extent that the applicable NPDES permitting requirements will be complied with.

4. Individual septic tanks —The EPA stated that section 38-2-7.5.i.2.B. indicates that septic tank systems may be proposed for use at homestead sites. Since homestead sites are planned to be constructed on somewhat porous backfilled areas, the EPA stated, there may be a higher potential for leachate to pass relatively unabsorbed through the fills to streams, presenting possible high fecal coliform levels and associated health risks. The EPA urged close review of this potential when considering any proposals for septic tank systems at homestead sites. In response, and as we stated above at Finding 9, we agree with EPA's recommendation.

5. Water supply —The EPA stated that section 38-2-7.5.i.3.A. indicates that the water supply for a homestead site may be provided by either connecting to an existing public supply, constructing individual wells, or constructing a small reservoir to serve the community. Section 7.5.i.3.H. further states that potable water supply sources shall meet Federal Primary Drinking Water Maximum Contaminant level standards in 40 CFR 141, Subpart B. The EPA stated that community water systems as defined by 40 CFR 141 (those serving 25 or more people or which have 15 or more service connections) also must comply with all subparts of 40 CFR 141, A. through J. The EPA recommended that another sentence be added to section 38-2-7.5.i.3.H. which indicates that community water systems must comply with 40 CFR 141 in its entirety. As discussed above at Finding 9, we are approving this provision to the extent that the provisions of 40 CFR 141, A. through J. apply to community water systems as defined by 40 CFR 141 (those serving 25 or more people or which have 15 or more service connections).

6. Storm water/surface drainage from homestead sites —The EPA stated that section 38-2-7.5.i.7. requires that a detailed storm water and surface water drainage plan for homestead sites be certified by a registered engineer. The EPA stated that storm water discharges resulting from construction of the homestead sites and supporting streets, depending on the acreage disturbed, may be subject to Federal NPDES storm water regulations in 40 CFR 122.26. The EPA recommended that either a statement to this effect be included in section 7.5.i.7., or a statement be included which indicates that storm water discharges shall be consistent with all State and Federal regulations. The EPA also recommended that the site developers contact the Office of Water Resources, WVDEP, regarding the applicability of storm water regulations for specific sites. In response, and as stated above at Finding 9, for the sake of clarity, we are approving CSR 38-2-7.5.i.7.A. to the extent that applicable NPDES storm water requirements would be complied with.

We solicited public comments on the amendment. One person responded with comments (Administrative Record Number WV-1163).

The commenter stated that the new homestead rules go far beyond what is in SMCRA. It seems to be true, the commenter stated, that the details would allow the WVDEP to make the necessary findings for higher/better postmining land use on AOC variance areas. We agree with this comment.

The commenter stated that the WVDEP will need extra staff to enforce these requirements. In addition, the commenter stated, OSM must decide if it would provide grant funds for the additional employees. In response, we have no information concerning the likelihood of increased permit applications for homestead postmining land use for mountaintop removal mining operations. Therefore, it is premature to conclude that the WVDEP would need additional staff to process such applications. In our oversight of the West Virginia program, we will monitor the number and processing of such permit applications, and if necessary, we will meet with the State to discuss any need for additional staff.

The commenter stated that CSR 38-2-7.5.b.14. concerning the transfer of title, would require the landowner to transfer title to the Attorney General. Clearly, the commenter stated, this requires compensation. This point should be clarified, the commenter stated. In addition, the purchasing of land for homesteading goes beyond the bounds of SMCRA, the commenter stated, and therefore, OSM could not provide matching Federal grant funds. In response, we agree with the commenter that the rules do not clearly state whether or not the landowner of record will be compensated for the land, and by whom. It is our understanding that the landowner will not be compensated for the land. The fact that the operator will not be required to return the site to AOC may be sufficient compensation under the proposed rule. It is believed that by donating the land for homesteading, the higher or better public use requirements of SMCRA will be better satisfied. Even though some may argue that this provision goes beyond the boundaries of SMCRA, it is not inconsistent with the provisions of SMCRA. Therefore, it can be approved. Finally, we agree with the commenter that Federal funds cannot be used to purchase homestead properties.

The commenter stated that the new rules regarding homesteading appear not to be supported by statutory authority. In response, we disagree with this comment. The W.Va. Code section 22-3-13(c)(3) authorizes residential land uses for AOC variances for mountaintop removal mining operations. Homesteading is primarily a residential use, and is, therefore, approvable for mountaintop removal mining operations. Furthermore, CSR 38-2-7.5.a. provides that the remainder of the permit area (that part of the permit area that will not be Homestead use) shall support an alternate AOC variance use. This means that such areas shall support postmining uses approvable under the W.Va. Code section 22-3-13(c)(3).

Based on the findings above, and except as noted below, we are approving the use of Homestead as a postmining land use as provided at CSR 38-2-7.5. to the extent that it supplements or is more stringent than existing State requirements, but is not inconsistent with any existing Federal program requirements.

We are requiring that CSR 38-2-7.5.b.3. be amended to clarify that parcels retained by the landowner for commercial development and incorporated within the Homestead area must be developed for commercial uses as provided by subdivision CSR 38-2-7.5.g.5.

CSR 38-2-7.5.e. is approved to the extent that its provisions supplement, but do not supersede, the approved State provisions concerning maps and cross sections, and operations plans at CSR 38-2-3.4, 3.5, and 3.6.

CSR 38-2-7.5.f. is approved to the extent that compliance with W.Va. Code section 22-3-13(c)(3) is also required.

CSR 38-2-7.5.g. is approved to the extent that compliance with the State's approved postmining land use requirements at CSR 38-2-7. is also required.

CSR 38-2-7.5.h. is approved to the extent that subdivision 7.5.h.2.B. means that consolidation of the uppermost 20 feet of spoil for Building Pads must be maximized.

CSR 38-2-7.5.i.1.B. is approved to the extent that the word “conditionally” means that the County or State road authorities will accept responsibility for maintaining the all-weather and main roads after mining and reclamation is complete, and the road(s) is built.

We are requiring that CSR 38-2-7.5.i.1.B. be amended, or the West Virginia program otherwise be amended, to clarify that roads which meet the definition of road at CSR 38-2-2.59 and 38-2-4.1 and that are to be retained as part of the postmining land use must be designed and constructed to meet the primary road requirements of CSR 38-2-4.

CSR 38-2-7.5.i.3.H. is approved to the extent that the provisions of 40 CFR 141, A. through J. apply to community water systems as defined by 40 CFR 141 (those serving 25 or more people or which have 15 or more service connections).

CSR 38-2-7.5.i.3.Q. is approved only to the extent that all permanent impoundments approved for Homestead postmining land use must comply with CSR 38-2-3.6.b.1. and 38-2-5.5 concerning permanent impoundments. In addition, we are requiring that the West Virginia program be amended to require that all permanent impoundments approved for Homestead postmining land use must comply with CSR 38-2-3.6.b.1. and 38-2-5.5 concerning permanent impoundments.

CSR 38-2-7.5.i.7.A. is approved to the to the extent that the applicable NPDES storm water requirements would be complied with.

CSR 38-2-7.5.i.10. is approved to the extent that the permit requirements at CSR 38-2-3.5.d. continue to apply. In addition, we are requiring that CSR 38-2-7.5.i.10. be amended to require compliance with the permit requirements at CSR 38-2-3.5.d.

CSR 38-2-7.5.j.2.C. is approved to the extent that all ponds and impoundments created during mining and which will be left in place following mining must comply with the State permanent impoundment rules at CSR 38-2-5.5.

CSR 38-2-7.5.j.2.E. is approved to the extent that the landscape criteria at CSR 38-2-7.5.j.2. do not apply to any fills.

We are requiring that CSR 38-2-7.5.j.3.A. be amended to add an “E” horizon.

At CSR 38-2-7.5.j.3.B., the phrase, “except for those areas with a slope of at least 50%” is not approved, and the phrase, “and other areas from which the applicant affirmatively demonstrates and the Director of the WVDEP finds that soil cannot reasonably be recovered” is not approved. In addition, we are requiring the State to delete these phrases from its regulations at CSR 38-2-7.5.j.3.B.

CSR 38-2-7.5.j.3.E. must be amended to provide that the soil substitute material must be equally suitable for sustaining vegetation as the existing topsoil and the resulting medium is the best available in the permit area to support vegetation.

CSR 38-2-7.5.j.4. is approved to the extent that these provisions do not supersede the State's general backfilling and grading requirements at CSR 38-2-14.15.a. which are no less effective than the Federal requirements at 30 CFR 816.102(a).

At CSR 38-2-7.5.j.6.A., the word “excessive” in the phrase “excessive erosion” is not approved. We are requiring the word “excessive” be deleted from CSR 38-2-7.5.j.6.A.

CSR 38-2-7.5.j.6.B. is approved to the extent that it is interpreted to require the repair of all rills and gullies that disrupt the approved postmining land use or the establishment of vegetative cover or cause or contribute to a violation of water quality standards for the receiving stream. We are requiring that CSR 38-2-7.5.j.6.B. be amended to require the repair of all rills and gullies that disrupt the approved postmining land use or the establishment of vegetative cover or cause or contribute to a violation of water quality standards for the receiving stream.

CSR 38-2-7.5.j.7. is approved to the extent that the proposed State standards are in addition to the excess spoil disposal requirements at W.Va. Code 22-3-13(b)(22) and CSR 38-2-14.14 and apply to all fills, including valley fills.

CSR 38-2-7.5.k. is approved to the extent that any as-built or post reclamation maps that depict reclamation which varies from that approved by the Director in the permit application shall be submitted to and approved by the Director under CSR 38-2-3.28.c.

CSR 38-2-7.5.o. is approved to the extent that it supplements but does not supersede the State provisions at CSR 38-2-12.2.

At CSR 38-2-7.5.o.2., the new planting arrangements and stocking standards are not approved. We are requiring the WVDEP to consult with and obtain the approval of the West Virginia Division of Forestry and the Wildlife Resources Section of the Division of Natural Resources on the new planting arrangements and stocking standards at CSR 38-2-7.5.o.2.

We are requiring that CSR 38-2-7.5.o.2. be amended to, or the West Virginia program otherwise be amended, to identify the applicable revegetation success standards for each phase of bond release on Commercial Parcels, Village Parcels, Rural Parcels, Civic Parcels and Common Lands. In the meantime, no bond release for Commercial Parcels, Village Parcels, Rural Parcels, Civic Parcels or Common Lands can be approved until a revegetation standard is approved.

At CSR 38-2-7.5.o.2., the words “rock cover” are not approved. We are requiring that the words “rock cover” be deleted from CSR 38-2-7.5.0.2.

Finally, we are requiring that: (1) CSR 38-2-7.5.a. be amended to clarify whether or not the calculated acreage of the Commercial Parcel(s) is to be summed with the total Homestead acreage for the purpose of calculating the acreage of other various components of the Homestead Area (such as Common Lands, Village Parcels, Conservation Easement, etc.); and (2) CSR 38-2-7.5.1.4 be amended to clarify whether or not the acreage for Public Nursery is to be calculated based on the amount of acreage available for the Village Homestead, the Civil Parcel, or the entire Homestead Area.

This final rule is being made effective immediately to expedite the State program amendment process and to encourage States to bring their programs into conformity with the Federal standards without undue delay. Consistency of State and Federal standards is required by SMCRA.

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

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart federal regulation.

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

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

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed state regulatory program provision does not constitute a major federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A).

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

The Department of the Interior has determined that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The state submittal which is the subject of this rule is based upon counterpart federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Accordingly, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the state. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart federal regulation.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million.

b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.

This determination is based upon the fact that the state submittal which is the subject of this rule is based upon counterpart federal regulations for which an analysis was prepared and a determination made that the federal regulation was not considered a major rule.

This rule will not impose a cost of $100 million or more in any given year on any governmental entity or the private sector.

This document merely makes technical corrections. Accordingly, there is a basis for dispensing with prior notice-and-comment and a delayed effective date under 5 U.S.C. 552 and 553.

The Catalog of Federal Domestic Assistance number for the program affected by this final rule is 64.124.

Throughout this document, wherever “we”, “our”, or “us” is used, we mean EPA.

We are partially approving and partially disapproving revisions to the SIP submitted by the Governor of Wyoming on May 21, 1999. Specifically, we are partially approving and partially disapproving the following sections of the WAQSR: Section 2 Definitions, Section 4 Sulfur oxides, Section 5 Sulfuric acid mist, Section 8 Ozone, Section 9 Volatile organic compounds, Section 10 Nitrogen oxides, Section 14 Control of particulate emissions, and Section 21 Permit requirements for construction, modification and operation. Revisions to sections 2, 4, 5, and 14 represent minor changes to correct cross references. Revisions to the ozone section were designed to comply with revisions to the national 8-hour primary and secondary ambient air quality standards for ozone. Section 9 was revised to remove outdated regulations and clarify requirements for flaring of waste gas. Section 10 was changed to clarify references to combustion equipment. Permitting section 21 was revised to reference additional permitting requirements in the hazardous air pollutant regulations.

We are publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the “Proposed Rules” section of today's Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective February 20, 2001 without further notice unless the Agency receives adverse comments by January 22, 2001.

If we receive such comments, then we will publish a timely withdrawal of the direct final rule informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this rule. Any parties interested in commenting on this rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on February 20, 2001, and no further action will be taken on the proposed rule.

Section 110(k) of the Act addresses our actions on submissions of SIP revisions. The Act also requires States to observe certain procedures in developing SIP revisions. Section 110(a)(2) of the Act requires that each SIP revision be adopted after reasonable notice and public hearing. We have evaluated the State's submission and determined that the necessary procedures were followed. We also must determine whether a submittal is complete and therefore warrants further review and action (see section 110(k)(1) of the Act). Our completeness criteria for SIP submittals can be found in 40 CFR part 51 appendix V. We attempt to determine completeness within 60 days of receiving a submissions. However, the law considers a submittal complete if we do not determine completeness within six months after we receive it. This submission became complete by operation of law on November 21, 1999 in accordance with section 110(k)(1)(B) of the Act.

The State revised the definition of “particulate matter emissions” in section 2(a)(xxx)(B) of the WAQSR. This revision is a minor change to correct applicable reference methods. This revision is partially approved and partially disapproved, however, because the provision allows the use of an equivalent or alternative method to be approved by the Administrator of the WAQD. In an August 19, 1998 letter to the WAQD, we raised concerns about provisions in the WAQSR where the WAQD has the discretion to approve the use of alternative or equivalent test methods in place of those required in the SIP. Such discretionary authority for the State to change test methods that are included in the SIP, without obtaining prior EPA approval is not consistent with section 110 of the Act. These “director's discretion” provisions essentially allow for a variance from SIP requirements, which is not allowed under section 110(i) of the Act. In our August 19, 1998 letter, we identified the sections in the WAQSR which contain these director's discretion provisions, and informed the State that the provisions needed to be revised to require EPA approval of any alternative or equivalent test methods. In a September 9, 1998 letter responding to our comments, the WAQD committed to address our concerns through revisions to these rules in the near future. In fact, the State recently revised section 2(a)(xxx)(B) of the WAQSR to read, “* * * or an equivalent or alternative method approved by the EPA Administrator.” We anticipate that the revision will be submitted as a SIP revision in the near future. However, until these provisions are revised, we believe it is necessary to disapprove the various “director's discretion” provisions, to ensure that any alternatives to the test methods required in the SIP are approved by EPA.

The State made a minor revision to section 4(h) of the WAQSR to change a reference for the method to measure sulfur oxide emissions. As discussed above, this revision also is partially approved and partially disapproved. This provision allows the Administrator of the WAQD to approve the use of an equivalent test method. For the reasons discussed in section II.B above, we are disapproving the director's discretion provision in section 4(h) of the WAQSR, because it is inconsistent with section 110(i) of the Act.

The State made a minor revision to section 5 of the WAQSR to change the reference for the method to measure sulfuric acid mist. This revision is also partially approved and partially disapproved. This provision allows the Administrator of the WAQD to approve the use of an equivalent method. This provision for director's discretion has since been revised to require EPA approval of alternative test methods, and the new revision became effective at the State level on October 29, 1999. However, this revision has not yet been submitted to us for approval into the SIP. For the reasons discussed in section II.B above, we are partially disapproving the director's discretion provision in section 5, because it is inconsistent with section 110(i) of the Act.

The State revised section 8 of the WAQSR by adding the 8-hour primary and secondary ozone National Ambient Air Quality Standards (NAAQS). We are approving this revision as it is consistent with the Federal 8-hour ozone NAAQS, as promulgated in the Federal Register on July 18, 1997 (see 62 FR 38856), and also addresses the requirements of 40 CFR part 50 (Appendices D and I) and 40 CFR part 53.

On July 18, 1997, EPA promulgated the new 8-hour ozone NAAQS (see 62 FR 38856). With the promulgation of the new 8-hour standard, and under a Presidential directive dated July 16, 1997, EPA also set into motion the process to revoke the 1-hour standard for areas in the nation that were attaining that standard. The 1-hour ozone standard was revoked for Wyoming on June 5, 1998 (see 63 FR 31014). A May 14, 1999 ruling by the U. S. Court of Appeals for the D.C. Circuit, however undermined the basis for EPA's June 5, 1998 revocation of the 1-hour ozone standard. As the D.C. Circuit Court ruled that EPA could not enforce the new 8-hour standard, and it may be some time before the Agency's appeal to the Supreme Court is decided, EPA rescinded its findings that the 1-hour standard no longer applied in certain areas and reinstated the 1-hour ozone standard for all areas of the nation on July 20, 2000 (see 65 FR 45182). The effective date of the July 20, 2000 reinstatement for Wyoming is October 18, 2000.

The State revised section 9 of the WAQSR to delete a provision regulating hydrocarbon emissions, because the State determined it was unenforceable and replaced it with a provision to control volatile organic compound (VOC) emissions through the application of Best Available Control Technology (BACT) in accordance with Section 21 Permit requirements for construction, modification, and operation. In our comments on this revision, during the State's public hearing, we expressed concern that the State may be allowing existing sources to relax emission limits as a result of this rule change. However, in a June 23, 2000 letter, the State explained that any existing source that had been regulated under the previous version of this rule would not be able to remove emission controls without triggering the need for a permit to modify, which would require application of BACT. Thus, the State asserts that the new version of this rule is more enforceable and is likely to result in greater control of VOC emissions than the previous rule. We concur with the State and are therefore approving the revision.

The State revised sections 10(b), 10(b)(vii), 10(b)(viii), and 10(b)(ix) of the WAQSR. These revisions are minor editorial corrections that we are partially approving and partially disapproving. Section 10(b) contains a “director's discretion” provision that allows the Administrator of the WAQD to approve the use of an equivalent test method to measure nitrogen oxide emissions. For the reasons discussed in section II.B above, we are partially disapproving the director's discretion provision in section 10(b), because it is inconsistent with section 110(i) of the Act.

The State made a minor revision to a reference to the method for measuring particulate matter emissions in section 14(h)(iv) of the WAQSR. This revision is partially approved and partially disapproved because it also contains a director's discretion provision that allows the Administrator of the WAQD to approve the use of variations to the test method. For the reasons discussed in section II.B above, we are partially disapproving the director's discretion provision in section 14(h)(iv), because it is inconsistent with section 110(i) of the Act.

The State revised section 21(a)(vi) and 21(h) to reference additional permitting requirements in the hazardous air pollutant regulations. Section 21(a)(vi) was revised to include requirements for submitting permit applications under National Emission Standards for Hazardous Air Pollutant Standards and section 21(h) adds an expiration date for permits containing a case-by case Maximum Available Control Technology determination. We have determined both revisions are acceptable.

In this action, we are granting partial approval and partial disapproval of revisions to sections 2, 4, 5, 8, 9, 10, 14, and 21 of the WAQSR submitted as a SIP revision by the Governor of Wyoming on May 21, 1999. We are publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the “Proposed Rules” section of today's Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revisions if adverse comments are filed. This rule will be effective February 20, 2001 without further notice unless the Agency receives adverse comments by January 22, 2001. If we receive adverse comments, then we will publish a timely withdrawal of the direct final rule, in the Federal Register , informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. If no such comments are received, the public is advised that this rule will be effective on February 20, 2001, and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

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

Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This 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, 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. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This final partial approval rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA , 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

This final partial disapproval rule will not have a significant impact on a substantial number of small entities because this partial disapproval only affects a limited number of sources. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities. Furthermore, as explained in this notice, the request does not meet the requirements of the Clean Air Act and EPA cannot approve the request. EPA has no option but to partially disapprove the submittal.

The partial approval and partial disapproval will not affect an existing state requirements applicable to small entities. Federal disapproval of a state submittal does not affect its state-enforceability.

Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the partial approval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action partially approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

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). This rule will be effective February 20, 2001 unless EPA receives adverse written comments by January 22, 2001.

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

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 February 20, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

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

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

2. In person . The Agency has established an official record for this action under docket control number OPP-301092. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

EPA issued a final rule, published in the Federal Register of August 19, 1997 (62 FR 44089) (FRL-5737-1), which announced that on its own initiative under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) it established a time-limited tolerance for the combined residues of avermectin and its delta-8,9-isomer in or on spinach at 0.05 ppm, with an expiration date of July 31, 1998. In the Federal Register of August 7, 1998 (63 FR 42246) (FRL-6021-2), this time-limited tolerance was subsequently extended to be effective through January 31, 2000. EPA established the tolerance because section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Such tolerances can be established without providing notice or period for public comment. In a separate rule, published in the Federal Register of April 7, 1999 (64 FR 16843) (FRL-6070-6), EPA established a time-limited tolerance for the combined residues of avermectin and its delta-8,9-isomer in or on avocado at 0.02 ppm, with an expiration date of September 20, 2000.

EPA received requests to extend the use of avermectin on avocado and spinach for this year's growing seasons for these crops. After having reviewed the submissions, EPA concurs that emergency conditions still exist this year. The nature of the emergency with regard to avocado production involves the continued threat and yield losses posed by thrips. With regard to spinach, this exemption application is submitted in order to respond to the damage posed by leafminers to this crop.

EPA has assessed the potential risks presented by residues of avermectin in or on avocado and spinach. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and decided that the necessary tolerance under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. The data and other relevant material have been evaluated and discussed in the final rules of August 19, 1997 (62 FR 44089) (FRL-5737-1), for spinach and April 7, 1999 (64 FR 16843) (FRL-6070-6) for avocado. Based on that data and information considered, the Agency reaffirms that the re-establishment of the time-limited tolerances will continue to meet the requirements of section 408(l)(6). Therefore, the time-limited tolerances are re-established for an additional 2-year period. EPA will publish a document in the Federal Register to remove the revoked tolerance from the Code of Federal Regulations (CFR). Although this tolerance will expire and is revoked on December 31, 2002, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerances remaining in or on avocado and spinach after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA and the application occurred prior to the revocation of the tolerance. EPA will take action to revoke these tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301092 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before February 20, 2001.

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

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

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

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

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

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit III.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301092, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

This final rule establishes a time-limited tolerance under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any prior consultation as specified by Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 19, 1998); special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or require OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a FIFRA section 18 petition under FFDCA section 408, such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the pre-emption provisions of FFDCA section 408(n)(4).

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

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

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

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

2. In person . The Agency has established an official record for this action under docket control number OPP-301095. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

In the Federal Register of February 18, 1999 (64 FR 8087) (FRL-6036-4), EPA issued a notice pursuant to section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) announcing the filing of a pesticide petition (PP 7F4896) for tolerance by FMC Corporation, 1735 Market Street, Philadelphia, PA 19103. This notice included a summary of the petition prepared by FMC Corporation, the registrant. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR 180.425 be amended by establishing a tolerance for residues of the herbicide clomazone, (2-(2-chlorophenyl)methyl-4,4-dimethyl-3-isoxazolidinone), in or on the raw agricultural commodities rice grain and rice straw at 0.05 part per million (ppm). Clomazone residues were not detected any rice samples at or above the Level of Quantification (LOQ) of 0.02 ppm. EPA is therefore establishing the tolerances in or on rice grain and rice straw at 0.02 ppm rather than at the proposed tolerance level of 0.05 ppm.

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

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).

Consistent with section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2), for a tolerance for residues of clomazone on rice grain and rice straw at 0.02 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by clomazone are discussed in the following Table 1 as well as the no observed adverse effect level (NOAEL) and the lowest observed adverse effect level (LOAEL) from the toxicity studies reviewed.

The dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor (UF) is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. An UF of 100 is routinely used, 10X to account for interspecies differences and 10X for intra species differences.

For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). Where an additional safety factor is retained due to concerns unique to the FQPA, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute or chronic Population Adjusted Dose (aPAD or cPAD) is a modification of the RfD to accommodate this type of FQPA Safety Factor.

For non-dietary risk assessments (other than cancer) the UF is used to determine the LOC. For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure (MOE) = NOAEL/exposure) is calculated and compared to the LOC.

The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify carcinogenic risk. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk. A Q* is calculated and used to estimate risk which represents a probability of occurrence of additional cancer cases (e.g., risk is expressed as 1 x 10 − 6 or one in a million). EPA's Hazard Identification Assessment Review Committee (HIARC) classified clomazone as a not likely human carcinogen based on the lack of carcinogenic response in rats and mice and the lack of mutagenic concern. There is no data in the literature or structure activity relationship (SAR) information to indicate carcinogenic potential. A cancer risk assessment is not required. A summary of the toxicological endpoints for clomazone used for human risk assessment is shown in the following Table 2:

1. Dietary exposure from food and feed uses . Tolerances have been established (40 CFR 180.425) for the residues of clomazone, in or on a variety of raw agricultural commodities. Risk assessments were conducted by EPA to assess dietary exposures from clomazone in food as follows:

i. Acute exposure . Acute dietary risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a one day or single exposure. The Dietary Exposure Evaluation Model (DEEM TM ) analysis evaluated the individual food consumption as reported by respondents in the USDA 1989-1992 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the acute exposure assessments: An acute analysis was performed for females 1350 years old using existing and recommended tolerance level residues and 100% of the crop treatment information. The aPAD for females 13-50 years old is 1.0 mg/kg/day.

ii. Chronic exposure . In conducting this chronic dietary risk assessment the Dietary Exposure Evaluation Model (DEEM TM ) analysis evaluated the individual food consumption as reported by respondents in the USDA 1989-1992 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: A chronic analysis was performed for the general U.S. population using existing and recommended tolerance level residues and 100% of the crop treatment information. The cPAD for the general U.S. population and all population subgroups is 0.84 mg/kg/day.

iii. Cancer . Based on the lack of carcinogenic response in rats and mice and the lack of mutagenic effects, and that there is no data in the literature or SAR information to indicate carcinogenic potential, EPA does not consider clomazone to pose a cancer risk.

2. Dietary exposure from drinking water .

The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for clomazone in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the physical characteristics of clomazone and its major environmental degradate, N-[(2-chlorophenol)methyl]-3-hydroxy-2, 2-dimethyl propanamide.

The Agency uses the Generic Estimated Environmental Concentration (GENEEC) or the Pesticide Root Zone/Exposure Analysis Modeling System (PRZM/EXAMS) to estimate pesticide concentrations in surface water and SCI-GROW, which predicts pesticide concentrations in groundwater. In general, EPA will use GENEEC (a tier 1 model) before using PRZM/EXAMS (a tier 2 model) for a screeninglevel assessment for surface water. The GENEEC model is a subset of the PRZM/EXAMS model that uses a specific highend runoff scenario for pesticides. GENEEC incorporates a farm pond scenario, while PRZM/EXAMS incorporate an index reservoir environment in place of the previous pond scenario. The PRZM/EXAMS model includes a percent crop area factor as an adjustment to account for the maximum percent crop coverage within a watershed or drainage basin.

None of these models include consideration of the impact processing (mixing, dilution, or treatment) of raw water for distribution as drinking water would likely have on the removal of pesticides from the source water. The primary use of these models by the Agency at this stage is to provide a coarse screen for sorting out pesticides for which it is highly unlikely that drinking water concentrations would ever exceed human health levels of concern.

Since the models used are considered to be screening tools in the risk assessment process, the Agency does not use estimated environmental concentrations (EECs) from these models to quantify drinking water exposure and risk as a %RfD or %PAD. Instead drinking water levels of comparison (DWLOCs) are calculated and used as a point of comparison against the model estimates of a pesticide's concentration in water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food, and from residential uses. Since DWLOCs address total aggregate exposure to clomazone they are further discussed in the aggregate risk sections below.

Based on the GENEEC and SCI-GROW2 models the estimated environmental concentrations (EECs) of both clomazone and N-[(2-chlorophenol)methyl]-3-hydroxy-2, 2-dimethyl propanamide for acute exposures are estimated to be 95 parts per billion (ppb) for surface water and 2.4 ppb for ground water. The EECs for chronic exposures are estimated to be 23 ppb for surface water and 2.4 ppb for ground water.

3. From non-dietary exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Clomazone is not registered for use on any sites that would result in residential exposure.

4. Cumulative exposure to substances with a common mechanism of toxicity . Section 408(b)(2)(D)(v) requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA does not have, at this time, available data to determine whether clomazone has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, clomazone does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that clomazone has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the final rule for Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997).

1. In general . FFDCA section 408 provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a margin of exposure (MOE) analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans.

2. Prenatal and postnatal sensitivity . There is no quantitative or qualitative evidence of increased susceptibility of rats or rabbit fetuses to in utero exposure in developmental studies. Although there was a suggestion of susceptibility in the rat developmental study based on the presence of delayed ossification in the fetuses, EPA concluded that the fetal effects were no more severe than the maternal effects because there is no dose response relationship for delayed ossification (i.e., absence of increased incidence with increase in dose, low fetal/litter incidences, delayed ossifications were not considered to be severe, and no visceral or skeletal malformations were seen).

3. Conclusion . There is a complete toxicity data base for clomazone and exposure data are complete or are estimated based on data that reasonably accounts for potential exposures. Further, there is no indication of quantitative or qualitative increased susceptibility of rats or rabbits to in utero and/or postnatal exposure. Therefore, EPA determined that the 10X safety factor to protect infants and children should be removed (reduced to 1X).

To estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses, the Agency calculates DWLOCs which are used as a point of comparison against the model estimates of a pesticide's concentration in water (EECs). DWLOC values are not regulatory standards for drinking water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. In calculating a DWLOC, the Agency determines how much of the acceptable exposure (i.e., the PAD) is available for exposure through drinking water [e.g., allowable chronic water exposure (mg/kg/day) = cPAD (average food + residential exposure)]. This allowable exposure through drinking water is used to calculate a DWLOC.

A DWLOC will vary depending on the toxic endpoint, drinking water consumption, and body weights. Default body weights and consumption values as used by the USEPA Office of Water are used to calculate DWLOCs: 2L/70 kg (adult male), 2L/60 kg (adult female), and 1L/10 kg (child). Default body weights and drinking water consumption values vary on an individual basis. This variation will be taken into account in more refined screeninglevel and quantitative drinking water exposure assessments. Different populations will have different DWLOCs. Generally, a DWLOC is calculated for each type of risk assessment used: acute, short-term, intermediate-term, chronic, and cancer.

When EECs for surface water and groundwater are less than the calculated DWLOCs, OPP concludes with reasonable certainty that exposures to the pesticide in drinking water (when considered along with other sources of exposure for which OPP has reliable data) would not result in unacceptable levels of aggregate human health risk at this time. Because OPP considers the aggregate risk resulting from multiple exposure pathways associated with a pesticide's uses, levels of comparison in drinking water may vary as those uses change. If new uses are added in the future, OPP will reassess the potential impacts of residues of the pesticide in drinking water as a part of the aggregate risk assessment process.

1. Acute risk . Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food to clomazone will occupy less than 1% of the aPAD for females 13 years and older. In addition, there is potential for acute dietary exposure to clomazone in drinking water. After calculating DWLOCs and comparing them to the EECs for surface and ground water, EPA does not expect the aggregate exposure to exceed 100% of the aPAD, as shown in the following Table 3:

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to clomazone from food will utilize less than 1% of the cPAD for the U.S. population, less than 1% of the cPAD for all infants (less than 1 year old) and less than 1% of the cPAD for children 1-6 years old. There are no residential uses for clomazone that result in chronic residential exposure to clomazone. In addition, there is potential for chronic dietary exposure to clomazone in drinking water. After calculating DWLOCs and comparing them to the EECs for surface and ground water, EPA does not expect the aggregate exposure to exceed 100% of the cPAD, as shown in the following Table 4:

3. Short-term risk . Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Clomazone is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern.

4. Intermediate-term risk . Intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Clomazone is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern.

5. Aggregate cancer risk for U.S. population . Based on the lack of carcinogenic response in rats and mice and the lack of mutagenic effects, and that there is no data in the literature or SAR information to indicate carcinogenic potential, no cancer risk is posed.

6. Determination of safety . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population and to infants and children from aggregate exposure to clomazone residues.

Adequate enforcement methodology (gas chromatography) is available to enforce the tolerance expression. A confirmatory procedure (GC/MSSIM) is available (Method I, PAM II).

The method may be requested from: Calvin Furlow, PRRIB, IRSD (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW, Washington, DC 20460; telephone number: (703) 305-5229; email address: furlow.calvin@epa.gov.

There are no Codex Alimentarius Commission (Codex) Maximum Residue Levels (MRLs), nor Canadian or Mexican limits for residues for clomazone in/on rice grain or rice straw.

Therefore, the tolerance is established for residues of clomazone, (2-(2-chlorophenyl)methyl-4,4-dimethyl-3-isoxazolidinone), in or on rice grain and rice straw at 0.02 ppm.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301095 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before February 20, 2001.

1. Filing the request . Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice. P>Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. C400, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.

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

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

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

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VI.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301095, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

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

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

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

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

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

2. In person . The Agency has established an official record for this action under docket control number OPP-301087. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

In the Federal Register of May 5, 1999 (64 FR 24153) (FRL-6072-7), EPA issued a notice pursuant to section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) announcing the filing of a pesticide petition (9F5046 and 9F5051) for tolerance by Novartis Crop Protection, P. O. Box 18300 Greensboro, NC 27419-8300. This notice included a summary of the petition prepared by Novartis Crop Protection, the registrant. There were no comments received in response to the notice of filing.

The petitions requested that 40 CFR part 180 be amended by establishing tolerances for the combined residues of the insecticide thiamethoxam, ([3-[(2-chloro-5-thiazolyl)methyl]tetrahydro-5-methyl- N -nitro-4 H -1,3,5-oxadiazin-4-imine) and its CGA-322704 metabolite ( N -(2-chloro-thiazol-5-ylmethyl)- -N ′-methyl N ′-nitro-guanidine) in or on the raw agricultural commodity rapeseed (canola), tuberous and corm vegetables crop subgroup, barley grain, sorghum grain, sorghum forage, sorghum stover, wheat grain, wheat hay, wheat straw, and milk at 0.02 ppm; barley straw at 0.03 ppm; barley hay at 0.05 ppm; undelinted cottonseed at 0.10 ppm; cucurbit vegetables crop group, and pome fruit crop group at 0.20 ppm; fruiting vegetables crop group at 0.25 ppm; wheat forage at 0.50 ppm; tomato paste at 0.80 ppm; head and stem Brassica vegetables crop subgroup at 1.00 ppm; cotton gin byproducts at 1.50 ppm; leafy vegetables crop group, and leafy Brassica greens crop subgroup at 2.00 parts per million (ppm). In addition, meat of cattle, goats, hogs, horses, and sheep at 0.02 ppm and meat byproducts of cattle, goats, hogs, horses, and sheep at 0.02 ppm.

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

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).

Consistent with section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2), for tolerances for the combined residues of thiamethoxam and its metabolite in or on barley grain at 0.02 ppm; barley hay at 0.05 ppm; barley straw at 0.03 ppm; undelinted cottonseed at 0.10 ppm; cotton gin byproducts at 1.5 ppm; sorghum forage at 0.02 ppm; sorghum grain at 0.02 ppm; sorghum stover at 0.02 ppm; wheat forage at 0.50 ppm; wheat grain at 0.02 ppm; wheat hay at 0.02 ppm; wheat straw at 0.02 ppm; milk at 0.02 ppm; meat of cattle, goats, hogs, horses, and sheep at 0.02 ppm; meat byproducts of cattle, goats, hogs, horses, and sheep at 0.02 ppm respectively. EPA's assessment of exposures and risks associated with establishing the tolerance follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by thiamethoxam are discussed in the following Table 1 as well as the no observed adverse effect level (NOAEL) and the lowest observed adverse effect level (LOAEL) from the toxicity studies reviewed.

The dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor (UF) is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. An UF of 100 is routinely used, 10X to account for interspecies differences and 10X for intraspecies differences.

For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). Where an additional safety factor is retained due to concerns unique to the FQPA, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute or chronic Population Adjusted Dose (aPAD or cPAD) is a modification of the RfD to accommodate this type of FQPA Safety Factor.

For non-dietary risk assessments (other than cancer) the UF is used to determine the LOC. For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure (MOE) = NOAEL/exposure) is calculated and compared to the LOC.

The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify carcinogenic risk. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk. A Q* is calculated and used to estimate risk which represents a probability of occurrence of additional cancer cases (e.g., risk is expressed as 1 x 10 -6 or one in a million). Under certain specific circumstances, MOE calculations will be used for the carcinogenic risk assessment. In this non-linear approach, a “point of departure” is identified below which carcinogenic effects are not expected. The point of departure is typically a NOAEL based on an endpoint related to cancer effects though it may be a different value derived from the dose response curve. To estimate risk, a ratio of the point of departure to exposure (MOE cancer = point of departure/exposures) is calculated. A summary of the toxicological endpoints for thiamethoxam used for human risk assessment is shown in the following Table 2:

1. Dietary exposure from food and feed uses . The dietary exposure is based on the combined residues of thiamethoxam and its metabolite in or on the following raw agricultural commodities: barley, canola, cotton, sorghum, wheat, milk, and the meat and meat byproducts of cattle, goats, hogs, horses, and sheep. Risk assessments were conducted by EPA to assess dietary exposures from thiamethoxam and its metabolite in food as follows:

i. Acute exposure . Acute dietary risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a one day or single exposure. The Dietary Exposure Evaluation Model (DEEM) analysis evaluated the individual food consumption as reported by respondents in the USDA 1989-1992 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the acute exposure assessments: tolerence level residues and 100% crop treated.

ii. Chronic exposure . In conducting this chronic dietary risk assessment the Dietary Exposure Evaluation Model (DEEM) analysis evaluated the individual food consumption as reported by respondents in the USDA 1989-1992 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: percent crop treated (based on projected market shares) and anticipated residues (Tier 3).

iii. Cancer . The dietary exposure for determining cancer risk is based on the chronic exposure explained in the previous paragraph using the same assumptions.

Section 408(b)(2)(E) authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide chemicals that have been measured in food. If EPA relies on such information, EPA must require that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. Following the initial data submission, EPA is authorized to require similar data on a time frame it deems appropriate. As required by section 408(b)(2)(E), EPA will issue a data call-in for information relating to anticipated residues to be submitted no later than 5 years from the date of issuance of this tolerance.

Section 408(b)(2)(F) states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if the Agency can make the following findings: Condition 1, that the data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain such pesticide residue; Condition 2, that the exposure estimate does not underestimate exposure for any significant subpopulation group; and Condition 3, if data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of percent crop treated (PCT) as required by section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

The Agency used percent crop treated (PCT) information as follows in Table 3.

The Agency used information provided by the registrant and Agency to determine percent crop treated based on projected percent market share information. The Agency believes that the procedures used were the best available, because thiamethoxam is a new chemical and has never been used. As to Conditions 2 and 3, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and regional populations.

2. Dietary exposure from drinking water . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for thiamethoxam in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the physical characteristics of thiamethoxam.

The Agency uses the Generic Estimated Environmental Concentration (GENEEC) or the Pesticide Root Zone/Exposure Analysis Modeling System (PRZM/EXAMS) to estimate pesticide concentrations in surface water and SCI-GROW, which predicts pesticide concentrations in groundwater. In general, EPA will use GENEEC (a tier 1 model) before using PRZM/EXAMS (a tier 2 model) for a screening-level assessment for surface water. The GENEEC model is a subset of the PRZM/EXAMS model that uses a specific high-end runoff scenario for pesticides. GENEEC incorporates a farm pond scenario, while PRZM/EXAMS incorporate an index reservoir environment in place of the previous pond scenario. The PRZM/EXAMS model includes a percent crop area factor as an adjustment to account for the maximum percent crop coverage within a watershed or drainage basin.

None of these models include consideration of the impact processing (mixing, dilution, or treatment) of raw water for distribution as drinking water would likely have on the removal of pesticides from the source water. The primary use of these models by the Agency at this stage is to provide a coarse screen for sorting out pesticides for which it is highly unlikely that drinking water concentrations would ever exceed human health levels of concern.

Since the models used are considered to be screening tools in the risk assessment process, the Agency does not use estimated environmental concentrations (EECs) from these models to quantify drinking water exposure and risk as a %RfD or %PAD. Instead drinking water levels of comparison (DWLOCs) are calculated and used as a point of comparison against the model estimates of a pesticide's concentration in water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food, and from residential uses. Since DWLOCs address total aggregate exposure to thiamethoxam they are further discussed in the aggregate risk sections below.

Based on the PRZM/EXAMS and SCI-GROW models the estimated environmental concentrations (EECs) of thiamethoxam for acute exposures are estimated to be 8.0 parts per billion (ppb) for surface water and 5.0 ppb for ground water. The EECs for chronic exposures are estimated to be 0.6 ppb for surface water and 5.0 ppb for ground water. These levels are extremely conservative, because they are based on foliar and seed treatment uses. These levels are anticipated to be much lower based on the seed treatment use alone.

3. From non-dietary exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Thiamethoxam is not registered for use on any sites that would result in residential exposure.

4. Cumulative exposure to substances with a common mechanism of toxicity . Section 408(b)(2)(D)(v) requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA does not have, at this time, available data to determine whether thiamethoxam has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, thiamethoxam does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that thiamethoxam has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the final rule for Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997).

1. Safety factor for infants and children —i. In general . FFDCA section 408 provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a margin of exposure (MOE) analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans.

ii. Prenatal and postnatal sensitivity . There is not quantitative or qualitative evidence of increased susceptibility of rat or rabbit fetus to in utero exposure based on the fact that the developmental NOAELs are either higher than or equal to the maternal NOAELs. The reproductive studies indicate effects in males in the form of increased incidence and severity of testicular tubular atrophy. These data are considered to be evidence of increased quantitative susceptibility for male pups when compared to the parents.

iii. Conclusion . Base on: (1) Effects endocrine organs observed across species (2) the significant decrease in alanine amino transferadse levels in the companion animal studies and in the dog studies (3) the mode of action of this chemical in insects (interferes with the nicotinic acetyl choline receptors of the insect's nervous system) thus a developmental neurotoxicity study is required); (4) the transient clinical signs of neurotoxicity in several studies across the species; and (5) the suggestive evidence of increased quantitative susceptibility in the rat reproduction study, the Agency is retaining the FQPA factor which is 10X.

To estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses, the Agency calculates DWLOCs which are used as a point of comparison against the model estimates of a pesticide's concentration in water (EECs). DWLOC values are not regulatory standards for drinking water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. In calculating a DWLOC, the Agency determines how much of the acceptable exposure (i.e., the PAD) is available for exposure through drinking water e.g., allowable chronic water exposure (mg/kg/day) = cPAD - (average food + residential exposure). This allowable exposure through drinking water is used to calculate a DWLOC.

A DWLOC will vary depending on the toxic endpoint, drinking water consumption, and body weights. Default body weights and consumption values as used by the USEPA Office of Water are used to calculate DWLOCs: 2L/70 kg (adult male), 2L/60 kg (adult female), and 1L/10 kg (child). Default body weights and drinking water consumption values vary on an individual basis. This variation will be taken into account in more refined screening-level and quantitative drinking water exposure assessments. Different populations will have different DWLOCs. Generally, a DWLOC is calculated for each type of risk assessment used: acute, short-term, intermediate-term, chronic, and cancer.

When EECs for surface water and groundwater are less than the calculated DWLOCs, OPP concludes with reasonable certainty that exposures to the pesticide in drinking water (when considered along with other sources of exposure for which OPP has reliable data) would not result in unacceptable levels of aggregate human health risk at this time. Because OPP considers the aggregate risk resulting from multiple exposure pathways associated with a pesticide's uses, levels of comparison in drinking water may vary as those uses change. If new uses are added in the future, OPP will reassess the potential impacts of residues of the pesticide in drinking water as a part of the aggregate risk assessment process.

1. Acute risk . Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food to thiamethoxam will occupy 1% of the aPAD for the U.S. population, < 1 of the aPAD for females 13 years and older, 1% of the aPAD for all infants < 1 year and 2% of the aPAD for children 1-6 years. In addition, there is potential for acute dietary exposure to thiamethoxam in drinking water. The surface water EEC is 8.0 μg/L and the ground water EEC is 5.0 μg/L. The estimated EEC levels are very conservative, because they are based on both foliar uses and seed treatment applications. Since the surface water value is greater than the ground water value, the surface water value will be used for comparison purposes and will protect for any concerns for ground water concentrations. After calculating DWLOCs and comparing them to the EECs for surface water, EPA does not expect the aggregate exposure to exceed 100% of the aPAD, as shown in the following Table 4.

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to thiamethoxam from food will utilize < 1% of the cPAD for the U.S. population, < 1% of the cPAD for all infants < 1 year and 1% of the cPAD for children 1-6 years. Proposed residential uses are not being addressed in this risk assessment. In addition to chronic dietary exposure, there is potential for chronic dietary exposure to thiamethoxam in drinking water. The surface water EEC is 0.6 μg/L and the ground water EEC is 5.0 μg/L. The estimated EEC levels are very conservative, because they are based on both foliar uses and seed treatment applications. Since the ground water value is greater than the surface water value, the ground water value will be used for comparison purposes and will protect for any concerns for surface water concentrations. After calculating the DWLOCs and comparing them to the EECs for ground water, EPA does not expect the aggregate exposure to exceed 100% of the cPAD as shown in the following Table 5.

3. Short-term risk . Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Thiamethoxam is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern.

4. Intermediate-term risk . Intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Thiamethoxam is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern.

5. Aggregate cancer risk for U.S. population . The cancer risk estimate associated with the use of thiamethoxam as a seed treatment on barley, canola, cotton, sorghum and wheat is 4.1 × 10 -8 for the U.S. population based on an exposure estimate of 0.000001 mg/kg/day. The above cancer risk estimates show that the cancer risk is negiligible. Based on modeling estimates, exposure through drinking water will not significantly increase the dietary risk in food.

6. Determination of safety . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to thiamethoxam residues.

Adequate enforcement methodology (HPLC/UV or MS) is available to enforce the tolerance expression. The method may be requested from: Calvin Furlow, PRRIB, IRSD (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW, Washington, DC 20460; telephone number: (703) 305-5229; e-mail address: furlow.calvin@epa.gov.

There are no international residue limits for thiamethoxam.

Developmental neurotoxicity (Guideline #870.6300) and soil residue dissipation (Guideline #875.2200) studies are required as conditions of registration.

Therefore, the tolerance is established for combined residues of thiamethoxam ([3-[(2-chloro-5-thiazolyl)methyl]tetrahydro-5-methyl- N -nitro-4 H -1,3,5-oxadiazin-4-imine) and its metabolite ( N -(2-chloro-thiazol-5-ylmethyl) -N ′-methyl- N ′-nitro-guanidine) in or on barley grain at 0.02 ppm; barley hay at 0.05 ppm; barley straw at 0.03 ppm; undelinted cottonseed at 0.10 ppm; cotton gin byproducts at 1.5 ppm; sorghum forage at 0.02 ppm; sorghum grain at 0.02 ppm; sorghum stover at 0.02 ppm; wheat forage at 0.50 ppm; wheat grain at 0.02 ppm; wheat hay at 0.02 ppm; wheat straw at 0.02 ppm; milk at 0.02 ppm; meat of cattle, goats, hogs, horses, and sheep at 0.02 ppm; meat byproducts of cattle, goats, hogs, horses, and sheep at 0.02 ppm respectively.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301087 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before February 20, 2001.

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

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

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

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

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

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VI.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301087, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

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

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

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

The Federal Emergency Management Agency makes final determinations listed below of base flood elevations and modified base flood elevations for each community listed. The proposed base flood elevations and proposed modified base flood elevations were published in newspapers of local circulation and an opportunity for the community or individuals to appeal the proposed determinations to or through the community was provided for a period of ninety (90) days. The proposed base flood elevations and proposed modified base flood elevations were also published in the Federal Register .

This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67.

FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.

The base flood elevations and modified base flood elevations are made final in the communities listed below. Elevations at selected locations in each community are shown.

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

Regulatory Flexibility Act. The Associate Director for Mitigation certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because final or modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

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

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This proposed rule meets the applicable standards of section 2(b)(2) of Executive Order 12778.

The Federal Emergency Management Agency makes final determinations listed below of base flood elevations and modified base flood elevations for each community listed. The proposed base flood elevations and proposed modified base flood elevations were published in newspapers of local circulation and an opportunity for the community or individuals to appeal the proposed determinations to or through the community was provided for a period of ninety (90) days. The proposed base flood elevations and proposed modified base flood elevations were also published in the Federal Register .

This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67.

FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.

The base flood elevations and modified base flood elevations are made final in the communities listed below. Elevations at selected locations in each community are shown.

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

Regulatory Flexibility Act. The Associate Director for Mitigation certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because final or modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

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

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This proposed rule meets the applicable standards of section 2(b)(2) of Executive Order 12778.

This is a summary of the Commission's Policy Statement, FCC 00-401, adopted November 9, 2000, and released December 1, 2000. The full text of this Commission decision is available on the Commission's Internet site, at www.fcc.gov. It is also available for inspection and copying during normal business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street, SW., Washington, DC, and also may be purchased from the Commission's duplication contractor, International Transcription Service, (202) 857-3800, 1231 20th Street, NW. Washington, DC 20036.

The Commission adopted a Policy Statement setting forth the Commission's plans for facilitating secondary markets for radio spectrum that will allow and encourage licensees to make all or portions of their frequencies and/or service areas available to other entities and uses. The Commission envisions that secondary markets can flourish by facilitating arrangements such as leasing, franchising, and joint operating agreements, and improving the conditions for transferability of spectrum through, for example, partitioning or disaggregation. The Policy Statement outlines in general terms a series of initiatives that the Commission intends to undertake to promote secondary markets for spectrum. The Commission's current policies concerning transfer, assignment, disaggregation and partitioning of licenses allow certain licensees to market portions of their spectrum to others. In this new effort, the Commission seeks to significantly expand and enhance the existing secondary markets for spectrum and radio communications services to permit spectrum to flow more freely among users and uses in response to economic demand, to the extent consistent with our other statutory mandates and public interest objectives.

This is a synopsis of the Commission's Report and Order, MM Docket No. 98-29, adopted November 22, 2000, and released December 1, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036.

Several of the background documents for this interim final rule and the take reduction planning process can be downloaded from the ALWTRP web site at http://www.nero.nmfs.gov/whaletrp/. Copies of the most recent marine mammal Stock Assessment Reports may be obtained by writing to Richard Merrick, NMFS, 166 Water St., Woods Hole, MA 02543 or can be downloaded from the Internet at http://www.nmfs.noaa.gov/prot_res/mammals/sa_rep/sar.html.

The ALWTRP was developed pursuant to the Marine Mammal Protection Act (MMPA) to reduce the level of serious injury/mortality of all whales in four East Coast lobster trap and finfish gillnet fisheries. The background for the take reduction planning process and development of the ALWTRP is set out in the preamble to the proposed (62 FR 16519, April 7, 1997), interim final (62 FR 39157, July 22, 1997), and final (64 FR 7529, February 16, 1999) rules implementing the ALWTRP. Additional information is available in the report from the ALWTRT after its initial series of meetings in 1996 and 1997. Copies of these documents and supporting Environmental Assessments are available from the NMFS/Northeast Region contact in the ADDRESSES section of this document.

Since the ALWTRP final rule was published in February 1999, entanglements of whales have continued to occur. The four whale species protected by the ALWTRP are the northern right whale, the humpback whale, and the fin whale which are listed as endangered pursuant to the Endangered Species Act (ESA), and the minke whale. Because of the critical status of the right whale population, there is an urgent need to reduce entanglement. The impacts of the gear modifications required by this rule (buoy line weak links, net panel weak links with anchoring systems, restrictions on number of buoy lines, and gear marking) were analyzed in the 1997 proposed and 1999 final rules and were available for public comment. In addition, through the ALWTRT process, representatives of all stakeholder groups directly affected by the ALWTRP participated in development of the consensus recommendations implemented by this interim final rule. Because of the continued entanglements of whales, the Assistant Administrator for Fisheries, NOAA (AA) has determined that it would be contrary to the public interest to delay this interim final rule to provide prior notice and an opportunity for public comments. However, rather than issuing a final rule the AA is issuing an interim final rule to allow public comments to be received and considered before this rule is made final. The final rule will be incorporating the most current gear technology that has been tested and confirmed to be valid for reducing whale entanglements.

Section 118 of the MMPA requires NMFS to monitor the incidental take of U.S. marine mammal stocks. Through the monitoring process, NMFS obtains data on annual serious injury/mortality of these stocks which is then analyzed and prepared in accordance with the Stock Assessment Report (SAR) process established in Section 117 of the MMPA. Data presented in the SARs are then used for establishing take reduction teams, preparing take reduction plans, and monitoring the progress of those plans. A copy of the most recent SAR can be obtained from the mail or web site contacts listed in the ADDRESSES section.

NMFS prepared a summary of the 1999 entanglement events for the ALWTRT’s February 2000 meeting. The most recent summary of the 1999 events is available on the ALWTRP web site listed in the ADDRESSES section. A summary of the 2000 events will be provided to the ALWTRT at its next meeting. Information on some of the 1999 and 2000 events is also available on the web page of NMFS' whale disentanglement contractor, the Center for Coastal Studies, at http://www.coastalstudies.org/.

In 1999, six confirmed right whale entanglements, nine confirmed humpback whale entanglements, three confirmed fin whale entanglements, and four confirmed minke whale entanglements were reported by the Center for Coastal Studies. NMFS has determined that one of the right whale entanglements resulted in mortality which is attributable to gillnet gear regulated by the ALWTRP; this entanglement is described in greater detail here.

As of September 8, 2000, six confirmed right whale entanglements, 11 confirmed humpback whale entanglements, zero confirmed fin whale entanglements, and five confirmed minke whale entanglements have been reported for 2000.

NMFS manages the U.S. groundfish fisheries of the Gulf of Alaska (GOA) and the Bering Sea and Aleutian Islands Management Area (BSAI) in the Exclusive Economic Zone under the FMPs. The North Pacific Fishery Management Council (Council) prepared the FMPs pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations implementing the FMPs appear at 50 CFR part 679. General regulations that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600.

The Council adopted and NMFS implemented the Interim Observer Program in 1996, which superseded the North Pacific Fisheries Research Plan (Research Plan). The regulations implementing the Interim Program were extended through 1997 (61 FR 56425, November 1, 1996), again through 1998 (62 FR 67755, December 30, 1997), and again through 2000 (63 FR 69024, December 15, 1998). The Interim Observer Program provides the framework for the collection of data by observers to obtain information necessary for the conservation and management of the groundfish fisheries managed under the FMPs. Further, it authorizes mandatory observer coverage requirements for vessels and shoreside processors and establishes vessel, processor and contractor responsibilities relating to the observer program. NMFS intends that by 2003 a long-term program will be developed and implemented that addresses several current concerns. These include data integrity, observer compensation, working conditions for observers, and equitable distribution of observer costs.

NMFS is working with the Council and the Council’s Observer Advisory Committee (OAC) to address these concerns and to develop new options for an alternative infrastructure for an Observer Program. A new infrastructure would be expected to ensure the continued collection of quality observer data and address observer coverage cost distribution issues through a fee system or alternate funding mechanism.

The development of a new infrastructure will require extensive time and coordination among NMFS staff, the OAC, and representatives of the industry sectors and observer interests. NMFS and the Council intend to implement a replacement structure for the program prior to the expiration of the Interim Observer Program on December 31, 2002.

A description of the regulatory provisions of the Interim Groundfish Observer Program was provided in the proposed and final rules implementing this program (61 FR 40380, August 2, 1996; 61 FR 56425, November 1, 1996, respectively) as well as the proposed and final rules extending this program through 1998 and again through 2000 (62 FR 49198, September 19, 1997; 62 FR 67755, December 30, 1997; 63 FR 47462, September 8, 1998; 63 FR 69024, December 15, 1998, respectively).

A proposed rule to extend the Interim Observer Program through 2002 was published in the Federal Register on November 3, 2000 (65 FR 66223), for a 17-day public comment and review period that ended on November 20, 2000. No written comments were received. This final rule does not change the existing regulations, except to extend certification of observer contractors who are currently certified by NMFS under the terms and conditions set forth in the regulations at § 679.50(i).

No changes are made in this final rule from the proposed rule published in the Federal Register (65 FR 66223 November 3, 2000).

The following information satisfies the Small Business Regulatory Enforcement Act of 1996, which requires a plain language guide to compliance with this final rule by affected small entities.

Observer coverage requirements for vessels over 60 ft (18.3 m) length overall (LOA) and up, other than motherships, that fish for groundfish in the BSAI or the GOA are applicable each calendar quarter and are specific to vessel type and length. Coverage requirements also vary according to the gear used and the directed fishery in which the vessel participates. Vessels under 60 ft (18.3 m) LOA are exempt from observer coverage under this final rule.