The imported fire ant, Solenopsis invicta Buren and Solenopsis richteri Forel, is an aggressive, stinging insect that, in large numbers, can seriously injure or even kill livestock, pets, and humans. The imported fire ant feeds on crops and builds large, hard mounds that damage farm and field machinery. Imported fire ants are notorious hitchhikers and are readily transported long distances when articles such as soil and nursery stock are shipped outside the infested area.

The Animal and Plant Health Inspection Service (APHIS) works to prevent further imported fire ant spread by enforcing a Federal quarantine and cooperating with imported fire ant-infested States to mitigate the risks associated with the movement of regulated articles such as nursery stock and used soil-moving equipment. Also, APHIS evaluates the efficacy of regulatory treatments for preventing the artificial spread of imported fire ant and revises its regulations and procedures as necessary. APHIS works with States, industry, and other Federal agencies to develop and test promising new insecticides and biological control agents.

The regulations in “Subpart—Imported Fire Ant” (7 CFR 301.81 through 301.81-10, referred to below as the regulations) quarantine infested States or infested areas within States and impose restrictions on the interstate movement of certain regulated articles from those quarantined States or areas for the purpose of preventing the artificial spread of the imported fire ant.

Sections 301.81-4 and 301.81-5 of the regulations provide, among other things, that regulated articles requiring treatment prior to interstate movement must be treated in accordance with the methods and procedures prescribed in the appendix to the subpart, which sets forth the treatment provisions of the “Imported Fire Ant Program Manual.”

On March 21, 2003, we published in the Federal Register (68 FR 13859-13861, Docket No. 02-115-1) a proposal to amend the regulations by adding the insecticide methoprene (Extinguish®) to the list of chemicals that are authorized for the treatment of regulated articles and make methoprene available for the treatment of containerized plants and field-grown woody ornamentals in the quarantined areas.

We solicited comments concerning our proposal for 60 days ending May 20, 2003. We received two comments by that date. The comments were from State departments of agriculture. Both commenters were in favor of adding methoprene (Extinguish®) to the list of chemicals that are authorized for the treatment of regulated articles.

Therefore, for the reasons given in the proposed rule, we are adopting the proposed rule as a final rule, without change.

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

This final rule amends the appendix to the imported fire ant regulations to allow the use of the insecticide methoprene (Extinguish®) against the imported fire ant. Methoprene is registered by the U.S. Environmental Protection Agency for use against the imported fire ant in containerized plants and field-grown woody ornamentals and has been found to be efficacious against imported fire ant based on testing by the Gulfport Plant Methods Center in Mississippi.

Determining the cost to treat for imported fire ant in nursery operations is complicated because of the large number of insecticide products, varying soil conditions, and various types of nursery crops. For example, in two surveys conducted by Hall and Holloway (1994 and 1995) of 37 nursery crop growers in Texas, which represented more than half of all nursery crops produced in that State, chemical cost per treatment per acre for imported fire ant control averaged $12.10, with treatment costs representing up to 4 percent of their production cost. Almost half (47 percent) of those growers reported treating for imported fire ant and most of them reported using more than one pesticide in their operations (range=1 to 3; average=1.5), making the average cost per acre for insecticides to control imported fire ant $18.15 ( i.e. , 1.5 × $12.10).

Methoprene (Extinguish®) is the latest insecticide to be added to the regulations for the treatment of imported fire ant. The currently approved treatments—Fipronil (Chipco®), Pyriproxyfen (Distance®), Fenoxycarb (AWARD®), Hydramethylnon (AMDRO®), and Bifenthrin (Talstar®)—cost approximately the same in the bulk market, $5 to $12 per pound, with each pound treating 17 colonies ( i.e. , mounds) of imported fire ant. However, any insecticide's retail price depends on the price charged by its local distributor and may vary from State to State. Although the insecticides generally do not differ greatly in price, at least some consumers can be expected to benefit from inclusion of methoprene as an alternative treatment.

Businesses such as nurseries that work with regulated articles are the entities most likely to be affected by this rule. This final rule will result in a wider selection of treatment options for imported fire ant. The economic effect on affected entities will either be positive, since a wider selection of insecticides will provide greater choice, or neutral, if they choose not to use methoprene.

The Regulatory Flexibility Act requires that agencies consider the economic effects of their rules on small businesses. Based on data from the 1997 Census of Agriculture, there were 14,762 nurseries and greenhouses in the 13 States that have been affected by imported fire ant plus Puerto Rico, of which 82 to 99 percent were small entities, according to the Small Business Administration criterion of annual sales of $750,000 or less.

We expect that the economic effect of this final rule on these businesses will either be positive (a wider selection of insecticides will provide greater choice) or neutral (if they choose not to use methoprene). The majority (82 to 99 percent) of firms that may potentially be affected by this final rule are small entities.

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

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

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

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

In July 2003, the Finance Board published an interim final rule with request for comments that revised its Privacy Act and FOIA regulations. See 68 FR 39810 (July 3, 2003). The revised Privacy Act regulation (12 CFR part 913) is written in a “user-friendly” format using plain language and, where appropriate, a question-and-answer format. It reflects a reassignment of responsibility and authority for the agency's Privacy Act program to the Office of General Counsel. The rule also amended the fee schedule in the FOIA regulation (12 CFR 910.9), which the Finance Board uses to determine the amount of the fee it charges to duplicate records under both the FOIA and the Privacy Act, to take into account increased salary and operating costs. The 60-day public comment period for the interim final rule closed on September 2, 2003. See 68 FR at 39811.

The Finance Board received no comments in response to the interim final rule. Thus, for the reasons set forth in detail in the interim final rulemaking, the Finance Board is adopting the interim final rule as a final rule with one technical change to redesignate § 913.7(c)(1)(vii) as § 913.7(c)(1)(vi).

The Finance Board adopted the amendments to parts 910 and 913 in the form of an interim final rule and not as a proposed rule. Therefore, the provisions of the Regulatory Flexibility Act do not apply. See 5 U.S.C. 601(2), 603(a).

The final rule does not contain any collections of information under the Paperwork Reduction Act of 1995. See 44 U.S.C. 3501 et seq. Consequently, the Finance Board has not submitted any information to the Office of Management and Budget for review.

On February 3, 2003, the SBA published a proposed rule in the Federal Register (68 FR 5234) to increase the size standard for the Facilities Support Services industry (NAICS code 561210) from $6 million in average annual receipts to $30 million and the size standard for the sub-category of Base Maintenance from $23 million to $30 million. The SBA proposed this increase after reviewing requests from firms in the Facilities Support Services industry to review the $6 million size standard for this industry and the $23 million size standard for Base Maintenance, a sub-category of the industry. These size standards are based on annual receipts of the business, as described in 13 CFR 121.104. These firms argued that a size standard increase is warranted to reflect the size of Federal contracts issued in this industry. These contracts include a broad spectrum of services involving administrative support, custodial services, facilities repair and maintenance, and technical services, which often are $10 million per year or more in value. A small business can lose its small business status with only one or two contracts. Costs on these types of contracts have increased greater than the general inflation rate, especially due to changes in the mandated labor rates under the Service Contract Act and increased health insurance costs. The requestors believed that to help develop small businesses to be competitive with large businesses in this industry, the size standard should be increased to the $25 million to $30 million range.

Based on these concerns, the SBA conducted a review of this industry's size standards. In addition to reviewing patterns of Federal procurement in this industry, it collected and evaluated data on the industry's structure. This review involved comparisons of average firm size, the size distribution of firms, measures of start-up costs, and the degree of concentration of economic activity among very large firms in the industry. Based on its review of each of these evaluation factors, and the nature and patterns of Federal contracting for Facility Support Services, the SBA concluded that the activities comprising this industry and the characteristics of firms in the industry no longer support the need for separate size standards for Base Maintenance and for all other facilities support activities. The SBA also found that the data supported an increase in the size standards for all activities comprising Facility Support Services to $30 million in average annual receipts. (For more information on the reasons for the proposed size standard increase to $30 million, see the February 3, 2003, proposed rule, 68 FR 5234).

The SBA received 16 comments on the proposed size standard. After giving careful consideration to the comments, the SBA has decided to adopt its proposed size standard of $30 million.

The SBA received 16 timely comments on the proposed size standard from various business concerns. Nine commenters supported the proposed size standard and seven commenters opposed the change. The SBA also received a recommendation from its Office of Hearings and Appeals (OHA) to clarify the footnote. Below is a summary of the major issues raised by the comments received on the proposed rule and the SBA's position on those issues.

Four commenters remarked that increased costs, such as start up costs, wages, workers compensation, health insurance, fuels, and materials, have increased their revenues to the point where after two or three contracts their firms exceed the current size standard. One commenter pointed out that salary, wages, and taxes are the major costs and will normally comprise more than 50% of the contract expense. Two commenters acknowledged that the U.S. Department of Labor's increase in Service Contract Act wage determinations has had a direct impact on the costs of Facility Support Services contracts.

The SBA agrees that increased costs have caused small business to exceed the current size standard with only two or three contracts. Facility Support Services contracts are larger requirements that include varied tasks from Base Maintenance to engineering and technical support. Because of the nature of these requirements, more than two-thirds of total industry revenues go to large firms at or exceeding the current size standard. As presented in the preamble of the proposed rule, industry data on the distribution of revenues by firm size and other industry characteristics show that firms in the Facilities Support Services do have high costs and are much larger in size than firms in most other service industries.

All nine supportive commenters pointed out that the increase in the size standard would increase competition and participation in Federal contracts. Two commenters stated that firms growing beyond the $6 million size standard are not ready to compete with large firms. One commenter stated that the increased size standard would allow firms a longer period for growth and maturity. One commenter stated that the increase will secure a future for small businesses in this industry, as the current size standard limits a firm's ability to serve the Federal Government.

The SBA agrees that an increase to the size standard will make small businesses more competitive in this industry. As stated in the preamble to the proposed rule, the share of Federal contracts awarded to small businesses supports an increase to the current size standard. During 1999 to 2001, small businesses accounted for 30.5% of total industry receipts but these firms received only 12% of the dollar value of Federal contracts. This is a disproportionate share of Federal contract dollars relative to industry receipts. Contract requirements make it difficult for smaller firms to perform on Federal Facilities Support Services contracts. For example, contracting data show that two-thirds of small business awards in this industry are made through programs reserved for small businesses rather than through full and open competition. The SBA believes that the increase in size standard will allow firms in this industry to grow to a more competitive size.

Two commenters supported the SBA's proposal to give Facilities Support Services and Base Maintenance the same size standard. One of these commenters acknowledged that “the same companies are likely to compete for contracts with either designation.”

The SBA agrees with these comments. As stated in the preamble to the proposed rule, the SBA believes that the activities comprising this industry and the characteristics of firms in the industry no longer require separate size standards for Base Maintenance and for all other facilities support activities. The NAICS 2002 industry description of Facilities Support Services is very similar to the SBA's description of Base Maintenance (see footnotes 12 and 13 of the current 13 CFR 121.201). The SBA believes that the firms performing Base Maintenance services also perform, or have the capability to perform, most other facilities support activities. Given the close similarity of the descriptions of Facilities Support Services and Base Maintenance, the SBA believes that a single size standard is appropriate for all activities within the Facilities Support Services industry.

The SBA received a recommendation from OHA to clarify the title of “Base Housing Maintenance,” an exception to NAICS 238990, “All Other Specialty Trade Contractors,” as it is often confused with “Base Maintenance,” an activity under Facilities Support Services. OHA suggested that the “Base Housing Maintenance” title should be revised to more accurately reflect the description of that category in Footnote 13.

The SBA agrees with this recommendation and has revised the title for the exception to NAICS code 238990 from “Base Housing Maintenance” to “Building and Property Specialty Trade Services.” This revision is appropriate in this rule making process as it does not change the meaning of the exception or the size standard for NAICS code 238990. The new title better identifies the activities that fall under this category.

The SBA received four comments which stated that entry costs for this industry are low and that Facility Support Services contracts are performed in Government-provided facilities using Government-provided equipment. Five comments asserted that the increase is detrimental to emerging small businesses and that it will hinder small business growth. Four comments stated that the current size standard encourages large businesses to mentor “emerging small businesses.”

The SBA does not concur with these comments, and believes that these comments do not accurately characterize the Facility Support Services industry. The SBA does recognize that a higher size standard could have an impact on the smallest businesses in this industry. However, the smallest firms are usually limited to contracts for one type of industry or to work as subcontractors. The nature of the industry and the data presented in the preamble of the proposed rule show that the Facility Support Services industry is comprised predominately of larger firms. The industry characteristics show that start-up costs are high, and that Federal contracts for Facility Support Services contain varied tasks, including engineering and other technical support tasks, administrative functions, specialty trade tasks, and high-end equipment maintenance. Often, after two or three contracts, firms in this industry find that they have outgrown the current size standard. In addition, the SBA believes this increase will expand small business subcontracting opportunities and mentoring with large businesses. All requirements over $500,000 for Facility Support Services awarded to large businesses include incentives and goals for subcontracting with small businesses. The fact that an industry's size standard is $6 million or $30 million will not have a detrimental bearing on a large business's plans to subcontract to or mentor a small business. The higher size standard would likely encourage more subcontracting with all small businesses since they would be able to remain as small subcontractors for a longer period of time and offer more capabilities to the large business contractor.

The comments received supporting the SBA's actions agree that the increase is reasonable. They endorsed the SBA's findings that firms are quickly outgrowing the current size standard, that costs are high, and that the increase will augment the number of small business set-aside awards, thereby increasing competition in this industry. This increase will add to a small business's maturity and encourage small business growth.

One commenter only supported an increase of 50%. However, the commenter did not provide any data to justify this alternative, nor did the commenter indicate whether the 50% increase was appropriate for both the $6 million and $23 million size standards. The SBA can only assume that the commenter meant 50% of the $6 million size standard, which equates to $9 million, and 50% of the $23 million which would put the size standard above $30 million.

One commenter recommended a $12 million size standard. This commenter stated that $12 million will enable small businesses additional opportunities within the Facilities Support Services industry without forcing emerging small businesses to compete against larger firms.

The SBA disagrees with both of these alternatives. Neither an increase to $9 million or $12 million would be representative of the overall characteristics of firms in the industry, nor would either alternative provide competition and growth for small businesses. In addition, Federal contract award data show that firms under the current $23 million size standard have only been able to obtain a relatively small share of Facilities Support Services contracts.

One commenter pointed out that the increase in bundled contracts has caused Federal agencies to contract with larger firms. This commenter called for a 12 month moratorium on any changes so that the effect of combining contracts and its impact on small businesses can be further analyzed.

One commenter alleged that all mid-sized businesses are 8(a) firms and alleges that 8(a) certification is being abused. Another commenter stated that the 8(a) program (13 CFR 124) and the HUBZone program (13 CFR 126) usually serve the same companies and that the success rate of companies after graduating from the 8(a) program will be hampered by this increase.

The issues regarding the SBA's 8(a) and HUBZone programs concern program policy, and the issues concerning contract bundling relate to the structuring of individual procurements and therefore are separate from the SBA's determination of the appropriate small business size standard for a particular industry. For more information about the SBA's efforts to address the impact of contract bundling on small businesses, see the recently proposed rule on this issue (68 FR 5134, dated January 31, 2003).

One commenter stated that the definition of a small business is causing problems with emerging businesses, as it relates to the current set of NAICS codes for the Information Technology industry, which are “$6 million and $21 million.” This commenter emphasized that emerging small businesses cannot compete with firms that produce $21 million in revenues. This commenter recommended that there be a category to identify mid-sized businesses.

This comment does not relate specifically to the SBA's proposal to increase the size standard for Facilities Support Services. The commenter refers to the size standard of $6 million and $21 million for the Information Technology industry. With respect to that industry, the SBA published a proposed rule that would create a separate size standard for Information Technology Value Added Resellers (67 FR 48479, July 24, 2002). Additionally, the size standards are intended to define only small businesses, not a separate category of mid-size firms.

The Office of Management and Budget (OMB) has determined that this rule is a significant regulatory action for purposes of Executive Order 12866 because size standards determine which businesses are eligible for Federal small business programs. This is not a major rule under the Congressional Review Act, 5 U.S.C. 800. For the purpose of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, the SBA has determined that this rule would not impose new reporting or recordkeeping requirements. For purposes of Executive Order 13132, the SBA has determined that this rule does not have any federalism implications warranting the preparation of a Federalism Assessment. For purposes of Executive Order 12988, the SBA has determined that this rule is drafted, to the extent practicable, in accordance with the standards set forth in that order. Our Regulatory Impact Analysis follows.

The SBA is chartered to aid and assist small businesses through a variety of financial, procurement, business development, and advocacy programs. To effectively assist the intended beneficiaries of these programs, the SBA must establish distinct definitions of which businesses are deemed small businesses. The Small Business Act (15 U.S.C. 632(a)) delegates to the SBA Administrator the responsibility for establishing small business definitions. The Act also requires that small business definitions vary to reflect industry differences. The supplementary information to the final rule explains the approach the SBA follows when analyzing a size standard for a particular industry. Based on that analysis, the SBA believes that a change in the Facilities Support Services size standard is needed to better reflect small businesses in this industry.

The most significant benefit to businesses obtaining small business status as a result of this rule will be eligibility for Federal small business assistance programs. Under this rule, 177 additional firms may obtain small business status and become eligible for these programs. Of these 177, 19 are between the current $23 million Base Maintenance size standards and the $30 million proposed size standard. These programs include the SBA's financial assistance programs, economic injury disaster loans (EIDL), and Federal procurement preference programs for small businesses, 8(a) firms, small disadvantaged businesses (SDB), small businesses located in Historically Underutilized Business Zones (HUBZone), as well as those awarded through full and open competition after application of the HUBZone or SDB price evaluation adjustment. Through the assistance of these programs, small businesses may benefit by becoming more knowledgeable, stable, and competitive businesses.

Other Federal agencies also use the SBA's size standards for their programs for a variety of regulatory and program purposes. The SBA does not have information on each of these uses sufficient to evaluate the impact of the size standard change. If an agency believes that a different size standard is appropriate for its programs, it must contact the SBA. If an agency is seeking to change size standards in a general rulemaking context, then the agency should contact the SBA's Office of Size Standards (13 CFR 121.901-904). If the agency is seeking to change size standards for the purposes of a Regulatory Flexibility Act (RFA) analysis then the SBA's Office of Advocacy should be contacted pursuant to section 601(3) of the RFA. Section 601(3) of the RFA requires the agency to consult with the Office of Advocacy and provide an opportunity for public comment when using a different size standard for the RFA analysis.

The benefits of a size standard increase to a more appropriate level would affect three groups: (1) Businesses that benefit by gaining small business status from the proposed size standard and use small business assistance programs; (2) growing small businesses that may exceed the current size standard in the near future and who will retain small business status under the proposed size standard; and (3) Federal agencies that award contracts under procurement programs that require small business status.

Newly defined small businesses would benefit from the SBA's 7(a) Guaranteed Loan Program. The SBA estimates that approximately $2.5 million to $5.5 million in new Federal loan guarantees could be made to these newly defined small businesses. Because of the $2 million maximum size of the SBA 7(a) loan guarantees, most loans are made to small businesses well below the size standard. Thus increasing the size standard will likely result in a smaller increase in guaranteed loans to small businesses than the estimated range. These additional loan guarantees, because of their limited magnitude, will have virtually no impact on the overall availability of loans for the SBA's loan programs, which have averaged about 40,000 loans totaling about $10 billion per year in recent years.

The newly defined small businesses would also benefit from the SBA's economic injury disaster loan program. Since this program is contingent upon the occurrence and severity of a disaster, no meaningful estimate of benefits can be projected.

The SBA estimates that firms gaining small business status could potentially obtain Federal contracts worth $65 million to $95 million under the small business set-aside program, the 8(a), SDB, and HUBZone programs, or unrestricted contracts. This estimate is based on an analysis of small business participation in Federal contracting and the industry market share of businesses between the current and proposed size standards. During fiscal years 1999-2001, small businesses obtained 11.8% of Facilities Support Services contract dollars out of approximately $12 billion in total Federal Facilities Support Services contracts. About two-thirds of small business awards were made as small business set-aside or 8(a) contracts. Most Facilities Support Services contracts are for Base Maintenance services, which has a $23 million size standard. Businesses between $23 million and $30 million account for 3.6% of industry sales.

Federal agencies may benefit from the higher size standards if the newly defined and expanding small businesses compete for more set-aside procurements. The larger base of small businesses would likely increase competition and would lower the prices on set-aside procurements. A large base of small businesses may create an incentive for Federal agencies to set aside more procurements creating greater opportunities for all small businesses. Small business opportunities will be enhanced in open procurements as they gain experience in Federal contracting through the set-aside and other small business procurement preference programs. Large businesses with small business subcontracting goals may also benefit from a larger pool of small businesses by enabling them to better achieve their subcontracting goals and obtain lower subcontract prices. No estimate of cost savings from these contracting decisions can be made since data are not available to directly measure price or competitive trends on Federal contracts.

To the extent that 177 additional firms become active in Government programs, this may entail some additional administrative costs to the Federal Government associated with additional bidders for Federal small business procurement programs, additional firms seeking access to the SBA guaranteed lending programs, and additional firms eligible for enrollment in the SBA's PRO-Net data base program. Among businesses in this group seeking the SBA's assistance, there will be some additional costs associated with compliance and verification associated with certification of small business status and protests of small business status. These costs are likely to generate minimal incremental costs since mechanisms are currently in place to handle these administrative requirements.

The costs to the Federal Government may be higher on some Federal contracts. With greater number of businesses defined as small, Federal agencies may choose to set-aside more contracts for competition among small businesses rather than using full and open competition. The movement from unrestricted to set-aside contracting is likely to result in competition among fewer bidders. Also, higher costs may result if additional full and open contracts are awarded to HUBZone and SDB businesses as a result of a price evaluation preference. The additional costs associated with fewer bidders, however, are likely to be minor since, as a matter of policy, procurements may be set aside for small businesses or reserved for the 8(a) or HUBZone Programs only if awards are expected to be made at fair and reasonable prices.

The proposed size standard may have distributional effects among large and small businesses. Although the actual outcome of the gains and losses among small and large businesses cannot be estimated with certainty, several trends are likely to emerge. First, there will likely be a transfer of some Federal contracts to small businesses from large businesses. Large businesses may have fewer Federal contract opportunities as Federal agencies decide to set aside more Federal procurements for small businesses. Also, some Federal contracts may be awarded to HUBZone or SDB concerns instead of large businesses since those two categories of small businesses may be eligible for a price evaluation adjustment for contracts competed on a full and open basis. Similarly, currently defined small businesses may obtain fewer Federal contacts due to the increased competition from more businesses defined as small. This transfer may be offset by a greater number of Federal procurements set aside for all small businesses. The number of newly defined and expanding small businesses that are willing and able to sell to the Federal government will limit the potential transfer of contracts away from large and currently defined small businesses. The potential distributional impacts of these transfers may not be estimated with any degree of precision because the data on the size of business receiving a Federal contract are limited to identifying small or other-than-small businesses, without regard to the exact size of the business.

The revision to current size standards for Facilities Support Services is consistent with the SBA's statutory mandate to assist small businesses. This regulatory action promotes the Administrator's objectives. One of the SBA's goals in support of the Administrator's objectives is to help individual small businesses succeed through fair and equitable access to capital and credit, Government contracts, and management and technical assistance. Reviewing and modifying size standards when appropriate ensures that intended beneficiaries have access to small business programs designed to assist them. Size standards do not interfere with state, local, and tribal governments in the exercise of their government functions. In a few cases, state and local governments have voluntarily adopted the SBA's size standards for their programs to eliminate the need to establish an administrative mechanism for developing their own size standards.

Under the RFA, this rule may have a significant impact on a substantial number of small entities. This rule may impact small entities in two ways. The SBA estimates that an additional 177 businesses may obtain small business status as a result of this rule. Also small businesses may obtain an additional $65 to $95 million in Federal contracts.

The size standard may also affect small businesses participating in programs of other agencies that use the SBA size standards. As a practical matter, the SBA cannot fully estimate the impact of a size standard change on each and every Federal program that uses its size standards. In cases where an SBA's size standard is not appropriate, the Small Business Act and the SBA's regulations allow Federal agencies to develop different size standards with the approval of the SBA Administrator (13 CFR 121.902). For purposes of a regulatory flexibility analysis, agencies must consult with the SBA's Office of Advocacy when developing different size standards for their programs.

Immediately below, the SBA sets forth a final regulatory flexibility analysis (FRFA), addressing the need for and objective of the rule; description and estimate of the number of small entities to which the rule will apply; the projected reporting, recordkeeping, and other compliance requirements of the rule; the relevant Federal rules which may duplicate, overlap or conflict with the final rule; and alternatives to the final rule considered by the SBA that minimize the impact on small businesses.

The revision to the size standards for Facilities Support Services more appropriately defines the size of businesses in these industries that the SBA believes should be eligible for Federal small business assistance programs. A review of the latest available industry data supports a change to the size standard.

The SBA received no comments in response to the IRFA of this rule.

Within the Facilities Support Services industry, 896 out of 1,219 businesses are currently small. With the adoption of this rule, the SBA estimates that 177 additional businesses out of 1,219 firms will be considered small. Of these 177, 19 are between the current $23 million Base Maintenance size standards and the new $30 million size standard. These businesses will be eligible to seek available SBA assistance provided that they meet other program requirements. As a result of this rule, businesses becoming eligible for SBA assistance cumulatively will generate approximately $25.8 billion out of a total of $75.8 billion in receipts, or 34.1% of industry receipts. The small business coverage in the Facilities Support Services industry will increase by 3.6% of total receipts.

A new size standard does not impose any additional reporting, recordkeeping or other compliance requirements on small entities for the SBA programs. A change in a size standard would not create additional costs on a business to determine whether or not it qualifies as a small business. A business needs to only examine existing information to determine its size, such as Federal tax returns, payroll records, and accounting records. Size standards determine “voluntary” access to the SBA and other Federal programs that assist small businesses, but do not impose a regulatory burden as they neither regulate nor control business behavior. In addition, this rule does not impose any new information collecting requirements from the SBA which requires approval by OMB under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501-3520.

Most of the economic impact on small businesses will be positive. The most significant benefits to businesses that will obtain small business status as a result of this final rule are (1) eligibility for the Federal Government's procurement preference programs for small businesses, 8(a) firms, SDBs, and businesses located in HUBZones; and (2) eligibility for the SBA's financial assistance programs such as 7(a) business loans, 504 business loans, and EIDL assistance. The SBA estimates that firms gaining small business status could potentially obtain Federal contracts worth $65 million to $95 million per year under the small business set-aside programs, the 8(a) program, the HUBZone program, or unrestricted contracts. This represents less than 1% of the $12 billion in total Federal expenditures for Facility Support Services. The SBA estimates that approximately $2.5 million to $5.5 million in new Federal loan guarantees could be made to these newly defined small businesses. Because of the $2 million maximum size of the SBA 7(a) loan guarantees, most loans are made to small businesses well below the size standard.

As stated in the Small Business Act, 15 U.S.C. 632, and 13 CFR part 121, the SBA establishes size standards based on industry characteristics and for non-manufacturing concerns on the basis of gross receipts of a business concern over a period of 3 years. The SBA's research showed that Facility Support Services contracts include a broad spectrum of services involving administrative support, custodial services, janitorial, facilities repair and maintenance, and technical services. The size standards for many of these industries, such as security guard services, janitorial services, and technical support for navigational waterways and military weapons systems, are well in excess of $6 million. Contract costs often are $10 million per year or more in value. A small business can lose its small business status with only one or two contracts. Costs on these types of contracts have increased greater than the general inflation rate, especially due to changes in the mandated labor rates under the Service Contract Act and increased health insurance costs.

The SBA's review of these issues and data on the Facilities Support Services industry, as described in the February 3, 2003, proposed rule, support increasing the size standard to $30 million.

One commenter opposed to any increase except an increase of 50%, but no data was provided to justify this alternative. The commenter did not state 50% of which current size standard, $6 million or $23 million. The SBA can only assume that the commenter meant 50% of the $6 million size standard, which equates to $9 million. A 50% increase to the $23 million would put the size standard above $30 million.

One commenter recommended a $12 million size standard. This commenter stated that $12 million will enable small businesses additional opportunities within the Facilities Support Services industry without forcing emerging small businesses to compete against larger firms.

The SBA rejects both of these alternatives. Neither an increase to $9 million or $12 million would be representative of this industry, nor would either alternative provide competition and growth for small businesses. The industry data provided in the preamble to the proposed rule show that all of the characteristics measured firms in the Facilities Support Services industry were much larger than firms in most nonmanufacturing industries. This finding supports a size standard at the highest receipts levels. In addition, Federal contract award data show that firms under the current $23 million size standard have only been able to obtain a relatively small share of Facilities Support Services contracts.

The PBGC's regulations prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits of terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions are intended to reflect current conditions in the financial and annuity markets.

Three sets of interest assumptions are prescribed: (1) a set for the valuation of benefits for allocation purposes under section 4044 (found in appendix B to part 4044), (2) a set for the PBGC to use to determine whether a benefit is payable as a lump sum and to determine lump-sum amounts to be paid by the PBGC (found in appendix B to part 4022), and (3) a set for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology (found in appendix C to part 4022).

Accordingly, this amendment (1) adds to appendix B to part 4044 the interest assumptions for valuing benefits for allocation purposes in plans with valuation dates during November 2003, (2) adds to appendix B to part 4022 the interest assumptions for the PBGC to use for its own lump-sum payments in plans with valuation dates during November 2003, and (3) adds to appendix C to part 4022 the interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology for valuation dates during November 2003.

For valuation of benefits for allocation purposes, the interest assumptions that the PBGC will use (set forth in appendix B to part 4044) will be 4.60 percent for the first 20 years following the valuation date and 5.25 percent thereafter. These interest assumptions represent a decrease (from those in effect for October 2003) of 0.30 percent for the first 20 years following the valuation date and are otherwise unchanged.

The interest assumptions that the PBGC will use for its own lump-sum payments (set forth in appendix B to part 4022) will be 3.25 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. These interest assumptions represent a decrease (from those in effect for October 2003) of 0.25 percent for the period during which a benefit is in pay status and are otherwise unchanged.

For private-sector payments, the interest assumptions (set forth in appendix C to part 4022) will be the same as those used by the PBGC for determining and paying lump sums (set forth in appendix B to part 4022).

The PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect, as accurately as possible, current market conditions.

Because of the need to provide immediate guidance for the valuation and payment of benefits in plans with valuation dates during November 2003, the PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

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. Structural steel deficiencies developed after a barge allided with the Jefferson Street Bridge, requiring the bridge to be closed to vehicular traffic and remain open to navigation. Until such time as the Jefferson Street Bridge is repaired, vehicular traffic in the City of Joliet, Illinois must be diverted to other bridges in the area, resulting in greater congestion and an increased likelihood of vehicular accidents and injuries. Since the repairs will take approximately four months to complete, it is important that the other bridges in the area immediately modify their hours to allow rush hour traffic to flow efficiently, reducing the likelihood of accident or injury.

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 . Structural steel deficiencies developed after a barge allided with the Jefferson Street Bridge, requiring the bridge to be closed to vehicular traffic and remain open to navigation. Until such time as the Jefferson Street Bridge is repaired, vehicular traffic in the City of Joliet, Illinois must be diverted to other bridges in the area, resulting in greater congestion and an increased likelihood of vehicular accidents and injuries. Since the repairs will take approximately four months to complete, it is important that the other bridges in the area immediately modify their hours to allow rush hour traffic to flow efficiently, reducing the likelihood of accident or injury.

Due to structural steel damage sustained from a barge allision to the Jefferson Street Bridge, mile 287.9, Illinois Waterway, the bridge must remain in the open to navigation (closed to motor vehicle traffic) position at all times. As a result, the Illinois Department of Transportation requested a temporary change to the current regulations for the remaining four bascule leaf drawbridges within the city of Joliet that carry vehicular traffic across the Illinois Waterway. Increasing the hours that the four remaining bridges are closed to navigation and available for vehicle use only during peak traffic periods will reduce traffic jams in the City of Joliet while having minimal impact on vessel traffic on the Illinois Waterway. Repairs to the Jefferson Street Bridge are expected to be complete by November 1, 2003.

The current regulations permit the bridges to remain closed to navigation during the commuter hours of 7:30 a.m. to 8:30 a.m. and 4:15 p.m. to 5:15 p.m., Monday through Saturday. By increasing the time the remaining bridges may remain closed to navigation by thirty minutes in the morning and afternoon, traffic buildup in the city will be greatly alleviated. This regulation will result in these bridges, with the exception of the Jefferson Street Bridge being closed to navigation from 7:30 a.m. to 9 a.m. and from 4 p.m. to 5:30 p.m., Monday through Saturday. The Jefferson Street Bridge will be in the open to navigation position for structural steel repairs. Navigation on the waterway consists primarily of commercial tows and recreational watercraft. This temporary drawbridge operation regulation has been coordinated with commercial waterway operators. No objections to the proposed temporary rule were raised.

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 Homeland Security (DHS).

The Coast Guard expects that this temporary final rule will have minimal economic impact on the City of Joliet, Illinois and users of the affected waterways. This temporary final rule has been written in such a manner as to allow for the prompt and necessary repair of the Jefferson Street Bridge while facilitating vessel and vehicular traffic in the area.

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 temporary rule will have a negligible impact on vessel traffic. The primary users of the Illinois Waterway in Joliet, IL are commercial towboat operators. On average, eight vessels per day transit the affected bridges. Of these, one or two may have to adjust their speed and schedules to arrive at the affected bridges prior to, or after, the times the bridges are closed to navigation.

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.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. Any individual that qualifies or believes he or she qualifies as a small entity and requires assistance with the provisions of this rule, may contact Mr. Roger K. Wiebusch, Bridge Administrator, Eighth Coast Guard District, Bridge Branch, at (314) 539-3900, extension 2378.

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 contains 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 an 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 concern 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 analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph 32(e), of the Instruction, from further environmental documentation.

A final “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES .

I. Background

Pursuant to sections 182(b)(2) and 182(f) of the CAA, the Commonwealth of Pennsylvania (the Commonwealth or Pennsylvania) is required to establish and implement RACT for all major VOC and NO X sources. The major source size is determined by its location, the classification of that area, and whether it is located in the ozone transport region (OTR). Under section 184 of the CAA, RACT, as specified in sections 182(b)(2) and 182(f) applies throughout the OTR. The entire Commonwealth is located within the OTR. Therefore, RACT is applicable statewide in Pennsylvania.

On July 2, 2003, the Pennsylvania Department of Environmental Protection (PADEP) submitted formal revisions to its SIP to establish and impose case-by-case RACT for several major sources of VOC and NO X . This rulemaking pertains to three of those sources. The other sources are subject to separate rulemaking actions. The RACT determinations and requirements in this SIP revision are included in plan approvals (PA) and operating permits (OP) issued by PADEP.

The following identifies the individual PA or OP that EPA is approving for each source.

Andritz, Inc. is a facility with foundry operations located in Lycoming County, Pennsylvania and is considered a major VOC emitting facility. In this instance, RACT has been established and imposed by PADEP in a plan approval. On July 2, 2003, PADEP submitted plan approval No. 41-00010C to EPA as a SIP revision. This plan approval incorporates RACT determinations as required by the provisions of Title I of the CAA and sections 129.91 through 129.95 of Chapter 129 of Article III of the rules and regulations of PADEP for the refiner plate molding line, the green sand molding line, the no-bake floor molding line and a core making operation, propane generators and several other minor sources. In any 12 consecutive month period, the total combined VOC emissions from the refiner plate molding shall not exceed 57.99 tons and the line shall not be operated more than 7,000 hours. The total amount of steel processed by the refiner plate molding line shall not exceed 11,000 tons in any 12 consecutive month period. The total combined VOC emissions from the green sand molding line, the no-bake floor molding line and the core making operation, plus the combined VOC emissions from the propane-fired generators and minor sources identified below, shall not exceed a total of 69.86 tons in any 12 consecutive month period. The total combined amount of steel processed by the green sand molding line and the no-bake floor molding line shall not exceed 8,000 tons and these lines shall not be operated more that 7,000 hours in any 12 consecutive month period. In addition, the total combined VOC from the core making operation shall not exceed 2.70 tons in any 12 consecutive month period.

The facility shall maintain accurate and comprehensive records of the following: (1) The amount of steel processed each month by the refiner plate molding line, the green sand molding line, and the no-bake floor molding line; (2) the number of hours of operation each month of the refiner plate molding line, the green sand molding line, and the no-bake floor molding line; and (3) the amount of binders/resins used in the core making operation each month. These records shall be used by the facility to calculate the monthly emission of VOCs from the refiner plate molding line, the green sand molding line, the no-bake floor molding line and the core making operation. All records generated, including the VOC emissions calculations, shall be retained on site for at least five years from the date of generation and shall be provided to PADEP upon request. The monthly emissions report shall include all background information and calculations used in the derivation of these emissions.

Brodart Company is a wood furniture finishing operation facility located in Clinton County, Pennsylvania and is considered a major VOC emitting facility. In this instance, RACT has been established and imposed by PADEP in a plan approval. On July 2, 2003, PADEP submitted plan approval No. 18-0007A to EPA as a SIP revision. This plan approval also incorporates RACT determinations as required by the provisions of Title I of the CAA and sections 129.91 through 129.95 of Chapter 129 of Article III of the Rules and Regulations of PADEP for the following: (1) A 2.6 million BTU per hour (MMBTU/hr) De Burg natural gas-fired oven; (2) a 2.5 MMBTU/hr North American natural gas-fired oven; (3) a 2.5 MMBTU/hr Weil McLain natural gas/#2 oil-fired boiler; (4) a 15 kW Kohler natural gas-fired emergency generator that shall not be operated more than 500 hours in any 12 consecutive month period; (5) gluing operations and several miscellaneous sources.

The total combined VOC emissions from these sources shall not exceed 2.70 tons in any 12 consecutive month period. The 15 KW natural gas energy generator shall not be operated more than 500 hours in any 12 consecutive month period. In addition, the plan approval contains reference to specific low VOC content glues and adhesives that shall used in the gluing operation. The facility shall maintain accurate and comprehensive records of the number of hours the emergency generator was operated during each month. All records generated shall be retained on site for a period of at least five years from the date of generation and shall be provided to PADEP upon request. In addition, all records generated for each calendar quarter, including air contaminant emission calculations, shall be submitted to PADEP by no later than the 30th day following the respective calendar quarter (reports due on January 30, April 30, July 30 and October 30). This report shall include all background information and calculations used in the derivation of the reported values.

The Erie Sewer Authority is a waste water treatment plant (WWTP) located in Erie County, Pennsylvania and is considered a NO X emitting facility. The Erie WWTP is a secondary activated sludge treatment plant. In this instance, RACT has been established and imposed by PADEP in an operating permit. On July 2, 2003, PADEP submitted operating permit No. OP-25-179 to EPA as a SIP revision. The sources in this facility are seven space heaters, four emergency generators, and two sewage sludge incinerators.

RACT for the seven (7) heaters, with individual rated gross heat inputs less than 20 MMBTU/hr, shall be installation, maintenance, and operation in accordance with the manufacturer's specifications. These sources shall also be operated and maintained in accordance with good air pollution control practices.

RACT for the four (4) emergency generators, operating less than 500 hours in a consecutive 12-month period, shall be installation, maintenance, and operation in accordance with the manufacturer's specifications. These sources shall also be operated and maintained in accordance with good air pollution control practices.

RACT for the two (2) sewage sludge incinerators shall be the continued management of the units to ensure proper combustion. This includes operation and maintenance of the sources and associated control devices in accordance with the manufacturer's specifications and consistent with good operating and maintenance practices. The NO X emissions from each of the sewage sludge incinerators shall not exceed 10.0 pound per ton of sewage sludge (on a dry basis). The facility shall test each of the incinerators at least once every five years. The stack tests shall be performed at maximum rated capacity following the procedures in 25 Pa Code chapter 139.

The facility shall maintain records in accordance with the recordkeeping requirements of 25 Pa Code section 129.95 that will include at a minimum: (a) Records that indicate that each of the four emergency generators did not operate more than 500 hours in a consecutive 12-month period; (b) records that indicate that each of the four emergency generators are maintained and operated in accordance with the manufacturer's specifications; and (c) records that indicate that each of the seven space heaters are maintained and operated in accordance with manufacturer's specifications.

EPA is approving these SIP submittals because the Commonwealth established and imposed requirements in accordance with the criteria set forth in SIP-approved regulations for imposing RACT or for limiting a source's potential to emit. The Commonwealth has also imposed record-keeping, monitoring, and testing requirements on these sources sufficient to determine compliance with these requirements.

EPA is approving revisions to the Commonwealth of Pennsylvania's SIP which establish and require RACT for the three major sources of VOC and NO X listed in this document. EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This direct final rule will be effective on December 15, 2003, without further notice unless we receive adverse comment by November 14, 2003. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. 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.

You may submit comments either electronically or by mail. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number PA208-4216 in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD-ROM you submit, and in any cover letter accompanying the disk or CD-ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. E-mail. Comments may be sent by electronic mail (e-mail) to morris.makeba@epa.gov , attention: PA208-4216. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

ii. Regulations.gov. Your use of Regulation.gov is an alternative method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov , then select “Environmental Protection Agency” at the top of the page and use the “go” button. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

iii. Disk or CD-ROM. You may submit comments on a disk or CD-ROM that you mail to the mailing address identified in the ADDRESSES section of this document. These electronic submissions will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Written comments should be addressed to the EPA Regional office listed in the ADDRESSES section of this document.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, confidential business information (CBI), or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.

Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate regional file/rulemaking identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 15, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, approving Pennsylvania's VOC and NO X RACT determinations for three individual sources, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Pursuant to sections 182(b)(2) and 182(f) of the CAA, the Commonwealth of Pennsylvania (the Commonwealth or Pennsylvania) is required to establish and implement RACT for all major VOC and NO X sources. The major source size is determined by its location, the classification of that area, and whether it is located in the ozone transport region (OTR). Under section 184 of the CAA, RACT, as specified in sections 812(b)(2) and 182(f) applies throughout the OTR. The entire Commonwealth is located within the OTR. Therefore, RACT is applicable statewide in Pennsylvania.

On July 2, 2003, PADEP submitted formal revisions to its SIP to establish and impose case-by-case RACT for several major sources of VOC and NO X . This rulemaking pertains to six of those sources. The other sources are subject to separate rulemaking actions. The RACT determinations and requirements in this SIP revision are included in operating permits (OP) issued by PADEP.

The following table identifies the individual operating permits that EPA is approving for each source located in Pennsylvania.

GPU Generation Corporation's Homer City Power Station is located in Center Township, Indiana County, Pennsylvania. GPU Generation's Homer City Power Station is a major NO X and VOC emitting facility. In this instance, RACT has been established and imposed by the PADEP in an OP. On July 2, 2003, PADEP submitted permit No. 32-000-055 to EPA as a SIP revision. This operating permit incorporates RACT determinations for NO X and VOCs for the following sources at the Homer City facility: Three (3) Main Boilers, Units 1, 2, and 3; two (2) auxiliary boilers, Units A and B; and several miscellaneous sources, consisting of two (2) small diesels, one (1) diesel fire pump, and twenty-five (25) space heaters.

NO X RACT for the three main boilers, Units, 1, 2, and Unit 3 shall consist of an emission limit of .5 lb/MMBtu based on a 30-day rolling average. Annual NO X emission limits shall be 13,076 tons per year (tpy) for Unit 1, 12,825 tpy for Unit 2, and 13,753 tpy for Unit 3. All annual limits must be met on a rolling monthly basis over every consecutive 12-month period. Compliance with these NO X emission limits shall be established based on emission data obtained from continuous emissions monitoring (CEM) approved by PADEP. The CEM system shall be installed, approved, maintained, and operated in accordance with 25 PA Code Chapters 123 and 139. VOC RACT for Units 1, 2, and 3 shall be the operation and maintenance of the sources according to the manufacturer's specifications, and good air pollution control practices. NO X and VOC RACT for auxiliary Units A and B shall be the operation and maintenance of the sources according to the manufacturer's specifications, and good air pollution control practices. These units shall use only No. 2 fuel oil, and shall be limited to an annual capacity factor of 10 percent. RACT for the two emergency diesels and the diesel fire pump shall be the installation, maintenance, and operation of the sources in accordance with the manufacturer's specifications under the presumptive RACT emission limitations found in 25 PA Code, Chapter 129, section 129.93(c)(5). These units shall be operated less than 500 hours in a consecutive 12-month period. GPU's Homer City facility shall maintain an open log to verify compliance for the auxiliary Units A and B, emergency diesels, and fire pump. This log shall include: hours of operation, fuel characteristics (specifications) and the amount and type of fuel (fuel consumption). The space heaters are combustion sources with individual rated gross heat inputs of less than 20 MMBtu per hour qualifying them for the presumptive RACT emission limitation found in 25 PA Code, Chapter 129.93(c)(1). RACT for these sources shall be the installation, maintenance and operation of these sources in accordance with the manufacturer's specifications.

GPU Generation Corporation's Homer City Station is also subject to the requirements of 25 PA Code, Chapter 129, sections 129.91-129.95.

GPU Generation Corporation's Seward Power Station is located in East Wheatfield Township, Indiana County, Pennsylvania. GPU Generation Corporation's Seward Power Station is a major NO X and VOC emitting facility. In this instance, RACT has been established and imposed by the PADEP in an OP. On July 2, 2003, the PADEP submitted permit No. 32-000-040 to EPA as a SIP revision. This operating permit incorporates RACT determinations for NO X and VOCs for the following sources: Three (3) coal-fired boilers, Boilers 12, 14, and 15; two (2) emergency diesels; and thirteen (13) space heaters.

NO X RACT for Boiler 12 shall be the implementation of bias firing operating procedures, with an annual NO X emissions limit of 808.11 tpy. All annual limits must be met on a rolling monthly basis over every consecutive 12-month period. NO X emissions from Boiler 12 shall not exceed 0.82 lb/MMBtu based on a 30-day rolling average. NO X RACT for Boiler 14 shall be the emissions limit of 0.50 lb/MMBtu based on a 30-day rolling average. NO X emissions from Boiler 15 shall not exceed 0.51 lb/MMBtu based on a 30-day rolling average. VOC RACT for the three boilers shall be the operation and maintenance in accordance with the manufacturer's recommendations.

RACT for the two emergency power diesel engines shall be the operation and maintenance of the sources according to the manufacturer's specifications in accordance with the presumptive RACT emission limitations found in 25 PA Code, Chapter 129, section 129.93(c)(5). These emergency diesels shall each be limited to operating less than 500 hours in any consecutive 12-month period. The space and portable heaters are combustion sources with individual rated gross heat inputs of less than 20 MMBtu per hour of operation, qualifying them for presumptive RACT under 25 PA Code, Chapter 129, section 129.93(c)(1). The total amount and type of fuel burned in the two emergency diesels and 13 space heaters shall be recorded and used as the basis for annual reporting of the emissions to verify compliance with the limits noted above. GPU's Seward Station shall maintain an operating log for the emergency diesels to verify compliance with the restriction on hours of operation and the presumptive RACT limitations. All sources and air cleaning devices shall be operated and maintained in accordance with good air pollution control practices.

In accordance with 25 PA Code, Chapter 129, section 129.95, GPU's Seward Station is required to keep sufficient records to demonstrate compliance with the limitations, restrictions, and requirements of this RACT permit. These records shall provide sufficient data and calculations to clearly demonstrate compliance consistent with all averaging times and periods. These records shall be maintained for at least two years and be made available to the Department upon request.

Ebensburg Power Company is a cogeneration facility located in Cambria Township, Cambria County, Pennsylvania. The Ebensburg Power Company is a major NO X and VOC emitting facility. In this instance, RACT has been established and imposed by the PADEP in an OP. On July 2, 2003, the PADEP submitted permit No. 11-000-318 to EPA as a SIP revision. This operating permit incorporates RACT determinations for NO X and VOC for the following sources: One (1) circulating fluidized bed boiler (CFB); one (1) auxiliary boiler; two (2) diesel generators; and one (1) diesel driven fire pump.

NO X RACT for the CFB boiler shall consist of an emission limit of .18 lbs/MMBtu based on a 30-day rolling basis, and a limit of 555.83 tpy. All annual limits must be met on a rolling monthly basis over every consecutive 12-month period. VOC emissions from the CFB boiler shall not exceed 15 lbs/hr. The Ebensburg Power Company shall operate and maintain a continuous emission monitoring system for as-fired coal analysis for the CFB boiler in accordance with the requirements of 25 PA Code Chapter 139. A NO X analysis shall be determined on a daily basis and used to calculate the CFB boiler's NO X control efficiency. Emissions of NO X from the auxiliary boiler shall not exceed 8.04 tpy. All annual limits must be met on a rolling monthly basis over every 12-month period.

NO X RACT for the 1592 BHP diesel generator shall consist of an operarional limit of no more than 800 hours in any consecutive 12-month period. The presumptive NO X RACT requirements outlined in 25 PA Code, Chapter 129.93(c)(5) apply to the 600 BHP diesel generator, and the 244 BHP Diesel Fire Pump. The presumptive RACT emission limitations for these sources are the maintenance, and operation of these sources in accordance with the manufacturer's specifications. These sources are limited to operating no more than 500 hours in a consecutive 12-month period. All sources and air cleaning devices shall be operated and maintained in accordance with good air pollution control and engineering practices and also with the manufacturer's specifications.

In accordance with 25 PA Code, Chapter 129, section 129.95, the owner/operator of the Ebensburg Power Company shall keep sufficient records to demonstrate compliance with the limitations, restrictions, and requirements of this RACT permit. These records shall provide sufficient data and calculations to clearly demonstrate compliance consistent with all averaging times and periods. These records shall be retained for at least two years and be made available to the Department upon request.

Sithe Pennsylvania Holdings, LLC owns and operates the Warren Generating Station in Warren County, Pennsylvania. Sithe Pennsylvania Holdings, LLC's Warren Generation Station is a major NO X and VOC emitting facility. In this instance, RACT has been established and imposed by the PADEP in an OP. On July 2, 2003, the PADEP submitted OP-62-012B to EPA as a SIP revision. This operating permit incorporates RACT determinations for NO X and VOCs for the following sources at the Warren Station facility: Four (4) boilers, Boilers 1, 2, 3, and 4; one (1) gas/oil-fired combustion turbine unit; and one (1) oil-fired emergency diesel generator.

NO X RACT for each boiler (boiler 1, 2, 3, and 4) will be bias firing with an annual capacity factor not to exceed 65.1 percent. Based upon a nominal heat input of 286.5 MMBtu/hr, each boiler shall be limited to an annual heat input of 1.634 million MMBtu/year on a 12-month rolling basis. Each boiler shall be operated and maintained in accordance with the manufacturer's specifications and good air pollution control practices. Combined emissions from Boilers 1, 2, 3, and 4 shall not exceed 2025.9 tpy. All annual limits must be met on a rolling monthly basis over every consecutive 12-month period. NO X emissions from Boilers 1, 2, 3, and 4 combined, shall not exceed 0.62 lbMMBtu based on a 30-day rolling average. A CEMS shall be operated and maintained to monitor NO X emissions from the four boilers. All four boilers shall exhaust into a common stack containing a single CEMS. The CEMS shall comply with 25 PA Code, Chapter 139, and the requirements of the Continuous Source Monitoring Manual.

NO X RACT for the combustion turbine shall be the operation and maintenance in accordance with the manufacturer's specifications with an annual limit on NO X emissions of 400 tons on a 12-month rolling basis. When burning natural gas in the combustion turbine, the emissions rate shall not exceed 0.499 lb/MMBtu. The heat input shall not exceed 2.005 × 10 12 BTU/yr or 1.944 × 10 9 CF/yr., and the annual capacity factor shall not exceed 18.3 percent on a heat input basis. When burning No. 2 oil in the combustion turbine, the emissions rate shall not exceed 0.9 lb/MMBtu. The heat input shall not exceed 1.091 × 10 12 BTU/yr or 7,905,000 gal/yr., and the annual capacity factor shall not exceed 9.98 percent on a heat input basis. For each gallon of No. 2 fuel oil used, the natural gas limit in the above statement shall decrease by 246 cubic feet. The turbine shall also be operated and maintained in accordance with the manufacturer's specifications and good air pollution control practices. Compliance with the short-term NO X emission limit for the combustion turbine shall be established based on the average of three (3) one-hour stack tests. Prior to testing, the procedure shall be approved by the Department, with at least two weeks notice given of the date and time of the test. By September 30, 2002, stack tests shall have been performed in accordance with the provisions of 25 PA Code, Chapter 139 to show compliance with the short-term NO X emission limit. Within 60 days after the test, two copies of the completed test report, including all operating conditions, shall be submitted to the Department for approval.

Within 30 days after the end of each calendar quarter, quarterly reports shall be submitted to the Department to show compliance with the RACT requirements for Boilers 1, 2, 3, and 4 and the combustion turbine.

NO X RACT for the emergency diesel generator shall be the installation, maintenance and operation of the source in accordance with the manufacturer's specifications and good air pollution control practices, in accordance with the presumptive RACT emission limitations as specified under 25 PA Code, Chapter 129, section 129.93(c)(5). The generator shall not exceed an operating schedule of 500 hours in a consecutive 12-month period. Within 30 days of the end of the calendar year, the owner or operator shall submit annual operating reports to show compliance with the RACT requirements for the emergency diesel generator.

VOC RACT for all sources shall be the operation and maintenance in accordance with the manufacturer's specifications and good air pollution control practices. Fugitive evaporative sources of VOCs shall comply with the requirements of 25 PA Code, sections 129.51, 129.54-129.72, 129.81, and 129.82, as applicable.

Pennsylvania Power & Light Company's (PP&L) Sunbury Steam Electric Station (SES) is located in the Borough of Shamokin, Snyder County, Pennsylvania. PP&L's Sunbury Power Station is a major NO X and VOC emitting facility. In this instance, RACT has been established and imposed by the PADEP in an OP. On July 2, 2003, PADEP submitted OP-55-0001A to EPA as a SIP revision. This operating permit incorporates RACT determinations for NO X and VOC for the following sources at the Sunbury facility: Four (4) arch fired boilers 1A, 1B, 2A, and 2B; two (2) front wall-fired steam generators, Boilers 3 and 4; two (2) combustion turbine generators; and two (2) diesel generators.

Pursuant to the RACT provisions of 25 PA Code, Chapter 129, sections 129.91-95, Units 1A, 1B, 2A, and 2B shall be operated and maintained in accordance with the manufacturer's specifications and good air pollution control practice. The NO X emissions from Units 1A, 1B, 2A, and 2B shall not exceed the following limits: NO X emissions from Stack #1 (Boilers 1A and 1B) shall not exceed 1.10 lb/MMBtu, based on a 30-day rolling average; NO X emissions from Stack #2 (Boilers 2A and 2B) shall not exceed 1.16 lb/MMBtu, based on a 30-day rolling average; NO X emissions from Unit #3 shall not exceed .50 lb/MMBtu based on a 30-day rolling average and NO X emissions from Unit #4 shall not exceed .50 lb/MMBtu based on a 30-day rolling average. VOC RACT for Units 1A, 1B, 2A, 2B, 3, and 4 shall be in accordance with the manufacturers' specifications and good air pollution control practices.

NO X and VOC RACT for the two combustion turbines shall be the operation and maintenance in accordance with the manufacturer's specifications and good air pollution control practices. Additionally, the capacity factor of each of these turbines shall be less than 50 percent for any consecutive 12-month period.

NO X and VOC RACT for the two diesel generators at the facility shall be the operation and maintenance in accordance with the manufacturer's specifications and good air pollution control practices. These generators shall be operated less than 500 hours in a consecutive 12-month period. PP&L's Sunbury Station shall maintain records in accordance with the recordkeeping requirements of 25 PA Code, Chapter 129, section 129.95, and shall include, at a minimum, the following: (a) Data which clearly demonstrates the capacity factor of the combustion turbines (which shall include, but not necessarily be limited to, the number of hours each turbine operates in each month), (b) the number of hours per month that each diesel generator is operated, and (c) all NO X emissions data generated for Units 1A, 1B, 2A, 2B, 3, and 4, using continuous NO X emission monitoring systems as specified in 25 PA Code, Chapter 139. These records shall be retained for at least 2 years and shall be made available to the Department upon request except for the NO X emission data generated by the continuous NO X emission monitoring systems which shall be submitted in accordance with the applicable requirements specified in 25 PA Code, Chapter 139, “Sampling and Testing”, and the Department's “Continuous Source Monitoring Manual.”

PP&L's Sunbury Station shall operate and maintain continuous NO X emissions monitoring systems on Units 1A, 1B, 2A, 2B, 3, and 4, in accordance with all applicable requirements of 25 PA Code, Chapter 139, “Sampling and Testing,” and the Department's “Continuous Source Monitoring Manual.”

Lakeview Landfill is located in Summit Township, Erie County, Pennsylvania. The Lakeview Landfill is a major VOC emitting facility. In this instance, RACT has been established and imposed by the PADEP in an OP. On July 2, 2003, PADEP submitted OP-25-920 to EPA as a SIP revision. This operating permit incorporates RACT determinations for VOCs for the following source at the Sunbury facility: One (1) enclosed flare.

RACT for the enclosed flare at the Lakeview Landfill facility shall be the installation, maintenance, and operation in accordance with the manufacturer's specifications and with good air pollution control practices. The enclosed flare shall also comply with the destruction/removal efficiency (DRE) of at least 98 percent (by weight) for non-methane organic compounds (NMOC). An inspection and cleaning of the enclosed flare shall be conducted annually. This inspection shall include the fuel nozzles or the flame pattern or characteristics. Adjustments in the combustion process shall be conducted if necessary to minimize the formation of NO X . A log shall be kept to record the annual inspection, cleaning (if necessary) and adjustments performed. This log shall contain at a minimum: the date of the maintenance procedure, the name of the technician(s) performing the service, and the operating rate after the procedure has been completed.

Lakeview Landfill shall comply with the recordkeeping requirements of 25 PA Code, section 129.95. Records of fuel quantity and consumption shall be maintained by the facility and forwarded to the Department upon request.

EPA is approving these RACT SIP submittals because the Commonwealth established and imposed these RACT requirements in accordance with the criteria set forth in the SIP-approved regulations for imposing RACT or for limiting a source's potential to emit. The Commonwealth has also imposed recordkeeping, monitoring, and testing requirements on these sources sufficient to determine compliance with these requirements.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on December 15, 2003 without further notice unless EPA receives adverse comment by November 14, 2003. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. 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.

You may submit comments either electronically or by mail. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number PA208-4214 in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. E-mail. Comments may be sent by electronic mail (e-mail) to morris.makeba@epa.gov attention: PA208-4214. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

ii. Regulations.gov. Your use of Regulation.gov is an alternative method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov, then select “Environmental Protection Agency” at the top of the page and use the “go” button. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in the ADDRESSES section of this document. These electronic submissions will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Written comments should be addressed to the EPA Regional office listed in the ADDRESSES section of this document.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, confidential business information (CBI), or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.

Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate regional file/rulemaking identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 15, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving Pennsylvania's source-specific RACT requirements to control VOC and NO X from six individual sources may be not challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document, wherever “we” or “our” is used it means the EPA.

Section 553 of the Administrative Procedures Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedures are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because we are merely correcting incorrect text in a previous rulemaking. Thus notice and public procedures are unnecessary. We find that this constitutes good cause under 5 U.S.C. 553(b)(B).

On June 25, 2003, we published a final rule approving Utah SIP revisions pertaining to the numbering and format of the SIP (68 FR 37744). When we published this rule, we incorporated by reference changes to Section IX.D.2.h. In the incorporation by reference material for Section IX.D.2.h, we inadvertently incorporated by reference changes to Section IX.D.2.h(2) that should not have been incorporated by reference. The incorporation by reference material submitted with the June 25, 2003 final rule had changes to Section IX.D.2.h(2) that are part of a February 22, 1999 SIP submittal that we have not approved. Therefore, we are correcting this error by resubmitting the incorporation by reference material for 40 CFR 52.2320(c)(56)(i)(C) to the Air and Radiation Docket and Information Center and the Office of the Federal Register. In addition, we are correcting the regulatory text in 40 CFR 52.2320(c)(56)(i)(C) to change the reference to Section IX, Part “IX.D.2.h” to read “IX.D.2.h (except IX.D.2.h(2))''.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute as indicated in the Supplementary Information section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

This technical correction action does not involve technical standards; thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). EPA's compliance with these statutes and Executive Orders for the underlying rules are discussed in the June 25, 2003 rule approving the revisions to the numbering and formatting of the Utah SIP.

The Congressional Review Act (5 U.S.C. 801 et seq. ), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of November 14, 2003. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . These corrections to the identification of plan for Utah is not a “major rule” as defined by 5 U.S.C. 804(2).

Docket. The EPA has established an official public docket for this action under Docket ID No. OAR-2002-0046. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Air and Radiation Docket in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Avenue, NW, Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the Air and Radiation Docket is (202) 566-1742.

Electronic Docket Access. You may access the final rule amendments electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility in the above paragraph entitled “Docket.” Once in the system, select “search,” then key in the appropriate docket identification number.

Worldwide Web (WWW). In addition to being available in the docket, an electronic copy of the final rule amendments will also be available on the WWW through the Technology Transfer Network (TTN). Following signature, a copy of the final rule amendments will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules http://www.epa.gov/ttn/oarpg.

Regulated Entities. The regulated category and entities affected by this action include:

This table is not intended to be exhaustive, but rather provides a guide for readers likely to be interested in the revisions to the regulation affected by this action. To determine whether your facility, company, business, organization, etc., is regulated by this action, you should carefully examine all of the applicability criteria in § 60.110b of the performance standards, as well as in today's final rule amendments to the applicability sections. If you have questions regarding the applicability of these amendments to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Judicial Review. Under Clean Air Act (CAA) section 307(b), judicial review of the final amendments is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by December 15, 2003. Only those objections to the final amendments which were raised with reasonable specificity during the period for public comment may be raised during judicial review. Under section 307(b)(2) of the CAA, the requirements established by the final amendments may not be challenged separately in any civil or criminal proceeding we bring to enforce such requirements.

Outline. The information presented in this preamble is organized as follows:

The EPA proposed the 40 CFR part 60, subpart Kb, rules on July 23, 1984 (49 FR 29698) and promulgated them on April 8, 1987 (52 FR 11420). The performance standards implement section 111 of the CAA and are based on the Administrator's determination that volatile organic liquid (VOL) storage vessels cause or contribute significantly to air pollution which may reasonably be anticipated to endanger public health or welfare.

On March 27, 2000, the EPA issued a memorandum which stated that process tanks are “storage vessels” under the definition in the Standards of Performance for Volatile Organic Liquid Storage Vessels (Including Petroleum Liquid Storage Vessels) for Which Construction, Reconstruction, or Modification Commenced After July 23, 1984.

On May 26, 2000, the AF&PA filed a petition for judicial review of the March 27, 2000 memorandum. The petitioner felt that the EPA had inappropriately expanded the scope of “storage vessels” with the interpretation in the 2000 memorandum. On August 23, 2001 (66 FR 44342), AF&PA and the EPA signed a settlement agreement that EPA would propose to amend subpart Kb to exclude from its applicability storage vessels that have a capacity less than 75 cubic meters (m 3 ) or that contain a liquid with a maximum true vapor pressure below 3.5 kilopascals (kPa), and take final action on that proposal within a reasonable time.

On February 24, 2003 (68 FR 8574), we proposed amendments to subpart Kb pursuant to the agreement with AF&PA, as well as concerns raised by parties other than the petitioner. One party commented that in addition to the proposed amendments required by the settlement agreement, the EPA should exempt process tanks from subpart Kb. Another party commented that the regulatory overlap between subpart Kb and the National Emission Standards for Hazardous Air Pollutants: Solvent Extraction for Vegetable Oil Production (40 CFR part 63, subpart GGGG) should be addressed. Today's final rule amendments address the issues raised by AF&PA and other parties.

We are amending various provisions in 40 CFR part 60, subpart Kb, Standards of Performance for Volatile Organic Liquid Storage Vessels (Including Petroleum Liquid Storage Vessels) for Which Construction, Reconstruction, or Modification Commenced After July 23, 1984. For further details, please refer to the February 24, 2003 proposed rule amendments (68 FR 8574). In doing so, we are indicating by necessary implication that subpart Kb applies to all industries where volatile organic liquid (as defined in § 60.111b(k)) is stored, and thus applies to other industries in addition to the petroleum and synthetic organic chemical manufacturing industries.

Exemption of Certain Storage Vessels by Capacity and Vapor Pressure. Today's action amends the final rule by eliminating recordkeeping requirements for storage vessels with a capacity less than 75 m 3 , for storage vessels with a capacity between 75 and 151 m 3 storing liquid with vapor pressure less than 15 kPa, and for storage vessels with a capacity equal to or greater than 151 m 3 storing liquid with vapor pressure less than 3.5 kPa. Put another way, the EPA is exempting from subpart Kb those storage vessels presently subject to recordkeeping requirements only.

Exemption of Process Tanks. The EPA is amending the final rule to exempt process tanks from subpart Kb. The EPA considered whether it was justified to amend subpart Kb to include process tanks within its scope, which would apply to new sources, that is, only to those process tanks for which construction, reconstruction, or modification commenced after the date of proposal of the action (see CAA sections 111(a)(2) and (b)(1)(B)).

Exemption of Storage Vessels Subject to the Vegetable Oil National Emission Standards for Hazardous Air Pollutants (NESHAP). The EPA contends that the overall emissions to the environment will not increase by exempting storage vessels from subpart Kb that are subject to the Vegetable Oil Production NESHAP, and that such exemption essentially amounts to avoiding duplicative regulation. The EPA is, therefore, exempting from subpart Kb all storage vessels that are subject to the Vegetable Oil Production NESHAP.

This section of the preamble is a summary of the major public comments received in response to the proposed rule amendments, and changes resulting from the comments. A full report of all comments received and responses to the comments are in the “Standards of Performance for Volatile Organic Liquid Storage Vessels (Including Petroleum Liquid Storage Vessels) for Which Construction, Reconstruction, or Modification Commenced after July 23, 1984—Public Comments and Responses.” The document may be found in Docket ID No. OAR-2002-0046.

Comment: Two commenters recommended revising the definition of “process tank” to clarify that a vessel used within a process before material is transferred to a by-product storage vessel is considered to be a process tank. The commenters also recommended that the definition be revised to include tanks used to collect and recirculate solvents. One commenter suggested the EPA clarify that flare knockout vessels and vessels used for surge control for wastewater and/or sludge are process tanks. Another commenter requested the EPA clarify that pipeline emergency breakout tanks are process tanks, and another commenter requested the EPA clarify that vessels used for fermentation, distillation, mixing and blending, condensing, filtering, and extraction are process tanks.

Response: The EPA agrees that a vessel used within a process before material is transferred to a by-product storage vessel is considered to be a process tank. The definition of “process tank” in the final rule amendments reflects this view. The EPA considers vessels that receive and accumulate solvent or raw material from recovery processes to be storage vessels, not process tanks. Such vessels serve the same function as virgin solvent and raw material storage vessels, and some are located in tank farms with other storage vessels. The definition in the final rule amendments clarifies that “process tank” does not include such vessels. However, the definition also clarifies that vessels used within solvent and raw material recovery processes (that are not used for the ultimate storage of recovered liquids) are process tanks. The EPA agrees that flare knockout vessels and vessels used for surge control for wastewater and/or sludge are process tanks. The EPA also agrees that vessels used as described by one commenter (fermentation, distillation, etc.) are process tanks, and that the proposed definition of “process tank” would be interpreted to include such vessels. Finally, the EPA agrees that vessels used for pipeline surge control (not storage) are considered to be process tanks.

Comment: Several commenters recommended raising the proposed vapor pressure applicability criteria to the levels at which control is required. One of the commenters stated that the EPA's rationale for the proposed levels would also support raising the criteria to the levels at which control is required.

Response: The EPA disagrees that the rationale for the proposed applicability criteria also supports raising the levels to those at which control is required. The proposed applicability criteria would exempt tanks storing liquids with a vapor pressure significantly lower than the vapor pressure criteria for control. Regarding the vapor pressure at which recordkeeping of the stored liquid is required, the preamble to the 1987 final subpart Kb (49 FR 29711) states, “These vapor pressures should be high enough so that records would not be kept on liquids that could not, under reasonable circumstances, reach the maximum true vapor pressure cutoffs, but low enough so that records would be kept on most liquids that could reach the maximum true vapor pressure cutoffs.” This remains the EPA's position, and the EPA has, therefore, retained revised the applicability criteria as proposed.

Comment: One commenter urged the EPA to state that it will not seek to enforce subpart Kb for process tanks that have been constructed, reconstructed or modified after July 23, 1984 and before the date of the proposed amendments to subpart Kb.

Response: The EPA stated in the preamble to the proposed rule amendments that the 1998 interpretation of subpart Kb was definitive (in the sense that it was intended to set out the EPA's view and was written by an entity within the EPA with authority to do so) and, as such, can only be changed after notice-and-comment rulemaking. The EPA also stated that it would not be worthwhile to now propose to include process tanks under subpart Kb, and that the Agency was thus proposing to amend subpart Kb to exempt process tanks to codify the 1998 position. Therefore, the EPA will not be taking any enforcement action regarding the tanks described by the commenter.

Comment: One commenter urged the EPA to clarify its “enforcement posture” with respect to storage tanks in facilities other than the chemical and petroleum industries. The commenter stated several reasons for subpart Kb not applying outside the chemical and petroleum industries. The commenter stated that storage tanks outside the chemical and petroleum industries were not considered when determining the economic impacts of the proposed standards. The commenter also stated that the information collection request (ICR) for the standards was limited to the chemical and petroleum industries.

Response: The EPA stated in the preamble to the proposed rule why the text of the rule indicates that the rule's scope is not limited to the chemical and petroleum industries. The EPA also described the process by which a source category on the CAA section 111 priority list for regulation was revised (concurrently with the promulgation of subpart Kb) to include all volatile organic liquid storage. The priority list had previously included storage vessel source categories only for the petroleum industry and the synthetic chemical manufacturing industry, confirming what is already clear from the proposed rule's text—it applies to industries other than chemical and petroleum.

The commenter is correct that the economic analysis for subpart Kb did not include storage vessels in industries other than the chemical and petroleum industries. However, in the background information document for the proposed subpart Kb (EPA-450/3-81-003a), the amount of storage in industries outside the chemical and petroleum industries was estimated to be small enough (relative to storage in those industries) to be disregarded in the analysis.

The commenter is also correct that the supporting statement for the ICR for subpart Kb lists only the chemical and petroleum industries as respondents. Again, the EPA estimated that these industries contain the overwhelming majority of volatile organic liquid storage vessels. The list of respondents in the ICR supporting statement does not determine the applicability of subpart Kb; 40 CFR 60.110b determines applicability. Subpart Kb has such broad applicability that an exhaustive list of respondents would be difficult to develop. The Office of Management and Budget approved the current ICR for subpart Kb under terms which state that the EPA must submit a revised ICR, pursuant to the Paperwork Reduction Act and 5 CFR part 1320. The EPA intends to develop this expanded list during the next ICR renewal for subpart Kb.

In conclusion, the EPA interprets subpart Kb to apply to volatile organic liquid storage vessels, regardless of industry.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

It has been determined that the final rule amendments are not a “significant regulatory action” under the terms of Executive Order 12866 and are, therefore, not subject to OMB review.

This action does not impose any new information collection burden. This action exempts certain sources from 40 CFR part 60, subpart Kb. Therefore, it is likely that this action could only reduce the information collection burden. The OMB has previously approved the information collection requirements contained in the existing regulations under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , and has assigned OMB control number 2060-0074 (EPA ICR No. 1132.06).

Copies of the ICR document(s) may be obtained from Susan Auby, by mail at the Office of Environmental Information, Collection Strategies Division; U.S. EPA (2822T); 1200 Pennsylvania Avenue, NW., Washington, DC 20460, by email at auby.susan@epa.gov, or by calling (202) 566-1672. A copy may also be downloaded off the internet at http://www.epa.gov/icr. Include the ICR or OMB number in any correspondence.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to, a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

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 OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

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

For purposes of assessing the impacts of today's final rule amendments on small entities, a small entity is defined as: (1) A small business in the North American Industrial Classification System (NAICS) code 324 or 325 that has up to 500 employees; (2) a small business in NAICS code 424710 that has up to 100 employees; (3) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (4) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's final rule amendments on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The EPA has determined that none of the small entities will experience a significant impact because the final rule amendments impose no additional regulatory requirements on owners or operators of affected sources. In fact, the final rule amendments should decrease the impacts on small businesses because they exempt some sources from regulation.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires the EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least-costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the EPA to adopt an alternative other than the least-costly, most cost effective, or least-burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before the EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

The EPA has determined that the final rule amendments do not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. The final rule amendments exempt certain sources from regulation. Thus, today's final rule amendments are not subject to the requirements of sections 202 and 205 of the UMRA.

Executive Order 13132 (64 FR 43255, August 10, 1999) requires the 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.”

The final rule amendments do not have federalism implications. They 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. The final rule amendments exempt certain sources from regulation. The final rule amendments impose no additional burden on sources, and the emissions reductions lost because of the exemptions are not significant. Thus, Executive Order 13132 does not apply to the final rule amendments.

In the spirit of Executive Order 13132 and consistent with EPA policy to promote communications between the EPA and State and local governments, the EPA specifically solicited comment on the proposed rule amendments from State and local officials.

Executive Order 13175 (65 FR 67249, November 9, 2000) requires the 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.” The final rule amendments do not have tribal implications, as specified in Executive Order 13175. The final rule amendments exempt certain sources from regulation. The final rule amendments impose no additional burden on sources, and the emissions reductions lost because of the exemptions are not significant. Thus, Executive Order 13175 does not apply to the final rule amendments.

The EPA specifically solicited additional comment on the proposed rule amendments from tribal officials.

Executive Order 13045 (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 the EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the EPA 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 EPA.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. Today's final rule amendments are not subject to Executive Order 13045 because they are based on technology performance, not health or safety risks. Furthermore, the final rule amendments have been determined not to be “economically significant” as defined under Executive Order 12866.

The final rule amendments are not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note), directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

The final rule amendments do not involve technical standards. Therefore, the EPA is not considering the use of any voluntary consensus standards.

The Congressional Review Act, 5 U.S.C. § 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this 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 action is not a “major rule” as defined by 5 U.S.C. 804(2). The final rule will be effective on October 15, 2003.

1. Docket. EPA has established an official public docket for this action under Docket ID No. RCRA-2002-0034. The official public docket consists of the documents specifically referenced in this action, any public comments received and other information related to this action. The official public docket is the collection of materials that is available for public viewing at the RCRA Information Center (RIC), located at EPA West, Room B-102 1301 Constitution Avenue, NW, Washington, DC. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is 800-424-9346 or TDD 800-553-7672 (hearing impaired). In the Washington, DC, metropolitan area, call 202-566-0270 or TDD 703-412-3323 (hearing impaired). To review the docket materials in person, we recommend that the public make an appointment by calling 202-566-0270.

2. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the “Federal Register” listings at < http://www.epa.gov/fedrgstr/ >.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at < http://www.epa.gov/edocket/ > to access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified above in Unit I.A. Once in the system, select “search,” then key in the appropriate docket identification number.

The full names for the acronyms used in this document are:

EPA is adding a note at the end of 40 CFR 258.10, the location restriction requirements in the criteria for municipal solid waste landfills (MSWLFs), to inform the public about landfill siting requirements enacted in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, Pub. L. 106-181 (Ford Act), enacted on April 5, 2000. The Ford Act is an aviation statute administered by the Federal Aviation Administration (FAA). However, section 503 of the Ford Act includes a provision limiting the “construction or establishment” of new municipal solid waste landfills (MSWLFs) after April 5, 2000, within six miles of certain smaller public airports. Therefore, as a convenience for owners/operators of MSWLFs and for those wishing to construct or establish new MSWLFs, EPA is providing a reference to the Ford Act following the location requirements that apply to MSWLFs under RCRA.

On July 11, 2002, EPA published a direct final rule (67 FR 45915) and a parallel proposed rule (67 FR 45948) to incorporate the Ford Act restrictions into EPA's criteria for MSWLFs under RCRA. Had the rule gone into effect, it would have added a new paragraph (e) to § 258.10 to incorporate the Ford Act landfill siting restrictions. However, EPA received several adverse comments on the direct final rule, therefore the Agency withdrew the rule on October 8, 2002 (67 FR 62647).

One commenter challenged EPA's authority to issue the rule under RCRA, as well as the adequacy of the record to support incorporation of the Ford Act requirements in the RCRA criteria. A second commenter also questioned the validity of data cited by EPA with respect to the hazards from bird strikes.

After reviewing the comments, EPA has decided not to finalize the rule as proposed. Instead of adding a new subsection (e) to 40 CFR 258.10, EPA is incorporating information about the Ford Act in a note following the criteria in 40 CFR 258.10. As a result, the specific limitations of the Ford Act are not being incorporated into the criteria for MSWLFs under RCRA and are not enforceable as part of EPA's MSWLF criteria. The note is for advisory purposes only.

Because section 503 of the Ford Act is directly applicable to any “person” constructing or establishing a MSWLF, it does not by its terms require implementation through regulation. The Ford Act does not amend Subtitle D of the Resource Conservation and Recovery Act (RCRA), which EPA administers. Therefore, in light of the comments received, EPA has reconsidered promulgating a regulation under RCRA that incorporates the Ford Act requirements. In addition, to the extent that section 503 the Ford Act is to be interpreted, the Federal Aviation Administration, not EPA, is the administering agency under the statute. The FAA has issued guidance interpreting section 503. See FAA AC No.150/5200-34. For further information, the public should contact the FAA.

The Ford Act has been in effect since April 5, 2000. Section 503(b) amends 49 U.S.C. 44718(d), and states:

(1) No person shall construct or establish a municipal solid waste landfill (as defined in § 258.2 of title 40, Code of Federal Regulations, as in effect on the date of enactment of this subsection) that receives putrescible waste (as defined in § 257.3-8 of such title) with 6 miles of a public airport that has received grants under chapter 471 and is primarily served by general aviation aircraft and regularly scheduled flights of aircraft designed for 60 passengers or less unless the State aviation agency of the State in which the airport is located requests that the Administrator of the Federal Aviation Administration exempt the landfill from the application of this subsection and the Administrator determines that such exemption would have no adverse impact on aviation safety.

(2) Limitation on Applicability—Paragraph 1 shall not apply in the State of Alaska and shall not apply to the construction, establishment, expansion , or modification of, or to any other activity undertaken with respect to, a municipal solid waste landfill if the construction or establishment of the landfill was commenced on or before the date of enactment of this subsection.

Section 503(c) of the Ford Act establishes civil penalties for violations of the limitations on siting landfills set forth above in section 503(b).

As previously stated, these landfill siting restrictions are directly applicable to any person constructing or establishing a new landfill as those terms are defined in the statute and interpreted by the FAA, the agency charged with administering the Ford Act. Therefore, it is not necessary for EPA to incorporate these provisions into the MSWLF criteria. Today's amendment to include a reference to section 503 of the Ford Act in a note to 40 CFR 258.10, which is the section of the criteria that sets forth the location restrictions for airport safety under RCRA, Subtitle D, is solely for the convenience of the public.

Nothing in this notice amends the requirements of 40 CFR 258.10, which sets forth location restrictions for MSWLFs to address airport safety. Section 258.10(a) and (c) contain requirements for new MSWLFs, existing MSWLFs and lateral expansions of landfills that are located within 10,000 feet of any airport runway used by turbojet aircraft or within 5,000 feet of any airport runway used only by piston-type aircraft. Owners or operators of such landfills are required to (1) demonstrate that the MSWLFs are designed and operated so as not to “pose a bird hazard to aircraft; (2) place a copy of the demonstration in the MSWLF operating record, and (3) notify the State Director that it has been placed in the operating file. “State Director” is defined as the chief administrative office of the lead state agency responsible for implementing the state permit program for 40 CFR part 258 regulated facilities.”

Section 258(b) applies to new MSWLFs and lateral expansions proposed to be constructed within a five-mile radius of the end of any airport runway used by a turbojet or piston-type aircraft. For such proposed new MSWLFs and lateral expansions, the owner or operator must notify the affected airport and the FAA.

Section 258.10(d) defines “airport” to mean a “public-use airport open to the public without prior permission and without restrictions within the physical capacities of available facilities.” This subsection also defines “bird hazard.”

This is a summary of the Commission's Order adopted August 15, 2003, and released August 20, 2003, that finalizes those regulations. The full text of this Commission decision is available on the Commission's Internet site at http://www.fcc.gov. It is available for inspection and copying during normal business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Qualex International, 445 12th Street, SW., Room, CY-B402, Washington, DC 20554. The full text may also be downloaded at: http://www.fcc.gov. Alternative formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365.

1. The Order, 63 FR 64199, November 19, 1998, revised the rules in the Experimental Radio Service to promote technical innovation and new services by encouraging experiments; ensure that experimental licenses do not result in abuse of our processes; eliminate unnecessary and burdensome experimental regulations; and protect public safety frequencies.

2. Electronic Filing . Since November 18, 1998, the application forms applicable to licenses for Experimental Radio stations could be submitted to the Commission electronically. These forms are:

a. FCC Form 405, Application for Renewal of Experimental License or STA.

b. FCC Form 442, Application for New or Modified Experimental Radio Station Authorization.

c. FCC Form 702, Application for Consent to Assignment of Radio Station Construction Authorization or License (For Stations in Services Other Than Broadcast).

d. FCC Form 703, Application for Consent to Transfer Control of Corporation Holding Station License.

e. Special Temporary Authority (STA), Application for STA.

f. Add Attachments, Form for Submitting Additional Exhibits to an Existing Experimental Licensing Application.

g. Submit Correspondence, Form for Replying to Correspondence Sent by the OET ELS Branch Pertaining to a Pending Application.

h. Amend/Complete Application, Form for Amending or Completing a Page on a Previously-Filed Experimental Radio Licensing Application

2. These forms have been accessible at the official web site of the Commission's Office of Engineering and Technology, https://gullfoss2.fcc.gov/prod/oet/cf/els/index.cfm. Of the 769 total Experimental Radio license application filings in calendar year 2002, 88% were filed electronically. In the Quarter ending March 31, 2003, 215 filings were submitted, and 93% of these were made electronically. By requiring that applications for Experimental Radio licenses henceforth be filed electronically, we are taking another step toward the Commission's compliance with Section 1704 of the Government Paperwork Elimination Act. We do, however, recognize that the mandatory electronic filing requirement could impose unusual burdens on some filers and that, therefore, it may be appropriate for us to consider granting limited waivers of this requirement. Such waivers, however, will not be routinely granted and the filing party must plead with particularity the facts and circumstances warranting relief.

3. Mandatory electronic filing of applications for Experimental Radio licenses will commence on January 1, 2004. This change is reflected in the amendments to part 5 of the Commission's Rules, 47 CFR 5.1-5.125. Because this change from voluntary to mandatory electronic filing is merely procedural in nature and does not substantively change the information required to be filed with the Commission, the notice and comment requirements of the Administrative Procedure Act are inapplicable. Paper versions of these forms will not be accepted for filing after December 31, 2003, unless accompanied by an appropriate request for waiver of the electronic filing requirement.

4. Informal Objections . Applications for Experimental Radio licenses are not subject to the public notice requirements of section 309(b) of the Communications Act, of 1934, as amended, and, therefore, the proper procedure for opposing such applications is to file an informal objection. However, there is no provision in part 5 of the rules that expressly address this point. To codify this requirement, we are adding § 5.95, which will provide for the filing of informal objections that comply with the requirements set forth in §§ 1.41-1.52 of the rules. We continue to prefer the use of informal procedures in the context of part 5, which “contemplate[s] that experimental licensees will cooperate in good faith with [regular] service licensees to prevent harmful interference to the affected services, to investigate any complaints of interference, and to take appropriate measures to mitigate interference” and require that “in the event of unmitigable harmful interference, experimental operations must cease immediately.” Because this amendment merely clarifies an existing procedure and makes no substantive changes to the Commission's rules, it also is exempt from the notice and comment requirements of the Administrative Procedure Act.

5. Pursuant to sections 4, 302, and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 154, 302, and 303, this Order IS ADOPTED.

The Federal Communications Commission released the First Order on Reconsideration and Second Report and Order; (“ Order ” and “ 2nd R&O ”) CS 95-184, MM 92-260, FCC 03-9 on January 29, 2003. The document revises rules the Commission adopted related to cable home run wiring and resolves issues raised by the Commission regarding exclusive and perpetual contracts. The Commission gave notice in the Federal Register (68 FR 13850, March 21, 2003) that the revisions to its rules made pursuant to the Order and 2nd R&O would become effective on May 20, 2003, except for §§ 76.620, 76.802 and 76.804. These sections contained information collection requirements that had not been approved by OMB. The Commission's notice stated that it would publish a document in the Federal Register announcing the effective date for the modifications to these sections. The Commission hereby gives notice that it received OMB approval, OMB Control No. 3060-0692, for the revised information collection in the Order and 2nd R&O on April 23, 2003. The Commission therefore gives notice that the effective date for revisions to §§ 76.620, 76.802 and 76.804 made in the Order and 2nd R&O is May 20, 2003.

Pursuant to the Paperwork Reduction Act of 1995, Pub. L. 104-13, an agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. Notwithstanding any other provisions of law, no person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. For questions regarding the effective date for revisions to the above-named sections contact Cheryl Kornegay, Media Bureau, Policy and Rules Division at (202) 418-7200 or via the Internet at cheryl.kornegay@fcc.gov. Questions concerning this revised information collection should be directed to Leslie F. Smith, Federal Communications Commission, (202) 418-0217 or via the Internet at Leslie.Smith@fcc.gov.

Lesquerella filiformis (Missouri bladderpod) is an annual plant with erect, hairy stems approximately 20 centimeters (cm) (8 inches (in)) in height that branch from the plant's base. Basal leaves are hairy on both surfaces, 1.0-2.25 cm (0.4-0.9 in) long, 0.3-1.0 cm (0.1-0.4 in) wide, broadly rounded, and tapering to a narrow petiole. Stem leaves are densely hairy with stellate hairs on both surfaces, 1.0-3.2 cm (0.4-1.3 in) long and 1.6-16 millimeters (mm) (0.06-0.6 in) wide, and have a silvery appearance. Bright yellow flowers with four petals occur at the top of the stems in late April or early May (Morgan 1980). Missouri bladderpod is restricted to shallow soils of limestone glades in southwestern Missouri (Hickey 1988; Thomas 1996) and northwestern Arkansas and, occasionally, dolomite glades in north-central Arkansas (John Logan, Missouri Department of Natural Resources (MDNR), pers. comm. 2000).

Lesquerella filiformis Rollins, a member of the mustard family (Brassicaceae), was first collected in 1887 in southwestern Missouri. Payson (1921), however, misapplied the name Lesquerella angustifolia (Nutt.) S. Wats. to these early collections. Rollins (1956) formally described Lesquerella filiformis as a distinct species, and its taxonomic validity was further supported in a subsequent monograph on the genus Lesquerella in North America by Rollins and Shaw (1973).

Historically, Missouri bladderpod was believed to be a State endemic plant known solely from a few sites in two counties in southwestern Missouri (Morgan 1980; U.S. Fish and Wildlife Service 1988). In 1980, a total of 550 individual plants were estimated at 4 sites, and at the time of listing as endangered in 1987, an estimated 5,000 plants were determined to occur at 9 sites (Morgan 1980; 52 FR 679, January 8, 1987). At the time of the completion of the Missouri Bladderpod Recovery Plan in 1988, the species was known from 11 sites in Christian, Dade, and Greene Counties, MO (U.S. Fish and Wildlife Service 1988). During that same year, the Service funded a 4-county survey for the species in Missouri, and an additional 45 sites were located (Hickey 1988). A followup survey in 1989 yielded an additional 13 sites (Thurman and Hickey 1989). Further botanical explorations led to the discovery of 16 additional sites, including locations in an additional county in Missouri (Lawrence County) and one site each in Izard and Washington Counties, AR (Theo Witsell, Arkansas Natural Heritage Commission, in litt . 2002). In the spring of 1997, Missouri Department of Conservation (MDC) botanist Bill Summers (while working on the Flora of Missouri project) discovered the species at a limestone/dolomite quarry in Izard County, northcentral Arkansas (Theo Witsell, in litt . 2002). Subsequent investigations following this find led to documentation of an additional site in Washington County, northwestern Arkansas, discovered in 1992 (Theo Witsell, in litt . 2002). In the spring of 1998, surveys were expanded in Arkansas, and, although no new sites were discovered in the State, a more extensive population of Missouri bladderpod was found at the Izard County site than had been originally discovered in 1997 (John Logan, Arkansas Natural Heritage Commission, pers. comm. 1998). The population at the Washington County site had not been observed since 1992 until it was rediscovered on May 1, 2002, when approximately 500 flowering and fruiting plants were discovered on a small glade opening at the original 1992 site (Theo Witsell, in litt . 2002). Currently, Missouri bladderpod is known to occur at a total of 61 sites in 4 counties in Missouri and 2 sites in 2 counties in Arkansas.

Population levels of Missouri bladderpod fluctuate widely as is typical of winter annuals, depending on edaphic (soil) and climatic conditions, and factors such as seed crop from the preceding season, seed survival in the seed bank, recruitment from the seed bank, and the survival of growing plants (Thomas 1998). Annual monitoring data have been collected for a minimum of 11 consecutive years at two Missouri sites, and irregular monitoring has occurred at numerous other sites. Thomas (1998) and Boetsch ( in litt . 2002) reported changes in population status of Lesquerella filiformis between 1988 and 2003 on National Park Service (NPS) property at Bloody Hill Glade, Wilson's Creek National Battlefield, and observed that the population varied from 0 to 303,446 plants, with an average annual population of 58,862 plants (Table 1). The MDC monitored 21 permanent plots within 1 population at the Rocky Barrens Conservation Area between 1992 and 2003 and noted that the number of individual plants varied from 2 to 3,584 (Tim Smith, MDC, in litt . 2003, Table 1). Monitoring of a population at Cave Springs Outcrop Glade in Dade County in 1980, 1984, 1988, 1990, and 1993 yielded 500, 545, 50, 0, and 0 plants, respectively (MDC 2002a). To date, the maximum population estimate at the Izard County, AR site has been “tens of thousands of plants,” in 1997, while in 1999 only a few plants were found at the same site (Theo Witsell, in litt . 2002). Irregular monitoring (a minimum of 4 years of data between 1993 and 1999) at seven Nature Conservancy registry sites yielded similar fluctuations in population numbers as described elsewhere, with estimates ranging from 0 to 47 plants at the smallest population and 3 to 3,448 plants at the largest (Susanne Greenlee, TNC, in litt . 1999; MDC 2002a).

An examination of the status of most extant sites following the procedures established by Hickey (1988) was conducted in the spring of 2000. Hickey visited 52 extant sites between April and May and noted that: (1) Populations of the species were found in the same terrace or rock shelf as they were in 1988-1990, and (2) some sites exhibited lower numbers than in 1988-1990, apparently attributable to the drought conditions, an increase in cedar density or encroachment of other woody vegetation, or competition from exotic species of brome grasses ( Bromus spp. ). Population density at some locations increased apparently because of tree removal and maintained grazing (Hickey 2000). Continued long-term monitoring of some larger sites in Missouri and the site in Izard County, AR, is also planned.

In years when germination, overwinter survival, seedling establishment, and plant growth are ideal, Lesquerella filiformis populations can be so large as to make rangewide population estimates extremely difficult. Despite the difficulty, estimates made by Hickey (1988) at 55 sites in Missouri yielded approximately 400,000 plants. Had rangewide estimates been taken in 1991 when 303,446 plants were estimated at Bloody Hill Glade, Wilson's Creek National Battlefield (Table 1, Thomas 1998), the population that year likely would have exceeded 500,000 plants. However, given the extreme annual fluctuations in population size, only long-term monitoring efforts patterned similarly to the protocol developed for the Wilson's Creek National Battlefield (Kelrick 2001a, 2001b) can accurately reflect the true population status and trend of this species and effectively evaluate the efficacy of management regimes on bladderpod habitat (Thomas 1998).

The current 63 extant sites have the following Nature Conservancy Natural Community rankings: (1) 11 (10 in Missouri and 1 in Arkansas) are graded A ( i.e. , are relatively stable and undisturbed natural communities with a high diversity of conservative species); (2) 18 (all in Missouri) are graded B ( i.e. , late successional or lightly disturbed communities, or recently lightly disturbed or moderately disturbed in the past but now recovered, and the biological diversity has not been greatly reduced); (3) 1 in Arkansas is graded AB ( i.e. , intermediate between A and B); (4) 17 in Missouri are graded C ( i.e. , midsuccessional, moderately to heavily disturbed communities, or moderate recent disturbance or heavy past disturbance with decreased recent disturbance); and (5) 16 in Missouri are graded D ( i.e. , early successional or severely disturbed communities where the structure and composition of the community has been severely altered with few characteristic native species present) (MDC 2002a; Theo Witsell, in litt. 2002).

Threats identified by the Service at the time of listing (52 FR 679, January 8, 1987) were: (1) Vulnerability of small populations to overcollecting and human disturbance, (2) lack of research on proper management techniques necessary to maintain and promote populations of the species, (3) potential impacts of annual maintenance activities to populations located on highway rights-of-way, (4) seed destruction by insects and fungal infections, and (5) inadequate protection or management on public and private property necessary for the species' continued existence. Subsequently, the Service (1988) documented the presence of exotic plant species, such as Bromus tectorum (a cheat grass), in bladderpod habitat as a significant threat, and this was further supported by observations by Hickey (1988, 2000) and Thomas (1996, 1998). Additionally, Hickey (1988, 2000) and Thomas (1996) identified development, especially land-use changes resulting from urban expansion, as a major threat to the species, and Hickey (1988) noted an increase in grazing pressure at some of the sites discovered during a four-county survey.

Although no specific reclassification (endangered to threatened) criteria were provided in the Recovery Plan, the following recovery (delisting) criteria were given: 30 self-sustaining populations, 15 of which are in secure ownership, must be at least one-half acre in size each and show self-sustaining populations for at least 7 years (U.S. Fish and Wildlife Service 1988). We indicated that these recovery goals could be accomplished through the following actions: (1) An inventory of suitable habitat for new populations, (2) the protection and management of existing populations, (3) the continued monitoring of populations and initiation of research on the species, (4) the development and initiation of management programs on protected sites, (5) the establishment of new populations on public land, and (6) the development of public awareness and support to further the conservation of the species.

Although some information gaps concerning the life history requirements of Lesquerella filiformis remain, research conducted since the species was listed in 1987 has significantly improved our understanding of the ecological needs of this species. Dr. Michael Kelrick (Truman State University, MO) has conducted and supervised graduate student work on demographics; seed bank ecology; matrix population dynamics used in the development of a population model and protocol for long-term monitoring; analyses of the effectiveness of various management prescriptions utilized to restore and enhance bladderpod habitat; reproductive success; fecundity; and factors influencing germination, seedling establishment and vegetative growth, metapopulation dynamics, and genetic diversity within and between populations ( e.g. , Harms 1992; Graham 1994). Lisa Potter Thomas of the NPS at Wilson's Creek National Battlefield has also conducted extensive research on the species involving life history ecology ( e.g. , factors influencing survivorship, plant vigor, and reproduction); the potential impacts of human foot trampling on the species; techniques useful in controlling exotic plants in bladderpod habitat; an examination of microhabitat parameters; and demographic studies that centered on germination, density of flowering stems, survivorship, and fecundity (Thomas and Jackson 1990; Thomas and Willson 1992; Thomas 1996, 1998).

Other recommended research and recovery activities include: (1) Investigating the pollination ecology of the species; (2) revising the Recovery Plan objective established in 1988 to reflect the current knowledge of the species; (3) securing funding to provide necessary information essential to complete recovery and to facilitate the removal of the species from the list of federally protected species; (4) evaluating the efficacy of different management techniques; and (5) assuring that threats such as urban development and competition from exotic plants, both of which result from rapid population growth and urbanization, do not increase (The Nature Conservancy 2002; Hickey 1988; U.S. Fish and Wildlife Service 1988; Thomas and Jackson 1990; Thomas 1996).

Section 12 of the Act directed the Secretary of the Smithsonian Institution to prepare a report, within 1 year after passage of the Act, on those plants considered to be endangered, threatened, or extinct. This report, designated as House Document No. 94-51, was presented to Congress on January 9, 1975. On July 1, 1975, the Director of the Service published a notice in the Federal Register (40 FR 27823) of his acceptance of the report of the Smithsonian Institution as a petition within the context of section 4(c)(2) of the Act (petition acceptance is now governed by section 4(b)(3) of the Act, as amended), and of his intention thereby to review the status of the plant taxa named within. Lesquerella filiformis was named in the Smithsonian report as endangered and was included in the Service's 1975 notice of review. A subsequent notice of review published in the December 15, 1980, Federal Register (45 FR 82480) included L. filiformis as a Category 1 species, indicating that we believed there was sufficient biological information to support a proposal to list the species as endangered or threatened.

The Endangered Species Act Amendments of 1982 required that all petitions, including the report of the Smithsonian Institution, still pending as of October 13, 1982, be treated as received on that date. Section 4(b)(3) of the Act, as amended, requires that, within 12 months of the receipt of such a petition, a finding be made as to whether the requested action is warranted, not warranted, or warranted but precluded by other higher priority activities involving additions to or removals from the Federal Lists of Endangered and Threatened Wildlife and Plants. Therefore, on October 13, 1983; October 12, 1984; and again on October 11, 1985, the Service made the finding that listing of Lesquerella filiformis was warranted but precluded by other pending listing activities. The proposed rule to list L. filiformis as endangered was published on April 7, 1986 (51 FR 11874), and the final rule was published on January 8, 1987 (52 FR 679). The Recovery Plan was approved on April 7, 1988 (U.S. Fish and Wildlife Service 1988).

In letters dated January 26 and February 17, 1998, the Service received a petition from the MDC to reclassify Lesquerella filiformis from endangered to threatened. On March 18, 1998, we responded and indicated that, based on our Listing Priority Guidance issued on October 23, 1997, we could not address the petition until we completed other higher priority listing actions. The Act requires us to make certain findings on petitions to add species to the List of Endangered and Threatened Plants, remove species from the List, or change their designation on the List. A proposed rule to reclassify the Missouri bladderpod from endangered to threatened was published on June 10, 2003 (68 FR 34569), constituted both our 90-day finding that the petitioned action may be warranted and our 12-month finding that the action is warranted, and opened a 60-day public comment period that ended on August 11, 2003.

In the June 10, 2003, proposed rule (68 FR 34569), we requested all interested parties to submit comments or information concerning the proposed reclassification of the Missouri bladderpod from endangered to threatened. We published legal notices in the Arkansas Democrat-Gazette, Lowell, Arkansas, the Kansas City Star, Kansas City, Missouri, and The News-Leader, Springfield, Missouri, on June 15, 2003, announcing the proposal and inviting public comment. In addition, we contacted interested parties (including elected officials, Federal and State agencies, local governments, scientific organizations, and interest groups) through a press release and related fact sheets, faxes, mailed announcements, telephone calls, and e-mails. The public comment period closed on August 11, 2003. We received four responses during the public comment period (one from a State agency and three from peer reviewers).

We received comments from the MDC that did not provide specific comments on the proposed rule, but rather expressed support for the reclassification of the Missouri bladderpod from endangered to threatened based on the decline of threats, efforts taken to protect and conserve the species, and the discovery of new populations.

In accordance with our policy published in the Federal Register on July 1, 1994 (59 FR 34270), we sought the expert opinions of three appropriate and independent specialists regarding this proposed rule. The purpose of such review is to ensure that our decisions are based on scientifically sound data, assumptions, and analyses. We invited these peer reviewers to comment, during the public comment period, on the specific assumptions and conclusions regarding the proposed reclassification of Lesquerella filiformis. All of the three peer reviewers submitted comments that support the reclassification. We considered and incorporated, as appropriate, into this final rule all biological and commercial information obtained through the open comment period. Key issues raised in the comments are presented below.

Issue 1: Two reviewers commented that long-term monitoring is needed to assess population stability and viability across the range of the species.

Our response: As discussed above, we agree that long-term monitoring is essential to evaluate the rangewide status of the species. Although regular monitoring of Missouri bladderpod populations occurs on public lands, similar evaluations are needed on private land to assess the status of the species throughout its range. As recovery efforts for this species continue, we will continue to expand and refine the monitoring program, likely with a prioritized subset of populations.

Issue 2: Two reviewers expressed concern that the invasion of exotic brome grasses ( Bromus spp. ) and other non-native species threaten the long-term viability of Missouri bladderpod and suggested that research on this issue be conducted.

Our response: We acknowledge that the invasion of exotic species is a potential threat to Lesquerella filiformis and that additional research is needed to assess the extent of this threat. As discussed under the Factor A, The Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range section below, although non-native species are now common on many areas where Lesquerella filiformis occurs, there is no solid evidence that these exotic grasses have eliminated populations of Lesquerella filiformis, especially in areas that are regularly managed by techniques such as prescribed fire. We do agree that the control of exotics should be further evaluated using different control methods and that sites should be monitored to assess the spread of non-native species onto glade habitat. Such research and monitoring will continue as outlined in the Recovery Plan for the species (U.S. Fish and Wildlife Service 1988).

Issue 3: One reviewer was concerned that lack of management contributed to the degraded condition of many glades where the species is found, particularly on non-public lands.

Our response: As discussed under the Factor A, The Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range section below, we believe that Missouri bladderpod responds favorably to various management activities (see Table 2). Missouri bladderpod responds positively to low to moderate disturbance, and has thus adapted to glades that may not be classified as high-quality habitats. Prescribed fire has been an effective tool in controlling the invasion of exotics and the encroachment onto glade habitat by native, woody vegetation. We do, believe, however, that the response of Missouri bladderpod to different management techniques should be further evaluated on both public and private land, and will continue this effort in implementing the recovery plan for this species.

Issue 4: One reviewer expressed concern that an effective management tool, prescribed burns, are often difficult to implement at the Nathan Boone State Historic Site in Green County, MO.

Our Response: Although prescribed burns may be difficult to implement at that particular Missouri bladderpod site, this is not an issue at the sites with other significant populations. As recovery efforts for the species continue, we will explore other management methods that may work better at Nathan Boone State Historic Site.

Section 4 of the Act and regulations (50 CFR part 424) promulgated to implement the listing provisions of the Act set forth the procedures for determining whether to add, reclassify, or remove a species from the List of Endangered and Threatened Plants using five factors described in section 4(a)(1). These factors and their application to Lesquerella filiformis Rollins (Missouri bladderpod) are as follows:

At the time of listing, Lesquerella filiformis was known to occur at only nine locations in Dade, Greene, and Christian Counties, MO. As described in the BACKGROUND section, surveys and research since that time have documented 63 extant sites. Currently, this species is known to occur at a total of 61 sites in 4 counties in Missouri and 2 sites in 2 counties in Arkansas. Of these, 30 have a TNC Nature Community Rank of A, B, or AB.

Taking into consideration annual fluctuations in population, the estimated total number of plants known in Missouri has increased from approximately 550 plants in 1980 (Morgan 1980) to a potential maximum of 400,000-500,000 plants when climatic and edaphic conditions are ideal for germination, overwinter survival, seedling establishment, growth, and seed production. Additionally, a maximum of “tens of thousands” of plants have been reported at the Izard County, AR, site (Theo Witsell, in litt. 2002). Given that the two sites in Arkansas are separated by approximately 150 miles and are about 85-100 miles from the nearest location in southwestern Missouri, the possibility exists that additional populations of Lesquerella filiformis are yet to be discovered in southern Missouri and northern Arkansas, especially because the Izard County, AR, site is partially dolomitic, a geological feature previously not targeted for surveys in Missouri.

In addition, the threat of habitat loss has been reduced by the acquisition and management of occupied sites by public land management agencies and TNC (Table 2). The MDC and TNC successfully protected one of the largest known sites, Rocky Barrens in Greene County, MO, by purchasing a total of 281 acres of occupied habitat during the period of 1988 to 1993. Another five sites in Missouri are under public ownership or a long-term conservation agreement, including approximately 29 acres at the Wilson's Creek National Battlefield in Christian and Greene Counties; 3 acres at the Nathan Boone State Historic Site in Greene County; and approximately 40 acres at the Bois D'Arc Conservation Area in Greene County, an MDC property. Additionally, TNC has secured a 100-year lease to manage 47 acres of bladderpod habitat at South Greenfield Glade in Dade County, MO (Beth Churchwell, TNC, pers. comm. 2000).

The MDNR, MDC, TNC, and Wilson's Creek National Battlefield have undertaken various management activities to further the conservation of the species (Table 2). Management techniques that have been effective in enhancing bladderpod habitat include prescribed burning, chainsawing, and bulldozing to control the encroachment of woody vegetation such as red cedar ( Juniperus virginiana ) and exotic plants such as annual brome grasses ( Bromus spp.) and sericea lespedeza ( Lespedeza cuneata ), rerouting hiking trails to reduce potential impact from foot traffic, and installing fencing to exclude cattle from occupied habitat (Table 2).

In particular, prescribed burning is a highly beneficial technique to improve bladderpod habitat. In 1988, an estimated 1,500 plants were counted at Rocky Barrens Conservation Area (Hickey 1988), and 2,000 plants were determined to occur on the same site in 1992 (MDC 2002a). In August 1993, MDC conducted a controlled burn on the area (Figg and Priddy 1994), and over 50,000 plants were estimated in May 1994 (MDC 2002a). The species responded similarly at the same site in the spring of 1997 and 1998, following controlled burns in August 1996 (Figg and Davit 1997) and 1997. MDC botanist Tim Smith estimated that the population at the site in May 1998 contained “tens of thousands” of plants (MDC 2002a).

Additional protection and management of bladderpod habitat has occurred through TNC's Registry Program. From 1986 to 1996, nine sites in Christian, Dade, and Greene Counties were added to the organization's Registry Program. Under this program, private landowners have an agreement with TNC to protect Missouri bladderpod sites to the best of their ability and to notify TNC regarding any new threats to the species or its habitat or if the landowner plans to sell the property. Additionally, TNC personnel assist private landowners by providing management suggestions, including the development of site-specific plans, and by notifying them of various landowner incentive programs that promote Best Management Practices. Best Management Practices developed by MDC (2000) include surveys for bladderpod and bladderpod habitat, controlling the encroachment of eastern red cedars and exotic species onto glade habitat through mechanical cutting and prescribed fire, avoiding the use of nonspecific herbicides between October and July in occupied bladderpod habitat, and avoiding heavy grazing or grazing during flowering and fruiting periods (March-July) (Susanne Greenlee, TNC, pers. comm. 1998).

In 1998, the Service provided funding to TNC to enhance 90 acres of degraded bladderpod habitat on Rocky Barrens Conservation Area in Greene County. Missouri bladderpod habitat was improved by prescribed fire and cutting of invasive eastern red cedar trees. Although a thorough estimate of Missouri bladderpod plants has not yet been possible on the managed area since these restoration efforts were conducted in 1998, flowering plants were observed at the location in 1999 (Doug Ladd, TNC, pers. comm. 2000).

Potential impacts to populations of Lesquerella filiformis on rights-of-way maintained by the Missouri Department of Transportation (MODOT) was another threat identified at the time of listing (52 FR 679, January 8, 1987) and also when the Recovery Plan was completed for the species (U.S. Fish and Wildlife Service 1988). Education programs within the MODOT have significantly reduced the potential impact of mowing or chemical treatment of highway rights-of-way. Maintenance supervisors who work within the range of Missouri bladderpod in Missouri have been alerted to the location of extant populations and have been trained in the identification and habitat needs of the species. Consequently, most maintenance activities that may impact the species are avoided. In situations where potential impacts are unavoidable, MODOT, as a designated representative for the Federal Highway Administration, initiates consultation with the Service and further discusses such activities with the MDC to minimize these impacts (Gene Gardner, MODOT, pers. comm. 2000).

The expansion of the exotic brome grasses Bromus tectorum L. and B. sterilis L. has been identified by some as a potential threat to the Missouri bladderpod (The Nature Conservancy 2002; Hickey 1988; U.S. Fish and Wildlife Service 1988; Thomas and Jackson 1990; Thomas 1996; Hickey 2000). Thomas and Jackson (1990), however, indicated that exotic species of Bromus spp. can be controlled with a combination of management techniques. While such management is undoubtedly labor-intensive, and continued monitoring of this threat is warranted, there is no solid evidence to date that these exotic grasses have eliminated populations of Lesquerella filiformis, especially in areas that are regularly managed by techniques such as prescribed fire. Nonetheless, further research on the potential adverse impacts of brome grasses to Missouri bladderpod is clearly warranted.

The glade and other rocky habitats where Lesquerella filiformis is found were probably maintained historically by fires. The cessation or significant reduction in the number of fires occurring on glades in the last few centuries has enabled woody vegetation, such as red cedar, to encroach onto bladderpod habitat. The encroachment of such woody vegetation onto glades occupied by Lesquerella filiformis has been frequently listed as a threat to this species' continued existence (Hickey 1988; Thomas and Jackson 1990; Thomas 1996; The Nature Conservancy 2002). Recent research by MDC and TNC at the Rocky Barrens Conservation Area and Preserve in Greene County, MO, has provided strong evidence that this species responds well on glades that have been cleared of woody vegetation by the combination of cedar tree removal and the use of controlled fires (Figg and Davit 1997). Prescribed burns have been conducted on six sites under public ownership with positive results (Table 2). This management tool may be used at additional bladderpod sites.

Grazing and haying are potential threats to Missouri bladderpod populations under private ownership (U.S. Fish and Wildlife Service 1988). Overgrazing may impact small populations of the plant, but minor grazing actually enhances these populations (MDC 1997). Presently, there are no known incidents where haying has been a threat to existing Missouri bladderpod populations.

The poor, rocky, thin soils over bedrock make bladderpod habitat nonconducive to increases in agricultural development within the species' range in Missouri. Hickey (2000) reported that one population was destroyed by construction of a putting green on a golf course and another was destroyed as a result of residential construction. Thus, as discussed by Hickey (1988, 2000) and Thomas (1996), the species' habitat is threatened most by urban/suburban expansion and development.

The Service, TNC, and all public land management agencies with extant sites on lands under their jurisdiction have been actively involved in various aspects of public outreach and education associated with Missouri bladderpod. These include developing landowner contact programs, producing educational brochures, and holding identification and ecology workshops on the species. In 1995, MDC published a new brochure for the Rocky Barrens Conservation Area that highlighted Missouri bladderpod. In the same year, MDC conducted an identification workshop for employees of the Natural Resources Conservation Service (NRCS) and the Williams Pipeline Company in Springfield, MO. This workshop was extremely productive as it led to the discovery of a previously unknown site of Missouri bladderpods along a powerline right-of-way in Greene County. In February 1997, MDC published an Endangered Species Guide Sheet for the Missouri bladderpod and distributed it to private individuals and public agency employees through MDC, TNC, NRCS, and the University of Missouri Extension Service. The brochure provided information on identification, life history requirements, habitat, distribution, causes of historic decline, current threats to the species, and management guidelines that would contribute to bladderpod recovery.

Public outreach materials developed for the Missouri bladderpod include a Best Management Practice Guide Sheet distributed by MDC (2000) that outlines suggested management practices for projects that could potentially impact the species identified by MDC during environmental reviews. A public information endangered species card was published by the Conservation Commission of the State of Missouri (1999). The species was also highlighted in two separate issues of MDC's Missouri Conservationist (June 1995 and February 1999) involving endangered species.

In 1992, MDC and the Service cooperated in a landowner contact program involving 25 private landowners with extant populations of Lesquerella filiformis in an approximately 5-square-mile area in Greene County, MO. The purpose of the program was to educate the landowners on the habitat needs of Missouri bladderpod and to suggest compatible land management techniques that would benefit the species. Over 80 percent of the people contacted responded favorably to the protection and management of the bladderpod and its habitat (Amy Salveter, U.S. Fish and Wildlife Service, pers. comm. 2000).

Although great progress has been made toward the recovery of Lesquerella filiformis, the species is still threatened by urban/suburban expansion and development and encroachment of invasive woody plants and exotic pasture grasses. The recent discoveries in northwestern Arkansas indicate that additional surveys in southern Missouri and northern Arkansas are warranted. Additionally, population estimates at all extant sites in Missouri in one year have not been undertaken since observations made by Hickey (1988). Extended demographic analyses conducted by Thomas (1996), Kelrick (2001a, 2001b), and Smith ( in litt. 2002) strongly suggest that a well-established long-term monitoring program is necessary to accurately detect population trends.

At the time of listing, overcollecting by botanists and flower garden enthusiasts was considered a threat to the species' continued existence (52 FR 679, January 8, 1987). Although Steyermark (1963) indicated that the Missouri bladderpod is a desirable addition to rock gardens, and the Service postulated that the species may be vulnerable to overcollection at the time of listing (52 FR 679, January 8, 1987), there is no evidence to date that such activities have taken place. Additionally, given the large number of currently known extant sites (61 in Missouri and 2 in Arkansas), adverse impacts from overcollecting by wildflower enthusiasts or botanical collectors is extremely unlikely, even during years when the number of flowering individuals is low. Overutilization is no longer believed to pose a threat to this species.

Morgan (1983) studied one population of Lesquerella filiformis at Wilson's Creek National Battlefield in Greene County, MO, and determined that insect predation and fungal infection damaged seed set. Although there may be a concern for such impacts during low population levels, it is likely that Missouri bladderpod has adapted to such natural influences and the species is probably well buffered against these natural occurrences at more robust population levels. To date, there is no evidence that these agents are exotic to the species' habitat, or that naturally occurring incidents of disease or predation have contributed to a recent decline in any of the known extant populations.

The MDC recently adopted the conservation status ranking system developed by NatureServe, TNC, and the Natural Heritage Network for global (G ranks) and State (S ranks) rankings for all State and federally listed species in Missouri (Missouri Natural Heritage Program 2003). Lesquerella filiformis is officially listed in Missouri as rare and uncommon, with a ranking of S3 (rare and uncommon in the State; 21 to 100 occurrences), and G2 (imperiled globally because of extreme rarity or because of some factor(s) making it especially vulnerable to extinction; typically 5 or fewer occurrences or very few remaining individuals or acres). This species is also listed in the Wildlife Code of Missouri (MDC 2002b). Species listed in the Wildlife Code of Missouri under 3CSR10-4.111 are protected by State Endangered Species Law 252.240. Missouri regulations prohibit the exportation, transportation, or sale of plants on the State or Federal lists. A small percentage of Missouri's populations of Missouri bladderpod occur on lands either administered by MDC, MDNR, NPS, or TNC. These agencies prohibit the removal of this plant from their properties without a collector's permit.

Currently, Lesquerella filiformis is State-listed in Arkansas as S1 (critically imperiled in the State because of extreme rarity or because of some factor(s) making it especially vulnerable to extirpation from the State; typically five or fewer occurrences or very few remaining individuals; Theo Witsell, in litt. 2002) but receives no additional protection other than those specified under the Act (John Logan, pers. comm. 1998).

Various human disturbances were considered as threats to the species at the time Lesquerella filiformis was listed in 1987 (52 FR 679, January 8, 1987). Thomas and Willson (1992) examined the potential impact of trampling on a population at Wilson's Creek National Battlefield and noted that the species' survival decreased by 42 percent when subjected to the highest level of trampling intensity. Although populations of L. filiformis on public areas that receive high levels of trampling are few in number, precautions will need to be taken in the future to protect Missouri bladderpod habitat at such locations. Other studies and observations, however, suggest that this species actually benefits from low to moderate levels of human-induced disturbance that reduce woody encroachment and stimulate seed bank germination through soil disturbance (MDC 1997; Jerry Conley, MDC, in litt. 1998). Excessive disturbance from trampling, overgrazing by livestock, and significant alterations of glade habitat through the use of ground-moving equipment could become increased threats to the species in the future and should be closely monitored.

Under the Act, an endangered species is defined as one that is in danger of extinction throughout all or a significant portion of its range. A threatened species is defined as one that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. Given that (1) Lesquerella filiformis now occurs at 61 sites in Missouri and 2 sites in Arkansas (an increase of 54 sites since listing); (2) 6 sites in Missouri are under public ownership or under a long-term conservation agreement and are managed to benefit the species; (3) 9 additional sites in Missouri receive some degree of protection as part of TNC's Registry Program; (4) the species responds well to the proper management of its habitat, especially cedar tree removal and controlled burning; (5) minor levels of disturbance may actually benefit rather than hinder the species; and (6) significant knowledge has been gained regarding the life history requirements and population dynamics of the species, we no longer believe that this species meets the definition of an endangered species.

Although there has been a considerable increase in the number of known populations, an expansion of the known range of the species, and a sizeable increase in the number of known individual plants, the Missouri bladderpod has not recovered to the point that it can be removed (delisted) from the Federal List of Endangered and Threatened Plants (50 CFR 17.12). These numerical increases are encouraging, and they provide evidence suggesting the species has exceeded the first delisting criterion, which requires 30 self-sustaining populations. However, the delisting criteria also require that 15 of the populations must be in secure ownership, be at least one-half acre in size, and show self-sustaining populations for at least 7 years. At this time, fewer than 10 populations can be considered to be in secure ownership, and only 3 of these populations have been monitored for at least 7 years. Although acreage of these secured populations is large, because of the year-to-year population fluctuations demonstrated by this species, at this time we can document that only one of these three populations is viable and self-sustaining for at least 7 years. Therefore, we believe delisting this species would be premature.

Consequently, on the basis of our review of the best available scientific and commercial data, we are reclassifying the Missouri bladderpod from endangered to threatened under the Act.

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 results in public awareness and conservation actions by Federal, State, tribal, and local agencies, private organizations, and individuals. The Act provides for possible land acquisition and cooperation with the States 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 below.

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

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all threatened plants. With respect to Lesquerella filiformis, certain prohibitions of section 9(a)(2) of the Act, implemented by 50 CFR 17.71 for threatened plants, apply. These prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to import or export, transport in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale in interstate or foreign commerce, or remove and reduce the species to possession from areas under Federal jurisdiction. Seeds from cultivated specimens of threatened plants are exempt from these prohibitions provided that their containers are marked “Of Cultivated Origin.” Certain exceptions to the prohibitions apply to our agents and State conservation agencies. We are not aware of any otherwise lawful activities being conducted or proposed by the public that will be affected by application of section 9 to this listing.

The Act and 50 CFR 17.72 also provide for the issuance of permits to carry out otherwise prohibited activities involving threatened plants 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 purpose of the Act. We anticipate that few trade permits would ever be sought or issued for Lesquerella filiformis because the plant is not in cultivation or common in the wild.

This rule changes the status of Lesquerella filiformis at 50 CFR 17.12 from endangered to threatened. This rule is not an irreversible action on the part of the Service. Reclassifying Lesquerella filiformis to endangered may be considered if changes occur in management, habitat, or other factors that negatively alter the species' status or increase threats to its survival.

Questions regarding whether specific activities will constitute a violation of section 9 should be directed to the Field Supervisor of the Service's Columbia Field Office ( see the ADDRESSES section). Requests for copies of the regulations concerning listed plants and general inquiries regarding prohibitions and issuance of permits under the Act may be addressed to the U.S. Fish and Wildlife Service, BHW Federal Building, 1 Federal Drive, Fort Snelling, MN 55111 (phone 612/713-5350, facsimile 612/713-5292).

Office of Management and Budget (OMB) regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ) require that Federal agencies obtain approval from OMB before collecting information from the public. 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. This regulation does not contain any new collections of information other than those permit application forms already approved and assigned OMB clearance number 1018-0094. For additional information concerning permits and associated requirements for threatened species, see 50 CFR 17.72.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires Federal agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.

We have analyzed this rulemaking in accordance with the criteria of the National Environmental Policy Act and 318 DM 2.2(g) and 6.3(D). We have determined that Environmental Assessments and Environmental Impact Statements, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Act. A notice outlining our reasons for this determination was published in the Federal Register on October 25, 1983 (48 FR 49244).

A complete list of all references cited herein, as well as others, is available upon request from the Service's Columbia, MO, Field Office ( see ADDRESSES section).

The primary author of this proposed rule is Paul M. McKenzie, Ph.D. ( see ADDRESSES section).

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

NMFS closed the directed fishery for pollock in Statistical Area 630 of the GOA under § 679.20(d)(1)(iii) on October 2, 2003 (68 FR 57381, October 3, 2003).

NMFS has determined that, approximately 1,900 mt of pollock remain in the directed fishing allowance. Therefore, in accordance with §§ 679.25(a)(2)(i)(C) and (a)(2)(iii)(D), and to fully utilize the pollock TAC specified for Statistical Area 630, NMFS is terminating the previous closure and is reopening directed fishing for pollock in Statistical Area 630 of the GOA effective 1200 hrs, Alaska local time (A.l.t.), October 9, 2003, through 1200 hrs, A.l.t., October 10, 2003. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will be reached after 24 hours. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 630 of the GOA effective 1200 hrs, A.l.t., October 10, 2003.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. Notice and comment are impracticable because the data were recently obtained. Moreover, delaying this action is contrary to the public interest as it would delay the opening of the fishery, not allow the full utilization of the pollock TAC in Statistical Area 630, and therefore reduce the public's ability to use and enjoy the fishery resource.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.