A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 2000-21-12, amendment 39-11944 (65 FR 63795, October 25, 2000), which is applicable to all Fokker Model F.28 Mark 0100 series airplanes, was published in the Federal Register on August 3, 2001 (66 FR 40646). The action proposed to require modification or replacement of the anti-skid control boxes with new, improved units, which render the skid control boxes even less susceptible to electromagnetic interference during power-up and power-down transients.

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.

The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

There are approximately 129 Model F.28 Mark 0100 series airplanes of U.S. registry that will be affected by this AD.

The modification of an existing anti-skid control box which is one means of compliance with this AD will take approximately 1 work hour per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts will cost approximately $5,628 per airplane. Based on these figures, the cost impact of this action, if accomplished, would be $5,688 per airplane.

In lieu of the modification of the existing anti-skid control box, this AD provides for replacement of an existing anti-skid control box with a new, improved anti-skid control box. No information is available on the cost of such replacement.

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

The CRA, 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 that includes a copy of the rule to each House of the Congress and to the Comptroller General of the United States. The effective date of the final rule on Nondiscrimination on the Basis of Disability in Air Travel published at 66 FR 22107, is corrected from June 4, 2001 to November 9, 2001 in order to comply with the CRA.

The implementation dates in the rule remain the same. While the Department acknowledges that it should have sent a copy of the final rule to Congress and the Comptroller General prior to the effective date of the final rule, the Department does not believe that it is necessary or advisable to revise the implementaiton dates in the rule. The public has not been unduly affected by this error, and revising the implementation dates on a rule that was published in May would cause confusion. Individuals who can demonstrate that the Department not submitting the rule to Congress and the Comptroller General unduly burdened them should provide comments to the Department.

The Administrative Procedure Act provides that an agency may dispense with prior notice and opportunity for comment when the agency for good cause finds that such procedures are impracticable, unnecessary or contrary to the public interest, 5 U.S.C. 553(b)(3)(B). The Office of the Secretary (OST) has determined that prior notice and comment are unnecessary, because OST is merely correcting the effective date of the promulgated rule to be consistent with the congressional review requirements of the CRA as a matter of law and has no discretion in this matter. Thus, notice and public procedure are unnecessary. The agency finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).

Regulatory Information

On July 12, 2001, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulations; Youngs Bay and Lewis and Clark River, Oregon, in the Federal Register (66 FR 36529). We received no comments in response to the notice of proposed rulemaking. No public hearing was requested and none was held.

The current operating regulations for these drawbridges at 33 CFR 117.899 requires that a half-hour notice for openings must be provided from 5 a.m. to 9 p.m. daily. This rule reduces the number of daily hours during which half-hour notice must be given and increases the period in which four-hour notice must be given. The number of requests for openings has decreased in recent years and specifically for those hours affected by this rule. This rule enables the bridge owner to reduce staffing for the half-hour notice periods and to apply these savings to maintenance.

The Coast Guard received no comments. No changes are made to this final rule.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs an benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). This conclusion is based on the fact that the bridges will open at all times for vessel traffic if appropriate notice is given.

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

The Coast Guard certifies under 5 U.S.C. 605(b)that this rule will not have a significant economic impact on a substantial number of small entities. This conclusion is based on the fact that the bridges will open at any time if appropriate notice is given.

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

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

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

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

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have substantial direct effect on one or more Indian tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

As authorized by 5 U.S.C. 553, we did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. This rulemaking is urgently required to facilitate emergency services responding to terrorist attacks recently perpetrated upon the World Trade Center in Manhattan, NY, and to prevent future terrorist strikes within and adjacent to the Port of New York/New Jersey. The delay inherent in the NPRM process is contrary to the public interest insofar as it may impair urgent life-saving efforts by emergency personnel or render individuals, vessels and facilities within the Port vulnerable to subversive activity, sabotage or terrorist attack.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The measures contemplated by the rule are intended to facilitate ongoing, emergency response efforts and prevent future terrorist attack. Immediate action is needed to accomplish these objectives. Any delay in the effective date of this rule is impracticable and contrary to the public interest.

Although the Coast Guard has good cause to implement this regulation without engaging in the Notice of Proposed Rulemaking process, we want to afford the maritime community the opportunity to participate in this rulemaking by submitting comments and related material regarding the size, scope and duration of the Regulated Navigation Areas, safety zones and security zones in order to minimize unnecessary burdens on waterway users. If you do so, please include your name and address, identify the docket number for this rulemaking [CGD01-01-181], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this temporary final rule in view of them.

Terrorist attacks against the World Trade Center in Manhattan, New York on September 11, 2001 inflicted catastrophic human casualties and property damage. Federal, state and local personnel are engaged in ongoing efforts to rescue survivors and secure other potential terrorist targets from attack. The Coast Guard has established regulated navigation areas and safety and security zones within defined areas of water in order to facilitate emergency response and rescue activities, protect human life, and safeguard vessels and waterfront facilities from sabotage or terrorist acts. If a change in conditions during the effective period of this rule warrants lifting or mitigating any restriction imposed in the rule, the decision to modify or waive enforcement of that restriction will be communicated by broadcast notice to mariners. These regulations are issued under authority contained in 50 U.S.C. 191, 33 U.S.C. 1221, 1223, 1225 and 1226.

The rule establishes a regulated navigation area (RNA) that includes portions of the Hudson River, as well as New York Harbor Upper and Lower Bays, Sandy Hook Bay, Raritan Bay, Newark Bay, Arthur Kill and Kill Van Kull. Deep draft vessels are required to meet certain conditions before entering the RNA. The conditions are imposed in order to protect the subject vessels from subversive or terrorists acts and to prevent their use as platforms for terrorist acts against individuals, other vessels, waterfront facilities or adjoining population centers.

In addition, the rule restricts passenger ferry services to specific points on Manhattan Island at which they may land to embark or disembark passengers. This restriction is intended to prevent undue congestion in areas where emergency response and rescue vessels are operating and to limit the introduction of pedestrian traffic in restricted, hazardous portions of lower Manhattan.

Any vessel authorized by its Certificate of Inspection to carry more than 49 passengers will be required to submit a Vessel Security Plan before being allowed to operate within the RNA. While operating within the RNA, passenger vessels authorized to carry more than 49 passengers must employ methods to secure the vessel from hijacking. These security requirements will help to ensure that passenger vessels operating in close proximity to population centers and waterfront facilities cannot be commandeered for use by terrorists or saboteurs.

Recreational vessels are prohibited from operating within the RNA. This restriction is necessary in order to provide security for waterfront facilities susceptible to sabotage or terrorist acts, alleviate undue vessel traffic congestion and prevent interference with law enforcement and emergency response vessels. If circumstances permit the resumption of some recreational vessel traffic, the Captain of the Port will broadcast the terms and conditions under which recreational vessels may resume operation within the RNA.

Included within the regulated navigation area is a special sector, designated “Area A”, which includes all waters within the RNA consisting of the Hudson River south of the Holland Tunnel ventilators; thence west of line drawn from the Governor's Island ventilators to the western end of the Brooklyn Bridge; thence from the southwest corner of Pier Lima on Governor's Island to Liberty Island Gong Buoy 29 (LLNR 34995) thence to the southeast corner of Pier 7 at Liberty State Park. Only emergency response vessels directly assisting with the disaster in lower Manhattan may operate in Area A. Commercial vessels assisting with the disaster recovery efforts in Area A must contact Vessel Traffic Services New York (VTSNY) prior to entering this emergency response zone. All vessels operating within Area A must do so at no wake speeds, or 10 knots, whichever is less. This restriction is imposed in order to prevent interference with emergency response personnel and equipment operating on and adjacent to the affected shoreline.

Violations of the regulated navigation areas are punishable by civil penalties (not to exceed $25,000 per violation), criminal penalties (imprisonment for not more than 6 years and a fine of not more than $250,000) and in rem liability against the offending vessel.

The rule also establishes six distinct safety and security zones. Four of the zones are established by reference to fixed boundaries and are intended to protect individuals, other vessels and waterfront facilities from subversive or terrorist acts. Two of the zones are defined by reference to a fixed radius around vessels capable of movement throughout the Port of New York/New Jersey. These zones are intended principally to protect the vessels themselves from subversive or terrorist acts.

No person or vessel may enter or remain in the prescribed safety and security zones at any time without the permission of the Captain of the Port. Each person or vessel in a safety and security zone shall obey any direction or order of the Captain of the Port. The Captain of the Port may take possession and control of any vessel in a safety and security zone and/or remove any person, vessel, article or thing from a security zone. No person may board, take or place any article or thing on board any vessel or waterfront facility in a security zone without permission of the Captain of the Port.

Any violation of any safety or security zone described herein, is punishable by, among others, civil penalties (not to exceed $25,000 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment for not more than 6 years and a fine of not more than $250,000), in rem liability against the offending vessel, and license sanctions.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). The sizes of the zones are the minimum necessary to provide adequate protection for the public, vessels, and vessel crews. Any vessels seeking entry into or movement within the safety and security zones must request permission from the Captain of the Port or his authorized patrol representative. Any hardships experienced by persons or vessels are considered minimal compared to the national interest in protecting the public, vessels, and vessel crews from the further devastating consequences of the aforementioned acts of terrorism, and from potential future sabotage or other subversive acts, accidents, or other causes of a similar nature.

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

For the reasons addressed under the Regulatory Evaluation above, the Coast Guard expects the impact of this regulation to be minimal and certifies under section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) that this final rule will not have a significant economic impact on a substantial number of small entities. Maritime advisories will be initiated by normal methods and means and will be widely available to users of the area.

Under subsection 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 [Pub. L. 104-121], the Coast Guard wants to assist small entities in understanding this final rule so that they can better evaluate its effects on them and participate in the rulemaking. If your small business or organization would be affected by this final rule and you have questions concerning its provisions or options for compliance, please call LT Kathleen Garza, telephone (718) 556-4407. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph 34(g) of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

(c) Effective dates. This section is effective from September 28, 2001 through April 8, 2002.

(d) Regulations. (1) Only emergency response vessels directly assisting with the disaster in lower Manhattan may operate in the sector designated Area A. Commercial vessels assisting with the disaster recovery efforts in Area A must contact Vessel Traffic Services New York (VTSNY) prior to entering the area. Vessels transiting Area A must do so at no wake speed, or speeds not to exceed 10 knots, whichever is less.

(2) Passenger ferry services operating within the RNA are not authorized to use ferry slips south of 14th Street in Manhattan, without receiving express authorization from VTSNY.

(3) Any passenger ferry operating within the RNA is required to contact VTSNY before getting underway to ensure compliance with the foregoing requirements in this section and to inform VTSNY of the vessel's destination.

(4) No vessel whose Certificate of Inspection authorizes it to carry more than 49 passengers may enter, transit or operate within the RNA until Coast Guard Activities New York, Inspection Division, has reviewed and approved that vessel's Security Plan. An approved Vessel Security Plan submitted in accordance with 33 CFR 120 will satisfy the requirements of this section. A Vessel Security Plan shall, at a minimum:

(i) Describe all measures taken to ensure the physical security of the vessel and the security, safety and identity of persons on board the vessel;

(ii) Identify those areas and spaces on the vessel that passengers are restricted or prohibited from entering or accessing; and

(iii) Establish a procedure to address and report terrorist or hijacking threats.

(5) Each passenger vessel whose Certificate of Inspection authorizes it to carry more than 49 passengers shall keep its pilot house door closed and locked while operating within the RNA to ensure maximum protection of the passengers and crew.

(6) All deep draft vessels operating within the RNA must enter the Port via Ambrose or Sandy Hook Channels. Before entering the RNA, the following conditions must be met:

(i) The vessel must undergo a port security inspection by the U. S. Coast Guard;

(ii) The vessel's agent must confirm that the vessel's berth is ready to receive the ship;

(iii) The vessel must embark a pilot; and

(iv) The vessel must be escorted by two tugs when transiting the harbor inside of one nautical mile (1 NM) south of the Verrazano Narrows Bridge or the Outerbridge Crossing.

(7) Recreational vessels are prohibited from operating within the RNA. If circumstances permit the resumption of some recreational vessel traffic during the effective period of this rule, the Captain of the Port will broadcast the terms and conditions under which recreational vessels may operate within the RNA.

On June 19, 2001 we published a notice of proposed rulemaking (NPRM) in the Federal Register entitled Regulated Navigation Area; Savannah River, Georgia (66 FR 32915). The Coast Guard received twenty-two letters commenting on the proposed rule. No public hearing was requested, and none was held. Due to the substantial amendments to the proposed rule as a result of these comments, additional research, and simulations conducted by the U.S. Coast Guard, this temporary final rule is established while a supplemental notice of proposed rulemaking is issued and comments received.

This temporary rule is needed while we allow the public to comment on our modified proposed rule because of the imminent start up of the Southern LNG Elba Island facility and arrival of LNG tankships.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM. On June 19, 2001 we published a notice of proposed rulemaking (NPRM) in the Federal Register entitled Regulated Navigation Area; Savannah River, Georgia (66 FR 32915). This NPRM proposed the general regulatory scheme contained in this temporary rule. Due in part to the comments we received, we will publish a supplemental notice of proposed rulemaking (SNRPM) and propose another final rule, offering the public the opportunity to comment on our revised proposal. However, immediate action is necessary to protect the public from the dangers associated with transporting LNG.

For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

The port of Savannah will begin receiving LNG tankships at the Southern LNG Elba Island facility in early October 2001. This temporary rule is necessary to protect the safety of life and property on the navigable waters from hazards associated with LNG activities.

The Savannah River has a narrow and restricted channel with many bends. The LNG facility is located at one of these bends on Elba Island. The LNG tankship berth is located adjacent to and parallel with the toe of the shipping channel. Because of these factors, the hazardous nature of LNG and the substantial volume of deep draft vessel traffic in Savannah (approximately 5000 annual transits), the risk of collision or allision involving an LNG tankship must be addressed.

The Elba Island LNG facility has been struck by passing vessels twice in the past 20 years. In both instances the facility was inactive, however, damage to both the facility and vessels was extensive. The potential consequences from this type of allision would be significantly more severe with an LNG tankship moored at the Elba Island dock. This temporary rule is needed to prevent incidents involving a LNG tankship in transit or while moored at the facility.

The Coast Guard received twenty-two comment letters addressing the notice of proposed rulemaking. The Coast Guard has incorporated some of the comments and made content changes and other administrative and numbering corrections in this temporary final rule. The specific section of the proposed rule that each comment or group of comments addresses is below in bold text. The Coast Guard's response to the comments immediately follows the bolded text.

Two comments concerned the proposed construction of the Jasper County waterfront facility in the vicinity of the LNG terminal. While we acknowledge the possibility of this facility's construction, no regulatory approvals have been granted for the proposed Jasper County facility and immediate action is needed to address the current situation. We have not modified the rule in light of these two comments.

The Coast Guard received four comments expressing concern over potential delays during a LNG tankship arrival and departure. The Coast Guard believes that any potential delays associated with LNG tankship movements will be minimized through coordination during pre-transit conferences conducted by the Captain of the Port (COTP) prior to a LNG tankship's arrival and departure and by the pre-positioning of additional towing vessels by the LNG facility in support of this RNA.

Two respondents provided specific comments concerning the three-mile visibility restriction. The comments noted the proposed rule would impose visibility-based restrictions on LNG tankships that may be considered different from those applicable to similar size vessels. The Coast Guard has carefully considered these comments and has eliminated the specific language requiring at least three miles of visibility. Instead, visibility issues will be addressed on a case-by-case basis with input from the Coast Guard, the pilot and the master of the LNG tankship during the pre-transit conference required in the Savannah Area Liquefied Natural Gas (LNG) Vessel Management and Emergency Plan. This will allow greater flexibility for vessel entry based on the professional judgment of the mariners making the transit and the Coast Guard. Section 165.756(d)(2)(iv) of the proposed rule has been modified and renumbered to read 165(d)(1)(iii)(4), “Not enter or get underway within the RNA if visibility during the transit is not sufficient to safely navigate the channel. * * *”

The Coast Guard amended the proposed rule concerning the protection of passing vessels under 1600 gross tons as they pass a LNG tankship while it is moored at the LNG terminal. This temporary final rule prohibits vessels less than 1600 gross tons from approaching within 70 yards of a moored LNG tankship. This change was made to protect vessels less than 1600 gross tons from the hazards associated with the transfer of LNG at the Elba Island terminal. This change will not restrict vessel movement within the deep draft channel and will have minimal or no impact on commercial or recreational vessel traffic.

The Coast Guard has amended this 2-tug requirement based on simulations conducted at Marine Safety International. The objective of this section is to prevent, or mitigate the potential consequences of a vessel alliding with a moored LNG tankship. Based on simulations conducted and a review of existing industry escort operations, the Coast Guard has determined that an adequate level of safety can be achieved with two towing vessels having adequate bollard pull, horsepower and the capability to operate in the “indirect mode.” These simulations also revealed that other combinations of operation by towing vessels not made-up to the escorted vessel prior to the onset of the same emergent situation, or by towing vessels not capable of safely operating in the indirect mode, whether made-up or not, consistently failed to prevent a high impact allision. Similar escort requirements typically applied to tankships on the West Coast of the United States have successfully controlled and/or arrested escorted vessels' movements under emergent circumstances.

Therefore, the Coast Guard amended section (d)(3)(ii) of the proposed rule to read: “Transiting vessels 1600 gross tons or greater, when passing a moored LNG tankship, shall have a minimum of two (2) towing vessels, each with a minimum capacity of 100,000 pounds of bollard pull, 4,000 horsepower, and the ability to safely operate in the indirect mode, made-up in such a way as to be immediately available to arrest and/or control the motion of an escorted vessel in the event of steering, propulsion or other casualty.”

The Coast Guard received two comments concerning the potential for liability claims due to the facility having to provide escort towing vessel services. These comments generally asserted that because escort tugs were being required by a federal regulation, the facility should not be liable for any damages incurred during escort operations.

This temporary rule addresses safety issues associated with the navigable waters of the United States and attempting to address liability issues in this rule is inappropriate. Ultimately, issues related to liability will be resolved in the legal process.

The Coast Guard received sixteen comments objecting to the requirement that tugs make-up to vessels over 1600 gross tons as they pass a moored LNG tankship. These comments agreed with the requirement for having vessels escorted but asserted that either the pilot, the master and/or the towing vessel operators should make the decision on whether to make-up, or that towing vessels should not be made-up because this type of arrangement provided no additional level of safety.

We disagree with comments asserting that the towing vessel should not be made-up. As previously discussed in the NPRM under the heading of 33 CFR 165.756(d)(3)(i) and (ii), Coast Guard research clearly indicates that the most effective way to maneuver and control a vessel is if it is made-up to towing vessels. These conclusions have been tested and were verified by simulations based on similar historical casualty scenarios.

Considering the proximity of the moored LNG tankship to the shipping channel, as well as the restricted nature of the waterway, the safe option of requiring towing vessels to be made-up to the escorted vessel is prudent. During a casualty (steering or propulsion), reaction time is critical. By ensuring the escorting towing vessels are made-up prior to a casualty, control will be immediate and any delays associated with attempting to make-up at the point of extremis will be eliminated.

We received nine comments expressing concern related to potential cost for the delays associated with the making-up of towing vessels to vessels passing the moored LNG tanker. Many of the comments stated that delays due to towing vessel availability and the time required to make-up would have an adverse economic impact.

Based on simulations conducted, the additional time needed to make-up was minimal as compared with normal transits and passing at minimum speed. The time required to make-up results in minimal delays because the passing vessel continues its forward movement during this evolution. The minimal make-up time is significant, however, when a vessel is in extremis and reaction time must be nearly instantaneous. For these reasons and as previously discussed, the Coast Guard continues to require that the escort towing vessels be made-up to the escorted vessel.

The Coast Guard received eight comments concerning the length of the escort zone for vessels passing a LNG tankship while it is moored. The original proposed zone was from Fort Jackson to Elba Island Cut. Since publishing the notice of proposed rulemaking, additional research has been conducted which suggests that a reduction in the size of the escort zone will not adversely affect the level of safety. We agree with the comments and have amended the temporary final rule.

We recognize circumstances will dictate the distance and time required to make-up the towing vessels. It is left to the professional judgment of the mariners involved in the evolution to ensure the vessels are properly made-up prior to passing Bight Channel Light 46 for outbound vessels and Elba Island Light 37 for inbound vessels and that vessels remain made-up until clear of the LNG tankship. (NOTE: The distance between Lights 46 & 37 is approximately 2.1 nautical miles or approximately 1 nautical mile either side of the facility. The originally proposed zone size was 3.3 nautical miles or roughly 1.6 nautical miles on either side.)

Two respondents provided specific comments concerning the requirement to provide at least one towing vessel with sufficient capacity to safely hold the LNG tankship to the dock while transiting vessels pass. The Coast Guard has carefully considered these comments and has determined that the original wording of this requirement may restrict the flexibility of the “standby” towing vessel to assist in a wider range of casualty scenarios. The Coast Guard has amended and renumbered section (d)(3)(iii) of the proposed rule to now read (d)(2)(ii): “In addition to the two towing vessels required by section (d)(2)(i) of this part, the operator of the facility where the LNG tankship is moored shall provide at least one (1) standby towing vessel of sufficient capacity to take any appropriate actions in an emergency as directed by the LNG vessel bridge watch.”

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).

We expect the economic impact of this rule to be so minimal so that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. Only an estimated one percent of the annual transits on the Savannah River will be LNG tankships. Further, all LNG transits will be coordinated and scheduled with the pilots and the Coast Guard Captain of the Port to minimize port disruption and delays for other commercial traffic, and LNG tankships. Finally, requests to enter the RNA may be granted on a case-by-case basis by the Coast Guard Captain of the Port.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities because LNG vessels will comprise an estimated one percent of the large commercial vessel transits on the Savannah River. Further, the tug escort requirements of this rule for vessels transiting past a moored LNG vessel will only affect an estimated 12% of all large commercial vessel transits on the River. Delays, if any, will be minimal because vessel speeds would be reduced regardless of the tug requirements. Delays for inbound and outbound traffic due to LNG transits will be minimized through pre-transit conferences with the pilots and the Coast Guard Captain of the Port. Finally, the RNA requirements are less burdensome for smaller vessels, which are more likely to be small entities, because of the lower risk associated with these vessels.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pubic Law 104-121), we offered to assist small entities in understanding this rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule would affect your small business and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT. Small businesses may also send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in the preamble.

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

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

On November 19, 1999 (64 FR 63268), EPA proposed a limited approval of the following rule that was submitted for incorporation into the California SIP.

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

On August 2, 2001 (66 FR 40168), EPA proposed a limited approval and limited disapproval of the following rules that were submitted for incorporation into the California SIP.

We proposed a limited approval because we determined that these rules improve the SIP and are largely consistent with the relevant CAA requirements. We simultaneously proposed a limited disapproval because some rule provisions conflict with section 110 and part D of the Act. These provisions include the following:

1. Rule 8-5 exempts sources from control requirements during certain startup, shutdown, and maintenance conditions in violation of EPA's 1999 guidance on excess emission during malfunctions, startup, and shutdown.

2. Rule 8-18 contains director's discretion in the allowance of compliance options and the use of new leak detection and repair technology without EPA approval.

Our proposed action contains more information on the basis for this rulemaking and on our evaluation of the submittal.

EPA's proposed action provided a 30-day public comment period. During this period, we received no comments.

No comments were submitted. Therefore, as authorized in sections 110(k)(3) and 301(a) of the Act, EPA is finalizing a limited approval of the submitted rules. This action incorporates the submitted rules into the California SIP, including those provisions identified as deficient. As authorized under section 110(k)(3), EPA is simultaneously finalizing a limited disapproval of the rules. As a result, sanctions will be imposed unless EPA approves subsequent SIP revisions that correct the rule deficiencies within 18 months of the effective date of this action. These sanctions will be imposed under section 179 of the Act according to 40 CFR 52.31. In addition, EPA must promulgate a federal implementation plan (FIP) under section 110(c) unless we approve subsequent SIP revisions that correct the rule deficiencies within 24 months. Note that the submitted rules have been adopted by the BAAQMD, and EPA's final limited disapproval does not prevent the local agency from enforcing them.

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

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 Fed. Reg. 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.

Executive Order 13045, entitled 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.

Executive Order 13132, entitled 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 acts on 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.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does 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 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 act on 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.

EPA's disapproval of the state request under section 110 and subchapter I, part D of the Clean Air Act does not affect any existing requirements applicable to small entities. Any pre-existing federal requirements remain in place after this disapproval. Federal disapproval of the state submittal does not affect state enforceability. Moreover, EPA's disapproval of the submittal does not impose any new Federal requirements. Therefore, 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).

Under section 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 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 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 acts on 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.

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.

EPA believes that VCS are inapplicable to today's action because it does not require the public to perform activities conducive to the use of VCS.

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 rule is not a “major” rule as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 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).)

This supplemental information section is organized as follows:

A. What is the purpose of this document?

B. Who will be affected by this action?

C. What is the history of Ohio's PSD program?

D. How are OEPA's PSD rules structured?

E. Why are we granting a conditional approval?

F. How can this conditional approval become fully approved?

G. What are the ramifications for not submitting the necessary changes?

We are conditionally approving Ohio's PSD program into the SIP. The public comment period for the June 29, 2001, notice of proposed rulemaking closed on July 30, 2001. One comment was received in favor of the conditional approval action. If Ohio fails to timely submit the materials discussed above within one year of EPA's final conditional approval, the final conditional approval will automatically convert to a disapproval.

Because the fully approved PSD program will be similar to the PSD program that OEPA already operates under delegated authority, air pollution sources will generally not be affected by this action. However, persons wishing to appeal PSD permits will have to file their appeals with OEPA under the SIP-approved program, rather than with EPA's Environmental Appeals Board as they have been doing under the delegated PSD program.

OEPA submitted its first permitting SIP to EPA on January 31, 1972, and submitted replacement regulations on June 6, 1973. These regulations provided requirements, such as best available technology, that were meant to be uniformly applied throughout the state.

The Clean Air Act (CAA) Amendments of 1977 required states to go further than uniformly applied regulations. The Amendments provided for the designation of areas within a state as “attainment” or “nonattainment.” An “attainment” area meets the NAAQS. A “nonattainment” area does not meet the NAAQS.

OEPA requested delegation of the PSD attainment permitting program on February 8, 1980, and received delegation on January 29, 1981.

OEPA submitted a request for approval of Ohio Administrative code (OAC) sections 3745-31-01 to 3745-31-20 into the SIP on March 1, 1996. Ohio subsequently submitted revisions dated March 1, 1996, April 16, 1997, September 5, 1997, December 4, 1997, and April 21, 1998. OEPA's PSD program has since remained in delegated status. The subsequent requests for SIP-approval of Ohio's regulations allow us to grant conditional approval to the program for reasons described below.

Part C of Title I of the CAA requires a SIP for PSD rules for attainment areas. 40 CFR 51.165 and 51.166 contain the requirements for a PSD permitting program. OEPA submitted this SIP in the form of OAC sections 3745-31-11 to 3745-31-20. OEPA also submitted general provisions applying to both attainment and nonattainment areas in the form of OAC sections 3745-31-01 to 3745-31-10.

We are granting conditional approval to Ohio's PSD rules, OAC sections 3745-31-01 to 3745-31-20. These rules, for the most part, fulfill Part C of Title I of the CAA by incorporating the critical provisions at 40 CFR 51.165 and 51.166 for ambient air increment consumption, area designation and redesignation restrictions, best available control technology, impact analysis, and air quality modeling. OAC sections 3745-31-01(OOO) does not, however, include a 25 tons per year significance level for particulate matter, or a 50 ton per year significance level for municipal solid waste landfill emissions, as required by 40 CFR 51.166(b)(23)(i). Furthermore, total reduced sulfur and reduce sulfur compounds are incorrectly defined to exclude hydrogen sulfide. Therefore, the definition of significant as required by 40 CFR 51.166(b)(23)(i) is not complete. In a December 5, 2000, letter, OEPA has committed to correct the definition of significance in OAC 3745-31. Because OAC sections 3745-31-01 through 3745-31-20 meet all requirements of 40 CFR 51.165 and 51.166 with this exception, and OEPA has committed to correct these deficiencies, we believe it is appropriate to grant conditional approval. When Ohio demonstrates that the deficiencies identified above are cured, EPA can grant final approval to these rules.

EPA is currently reviewing OEPA's implementation of the delegated PSD program in response to a petition submitted by D. David Altman on behalf of Ohio Citizen Action, the Ohio Environmental Council, Rivers Unlimited, and the Ohio Sierra Club. Any concerns that EPA finds as a result of this review will be addressed through the process of responding to the petition. Today's proposed conditional approval only addresses whether or not specific provisions of Ohio's administrative code meet the federal criteria for a PSD program, as set forth in 40 CFR Part 51, and does not address any issues regarding how the code is being applied or enforced by Ohio. We believe the OAC revisions meet the criteria for approval with the exceptions listed above, and are therefore granting conditional approval. No particular findings or conclusions in or from the EPA petition review should be inferred from today's conditional

OEPA will have one year from the time that the conditional approval is final to submit the necessary changes to its rules to correct the deficiencies identified in this notice. If OEPA does not submit approvable changes within the one year timeframe, EPA will disapprove Ohio's PSD program. Until Ohio's program is finally approved, OEPA will continue to be delegated the authority under § 51.166(b)(23)(i) of the federal PSD regulations to permit sources of significant particulate matter, municipal solid waste landfill emissions, and total reduced sulfur and reduce sulfur compounds. The delegation will continue until such time as the identified deficiencies are corrected and full approval is granted (or unless EPA otherwise addresses the delegation after the review of Ohio's implementation of the PSD program pursuant to the petition discussed above).

If OEPA fails to submit the necessary rule changes to us, final conditional approval will automatically convert to a disapproval. We will notify the State by letter to this effect. Once the SIP has been disapproved, these commitments will no longer be a part of the approved SIP. We will subsequently publish a notice to this effect in the notice section of the Federal Register indicating that the commitment or commitments have been disapproved and removed from the SIP. If OEPA adopts and submits the final rule amendments to EPA within the applicable time frame, the conditionally approved commitments will remain part of the SIP until the EPA takes final action approving or disapproving the new submittal, those newly approved rules will become part of the SIP.

If after considering the comments on the subsequent submittal, we issue a final disapproval, the sanctions clock under 179(a) will begin. If OEPA does not submit and we do not approve the rule on which any disapproval is based within 18 months of the disapproval, we must impose one of the sanctions under section 179(b)-highway funding restrictions or the offset sanction. In addition, any final disapproval would start the 24 month clock for the imposition of section 110(c) Federal Implementation Plan. Finally, under section 110(m) the EPA has discretionary authority to impose sanctions at any time after final disapproval.

We find that this is good cause for this final conditional approval to become effective immediately upon publication because a delayed effective date is unnecessary due to the nature of a conditional approval, which requires that the State make certain submittals within one year of the final conditional approval. Any delay in the effective date of this conditional approval further delays the compliance date by which the State has to submit the rule changes committed to in this document.

In this rulemaking action, we grant conditional approval of OEPA's March 1, 1996, request, as amended by OEPA's April 16, 1997, request, for additions and revisions to OAC sections 3745-31-01 to 3745-31-10, and OAC sections 3745-31-11 to 3745-31-20 because the request meets all of the requirements of 40 CFR 51.165 and 51.166 with the exception of a 25 ton per year significance level for particulate matter; a 50 ton per year significance level for municipal solid waste landfill emissions as required by 40 CFR 51.166(b)(23)(i); and because total reduced sulfur and reduce sulfur compounds are incorrectly defined to exclude hydrogen sulfide. OEPA has also committed to correct the definition of significance in OAC 3745-31.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), 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 CAA. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 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).)

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

The supplemental information is organized in the following order:

We are approving the post-1996 ROP plan for the Milwaukee-Racine ozone nonattainment area because the plan identifies control measures to achieve a projected 9 percent VOC emission reduction by November 15, 1999. Section 182(c)(2) of the Act required serious and above ozone nonattainment areas to submit plans that would achieve reductions in VOC emissions by at least 3 percent per year, net of growth, averaged over each consecutive 3 year period beginning in 1996 until the area's attainment date. These plans are referred to as rate-of-progress (ROP) plans. Section 182(c)(2) also required such areas to submit a plan that demonstrates attainment of the ozone standard based on photochemical grid modeling or an equally effective method. The attainment demonstration and ROP plans were due to EPA by November 15, 1994.

Many states, however, found it difficult to meet the date for submittal of an attainment demonstration and post-1996 ROP plan due primarily to an inability to address or control transport of ozone. We consequently recognized the efforts made by the states and the challenges in developing technical information and control measures with respect to these submittals in a memorandum entitled “Ozone Attainment Demonstrations,” dated March 2, 1995, from Mary D. Nichols, Assistant Administrator for Air and Radiation. The memorandum then allowed new time frames for these SIP submittals and divided the required SIP submittals into two phases. Generally, Phase I consists of: SIP measures providing for ROP reductions due by the end of 1999, an enforceable SIP commitment to submit any remaining required ROP reductions on a specified schedule after 1999, and an enforceable SIP commitment to submit the additional SIP measures needed for attainment. Phase II consists of the remaining ROP SIP measures, the attainment demonstration and additional local rules needed to attain, and any regional controls needed for attainment by all areas in the region.

This action finalizes approval of Wisconsin's post-1996 ROP plan.

Our June 22, 2001, proposal identifies all of the control strategies, the emission reduction credits claimed for each control strategy and the status of each control strategy with respect to federal approval or promulgation. Wisconsin's post-1996 ROP plan claims emission reduction credits for 21 control strategies. Our June 22, 2001, proposal stated that 20 of the control strategies had been either federally approved into the SIP or promulgated. Wisconsin's motor vehicle inspection and maintenance (I/M) program SIP was conditionally approved into the SIP on January 12, 1995 (60 FR 2881) with a subsequent revision submitted on December 30, 1998. The proposed rule noted that Wisconsin's motor vehicle I/M program must be fully and finally approved into the SIP before we could finally approve Wisconsin's post-1996 ROP plan. We published a direct final approval of Wisconsin's I/M SIP on August 16, 2001 (66 FR 42949 and 42974), which will become effective on October 15, 2001. Thus, all of the control strategies identified in Wisconsin's post-1996 ROP plan are federally approved into the SIP or promulgated.

We published a proposed approval of Wisconsin's post-1996 ROP plan on June 22, 2001 (66 FR 33495), the date the public comment period began. The public comment period concluded on July 23, 2001. We did not receive any public comments on the proposed approval.

In this rulemaking action, we are approving Wisconsin's SIP revisions, submitted on December 11, 1997, and supplements submitted on August 5, 1999, January 31, 2000, March 3, 2000, and February 21, 2001, establishing the post-1996 ROP plan for the Milwaukee-Racine ozone nonattainment area.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995, 15 U.S.C. 272 note, 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 VCS are inapplicable to this action, because this action does not require the public to perform activities conducive to the use of VCS.

As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective November 9, 2001.

Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 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).)

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

On October 13, 1995, the State of California submitted a revision to the VCAPCD portion of the SIP, which we disapproved in part on January 13, 2000. See 65 FR 2052. Our disapproval action started an 18-month clock beginning on February 14, 2000 for the imposition of one sanction (followed by a second sanction 6 months later) and a 24-month clock for promulgation of a Federal Implementation Plan (FIP). The State subsequently submitted revised SIP rules on December 11, 2000. We have taken direct final action on this submittal pursuant to our modified direct final policy set forth at 59 FR 24054 (May 10, 1994). In the Rules and Regulations section of today's Federal Register , we have issued a direct final full approval of the State of California's submittal of its SIP revision. In addition, in the Proposed Rules section of today's Federal Register , we have proposed full approval of the State's submittal. Based on the direct final full approval set forth in today's Federal Register , we believe that it is more likely than not that the State has corrected the original disapproval deficiencies. Therefore, we are taking this final rulemaking action, effective on publication, finding that the State has corrected the deficiencies. However, we are also providing the public with an opportunity to comment on this final action. If, based on any comments on this action and any comments on our direct final full approval of the State's submittal, we determine that the State's submittal is not fully approvable and this final action was inappropriate, we will either propose or take final action finding that the State has not corrected the original disapproval deficiencies. As appropriate, we will also issue an interim final determination or a final determination that the deficiency has been corrected.

This action does not stop the sanctions clock that started for this area on February 14, 2000. However, this action will stay the imposition of the offsets sanction and will defer the imposition of the highway sanction. If our direct final action fully approving the State's submittal becomes effective, such action will permanently stop the sanction clock and will permanently lift any imposed, stayed or deferred sanction. If we must withdraw the direct final action based on adverse comments and we subsequently determine that the State, in fact, did not correct the disapproval deficiencies, we will also determine that the State did not correct the deficiencies and the sanctions consequences described in the sanctions rule will apply. See 59 FR 39832 (August 4, 1994), codified at 40 CFR 52.31.

We are taking interim final action finding that the State has corrected the disapproval deficiencies that started the sanctions clock. Based on this action, imposition of the offset sanction will be stayed and imposition of the highway sanction will be deferred until our direct final action fully approving the State's submittal becomes effective or until we take action proposing or finally disapproving in whole or part the State submittal. If our direct final action fully approving the State submittal becomes effective, at that time any sanctions clocks will be permanently stopped and any imposed, stayed, or deferred sanctions will be permanently lifted.

Because we have preliminarily determined that the State has an approvable submittal, relief from sanctions should be provided as quickly as possible. Therefore, we are invoking the good cause exception to the 30-day notice requirement of the Administrative Procedure Act because the purpose of this notice is to relieve a restriction. See 5 U.S.C. 553(d)(1).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely stays and defers federal sanctions. Accordingly, the administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule only stays an imposed sanction and defers the imposition of another, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely stays a sanction and defers another one, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

This rule does not contain technical standards, thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued under the executive order.

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. However, section 808 provides that any rule for which the issuing agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rule) that notice and public procedure thereon are impractible, unnecessary, or contrary to the public interest, shall take effect at such time as the agency promulgating the rule determines. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefor, and established an effective date of October 10, 2001. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

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

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

On February 8, 2001, this submittal was found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

We gave a limited approval and limited disapproval to a version of Rule 74.15.1 on January 13, 2000 (65 FR 2052).

The purposes of the revisions contained in Rule 74.15.1 are to:

• Remedy the deficiency cited in the limited approval and limited disapproval of January 13, 2000 (65 FR 2052).

• Delete obsolete dates for increments of progress and compliance.

Generally, SIP rules must be enforceable (see section 110(a) of the CAA), must require Reasonably Available Control Technology (RACT) for major sources of NO X in ozone nonattainment areas (see section 182(f) and must not relax existing requirements (see sections 110(l) and 193). The VCAPCD regulates a severe ozone nonattainment area (see 40 CFR part 81), so Rule 74.15.1 must fulfill the requirements of RACT. Guidance and policy documents that we used to define specific enforceability and RACT requirements include the following:

• Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations; Clarification to Appendix D of November 24, 1987 Federal Register Document, (Blue Book), notice of availability published in the May 25, 1988 Federal Register .

• Guidance Document for Correcting VOC Rule Deficiencies, U.S. EPA Region IX and California Air Resources Board (April 1991).

• State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990 (the “NO X Supplement to the General Preamble”), U.S. EPA, 57 FR 55620 (November 25, 1992).

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

• Cost-Effective Nitrogen Oxides (NO X ) Reasonably Available Control Technology (RACT), U.S. EPA Office of Air Quality Planning and Standards (March 16, 1994).

• State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown , U.S. EPA, Office of Air Quality Planning and Standards (September 20, 1999).

We believe this rule is consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. The deficiency identified in our previous limited approval and limited disapproval action has been adequately addressed as follows:

• The allowance for an automatic exemption from the emission standards during startup and shutdown is deleted.

As authorized in section 110(k)(3) of the CAA, EPA is fully approving the submitted rule because we believe it fulfills all relevant requirements. We do not think anyone will object to this, so we are finalizing the approval without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by November 9, 2001, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on December 10, 2001. This will incorporate these rules into the federally-enforceable SIP.

NO X helps produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions. Table 2 lists some of the national milestones leading to the submittal of these local agency VOC rules.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 32111, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 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).)

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

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

On October 4, 2000, submittals of EDCAPCD Rules 101, 101 (recision), and 102 (recision) were found to meet the completeness criteria in 40 CFR Part 51, appendix V, which must be met before formal EPA review. On July 3, 2001, the submittal of EDCAPCD Rule 229 was found to meet the completeness criteria.

On October 6, 2000, the submittal of ICAPCD Rules 100 and 113 were found to meet the completeness criteria.

We approved a version of EDCAPCD Rule 101 into the SIP as Rule 101 on June 14, 1978 (43 FR 25674) and as Rule 102 on November 6, 1978 (43 FR 51632), both of which are now submitted for recision. Rules 101 and 102 were originally submitted on April 10, 1975 and November 4, 1977, respectively. We finalized a limited approval and limited disapproval of a version of EDCAPCD Rule 229 into the SIP on July 21, 2000 (65 FR 45297).

We approved a version of ICAPCD Rules 100 and 113 into the SIP on August 11, 1978 (43 FR 35694) and on February 3, 1989 (54 FR 5448), respectively.

The purposes are as follows:

• EDCAPCD Rule 101 combines SIP rules 101 and 102 for simplification and adds, deletes, or revises certain definitions.

• EDCAPCD Rule 229 regulates NO X and CO emissions from industrial, institutional, and commercial boilers, steam generators, and process heaters. Revisions were made to correct the deficiencies cited in the proposed limited approval and limited disapproval action on May 5, 1999 (64 FR 24121).

• ICAPCD Rule 100 changed the title for clarity.

• ICAPCD Rule 113 was reformatted.

The TSD has more information about these rules.

Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for major sources in ozone nonattainment areas (see sections 182(a)(2)(A) and 182(f)), and must not relax existing requirements (see sections 110(l) and 193). The EDCAPCD regulates a severe ozone nonattainment area (see 40 CFR part 81), so EDCAPCD Rule 229 must fulfill the requirements of RACT. The other rules are administrative and must meet only enforceability and relaxation requirements.

Guidance and policy documents that we used to define specific enforceability and RACT requirements include the following:

• “ Requirements for Preparation, Adoption, and Submittal of Implementation Plans, ” U.S. EPA, 40 CFR 61.

• “ State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule, ” (the NO X Supplement), 57 FR 55620 (November 25, 1992).

• “ Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations; Clarification to Appendix D of November 24, 1987 Federal Register Notice, ” (Blue Book), notice of availability published in the May 25, 1988 Federal Register .

• “ Determination of Reasonably Available Control Technology and Best Available Retrofit Control Technology for Industrial, Institutional, and Commercial Boilers, Steam Generators, and Process Heaters, ” California Air Resources Board (July 18, 1991).

• “ Cost-Effective Nitrogen Oxides (NO X ) Reasonably Available Control Technology,” U.S. EPA Office of Air Quality Planning and Standards (March 16, 1994).

We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. All of the deficiencies identified in our previous limited approval and limited disapproval action have been adequately addressed as follows:

• Section 229.3.D: [Multiple deficiencies are listed for this section, which allows for an alternate emission control plan.] This section is not required by the CAA and is deleted completely.

• Section 229.5.B.2: [The Executive Officer's discretion language should be expanded to include sampling methods approved by the CARB and EPA.] This is corrected.

• Section 229.3.A: [This section should be revised to “greater than or equal to 90,000 therms per year limit for each of the three previous years.”] This is corrected.

• Section 229.3.C: [The specification for flow meters should be revised to require non-resettable mass and volume flow meters.] This is corrected.

• Section 229.4.A: [A date for full compliance of facilities should be added.] This is corrected.

The TSD has more information on our evaluation.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules and rule recisions because we believe they fulfill all relevant requirements. We do not think anyone will object to this, so we are finalizing the approval without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by November 9, 2001, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on December 10, 2001. This will incorporate these rules into or rescind from the federally-enforceable SIP. This will also terminate any sanction or FIP clocks initiated by our January 21, 2000 action under sections 179 and 110(c) of the CAA.

NO X helps produce ground-level ozone, smog and particulate matter, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control NO X emissions. Table 2 lists some of the national milestones leading to the submittal of these local agency NO X rules.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 32111, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

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

The Congressional Review Act, 5 U.S.C. section 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. section 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 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).)

On November 20, 2000, the Commonwealth of Virginia submitted amendments to its State operating permit program. These amendments are the subject of this document and this section provides additional information on the amendments by addressing the following questions:

The Clean Air Act Amendments of 1990 required all States to develop operating permit programs that meet certain federal criteria. When implementing the operating permit programs, the States require certain sources of air pollution to obtain permits that contain all of their applicable requirements under the Clean Air Act (CAA). The focus of the operating permit program is to improve enforcement by issuing each source a permit that consolidates all of its applicable CAA requirements into a federally-enforceable document. By consolidating all of the applicable requirements for a given air pollution source into an operating permit, the source, the public, and the State environmental agency can more easily understand what CAA requirements apply and how compliance with those requirements is determined.

Sources required to obtain an operating permit under this program include “major” sources of air pollution and certain other sources specified in the CAA or in the EPA's implementing regulations. For example, all sources regulated under the acid rain program, regardless of size, must obtain operating permits. Examples of “major” sources include those that have the potential to emit 100 tons per year or more of volatile organic compounds, carbon monoxide, lead, sulfur dioxide, nitrogen oxides, or particulate matter (PM10); those that emit 10 tons per year of any single hazardous air pollutant (HAP) specifically listed under the CAA; or those that emit 25 tons per year or more of a combination of HAPs. In areas that are not meeting the national ambient air quality standards (NAAQS) for ozone, carbon monoxide, or particulate matter, major sources are defined by the gravity of the nonattainment classification. For example, in the counties and cities in northern Virginia that are part of the metropolitan Washington, DC serious ozone nonattainment area, major sources include those with the potential of emitting 50 tons per year or more of volatile organic compounds or nitrogen oxides.

The minimum program elements for an approvable operating permit program are those mandated by title V of the Clean Air Act Amendments of 1990 and established by EPA's implementing regulations at title 40, part 70—“State Operating Permit Programs” in the Code of Federal Regulations (40 CFR part 70). Title V required state and local air pollution control agencies to develop operating permit programs and submit them to EPA for approval by November 15, 1993. Under title V, State and local air pollution control agencies that implement operating permit programs are called “permitting authorities”.

Where an operating permit program substantially, but not fully, met the program approval criteria outlined at 40 CFR part 70, EPA granted interim approval contingent on the permit authority revising its program to correct those programmatic deficiencies that prevented full approval. Virginia's original operating permit program substantially, but not fully, met the requirements of 40 CFR part 70. Therefore, EPA granted final interim approval of the program in a rulemaking published on June 10, 1997, as corrected on March 19, 1998. [See 62 FR 31516 and 63 FR 13346.] The interim approval notice identified six outstanding deficiencies that had to be corrected in order for Virginia's program to receive full approval. On November 20, 2000, the Commonwealth of Virginia submitted amendments to its operating permit program to EPA to address its outstanding program deficiencies.

Virginia's November 20, 2000 submittal satisfies the Commonwealth's requirement to submit program amendments to EPA by June 1, 2001. This deadline was established by EPA in order to allow for time for EPA review and action on program amendments such that operating permit programs with interim approval status could be considered for full approval by December 1, 2001. After December 1, 2001, those jurisdictions lacking fully-approved operating permit programs will, by operation of law, be subject to a federal operating permit program implemented by EPA under 40 CFR part 71. [See 65 FR 32035.]

On November 20, 2000, Virginia submitted amendments to its currently EPA-approved title V operating permit program. In general, Virginia amended its operating permit program regulations to address deficiencies identified by EPA when it granted final interim approval of Virginia's program in 1997. In the November 20, 2000 submittal, Virginia also provided revisions to its existing program to improve certain aspects and to make minor regulatory corrections. These additional revisions are the subject of a separate rulemaking action as more fully discussed below.

As part of its November 20, 2000 submittal, Virginia also submitted additional revisions to its currently EPA-approved title V operating permit program which are unrelated to the interim approval deficiencies. These program revisions are comprised of technical and administrative corrections which do not bear on the program's ability to fully meet the substantive requirements of 40 CFR part 70. These revisions were submitted pursuant to 40 CFR 70.4(i) which authorizes States with approved programs to initiate program revisions. Since these revisions do not directly affect the approval status of Virginia's program according to 40 CFR 70.4(d) and 40 CFR 70.4(e), they will be considered in a separate rulemaking action.

On December 11, 2000, EPA announced a 90-day comment period for members of the public to identify deficiencies they perceive exist in State and local agency operating permits programs. [See 65 FR 77376.] The public was able to comment on all currently-approved operating permit programs, regardless of whether they have been granted full or interim approval. The December 11, 2000 notice instructed the public to not include in their comments any program deficiencies that were previously identified by EPA when the subject program was granted interim approval. Since those program deficiencies have already been identified and permitting authorities have been working to correct them, EPA will solicit comments when taking action on those corrective measures.

The EPA stated that it will consider information received from the public pursuant to the December 11, 2000 notice and determine whether it agrees or disagrees with the purported deficiencies. Where EPA agrees there is a deficiency, it will publish a notice of deficiency consistent with 40 CFR 70.4(i) and 40 CFR 70.10(b). The Agency will at the same time publish a notice identifying any alleged problems that we do not agree are deficiencies. For programs that have not yet received full approval, such as Virginia's program, EPA will publish these notices by December 1, 2001.

The EPA received numerous comments in response to the December 11, 2000 notice announcing the start of the 90-day public comment period. As part of those comments, EPA Region III received comments germane to Virginia's currently-approved operating permit program. The Agency will respond to those comments in a separate notice(s) by December 1, 2001 as required by the December 11, 2000 notice.

The EPA is not addressing any comments received pursuant to the December 11, 2000 notice in this document. As mentioned above, comments provided in accordance with the December 11, 2000 notice were to address shortcomings that had not previously been identified by EPA as deficiencies necessitating interim, rather than full, approval of a state's operating permit program. This action granting full approval of Virginia's operating permit program only addresses program deficiencies identified when EPA granted interim approval to Virginia's program in 1997. Therefore, any persons wishing to comment on this action should do so at this time.

The EPA has reviewed Virginia's November 20, 2000 program amendments in conjunction with the portion of Virginia's program that was earlier approved on an interim basis. Based on this review, EPA is granting full approval of Virginia's amended operating permit program. The EPA has determined that the amendments to Virginia's operating permit program adequately address the six deficiencies identified by EPA in its June 10, 1997 rulemaking action granting interim approval. Virginia's operating permit program, including the amendments submitted on November 20, 2000 to address the six program deficiencies, fully meets the minimum requirements of 40 CFR part 70. The following describes the changes made to Virginia's operating permit program to address the six deficiencies.

Virginia's regulations originally defined any emission unit emitting less than 100 tons per year (TPY) of carbon monoxide (CO) as an insignificant activity. Virginia amended 9 VAC 5-80-720 B 3 to state that any emission unit emitting less than five TPY of CO may be considered an insignificant activity. This amendment is consistent with 40 CFR part 70 and with what EPA has required of other similar insignificant activities regulations.

Virginia's original program inappropriately included a provision in the applicability section of the operating permit regulations, at 9 VAC 5-80-50 F, which states that “[t]he provisions of 9 VAC 5-80-90 concerning application requirements shall not apply to insignificant activities designated in 9 VAC 5-80-720 with the exception of the requirements of 9 VAC 5-80-90 D 1 and 9 VAC 5-80-710.” A similar provision is provided in the applicability section of the acid rain operating permit regulations at 9 VAC 5-80-360 E. As originally worded, permittees were required to provide only emissions information for insignificant activities, but not any additional information which might be required to identify applicable requirements when emissions information alone is not sufficient.

Virginia amended 9 VAC 5-80-50 F and 9 VAC 5-80-360 E by removing the language cited above in its entirety. By removing this language, permittees are obligated to provide any additional information necessary to identify applicable requirements. These amendments are consistent with 40 CFR part 70 and with what EPA has required of other similar regulations.

Virginia's original program contained an inappropriate provision at 9 VAC 5-80-110 A 1 which stated that “For major sources subject to this rule, the board shall include in the permit all applicable requirements for all emission units in the major source except those deemed insignificant in Article 4 (9 VAC 5-80-710 et. seq. ) of this part.” Virginia's acid rain operating permit regulations essentially repeated this deficiency at 9 VAC 5-80-490 A 1.

Virginia amended 9 VAC 5-80-110 A 1 and 9 VAC 5-80-490 A 1 by removing the exception provided to insignificant emission units of the requirement to include all applicable requirements in the permit. The amended regulations simply require all applicable requirements for all emission units to be included in the permit. These amendments are consistent with 40 CFR part 70 and with what EPA has required of other similar regulations.

In its original insignificant activities regulations at 9 VAC 5-80-720 C 4, Virginia designated “Internal combustion powered compressors and pumps used for emergency replacement or standby service, operating at 500 hours per year or less'' as insignificant emission units. The regulations also cited emergency generators of various horsepower ratings, depending on whether or not the generators are gasoline, diesel, or natural gas powered. As originally worded, 9 VAC 5-80-720 C 4 was confusing because it defined emergency or standby compressors or pumps as insignificant, and then further qualified the units considered insignificant by discussing various sizes of emergency generators. Furthermore, the engines and generators of the sizes provided by the original version of the regulations would likely be large enough to trigger applicable requirements or emit pollutants in significant amounts.

Virginia amended 9 VAC 5-80-720 C 4 to clarify its insignificant activity provisions for emergency pumps, compressors, or generators and also reduced the horsepower size designations sufficiently to exclude any units which would likely trigger an applicable requirement or emit pollutants in significant amounts. These amendments are consistent with 40 CFR part 70 and with what EPA has required of other similar insignificant activities regulations.

The EPA was concerned with two provisions in the Commonwealth's original acid rain operating permit regulations. According to 40 CFR 70.4(b)(14), permittee's are allowed to make certain so-called “off-permit” changes that are not addressed or prohibited by the permit without obtaining a permit revision. However, 40 CFR 70.4(b)(15) does not extend this flexibility to changes that are modifications under title I of the CAA or those that are subject to any of the acid rain requirements under title IV of the CAA. Virginia's regulations allowed “off-permit” changes at 9 VAC 5-80-280 C 1 and 5-80-680 C 1, however, they failed to exclude from eligibility changes that are subject to requirements under title IV.

Virginia amended 9 VAC 5-80-280 C 1 and 5-80-680 C 1 to exclude changes that are subject to requirements under title IV from being eligible for “off-permit” changes. These amendments are consistent with 40 CFR part 70 and with what EPA has required of other similar regulations.

In its operating permit program, Virginia uses the term “malfunction” instead of “emergency.” Virginia's definition of this term is consistent with how EPA defines “emergency.” However, Virginia's original operating permit regulations at 9 VAC 5-80-250 B 4 and 5-80-650 B 4 allowed sources to claim the affirmative defense for malfunctions which last less than one hour, but did not require the permittee to notify the Commonwealth of these malfunctions. Malfunctions lasting longer than one hour were required to be reported. Virginia's affirmative defense provisions were less stringent than 40 CFR 70.6(g) which requires the demonstration of the affirmative defense of an malfunction, including the prompt notification of the permitting authority of the malfunction. A demonstration is required for all malfunctions seeking an affirmative defense, including those malfunctions lasting less than one hour.

Virginia amended 9 VAC 5-80-250 B 4 and 5-80-650 B 4 to expand the requirement to report malfunctions of any duration, not only those that occurred for one hour or more. The amended regulations also require the prompt notification of malfunctions within two working days of their occurrence. These amendments are consistent with 40 CFR part 70 and with what EPA has required of other similar regulations.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1997, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. * * *” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1997 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its operating permit program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, state audit privilege or immunity law.

The Commonwealth of Virginia has satisfactorily addressed the six program deficiencies identified when EPA granted final interim approval of its operating permit program on June 10, 1997, as corrected on March 19, 1998. The operating permit program amendments submitted by Virginia on November 20, 2000 considered together with that portion of Virginia's operating permit program that was earlier approved on an interim basis fully satisfy the minimum requirements of 40 CFR part 70 and the Clean Air Act. Therefore, EPA is granting full approval of the Commonwealth of Virginia's title V operating permit program.

The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the operating permit program if adverse comments are filed relevant to the issues discussed in this action. This rule will be effective on November 26, 2001 without further notice unless EPA receives adverse comment by November 9, 2001. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. The EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 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 fully approving Virginia's title V operating permit program may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

The Agency included in the direct final rule a list of those who may be potentially affected by this action. 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/. A frequently updated electronic version of 40 CFR part 180 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_180/Title_40/40cfr180_00.html, a beta site currently under development.

2. In person . The Agency has established an official record for this action under docket control number OPP-301152A. The official record consists of the documents specifically referenced in this action, any public comments received during an applicable comment period, 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 August 15, 2001 (66 FR 42776) (FRL-6793-5), EPA issued a direct final rule amending 40 CFR part 180, subpart D, to revoke various exemptions from the requirement of a tolerance. This document corrects the amendatory language to reflect the intent of the Agency. Additionally, this document reopens the comment period to provide the public with an opportunity to comment on these corrections and extends the effective date of this final rule.

This final rule implements a technical correction to the CFR, and it does not otherwise impose or amend any requirements. 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). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). 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). For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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 potentially 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 homepage at http://www.epa.gov/ . To access this document, on the homepage 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/. A frequently updated electronic version of 40 CFR part 180 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_180/Title_40/40cfr180_00.html, a beta site currently under development.

2. In person . The Agency has established an official record for this action under docket control number OPP-301179. 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, 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, on its own initiative, in accordance with sections 408(e) and 408(l)(6) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, is establishing tolerances for combined residues of the herbicide sethoxydim (2-[1-(ethoxyimino]butyl)-5-[2-(ethylthio)propyl]-3-hydroxy-2-cyclohexen-1-one) and its metabolites containing the 2-cyclohexen-1-one moiety, in or on safflower at 15.0 parts per million (ppm), in milk at 0.5 ppm; and in meat byproducts of cattle, goats, hogs, horses, and sheep at 1.0 ppm. These tolerances will expire and are revoked on December 31, 2003. EPA will publish a document in the Federal Register to remove the revoked tolerances from the Code of Federal Regulations.

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 FIFRA. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on section 18 related tolerances to set binding precedents for the application of section 408 and the new safety standard to other tolerances and exemptions. Section 408(e) of the FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party.

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. . . .”

Section 18 of FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” This provision was not amended by the Food Quality Protection Act (FQPA). EPA has established regulations governing such emergency exemptions in 40 CFR part 166.

The shift to no-till or direct seed systems has dramatically reduced the efficacy of herbicides labeled for use in safflower. As a result, wild oat has emerged as a larger management problem in safflower production. Cool, moist conditions, as in recent years, promotes maximum emergence. EPA has authorized under FIFRA section 18 the use of sethoxydim on safflower for control of wild oats in Montana and North Dakota. After having reviewed the submissions, EPA concurs that emergency conditions exist for these States.

As part of its assessment of these emergency exemptions, EPA assessed the potential risks presented by residues of sethoxydim in or on safflower. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and EPA decided that the necessary tolerances under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing these tolerances without notice and opportunity for public comment as provided in section 408(l)(6). Although these tolerances will expire and are revoked on December 31, 2003, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerances remaining in or on safflower or milk or meat after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by these tolerances at the time of that application. 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.

Because these tolerances are being approved under emergency conditions, EPA has not made any decisions about whether sethoxydim meets EPA's registration requirements for use on safflower or whether permanent tolerances for this use would be appropriate. Under these circumstances, EPA does not believe that these tolerances serve as a basis for registration of sethoxydim by a State for special local needs under FIFRA section 24(c). Nor do these tolerances serve as the basis for any State other than Montana and North Dakota to use this pesticide on this crop under section 18 of FIFRA without following all provisions of EPA's regulations implementing section 18 as identified in 40 CFR part 166. For additional information regarding the emergency exemption for sethoxydim, contact the Agency's Registration Division at the address provided under FOR FURTHER INFORMATION CONTACT .

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 sethoxydim and to make a determination on aggregate exposure, consistent with section 408(b)(2), for time-limited tolerances for combined residues of sethoxydim (2-[1- (ethoxyimino]butyl)-5-[2-(ethylthio)propyl]-3-hydroxy-2-cyclohexen-1-one) and its metabolites containing the 2-cyclohexen-1-one moiety (calculated as the herbicide) in or on safflower at 15.0 ppm, in milk at 0.5 ppm; and in meat byproducts of cattle, goats, hogs, horses and sheep at 1.0 ppm. EPA's assessment of the dietary exposures and risks associated with establishing the tolerances follows.

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 endpoint. 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 level of concern (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 sethoxydim used for human risk assessment is shown in the following Table 1:

1. Dietary exposure from food and feed uses. Tolerances have been established (40 CFR 180.412) for the combined residues of sethoxydim, in or on a variety of raw agricultural commodities. Tolerances are already established in or on meat and milk but at levels lower than those discussed in this rule. Risk assessments were conducted by EPA to assess dietary exposures from sethoxydim 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 1-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: tolerance level residues and 100 percent crop treated (PCT).

ii. Chronic exposure . In conducting this chronic dietary risk assessment the DEEM analysis evaluated the individual food consumption as reported by respondents in the USDA 1989-1992 nationwide CSFII and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: tolerance level residues and 100 PCT for all crops except peanuts, potatoes, and tomatoes (for which an average crop treated value of 5% was used) and soybeans (for which the average crop treated value of 2% was used).

iii. Cancer . Sethoxydim is not classified. Available studies show no evidence of carcinogenicity in rats or mice.

iv. Anticipated residue and PCT information . 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 PCT as required by section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

The Agency used PCT information as follows. Assumptions were: 100 PCT for all crops except peanuts, potatoes, and tomatoes (for which an average crop treated value of 5% was used) and soybeans (for which the average crop treated value of 2% was used).

The Agency believes that the three conditions listed above have been met. With respect to Condition 1, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. EPA uses a weighted average PCT for chronic dietary exposure estimates. This weighted average PCT figure is derived by averaging State-level data for a period of up to 10 years, and weighting for the more robust and recent data. A weighted average of the PCT reasonably represents a person's dietary exposure over a lifetime, and is unlikely to underestimate exposure to an individual because of the fact that pesticide use patterns (both regionally and nationally) tend to change continuously over time, such that an individual is unlikely to be exposed to more than the average PCT over a lifetime. For acute dietary exposure estimates, EPA uses an estimated maximum PCT. The exposure estimates resulting from this approach reasonably represent the highest levels to which an individual could be exposed, and are unlikely to underestimate an individual's acute dietary exposure. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. 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 allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available information on the regional consumption of food to which sethoxydim may be applied in a particular area.

2. Dietary exposure from drinking water. The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for sethoxydim 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 sethoxydim.

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 ground water. 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 sethoxydim they are further discussed in the aggregate risk sections below.

Based on the GENEEC and SCI-GROW models the EECs of sethoxydim for acute exposures are estimated to be 42 parts per billion (ppb) for surface water and 33 ppb for ground water. The EECs for chronic exposures are estimated to be 27 ppb for surface water and 3 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).

Sethoxydim is currently registered for use on the following residential non-dietary sites: ornamentals and flowering plants, recreational areas, and buildings/structures. These uses are not expected to result in chronic exposures but may result in short- and/or intermediate-term exposures. However, dermal and/or inhalation endpoints for short- and intermediate-term exposures were not identified. Therefore, these routes of exposure were not evaluated for risk.

However, children's potential for oral exposure resulting from residential treatments will be considered as a contributor to short-term aggregate risk. A short-term oral endpoint was not identified for sethoxydim. For short-term risk assessment (for incorporation of food, water, or oral hand-to-mouth type exposures into an aggregate risk assessment), the acute oral endpoint (acute RfD = 1.8 mg/kg/day, NOAEL = 180 mg/kg/day) will be used to incorporate the oral component into aggregate risk.

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 sethoxydim 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, sethoxydim 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 sethoxydim 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 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 was no indication of increased susceptibility in the prenatal developmental toxicity study in rabbits following in utero exposure. In the 2-generation reproduction study in rats, effects in the offspring were observed only at or above treatment levels which resulted in evidence of appreciable parental toxicity. No increased susceptibility was demonstrated in the developmental toxicity studies; however developmental toxic effects, were observed at the highest dose tested (LOAEL).

Acceptable developmental toxicity studies have been performed in rats and rabbits; an acceptable 2-generation reproduction study has also been performed in rats. A chronic feeding/carcinogenicity guideline study in rats has been submitted and is currently undergoing review. An initial examination of the study supports the current findings of no evidence of carcinogenicity. There is a complete toxicity data base for sethoxydim and exposure data is complete or is estimated based on data that reasonably accounts for potential exposures.

The FQPA Safety Factor is to be retained in case of developmental toxicity in the absence of maternal toxicity. Since malformations were seen in the rat study at levels that produced minimal maternal toxicity. The Agency concluded that an FQPA factor is needed. However, it was determined that the 10X factor need not be retained, instead should be reduced to 3X based on the following weight of evidence considerations: (1) Developmental toxicity was seen in only one species, in the presence of maternal toxicity, and at a very high dose (650 mg/kg/day) that approached the Limit-Dose of 1,000 mg/kg/day; (2) no developmental toxicity was observed in the rabbit study at the highest dose tested (400 mg/kg/day); (3) there was no increased susceptibility seen in the two-generation reproduction study in rats at doses up to 150 mg/kg/day(highest dose tested); and 4) lack of concern for structure activity relationship (i.e. no significant developmental or reproductive toxicity was seen with the structural analog, clethodim.)

Exposure assessments do not indicate a concern for potential risk to infants and children based on: (1) The dietary exposure assessments use field study data and assume 100% crop treated which results in an overestimate of dietary exposure; (2) limited monitoring data is used for ground and surface source drinking water exposure assessments, resulting in estimates considered to be reasonable upper-bound concentrations; (3) there is a potential for post-application hand-to-mouth exposure to toddlers associated with lawn use, however, the use of conservative models and/or assumptions in the residential exposure assessment provide adequate protection of infants and children.

The FQPA safety factor is applicable for acute dietary risk assessment for females 13+ because the endpoint occurs only during in urtero exposure and is not a postnatal effect. Since the effects occur during in utero exposure, it is not an appropriate endpoint for acute dietary risk assessment of infants and children. The FQPA safety factor is not applied for chronic risk assessment because the endpoint is an in urtero effect and can not result from postnatal exposure. The FQPA safety factor is not applicable to the post-application hand-to-mouth exposure associated with the lawn use since this exposure scenario would only be expected for toddlers and not for females 13+.

3. Conclusion . There is a complete toxicity data base for sethoxydim and exposure data are complete or are estimated based on data that reasonably accounts for potential exposures.

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 + chronic non-dietary, non-occupational 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 ground water are less than the calculated DWLOCs, EPA concludes with reasonable certainty that exposures to sethoxydim in drinking water (when considered along with other sources of exposure for which EPA has reliable data) would not result in unacceptable levels of aggregate human health risk at this time. Because EPA 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, EPA will reassess the potential impacts of sethoxydim on 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 sethoxydim will occupy 7% of the aPAD for the U.S. population, 14% of the aPAD for females 13-50 years (not pregnant, not nursing), 10% of the aPAD for all infants ( < 1 year) and 14% of the aPAD for children 1-6 years old. In addition, despite the potential for acute dietary exposure to sethoxydim in drinking water, after calculating DWLOCs and comparing them to conservative model estimated environmental concentrations of sethoxydim in surface and ground water, EPA does not expect the aggregate exposure to exceed 100% of the aPAD, as shown in the following Table 2:

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to sethoxydim from food will utilize 22% of the cPAD for the U.S. population, 32% of the cPAD for all infants < 1 year and 52% of the cPAD for children 1-6. Based on the use pattern, chronic residential exposure to residues of sethoxydim is not expected. In addition, despite the potential for chronic dietary exposure to sethoxydim in drinking water, after calculating DWLOCs and comparing them to conservative model estimated environmental concentrations of sethoxydim in surface and ground water, EPA does not expect the aggregate exposure to exceed 100% of the cPAD, as shown in the following Table 3:

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).

Sethoxydim is currently registered for use(s) that could result in short-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic food and water and short-term exposures for sethoxydim.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded that food and residential exposures aggregated result in aggregate MOEs of 1,800 for children 1-6 years old (the subgroup of infants/children with the highest exposure). These aggregate MOEs do not exceed the Agency's LOC for aggregate exposure to food and residential uses. In addition, short-term DWLOCs were calculated and compared to the EECs for chronic exposure of sethoxydim in ground water and surface water. After calculating DWLOCs and comparing them to the EECs for surface and ground water, EPA does not expect short-term aggregate exposure to exceed the Agency's LOC, as shown in the following Table 4:

4. Intermediate-term risk . Intermediate-term aggregate exposure takes into account non-dietary, non-occupational exposure plus chronic exposure to food and water (considered to be a background exposure level). Though residential exposure could occur with the use of sethoxydim, no toxicological effects have been identified for intermediate-term toxicity. Therefore, the aggregate risk is the sum of the risk from food and water, which were previously addressed.

5. Aggregate cancer risk for U.S. population . Sethoxydim has not ben classified. Available studies do not show evidence of carcinogenicity in rats or mice. Therefore, an aggregate cancer risk analysis was not conducted.

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 sethoxydim residues.

Adequate enforcement methodology (gas-liquid chromatography (GLC) with flame photometric detection) is available (Method I, PAM II) to enforce the tolerance expression.

There are no CODEX, Canadian, or Mexican maximum residue limits (MRLs) or tolerances for sethoxydim on safflower. Thus, harmonization is not an issue for these section 18 requests.

Therefore, tolerances are established for combined residues of sethoxydim and its metabolites containing the 2-cyclohexen-1-one moiety, in or on safflower at 15.0 ppm, in milk at 0.5 ppm; and in meat byproducts of cattle, goats, hogs, horses, and sheep at 1.0 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-301179 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 December 10, 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 VII.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 the docket control number OPP-301179, 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 time limited tolerances 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). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). 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 special considerations under 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 exemption under FFDCA section 408, 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).

This is a summary of an Order on Reconsideration of the Third Report and Order (“ Order on Reconsideration ”) in WT Docket No. 99-168, adopted on September 7, 2001 and released on September 17, 2001. The full text of this document is available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW, Room CY-A257, Washington, DC, 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW, Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

1. By the Order on Reconsideration, the Commission resolves petitions for reconsideration and clarification of the Third Report and Order in this proceeding (“ Upper 700 MHz Third Report and Order ”), 66 FR 10204 (February 14, 2001). The Commission generally affirms the decisions it reached in the Upper 700 MHz Third Report and Order, although it makes certain adjustments to the rules and policies adopted in this proceeding and the related digital television (“DTV”) proceeding to accommodate the implementation of voluntary band-clearing agreements among incumbent broadcasters and new licensees in the 746-806 MHz (“Upper 700 MHz”) band, which is currently occupied by TV Channels 60-69. The Commission also rejects arguments by a petitioner seeking to reverse our decisions on interference issues, and clarifies certain aspects of the applicable interference standards.

2. The Commission has received three petitions for reconsideration of the Upper 700 MHz Third Report and Order. One petition was filed by Spectrum Clearing Alliance (“SCA”), which is led by Paxson Communications Corporation and joined by a number of other broadcasters having existing analog TV operations on Channels 60-69 as well as by other parties interested in band clearing. SCA stated in its petition that it is developing a comprehensive, private band-clearing plan that would be a “definitive framework for clearing the 700 MHz band.” SCA asserted that the adoption by the Commission of certain procedural and DTV policy changes would facilitate early clearing and provide certainty to prospective bidders that the Channel 59-69 spectrum will be cleared by a certain date. One signatory of the SCA Petition, Spectrum Exchange Group, LLC (“Spectrum Exchange”), which has expressed an interest in serving as an intermediary to facilitate SCA's clearing scheme, also filed a separate petition in support of the SCA plan.

3. The Association for Maximum Service Television, Inc. (“MSTV”) also filed a petition, primarily seeking reconsideration of our decision in the Upper 700 MHz Third Report and Order not to adopt a new “no interference” standard that would prohibit any new involuntary interference to existing licensees. MSTV also sought clarification of the appropriate interference standard to be used for protection of DTV allotments and facilities from modified analog operations. Finally, MSTV requested that the Commission rule out the possibility that other types of band-clearing policies might be adopted in the future and express “an unqualified commitment to voluntary band clearing.”

4. DTV Construction Deadlines For Single-Channel Broadcasters. The Commission initially adopted a DTV construction schedule that requires rapid build-out of digital broadcast facilities, among other reasons, to “ensure that recovery of broadcast spectrum occurs as quickly as possible.” The DTV construction deadlines are set forth in § 73.624(d) of the Commission's rules. According to the remaining deadlines, those commercial television broadcasters that have not yet constructed their authorized digital facilities must do so by May 1, 2002, and noncommercial broadcasters must complete their DTV facilities by May 1, 2003. Consistent with this plan, the Upper 700 MHz Third Report and Order stated that, if a broadcaster is left with only a single analog allotment as a result of a voluntary band-clearing agreement, it must convert to DTV by the deadline set forth in § 73.624(d).

5. SCA sought reconsideration of the Commission's decision in the Upper 700 MHz Third Report and Order to require broadcasters that are left with a single channel as a result of a band-clearing arrangement to comply with the current DTV construction deadlines. In its petition, SCA requested that the Commission permit an incumbent broadcaster participating in an arrangement that clears an allotment in the Channels 59-69 band and leaves that broadcaster with only a single channel to remain in analog operation beyond the DTV construction deadline and to convert to digital at any time during the DTV transition. In a subsequent ex parte submission, SCA proposed that such single-channel broadcasters be permitted to continue to operate in analog “until December 31, 2005 or when 70% of the television households in their markets are capable of receiving digital broadcast signals over-the-air.”

6. Upon review of the arguments presented, the Commission agrees that a broadcaster that gives up one of its channels to accommodate band clearing should have the flexibility to convert to DTV at a later stage in the transition period.

7. The Commission finds that the DTV conversion process as a whole will not be significantly retarded by affording this limited group of broadcasters the flexibility to complete their digital conversion at a later date. Under the policy the Commission adopts today, if a broadcaster gives up one of its channels to accommodate band clearing (pursuant to Commission authorization), that single-channel broadcaster may continue to operate in analog until December 31, 2005. Moreover, if such single-channel broadcaster seeks an extension of this deadline and is able to demonstrate that less than 70% of the television households in its market are capable of receiving digital broadcast signals, the Commission will presume that such request is in the public interest. Because the number of Channel 59-69 stations is small and because stations with low viewership may be more likely to give up their second allotment, extending the DTV construction deadline for these single-channel broadcasters should not have a significant effect on the broadcast industry's ability to meet the 85% consumer penetration target set forth in section 309(j)(14)(B) of the Act. Thus, the Commission finds that the benefits of relief from the upcoming DTV construction deadline for this group of broadcasters outweigh the potential risk that such limited relief may delay the DTV transition.

8. Interference Protection Standards. The Upper 700 MHz Third Report and Order confirms our intention to review license modification applications associated with band-clearing arrangements under established DTV protection criteria. Among those criteria are provisions that specifically allow certain levels of de minimis interference from proposed DTV stations to nearby full-service TV and DTV facilities. Under our de minimis interference allowance, non-conforming DTV applications may be permitted where interference will affect less than two percent of the population served by another analog or DTV station (provided that no new interference may be caused to a station already predicted to receive interference from all other broadcasters to ten percent or more of its population). The Upper 700 MHz Third Report and Order rejected a proposal by MSTV and other broadcast interests seeking the adoption of a new “no interference” standard that would prohibit any new involuntary interference to existing licensees.

9. MSTV sought reconsideration of this decision. The Commission disagrees with the premise of MSTV's argument, and affirms the policies announced in the Upper 700 MHz Third Report and Order. MSTV's argument is premised on its belief that issues associated with clearing of the Upper 700 MHz band are “completely different” from those of the DTV transition. MSTV fails to recognize that the process of clearing the Upper 700 MHz band has long been an integral part of the DTV transition process. For example, in the DTV Sixth Further Notice of Proposed Rule Making, 61 FR 43209 (August 21, 1996), the Commission stated that “the recovery of spectrum continue[s] to be a key component of our implementation of DTV service.” Contrary to MSTV's assertion, the policies outlined in the Upper 700 MHz Third Report and Order do not extend the de minimis interference protection criteria to a new or different problem. Rather, the Upper 700 MHz Third Report and Order simply clarified that DTV broadcasters participating in band-clearing arrangements could continue to benefit from the flexibility allowed under the DTV technical rules.

10. In urging the Commission to clarify that the DTV two percent de minimis interference allowance does not extend to analog license modification applications, MSTV contended that the Upper 700 MHz Third Report and Order has created an ambiguity about the circumstances in which the DTV two percent de minimis interference limit applies. The Upper 700 MHz Third Report and Order did not change the interference standards for analog proposals to protect DTV service. Applicants seeking modifications of full-service analog TV stations may not cause any additional interference to DTV service, other than a 0.5% reduction in service population to account for rounding and calculation tolerances.

11. DTV Replication Policy. One of the Commission's goals in designing the initial DTV Table of Allotments was to design DTV service areas that would, to the greatest extent possible, allow each broadcaster to provide DTV service to a geographic area that is comparable to its existing NTSC service area. This replication goal meant that each DTV channel allotment was chosen to best allow its DTV service to match the Grade B service contour of the NTSC station with which it was paired. Implicit in the replication goal is the Commission's expectation that DTV stations will eventually be constructed with “full-replication” facilities. In the initial stages of the DTV transition, each DTV facility will be entitled to interference protection to its existing and authorized DTV contour, as well as to its April 1997 NTSC Grade B service area. Although the Commission considered whether broadcasters should be required to replicate fully their analog service areas with DTV coverage, the Commission decided in its recent DTV Biennial Review Order, 66 FR 9973 (February 13, 2001), not to require full replication of analog facilities with DTV. Instead, the Commission decided that it would “cease to give interference protection to [broadcasters'] unreplicated service area as of December 31, 2004.” Thus, by December 31, 2004, commercial DTV licensees must either be on-the-air replicating their April 1997 NTSC Grade B service area or lose interference protection to the unreplicated portion of this service area outside the noise-limited signal contour.

12. In its petition, SCA asserted that, where a broadcaster does not fully replicate for purposes of implementing a band-clearing arrangement, the Commission should not eliminate interference protection from unreplicated service areas at the end of 2004.

13. The Commission decides to create a limited exception to the DTV replication use-or-lose policy for single-channel broadcasters that do not fully replicate (operate with their full allotted facilities) after implementing a band-clearing arrangement. As with its decision on DTV construction deadlines for single-channel broadcasters, the Commission believes that this approach is supported by the congressional plan for the transition of this spectrum to new public safety and commercial uses.

14. In the DTV Biennial Review Order , the Commission chose not to require such replication so as “to give broadcasters a measure of flexibility as they build their DTV facilities to collocate their antennas at common sites, thus minimizing potential local difficulties locating towers and eliminating the cost of building new towers.” The Commission finds that it is consistent with the underlying intent of that policy to afford certain broadcasters relief from the DTV replication protection deadline. For instance, in connection with a band-clearing arrangement as discussed, it would be inconsistent with the intent of the replication policy to remove DTV replication protection at the end of 2004 from a single-channel broadcaster that has been permitted to continue its analog operations on a digital allotment until the end of 2005 (or perhaps later). Instead, in such a case, the Commission believes that a broadcaster that is left with a DTV single-channel allotment as a result of a band-clearing arrangement should retain the interference protection associated with that DTV allotment for a period of 31 months after beginning to transmit in digital. This period is equal to the period of interference protection for unreplicated areas that the Commission provided to all broadcasters in the DTV Biennial Review Order .

15. Spectrum Clearing Alliance's Comprehensive Band-Clearing Plan . In the Upper 700 MHz Third Report and Order , the Commission found that “secondary auctions” or other such comprehensive market-oriented band-clearing mechanisms could be used to facilitate efficient band clearing.

16. SCA asserted that, with Spectrum Exchange and other broadcasters, it is currently in the process of developing a “comprehensive” band-clearing plan that is intended to serve as a framework for clearing the Channel 59-69 band. In its petition, SCA asked for a certain level of Commission involvement in executing its plan, and outlined certain actions to be taken by the Commission to assist in publicizing SCA's band-clearing plan.

17. The Commission acknowledges that there are strong public interest benefits favoring comprehensive band clearing. However, the Commission finds that additional involvement beyond its existing processes is not necessary to facilitate SCA's proposed private clearing arrangement (or any other comprehensive clearing plans). Under a voluntary, comprehensive band-clearing scheme established prior to the auction, bidders in the Commission's auction will be able to bid with some certainty that the spectrum will be cleared and avoid the delay and expense of complex post-auction bargaining.

18. The Commission finds that the Order on Reconsideration , in addition to the existing public processes for considering modification applications and associated regulatory requests to implement band-clearing agreements, should be sufficient to maximize the likelihood that all potential participants would have actual notice of an opportunity to participate in voluntary, comprehensive band-clearing arrangements, such as that being developed by SCA.

19. Expedited Processing of Regulatory Requests . In the Upper 700 MHz Third Report and Order , the Commission found it unnecessary to adopt a 60-day application processing deadline. SCA requested reconsideration of the decision not to adopt an explicit timeline. In light of the substantial public interest benefits associated with voluntary band-clearing agreements, the Commission delegates to the Mass Media Bureau authority to establish a 90-day processing period for band-clearing requests. The Commission concludes that an explicit time period would promote certainty in the clearing process.

20. License modification applications necessary to implement band-clearing arrangements would be granted at the end of the 90-day time period, unless the application is found to be defective, is opposed, or an integral request for waiver or other regulatory request cannot be granted. Upon notice to the applicant, the Mass Media Bureau could toll the 90-day deadline during the period in which an applicant is responding to a staff request for additional information. The Mass Media Bureau could also, upon notice to the applicant, extend the processing period if the caseload of regulatory requests associated with band-clearing arrangements makes it administratively impractical to complete processing within a 90-day period. The 90-day processing period would not apply to those applications that do not make a prima facie case of meeting the presumptions previously established in this proceeding for voluntary requests associated with band-clearing arrangements or that are not otherwise entitled to streamlined processing. Staff will regularly issue notice of modifications granted pursuant to this process.

21. Proposal to Relax Waiver Policies . Our previous decisions in this proceeding have provided guidance on a number of aspects of the Commission's treatment of regulatory requests associated with band-clearing arrangements. In regard to such regulatory requests, SCA proposed that the Commission adopt a “relaxed waiver standard” with respect to interference to Class A stations or where other requirements (e.g., city grade coverage) are not met.

22. In light of the balance that the Commission has achieved among the various objectives in this proceeding, it declines to adopt a general “relaxed waiver” policy.

23. Treatment of Pending Channel 59-69 Applicants . The Commission confirms that broadcasters with pending DTV applications will be permitted to benefit from band-clearing policies announced in this proceeding. The Commission finds no principled reason to distinguish between those broadcasters that have already been granted authority to operate in this band and those that have not yet received an authorization. Clearing of both pending applications and authorized facilities would serve the objectives of this proceeding.

24. The Commission continues to believe that voluntary agreements between broadcasters and new wireless licensees should result in the effective clearing of the 700 MHz band, and find no basis for disturbing our announced policy.

25. Section 213 of the Consolidated Appropriations Act, 2000 states that the Regulatory Flexibility Act (as well as certain provisions of the Contract With America Advancement Act of 1996 and the Paperwork Reduction Act) shall not apply to the rules and competitive bidding procedures governing the frequencies in the 746-806 MHz band (currently used for television broadcasts on Channels 60-69). Because the policies and rules adopted in the Order on Reconsideration of the Third Report and Order relate only to assignments of those frequencies, no Final Regulatory Flexibility Analysis or Paperwork Reduction Analysis is necessary.

26. Alternative formats (computer diskette, large print, audio cassette and Braille) are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 (voice), TTY (202) 418-7365, or at bmillin@fcc.gov. The Order on Reconsideration of the Third Report and Order can also be downloaded at http://www.fcc.gov/Bureaus/Wireless/Orders/2001/index.html .

27. For further information concerning the Order on Reconsideration of the Third Report and Order, contact William Huber of the Auctions and Industry Analysis Division at (202) 418-0660 (voice), (202) 418-7233 (TTY), e-mail: whuber@fcc.gov, Wireless Telecommunications Bureau, Washington, DC 20554.

28. Pursuant to sections 1, 2, 4(i), 5(c), 7(a), 301, 302, 303, 307, 308, 309(j), 309(k), 311, 316, 319, 324, 331, 332, 333, 336, 337, 614, and 615 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 155(c), 157(a), 301, 302, 303, 307, 308, 309(j), 309(k), 311, 316, 319, 324, 331, 332, 333, 336, 337, 614, and 615, the Consolidated Appropriations Act, 2000, Public Law Number 106-113, 113 Stat. 2502, and § 1.425 of the Commission's rules, 47 CFR 1.425, it is ordered that the Order on Reconsideration of the Third Report and Order is hereby adopted.

29. It is further ordered that, pursuant to sections 1, 2, 4(i), and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i) and 303, and § 1.429 of the Commission's rules, 47 CFR 1.429, the Petition for Reconsideration filed by MSTV on March 16, 2001 is denied, and the Petitions for Reconsideration filed by Spectrum Clearing Alliance and Spectrum Exchange Group, LLC on March 16, 2001 are granted to the extent discussed herein.

30. It is further ordered that authority is hereby delegated to the Mass Media Bureau to implement the policies for the introduction of new wireless services and to promote the early transition of incumbent analog television licensees to DTV service to the extent discussed herein.

A member of the pink or carnation family (Caryophyllaceae), Silene spaldingii (Watson) is a long-lived perennial herb with four to seven pairs of lance-shaped leaves and a spirally arranged inflorescence (group of flowers) consisting of small greenish-white flowers. The foliage is lightly to densely covered with sticky hairs. Reproduction is by seed only; Silene spaldingii does not possess rhizomes or other means of vegetative reproduction (Lesica 1992). Plants range from approximately 20 to 60 centimeters (8 to 24 inches (in.)) in height (Lichthardt 1997).

First collected in the vicinity of the Clearwater River, Idaho, between 1836 and 1847, Silene spaldingii was originally described by Watson (Watson 1875). Hitchcock and Cronquist (1973) retained this taxon as a full species in a comprehensive regional flora. Silene spaldingii, by having petal blades 2 millimeters (mm) (0.08 in.) in length, differs from the related, common species Silene scouleri, which has deeply lobed petal blades that are 6 to 7 mm (0.24 to 0.28 in.) long. Silene douglasii also occurs with S. spaldingii in some areas, but S. douglasii typically has multiple, slender stems, narrower leaves, and is rarely covered by sticky hairs (Lichthardt 1997).

The distribution and habitat of Silene spaldingii are limited. The total number of sites discussed in the 90-day finding for S. spaldingii (63 FR 63661) was 94, which is larger than the number of populations identified in this final rule. We based the number of sites stated in the petition finding primarily on location records ( i.e. , element occurrence records) available in State natural heritage data bases. In the proposed rule, and during the preparation of this final rule, we felt it was more appropriate to group certain element occurrence records for S. spaldingii together when approximately 1.6 kilometers (km) (1 mile (mi)) or less separate the sites. Thus, the difference in the number of S. spaldingii locations described in this final rule and the 90-day finding does not reflect the actual loss or extirpation of sites.

This species is currently known from a total of 52 populations in the United States and British Columbia, Canada. Of the 51 Silene spaldingii populations in the United States, 7 occur in Idaho (Idaho, Lewis, and Nez Perce counties), 7 in Oregon (Wallowa County), 9 in Montana (Flathead, Lake, Lincoln, and Sanders counties), and 28 in Washington (Asotin, Lincoln, Spokane, and Whitman counties). A population consists of one to several sites that are generally located less than 1.6 km (1 mi) apart. The number of S. spaldingii individuals within each population ranges from one to several thousand. Eighteen populations contain more than 50 individuals; only 6 of these populations are moderately large ( i.e. , contain more than 500 plants). Of the 6 largest populations, 2 are found in Oregon (Wallowa County), 1 in Idaho (Nez Perce County), 1 in Montana (Lincoln County), and 2 in Washington (Asotin and Lincoln Counties). The 6 moderately large populations contain approximately 84 percent ( i.e. , about 13,800 individuals) of the total number of Silene spaldingii . In addition, approximately 100 plants were located in British Columbia (Geraldine Allen, University of Victoria, in litt . 1996). The total number of S. spaldingii individuals for all 52 populations is about 16,500 (Edna Rey-Vizgirdas, Service, in litt. 1999).

Much of the remaining habitat occupied by Silene spaldingii is fragmented. For example, S. spaldingii populations in Oregon are located at least 64 km (40 mi) from the nearest known populations in eastern Washington. Silene spaldingii sites in Montana are approximately 190 km (120 mi) from occupied habitats in Idaho and Washington. Approximately 52 percent of extant S. spaldingii populations occur on private land, 10 percent on State land, 33 percent on Federal land, and 5 percent on Tribal land (E. Rey-Vizgirdas, in litt. 1999).

This species is primarily restricted to mesic (not extremely wet nor extremely dry) grasslands (prairie or steppe vegetation) that make up the Palouse region in southeastern Washington, northwestern Montana, adjacent portions of Idaho and Oregon, and in British Columbia. Palouse prairie is considered a subset of the Pacific Northwest bunchgrass habitat type (Tisdale 1986). In Idaho, Palouse prairie is confined to a narrow band along the western edge of central and north-central Idaho, centering on Latah County (Tisdale 1986; Ertter and Moseley 1992). Large-scale ecological changes in the Palouse region over the past century including agricultural conversion, changes in fire frequency, and alterations of hydrology, have resulted in the decline of many sensitive plant species including Silene spaldingii (Tisdale 1961). More than 98 percent of the original Palouse prairie habitat has been lost or modified by agricultural conversion, grazing, invasions of nonnative plant species, altered fire regimes, and urbanization (Noss et al. 1995). Some suitable habitat for S. spaldingii remains on the fringes of the Palouse region and in the forested portion of the channeled scablands in central Washington (John Gamon, Washington Natural Heritage Program (WNHP), in litt. 2000). Low-density subdivisions and developments, and increased use of lands in and around the forested portion of the channeled scablands in central Washington, likely pose significant threats to S. spaldingii populations remaining in this area (J. Gamon, in litt. 2000).

Silene spaldingii is also found in canyon grassland habitat, another division of the Pacific Northwest bunchgrass habitat type (Tisdale 1986). Canyon grasslands are dominated by the same bunchgrass species as Palouse prairie, but the two habitat types differ slightly in their overall plant species composition (Janice Hill, The Nature Conservancy (TNC), in litt. 2000; Greg Yuncevich, Bureau of Land Management (BLM), in litt. 2000). In addition, canyon grasslands occur in steep, highly dissected canyon systems whereas Palouse grasslands generally occur on gently rolling plateaus. The steep slopes in canyon grasslands result in pronounced habitat diversity (G. Yuncevich, in litt. 2000). This steepness has also prevented conversion of canyon grasslands to other uses, such as agriculture. Nevertheless, other disturbances ( e.g. , livestock grazing and the invasion of nonnative plant species) have caused significant alterations of the native vegetation of canyon grasslands, although portions of this habitat type have not received heavy use by domestic livestock (G. Yuncevich, in litt. 2000). The largest population of S. spaldingii in Idaho occurs in canyon grassland habitat where invasive nonnative species are a serious threat (J. Hill, in litt. 2000).

Silene spaldingii is typically associated with grasslands dominated by native perennial grasses such as Festuca idahoensis (Idaho fescue) or Festuca scabrella (rough fescue). Other associated species include bluebunch wheatgrass ( Agropyron spicatum ), prairie junegrass ( Koeleria cristata ), snowberry ( Symphoricarpos albus ), Nootka rose ( Rosa nutkana ), yarrow ( Achillea millefolium ), prairie smoke avens ( Geum triflorum ), sticky purple geranium ( Geranium viscosissimum ), and arrowleaf balsamroot ( Balsamorhiza sagittata ) (Lichthardt 1997; Montana Natural Heritage Program (MNHP) 1998). Scattered individuals of ponderosa pine ( Pinus ponderosa ) may also be found in or adjacent to S. spaldingii habitat. Silene spaldingii sites range from approximately 460 meters (m) (1,500 feet (ft)) to 1,600 m (5,100 ft) elevation (Oregon Natural Heritage Program (ONHP) 1998; WNHP 1998).

Federal Government actions for the plant began as a result of section 12 of the Act, (16 U.S.C. 1531 et seq. ), which directed the Secretary of the Smithsonian Institution to prepare a report on those plants considered to be endangered, threatened, or extinct in the United States. This report, designated as House Document No. 94-51, was presented to Congress on January 9, 1975, and included Silene spaldingii as an endangered species. We published a notice on July 1, 1975, in the Federal Register (40 FR 27823) accepting the report of the Smithsonian Institution as a petition within the context of section 4(c)(2) (petition provisions are now found in section 4(b)(3) of the Act), and our intention to review the status of the plant taxa named in the report. The July 1, 1975, notice included the above taxon. On June 16, 1976, we published a proposal (41 FR 24523) to determine approximately 1,700 vascular plant species to be endangered species pursuant to section 4 of the Act. The list of 1,700 plant taxa was assembled on the basis of comments and data received by the Smithsonian Institution and us in response to House Document No. 94-51 and the July 1, 1975, Federal Register publication. We included Silene spaldingii in the June 16, 1976, proposal.

In 1978, amendments to the Act required that all proposals more than 2 years old be withdrawn. On December 10, 1979, we published a notice withdrawing that portion of the June 16, 1976, proposal that had not been made final, including the proposal to list Silene spaldingii (44 FR 70796). We published an updated Notice of Review for plants on December 15, 1980 (45 FR 82480). This notice included S. spaldingii as a category 1 candidate. Category 1 candidates were those for which we had sufficient information on biological vulnerability and threats to support proposals to list them as endangered or threatened species.

The 1982 amendments to the Act required that we treat all petitions pending on October 13, 1982, as having been newly submitted on that date. This provision applied to Silene spaldingii because we had accepted the 1975 Smithsonian report as a petition. On October 13, 1983, we found that the listing of the species was warranted but precluded by other pending listing actions, in accordance with section 4(b)(3)(B)(iii) of the Act. We published notification of this finding on January 20, 1984 (49 FR 2485). Our warranted but precluded finding required us to consider the petition as having been resubmitted annually, pursuant to section 4(b)(3)(C)(i) of the Act.

We included Silene spaldingii as a category 2 candidate in the November 28, 1983, supplement to the Notice of Review (48 FR 53640), as well as subsequent revisions on September 27, 1985 (50 FR 39526), February 21, 1990 (55 FR 6184), and September 30, 1993 (58 FR 51143). Category 2 candidates were those species for which information in our possession indicated that proposing to list as endangered or threatened was possibly appropriate, but sufficient data to support proposed rules was not currently available. Upon publication of the February 28, 1996, Notice of Review (61 FR 7596), we ceased using category designations. Silene spaldingii was not included as a candidate species in this notice.

On February 27, 1995, we received a petition dated February 23, 1995, from the Biodiversity Legal Foundation of Boulder, Colorado; the Montana and Washington Native Plant Societies; and Mr. Peter Lesica of Missoula, Montana, to list Silene spaldingii within the conterminous United States as threatened or endangered under the Act. The petition submitted information stating that this species is threatened by competition with nonnative and woody vegetation, improper livestock grazing practices, improper herbicide application, inbreeding depression, and fire suppression.

In April 1995, the enactment of Public Law 104-6 placed a moratorium on final listing determinations and critical habitat designations. It also rescinded $1.5 million from our budget for carrying out listing activities for the remainder of Fiscal Year 1995. From October 1, 1995, until April 26, 1996, the Department of the Interior operated without a regularly enacted full-year appropriations bill. On April 26, 1996, President Clinton approved the Omnibus Budget Reconciliation Act of 1996 and lifted the moratorium. At that time, we had accrued a backlog of proposed listings for 243 species, of which Region 1 had the lead on 199, or 82 percent. Due to this backlog, reduced budgets for the listing program, and litigation demands, completion of the processing of this petition was not practicable until November 16, 1998. On that date, we published a finding that the petition presented substantial information indicating that the petitioned action may be warranted (63 FR 63661) and commenced a status review for Silene spaldingii.

On December 3, 1999 (64 FR 67814), we published a proposal to list Silene spaldingii as a threatened species. In the proposed rule, we did not propose a critical habitat determination for S. spaldingii, but stated that we would publish such a determination for this species in the Federal Register subsequent to the proposed rule. On April 24, 2000 (65 FR 21711), we published a notice proposing that designation of critical habitat is prudent for S. spaldingii and reopened the public comment period. We reopened the comment period again on September 8, 2000 (65 FR 54472).

In the December 3, 1999, proposed rule (64 FR 67814) and associated notifications, we requested all interested parties to submit factual reports or information that might contribute to the development of a final listing decision. The comment period closed on February 1, 2000. We contacted appropriate State agencies, county governments, Federal agencies, scientific organizations, and other interested parties and requested them to comment. We reopened the public comment period for another 60 days on April 24, 2000 (65 FR 21711) when we issued the proposed Silene spaldingii critical habitat prudency determination, and the public was able to comment both on the proposed critical habitat determination and on the proposed rule to list the species as threatened. We did not receive any requests for a public hearing. We reopened the comment period again on September 8, 2000 (65 FR 54472) for another 15 days to provide notification of the proposal in a newspaper as required by the Act. We published announcements of the proposed rule in the Spokane Spokesman Review and the Moscow-Pullman Daily News on September 8, 2000, the Missoulian on September 9, 2000, and the LaGrande Observer on September 11, 2000.

We received 16 written comments during the comment periods. Six commenters expressed support for the listing proposal, seven were neutral to the listing and critical habitat proposals, and one was opposed. Four commenters supported the proposed determination that it is prudent to designate critical habitat for Silene spaldingii . We considered all comments and incorporated them, as appropriate, into the final rule.

We have grouped comments of a similar nature or point regarding the proposed rule into general issues, and our response to the issues are discussed below.

Issue 1: Threats to Silene spaldingii and its rarity are not sufficiently documented in the proposed rule.

Our Response: Data presented in the proposed rule demonstrate the decline and degradation of ecological communities in which Silene spaldingii occurs and the disappearance of S. spaldingii within these habitats. For example, the proposed rule describes the extensive loss of Palouse grassland that historically was the primary habitat for S. spaldingii and refers to the subsequent rarity of other species found principally in this declining habitat type. The proposed rule cites numerous ongoing threats to S. spaldingii, including trampling and consumption by livestock, expansion of invasive nonnative species in sites occupied by S. spaldingii, and housing developments. Moreover, S. spaldingii is evidently extirpated from at least 16 sites where knowledgeable observers had previously seen the species.

Issue 2: One commenter stated that Silene spaldingii should not be listed because economic impacts have not been considered.

Our Response: In accordance with section 4(b)(1)(A) of the Act and the Act's implementing regulations, 50 CFR 424.11(b), listing decisions are made solely on the basis of the best available scientific and commercial data. Congress was very clear on this point, a House of Representatives' committee report stated: “The only alternatives involved in the listing of species are whether the species should be listed as endangered or threatened or not listed at all. Applying economic criteria to the analysis of the alternatives and to any phase of the species listing process is applying economics to the determinations made under Section 4 of the Act and is specifically rejected by the inclusion of the word “solely” in this legislation” (H.R. Rep. No. 97-567 at 20 (1982)). Therefore, economic impacts cannot be considered when determining whether to list a species under the Act.

Issue 3: The Service should wait to list Silene spaldingii until it collects further information to substantiate its decline and rarity.

Our Response: Ongoing surveys for this species have documented the extirpation or near extirpation of numerous populations. We received information from all known experts on this species before and after publishing the proposed rule. No new populations of this species were reported to us during the public comment period. While it is possible that new populations of Silene spaldingii will be found in the future, we believe it is unlikely that such discoveries alone would alter the species' status. Additionally, the almost complete destruction of Palouse grasslands (as discussed in the “Background” section), which evidently was the center of this species' historical range, and the significant threats ( e.g., invasive nonnative species) to S. spaldingii documented in its other important habitat type, canyon grasslands, are sufficient to list S. spaldingii as threatened at this time.

Issue 4: One commenter stated that the proposed rule did not adequately substantiate our claim that mowing is a threat to Silene spaldingii .

Our Response: The proposed rule did not list mowing as a threat to this species.

Issue 5: This species is simply obscure and not threatened. Observations of the species do not prove absence at other sites, and it is likely present at sites that have not been surveyed. The Service should not list Silene spaldingii until its absence from apparently suitable habitats in the Blue Mountains of Oregon can be demonstrated. The Service should not list S. spaldingii until threats described in the proposed rule are shown experimentally to cause extirpation of the species from occupied habitats.

Our Response: It is true that Silene spaldingii is, at times, difficult to identify and locate. However, the surveys on which we relied to document the presence of S. spaldingii were made by qualified botanists who can identify this species and are familiar with the habitats in which it occurs. Botanists have been looking for this and other rare plant species in Palouse and canyon grasslands for several years. If the species were simply obscure, many new populations should have been located as a result of these widespread surveys.

It is true that observations and monitoring of known populations of Silene spaldingii do not prove that it is absent from unsurveyed sites. Unfortunately, Natural Heritage databases and other data sources generally do not contain data on sites that do not contain rare species, such as S. spaldingii, unless the species was previously observed there. Therefore, we could not present information on what proportion of sites surveyed have never had S. spaldingii observed. As stated above, however, in numerous cases, negative survey results were recorded at sites where botanists had formerly located S. spaldingii. These negative results clearly document numerous recent extirpations of this species. Surveys for this species have been conducted and are ongoing in various portions of Oregon's Blue Mountains. Given the substantial information on the threats and decline of S. spaldingii throughout its range, waiting for the results of these surveys before listing this species would not be prudent. Similarly, awaiting the results of numerous experimental studies to quantify the effects of all threats to this species would also not be prudent. Threats to plant species and population declines can be documented or inferred based on empirical observations by qualified professionals and on information available in the scientific literature, as we have done for this species.

Issue 6: Understanding of the ecology and life history of Silene spaldingii is insufficient to allow listing.

Our Response: We have sufficient information regarding the ecology and life history of Silene spaldingii. While there are usually some unknown aspects of nearly every species' life history, the available natural history information for S. spaldingii is sufficient to proceed with listing this species. Additionally, the Act requires us to make listing decisions based solely on the best available scientific and commercial information (section 4(b)(1)(A)). We cannot delay listing a species to gather more ecological or life history information when the best available scientific and commercial information currently demonstrates that the species meets the definition of threatened. This is the case for S. spaldingii.

Issue 7: Noxious weeds, such as knapweed species and yellow star-thistle, are not threats because habitat can be restored using various “treatments” and “revegetation techniques.”

Our Response: The proposed rule describes and cites examples of sites at which yellow star-thistle ( Centaurea solstitialis ) and other nonnative species have invaded habitat in which Silene spaldingii occurs. Various practices are being implemented throughout the range of S. spaldingii to control or eradicate nonnative species that threaten native plant communities. At many of these sites, however, these practices are not entirely successful in restoring the native plant communities. Based on information obtained from reports, personal communications, and scientific papers that we cited and summarized in the proposed rule, most or all of the nonnative species invasions that threaten S. spaldingii cannot be controlled with the current effort levels and techniques. For example, at Garden Creek Ranch, which contains the largest S. spaldingii population in Idaho (Idaho Conservation Data Center 1998), C. solstitialis spread from approximately 60 hectares (ha) (150 acres (ac)) in 1987 to 810 ha (2,000 ac) in 1998 (J. Hill, in litt. 1999). Numerous botanists and ecologists recognize that S. spaldingii is always, or almost always, found at sites that are generally free of nonnative plant species. We are not aware of any efforts that have been successful in returning a site dominated by nonnative species to one dominated by native species that included S. spaldingii.

Issue 8: Critical habitat designation does not seem to confer added protection for listed plant species, primarily because of limited protection for plants on non-Federal lands.

Our Response: The designation of critical habitat on Federal lands may provide a greater measure of protection than the limited prohibitions against take of plants on areas under Federal jurisdiction. Critical habitat may also confer additional protection for listed plant species because Federal actions may affect non-Federal lands. Moreover, critical habitat designation may educate and inform the public and help focus conservation efforts through future Federal, State, and local planning efforts and the public, by identifying the habitat needs and essential areas for Silene spaldingii.

Issue 9: Critical habitat designation may increase the chance that areas in which Silene spaldingii occurs that are not designated as critical habitat would be downgraded in importance when making land management decisions.

Our Response: As stated above, critical habitat may increase protection for listed plant species. It is possible that Silene spaldingii would receive greater consideration in areas within the critical habitat designation than where it occurs outside critical habitat. However, it is the intention of critical habitat designation, however, to ensure that land managers and others are aware of areas that are essential to the conservation of listed species.

In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited the expert opinions of three independent specialists regarding pertinent scientific or commercial data and assumptions relating to the taxonomy, population status, and supportive biological and ecological information for the taxon under consideration for listing. The purpose of such review is to ensure that listing decisions are based on scientifically sound data, assumptions, and analyses, including input from appropriate experts and specialists. All three scientists responded to our request for peer review of this listing action, and provided information that supported and augmented the biological and ecological data presented in the proposed rule, and we incorporated the comments, as appropriate, into this final rule.

After a thorough review and consideration of all information available, we determine that Silene spaldingii should be classified as a threatened species. We followed procedures found at section 4(a)(1) of the Act and regulations (50 CFR part 424) implementing the listing provisions of the Act. A species may be determined to be endangered or threatened due to one or more of the five factors described in section 4(a)(1). These factors, and their application to Silene spaldingii Watson, are as follows:

As discussed in the “Background” section above, the distribution and habitat of Silene spaldingii are limited. This species is primarily restricted to mesic slopes, flats, or depressions in grassland or steppe vegetation of the Palouse region in southeastern Washington, northwestern Montana, and adjacent portions of Idaho and Oregon. One site is located in British Columbia, Canada, directly adjoining a Montana population. In Idaho, Palouse prairie is confined to a narrow band along the western edge of central and north-central Idaho, centering on Latah County (Tisdale 1986; Ertter and Moseley 1992), although the largest population of S. spaldingii in Idaho occurs in canyon grassland habitat. The areas that supported Palouse prairie are now extensively cultivated, with few remnants of native habitat (Tisdale 1986). About 94 percent of the grasslands have been converted to crop, hay, or pasture lands (Black et al. 1998), and more than 98 percent of the original Palouse prairie has been lost to all causes combined, including urbanization (Noss et al. 1995). Invasive nonnative species also seriously threaten canyon grasslands occupied by S. spaldingii in Idaho (J. Hill, in litt. 2000). This loss of habitat has resulted in the decline of numerous sensitive plant species including S. spaldingii (Tisdale 1961).

Although historical data on Silene spaldingii distribution and population size are incomplete, based on the former distribution of suitable Palouse habitat, this species was likely much more widespread in the past. According to Ertter and Moseley (1992), “because of the exceptionally rich soil, a deep layer of loess, most of the grasslands have been converted to agriculture. Most of the Palouse prairie vegetation has, therefore, disappeared, and endemic species such as Aster jessicae Piper and Haplopappus liatriformis (Greene) St. John are threatened with extinction.” Both A. jessicae and H. liatriformis may be found within or near habitat occupied by S. spaldingii (Lichthardt 1997). Similar to S. spaldingii , A. jessicae and H. liatriformis are considered globally rare and vulnerable to extinction by the Idaho Native Plant Society (Idaho Native Plant Society 2000).

Invasion by nonnative plant species, herbicide application, and/or grazing (including trampling and consumption of plants) threaten virtually all of the remaining populations of this species, including those present in areas administered by the BLM and U.S. Forest Service (Forest Service) (Biodiversity Legal Foundation et al. 1995; Lichthardt 1997; MNHP 1998; ONHP 1998; WNHP 1998).

Nonnative plant species are considered a major threat at nearly all sites supporting Silene spaldingii . Threats to S. spaldingii posed by nonnative plant species include competition for water, nutrients, and light, in addition to competition for pollinators (Lesica and Heidel 1996). Nonnative plant species such as St. John's-wort ( Hypericum perforatum , yellow star-thistle, leafy spurge ( Euphorbia esula , teasel ( Dipsacus sylvestris , Canada thistle ( Cirsium arvense , sulfur cinquefoil ( Potentilla recta , Russian knapweed ( Acroptilon repens , Scotch thistle ( Onopordium acanthium , and cheatgrass ( Bromus tectorum threaten S. spaldingii in Idaho, Oregon, Montana, and Washington (Lesica and Heidel 1996; Lichthardt 1997; MNHP 1998; ONHP 1998; WNHP 1998; J. Hill, in litt . 1999).

Some of these nonnative species can invade and displace native plant communities in a relatively short period of time. For example, at TNC's Garden Creek Ranch, which contains the largest Silene spaldingii population in Idaho (Idaho Conservation Data Center 1998), yellow star-thistle spread from approximately 60 ha (150 ac) in 1987 to 810 ha (2,000 ac) in 1998 (J. Hill, in litt . 1999). Another site containing S. spaldingii in Idaho (Lawyer's Creek) was apparently extirpated by highway construction in 1990 and the invasion of yellow star-thistle.

Yellow star-thistle is found near all Silene spaldingii populations in Idaho (Lichthardt 1997). This aggressive nonnative species can form almost complete monocultures (a single species growing in an area to the exclusion of others), invading and out competing native species. Even small areas that experience soil disturbance are almost immediately colonized by yellow star-thistle or other nonnative winter annuals (Lichthardt 1997). Seeds of yellow star-thistle can remain dormant in the soil for up to 10 years (Callihan and Miller 1997), making effective control of this aggressive nonnative extremely difficult.

Russian knapweed spreads readily by reproducing vegetatively, as well as by seed. Once established, knapweed forms single-species stands by producing chemicals that inhibit the survival of competing plant species, known as allelopathy (U.S. Geological Survey 1999). Knapweed (probably spotted knapweed, Centaurea maculosa ) has been noted to displace Silene spaldingii plants in Montana. At this site, the number of S. spaldingii plants declined from 30 in 1983 to 11 in 1990, due to the invasion of knapweed (MNHP 1998). Spotted knapweed is considered “the number one weed problem on rangeland in western Montana” (Whitson 1996). Nonnative species also threaten the largest S. spaldingii populations in Montana (Biodiversity Legal Foundation et al. 1995; Brian Martin, TNC, in litt . 1998), Oregon (Jimmy Kagan, ONHP, pers. comm. 1998), and Washington (Scott Riley, Umatilla National Forest, pers. comm. 1999). Silene spaldingii and other native plants are generally unable to grow or successfully reproduce in areas dominated by yellow star-thistle and knapweed.

Herbicide drift also threatens Silene spaldingii habitat. Most remaining S. spaldingii populations are adjacent to agricultural fields, which are often treated with herbicides to control nonnative vegetation. Even S. spaldingii sites that are not located immediately adjacent to agricultural areas may be vulnerable to herbicide use due to the presence of nonnative species (Jerry Hustafa, Wallowa-Whitman National Forest, pers. comm. 1999). Herbicide overspray threatens populations in Idaho (Lichthardt 1997; J. Hill, in litt . 1999), Oregon (J. Hustafa, pers. comm. 1998; J. Kagan, pers. comm. 1998), and Washington (WNHP 1998). One population of S. spaldingii in Idaho (Lewis County) decreased by more than 80 percent in the past 11 years, apparently due to nonnative species invasion, herbicide spraying, and development (Lichthardt 1997). Herbicide spraying to control nonnatives threatens one of the two largest S. spaldingii sites on the Umatilla National Forest in Washington (S. Riley, pers. comm. 1999). In addition, knapweed recently invaded the largest S. spaldingii population in Oregon. Because knapweed blooms late ( i.e. , during the active growth period of S. spaldingii ) and local weed control officials will likely demand spraying at this site, herbicide applications also pose a serious threat to this population (J. Kagan, in litt . 2000). A recent aerial herbicide spraying incident in Idaho County, Idaho, impacted the threatened plant species, MacFarlane's four-o'clock ( Mirabilis macfarlanei ). Approximately 2,000 M. macfarlanei plants on Federal and private land were accidentally sprayed during treatment for nearby target nonnative species (Craig Johnson, BLM, in litt . 1997). This species occurs in similar habitats as S. spaldingii . At least two S. spaldingii sites in Idaho (Nez Perce County) are particularly vulnerable to herbicide drift because of their proximity to cropland (Lichthardt 1997).

In addition to direct consumption of plants (as discussed under Factor C of this section), grazing animals can also affect Silene spaldingii by trampling and changing the plant community composition by fostering the invasion of nonnative species. Impacts from trampling by native ungulates and domestic livestock have been observed at S. spaldingii sites in Washington (Gamon 1991; WNHP 1998). Grazing can indirectly affect S. spaldingii habitat by altering the species composition (Gamon 1991; Lichthardt 1997; Bonnie Heidel, MNHP, in litt . 1999). If grazing is heavy enough to adversely affect native species or allow nonnative species invasion, S. spaldingii will likely disappear from sites (Barbara Benner, BLM, in litt . 1993). Biennial and nonnative annual plants, adapted to disturbance, have a competitive advantage over S. spaldingii because of the soil disturbance associated with grazing (B. Benner, in litt . 1995).

Most populations (52 percent) of Silene spaldingii occur on privately owned property and are threatened by changes in land use including certain livestock grazing practices, agricultural developments, and urbanization. For example, active housing development threatens to eliminate S. spaldingii habitat near Redbird Ridge in Idaho (Lichthardt 1997). Over the past 3 years, residential development immediately adjoining land owned by TNC, which has the largest S. spaldingii population in Montana, has destroyed potential habitat, increased the likelihood of uncontrolled, competing nonnative vegetation, and reduced management options such as controlled burning on the preserve (B. Martin, in litt . 1998). Continued development in this area is expected (B. Martin, in litt . 1998). Habitat for S. spaldingii on private land near Wallowa Lake in eastern Oregon, which supports the largest site in Oregon, may be threatened by development because of its proximity to existing recreational facilities and residences (E. Rey-Vizgirdas, pers. obs. 1998). Other S. spaldingii sites on private land in Idaho, Montana, and Washington may also be threatened by development.

The plant is not a source for human food, nor is it currently of commercial horticultural interest. Therefore, overutilization is not currently considered a threat to this species. However, should it occur, some populations of Silene spaldingii are small enough that even limited collection pressure would have adverse impacts on their reproductive or genetic viability.

Grazing or browsing of Silene spaldingii inflorescences by livestock and native herbivores has been observed and is considered a significant threat to the species (Kagan 1989; Lesica 1993; Heidel 1995; B. Benner, in litt . 1999). While grazing or browsing of S. spaldingii by native herbivores likely occurred historically, the effects of grazing or browsing become even more important as the plant's population sizes decrease. Rodent activity is also considered a significant factor affecting the persistence of S. spaldingii at several sites in eastern Washington (B. Benner, in litt . 1999). For example, numerous S. spaldingii plants were marked with stakes and metal tags as part of a monitoring study on land managed by the BLM in Washington. On a site visit, the BLM botanist discovered that many of these plants were either broken off or missing completely and likely consumed by rodents, as evidenced by rodent burrowing activity in the area (B. Benner, in litt . 1999). Since S. spaldingii reproduces only by seed (Lesica 1992), grazing, browsing, or trampling directly affects reproduction of this species when flowers or seeds are removed or damaged.

Insect predation on flowers and fruits is also a threat for this species (Kagan 1989; Gamon 1991; B. Benner, in litt. 1999). Such predation likely results in reduced reproductive success for Silene spaldingii (Heidel 1995). For example, at one of the two largest S. spaldingii populations in Washington on land managed by the Forest Service, biologists monitoring the plants have consistently observed seeds consumed by insects. This consumption results in empty capsules with no seeds, thereby limiting sexual reproduction of affected S. spaldingii plants (S. Riley, pers. comm. 1999). Similarly, in Oregon, seed weevils destroyed a high percentage of S. spaldingii seed heads (Kagan 1989). Insect damage to the foliage of S. spaldingii has also been noted (Lichthardt 1997). Although some insect damage to plants may be expected, the effects on the survival of S. spaldingii are amplified as plant populations become small and fragmented.

Silene spaldingii is listed as endangered by the State of Oregon (Oregon Department of Agriculture). However, the Oregon State Endangered Species Act does not provide protection for species on private land, so under State law, any plant protection is at the discretion of the landowner. Silene spaldingii is on the Washington Natural Heritage Program's list of threatened species (Gamon 1991), but this designation offers no statutory protection (Ted Thomas, Service, in litt. 1998). In addition, although State natural heritage programs in Idaho and Montana consider S. spaldingii to be rare and imperiled, these States have no endangered species legislation that protect threatened or endangered plants. The majority of S. spaldingii habitat occurs on private land, which is not adequately protected by existing regulatory mechanisms.

In Canada, Silene spaldingii is listed on the British Columbia, Ministry of Environment, Lands and Park's Red List. The Red List includes indigenous species or subspecies (taxa) that are either extirpated, endangered, threatened, or candidates for such status. Endangered taxa are those species facing imminent extirpation or extinction. Threatened taxa are likely to become endangered if limiting factors are not reversed. Silene spaldingii is a candidate for legal designation as an endangered or threatened species (British Columbia Conservation Data Center 1999). The Red List designation does not provide any statutory protection to this population, which occurs on private pasture land (Mike Miller, University of Victoria, in litt. 1999).

Silene spaldingii is considered a sensitive species by the BLM and Region 1 of the Forest Service. Both of these agencies have laws and regulations that address the need to protect sensitive, candidate, and federally listed species (e.g., the Federal Land Policy and Management Act and the National Forest Management Act). Monitoring of some S. spaldingii populations on Federal lands has already been initiated. Also, the BLM in eastern Washington has acquired several private land parcels that contain S. spaldingii habitat. However, these actions have not eliminated all of the threats to this species. For example, the effects of activities such as livestock grazing have not been evaluated for all S. spaldingii sites managed by the Forest Service and BLM. In addition, numerous sites on Federal lands are threatened by nonnative species, herbicide spraying, and habitat succession through fire suppression (see factors A and E of this section).

One Silene spaldingii population in eastern Washington occurs on the U.S. Department of Defense Fairchild Air Force Base (Base). The Base asked the WNHP to visit the area in 1999 to assess its habitat and ground-disturbing activities that would affect this species (J. Gamon, pers. comm. 1999). It was found that this population contains 77 plants in 8 subpopulations in an isolated fragment of native habitat. The area has been used for military training (WNHP 1998), although the WNHP has prepared a draft management plan and established a monitoring program for S. spaldingii for the Base.

Two populations occur on lands owned by TNC. This organization protects the habitat and natural communities on lands that it owns. TNC will protect Silene spaldingii on its lands and actively manage the habitat to improve conditions for this species, such as controlling livestock grazing and nonnative vegetation (J. Hill, in litt. 1999; B. Martin, in litt. 1998). However, nonnative species cannot be entirely eliminated and will likely remain a threat to S. spaldingii in the future.

Competition with other species for a limited number of pollinators (e.g., bumblebees ( Bombus fervidus )) has the potential to adversely affect both fecundity and individual fitness in Silene spaldingii (Lesica and Heidel 1996). Competition for pollinators occurs primarily at S. spaldingii sites with large populations of other flowering plants, and the competition can adversely affect the survival of these small populations of S. spaldingii . For example, the nonnative flowering plant St. John's-wort competes for pollinators where this plant occurs with S. spaldingii in Idaho (Lesica and Heidel 1996; J. Hill, in litt . 1999; Karen Gray, botanist, in litt . 1999).

Reduced pollinator activity is associated with poor reproductive success of Silene spaldingii , particularly in small populations (Lesica 1993; Lesica and Heidel 1996). Agricultural fields do not provide suitable habitat for pollinators of S. spaldingii , which requires pollination by insects for maximum seed set and population viability (Lesica and Heidel 1996). Populations of S. spaldingii that occupy small areas surrounded by land that does not support bumblebee colonies (e.g., crop lands) are not likely to persist over the long term, and the presence of pollinators is considered critical for the persistence of S. spaldingii (Lesica 1993; Lesica and Heidel 1996). In addition to agricultural conversion and pesticides, pollinators are vulnerable to herbicide application, domestic livestock grazing, and fire (Gamon 1991; Lesica 1993).

Climatic fluctuations can adversely affect this species and may contribute to the extirpation of small populations. For example, a population of Silene spaldingii at Wild Horse Island (Montana) declined from approximately 250 to 10 plants, due primarily to drought conditions in the late 1980s (Lesica 1988; Heidel 1995). Such reductions in population size are often exacerbated by other factors including pollinator competition and poor reproductive success.

Habitat changes associated with fire suppression threaten this species, even at sites on public lands and those with some protective status ( e.g. , managed by TNC). Fire suppression can result in an overall decline in suitable habitat conditions for Silene spaldingii by facilitating encroachment by woody vegetation and other plant species and contributing to a build-up in the litter or duff layer. Competition from woody plants is frequently considered to reduce fecundity or recruitment of native prairie species (Menges 1995). In areas where fire regimes have been altered or excluded, shrubs and trees can encroach on grassland habitats that support S. spaldingii and inhibit seed germination. Prescribed fire may have a positive effect on S. spaldingii by removing litter and creating suitable sites for recruitment (Lesica 1999). Recruitment of S. spaldingii at study sites in Montana was enhanced following prescribed fire (Lesica 1992; Lesica 1999). However, the effects of fire will vary at different sites within the range of this species due to factors such as fuel moisture content, species composition, and season and intensity of burning (Lesica 1997). The effects of prescribed fire on aggressive, nonnative species, where they occur near S. spaldingii , must be carefully considered. In some cases, prescribed fires may adversely affect S. spaldingii if the fire indirectly leads to increased coverage of invasive nonnatives, such as yellow star-thistle (Idaho Department of Fish and Game, in litt. 2000).

Most populations of Silene spaldingii are restricted to small, remnant patches of native habitat (Gamon 1991; Lichthardt 1997; B. Heidel, in litt . 1999; S. Riley, pers. comm. 1999). When the number of populations of a species or the population size is reduced, the remnant populations (or portions of populations) have a higher probability of extinction from random events. Small populations are vulnerable to even relatively minor disturbances such as fire, herbicide drift, and nonnative species invasions, which could result in the loss of S. spaldingii populations (Gamon 1991). Small populations of Silene regia, a rare prairie species native to the Midwest, have low seed germination, presumably due to reduced pollinator visitation and other factors (Menges 1995). Small fragments of habitat that contain S. spaldingii may not be large enough to support viable populations of pollinators (Lesica 1993). Small populations are vulnerable to natural and manmade disturbances and may lose a large amount of genetic variability because of genetic drift (loss of genetic variability that takes place as a result of chance), reducing their long-term viability. Many S. spaldingii populations are isolated from other populations by large distances, and the majority of the populations occur at scattered localities separated by habitat that is not suitable for this species, such as agricultural fields. Extinction appears to be imminent for at least two S. spaldingii populations in Idaho due to their small size and habitat degradation (Lichthardt 1997). One of these populations consists of four individuals, and the other population has only one S. spaldingii plant. With these very small population sizes, even if the habitat was completely undisturbed, these populations would not be considered viable.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by the species in developing this final rule. Most of the remaining sites that support Silene spaldingii are small and highly fragmented, and the existing sites are vulnerable to impacts from factors including grazing, trampling, herbicide use, and nonnative vegetation, in addition to urban and agricultural development. Only 52 sites supporting this species remain with a total of approximately 16,500 individuals. The majority of this species (52 percent) occurs on private land with little or no protection. Only one-third (33 percent) of S. spaldingii populations occur on Federal land (managed primarily by the BLM and Forest Service) and may, therefore, be afforded some level of protection. Even the two S. spaldingii sites on land managed by TNC are not completely free of threats such as nonnative vegetation encroachment. As previously described, only 6 S. spaldingii populations (12 percent) contain more than 500 plants, and even these relatively large populations (which occur on private and Federal land) are variously threatened by one or more of the above factors. The Act generally defines an endangered species as any species that is in danger of extinction throughout all or a significant portion of its range. Although S. spaldingii is facing clear and significant threats, because of the number of remaining populations and the spatial distribution of the populations, we do not believe that S. spaldingii is currently in danger of extinction. Alternatively, as a result of threats we have discussed, we have determined that S. spaldingii is likely to become in danger of extinction within the foreseeable future throughout all or a significant portion of its range; therefore, S. spaldingii meets the Act's definition of a threatened species. We discuss the reasons for not concurrently designating critical habitat for this species in the “Critical Habitat” section below.

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

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

In the last few years, a series of court decisions have overturned our critical habitat determinations for a variety of species (e.g., Natural Resources Defense Council v. U.S. Department of the Interior 113 F. 3d 1121 (9th Cir. 1997); Conservation Council for Hawaii v. Babbitt , 2 F. Supp. 2d 1280 (D. Hawaii 1998)). In the proposed rule, we stated that we would publish a critical habitat determination for Silene spaldingii in the Federal Register subsequent to the proposed rule. Based on the standards applied in those judicial opinions, we published a notice on April 24, 2000, in which we proposed that designation of critical habitat for S. spaldingii is prudent (65 FR 21711).

Due to the small number of populations, Silene spaldingii is vulnerable to unrestricted collection, vandalism, or other disturbance. We are concerned that these threats might be exacerbated by the publication of critical habitat maps and further dissemination of location information. However, at this time we do not have specific evidence for S. spaldingii of taking, vandalism, collection, or trade of this species or any similarly situated species. Consequently, consistent with applicable regulations (50 CFR 424.12(a)(1)(i)) and recent case law, we believe that the identification of critical habitat is unlikely to increase the degree of threat to this species of taking or other human activity.

In the absence of a finding that identification of critical habitat would increase threats to a species, if any benefits would result from the designation of critical habitat, then a prudent finding is warranted. In the case of this species, designation of critical habitat may provide some benefits. For example, critical habitat designation may educate and inform the public and help focus conservation efforts through future Federal, State, and local planning efforts, by identifying the habitat needs and crucial areas for Silene spaldingii. Therefore, we find that designation of critical habitat is prudent for S. spaldingii.

However, our budget for listing activities is currently insufficient to allow us to immediately complete all of the listing actions required by the Act. Listing Silene spaldingii without designation of critical habitat will allow us to concentrate our limited resources on other listing actions that must be addressed, while allowing us to invoke protections needed for the conservation of this species without further delay. This is consistent with section 4(b)(6)(C)(i) of the Act, which states that final listing decisions may be issued without critical habitat designations when it is essential that such determinations be promptly published. We will prepare a critical habitat designation in the future at such time when our available resources and priorities allow.

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

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

Federal agencies that may have involvement with Silene spaldingii include the Federal Housing Administration and the Farm Services Agency, which may be subject to section 7 consultation through potential funding of housing and farm loans where this species or its habitat occurs. Highway construction and maintenance projects that receive funding from the U.S. Department of Transportation for Federal highways will also be subject to review under section 7 of the Act. The Natural Resources Conservation Service may also be involved with S. spaldingii through their farm conservation programs. In addition, section 2(c)(1) and 7(a)(1) of the Act require Federal agencies to utilize their authorities in furtherance of the purposes of the Act to carry out conservation programs for endangered and threatened species.

Listing of this plant will provide for development of a recovery plan for the plant. Such a plan will bring together both State and Federal efforts for conservation of this species. The plan will establish a framework for agencies to coordinate activities and cooperate with each other in conservation efforts. The plan will set recovery priorities, assign responsibilities, and estimate the costs of various tasks necessary to accomplish them. It will also describe site-specific management actions necessary to achieve conservation and survival of the plant. Additionally, pursuant to section 6 of the Act, we will be able to grant funds to affected States for management actions promoting the protection and recovery of this species.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all threatened plants. Pursuant to 50 CFR 17.71, generally all prohibitions of 50 CFR 17.61 apply to threatened plants. These prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to import or export, transport or ship any endangered or threatened plant species in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale such species in interstate or foreign commerce, or remove and reduce such species to possession from areas under Federal jurisdiction. Certain exceptions apply to our agents and State conservation agencies.

Our policy, published in the Federal Register on July 1, 1994 (59 FR 34272), is to identify, to the maximum extent practicable, those activities that would or would not constitute a violation of section 9 of the Act at the time of listing. The intent of this policy is to increase public awareness of the effects of the listing on proposed and ongoing activities within a species' range. Collection, damage, or destruction of this species on Federal land is prohibited, although in appropriate cases, we may issue a Federal permit for scientific or recovery purposes.

We believe that, based upon the best available information, the following actions will not result in a violation of section 9, provided these activities are carried out in accordance with existing regulations and permit requirements:

(1) Activities authorized, funded, or carried out by Federal agencies (e.g., grazing management, agricultural conversions, wetland and riparian habitat modification, flood and erosion control, residential development, recreational trail development, road construction, hazardous material containment and cleanup activities, prescribed burns, pesticide/herbicide application, and pipeline or utility line construction crossing suitable habitat), when such activity is conducted in accordance with any reasonable and prudent measures given by us in a consultation conducted under section 7 of the Act;

(2) Casual, dispersed human activities on foot or horseback (e.g., bird watching, sightseeing, photography, camping, hiking); and

(3) Activities on non-Federal lands that do not require Federal authorization and do not involve Federal funding.

We believe that the following might potentially result in a violation of section 9; however, possible violations are not limited to these actions alone:

(1) Unauthorized collecting, or damage to, the species on Federal lands; and

(2) Interstate or foreign commerce and import/export without previously obtaining an appropriate permit.

Questions regarding whether specific activities risk violating section 9 should be directed to the Field Supervisor of the Snake River Basin Office (see ADDRESSES section). The Act and 50 CFR 17.72 also provide for the issuance of permits to carry out otherwise prohibited activities involving threatened plant species under certain circumstances. Such permits are available for scientific purposes and to enhance the propagation or survival of the species. For threatened plants, permits also are available for botanical or horticultural exhibition, educational purposes, or special purposes consistent with the purposes of the Act. Requests for copies of the regulations on listed plants and animals, and general inquiries regarding prohibitions and permits, may be addressed to the U.S. Fish and Wildlife Service, Ecological Services, Endangered Species Permits, 911 N.E. 11th Ave., Portland, Oregon 97232-4181 (telephone 503/231-2063; facsimile 503/231-6243).

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

This rule does not contain any new collections of information other than those already approved under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , and assigned Office of Management and Budget clearance number 1018-0094. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information, unless it displays a currently valid control number. For additional information concerning permit and associated requirements for threatened plants, see 50 CFR 17.72.

A complete list of all references cited herein, as well as others, is available upon request from our Snake River Basin Office (see ADDRESSES section).

The primary authors of this final rule are Phil Delphey and Edna Rey-Vizgirdas, U.S. Fish and Wildlife Service, Snake River Basin Office (see ADDRESSES section).