On October 22, 1998 (63 FR 56537), OPM corrected errors that appeared in the list of agents designated to accept legal process for child support and alimony (Appendix A to Part 581) that were published on March 26, 1998 (63 FR 14756). This document makes additional amendments to the designated agent listings in this appendix. In addition, at the request of the Defense Finance and Accounting Service, OPM is amending the list of designated agents in Appendix A to 5 CFR Part 582 to remove the listing for the Army Corps of Engineers.

Under section 553(b)(3)(B) of title 5, United States Code, I find that good cause exists for waiving the general notice of proposed rulemaking. As provided under section 553(b)(3)(B), general notice may be waived where it is unnecessary as is the case where the lists of designated agents in the appendices to 5 CFR Parts 581 and 582 are revised.

In accordance with Executive Order 12866, this rule has been reviewed by the Office of Management and Budget.

I certify that these regulations will not have significant economic impact on a substantial number of small entities because their effects are limited to Federal employees and their creditors.

Alimony, Child support, Claims, Government employees, and Wages.

The FAA has received two reports of engine power turbine failures on Raytheon Beech Model 65-A90 airplanes. Each of these airplanes had the original Pratt Whitney PT6A-20 turboprop engines replaced with Motorlet, Walter M601E-11 turboprop engines (with Avia-Hamilton Standard VJ8-510 propellers). Supplemental Type Certificate (STC) SA01366AT contains the approval and procedures for this replacement. One of the engine failures was uncontained and one resulted in engine seizure on the opposite engine.

Investigation of the incidents is ongoing; however, the FAA has identified several installation discrepancies. Among these are:

These discrepancies, if not corrected, could lead to engine failure and the inability to feather the propeller. This could result in an uncontained engine failure with consequent loss of control of the airplane.

After examining the circumstances and reviewing all available information related to the incidents described above, including the relevant service information, the FAA has determined that:

This AD prohibits you from operating any affected airplane with STC SA01366AT incorporated and prohibits you from incorporating this STC in the future.

The compliance time of both the operations and installation prohibition is “as of the effective date of this AD.�

No. The only 2 airplanes that currently incorporate the configuration of the affected STC were involved in the referenced incidents. The engines of these airplanes will be replaced in accordance with the original type certificate data sheet (TCDS) or other FAA-approved STC. Basically, this AD prevents future installation of the configuration specified in STCSA01366AT.

No. Since a situation exists (possible uncontained engine failure) that requires the immediate adoption of this regulation, the FAA has determined that notice and opportunity for public prior comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule and was not preceded by notice and opportunity for public comment, the FAA invites comments on this rule. You may submit whatever written data, views, or arguments you choose. You need to include the rule's docket number and submit your comments in triplicate to the address specified under the captionADDRESSES. The FAA will consider all comments received on or before the closing date. We may amend this rule in light of comments received. Factual information that supports your ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether we need to take additional rulemaking action.

The FAA is re-examining the writing style we currently use in regulatory documents, in response to the Presidential memorandum of June 1, 1998. That memorandum requires federal agencies to communicate moreclearly with the public. We are interested in your comments on whether the style of this document is clearer, and any other suggestions you might have to improve the clarity of FAA communications that affect you. You can get more information about the Presidential memorandum and the plain language initiative athttp://www.plainlanguage.gov.

The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. You may examine all comments we receive before and after the closing date of the rule in the Rules Docket. We will file a report in the Rules Docket that summarizes each FAA contact with the public that concerns the substantive parts of this AD.

If you want us to acknowledge the receipt of your comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 99-CE-92-AD.� We will date stamp and mail the postcard back to you.

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

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

Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, notified the FAA that an unsafe condition may exist on certain Bombardier Model DHC-8-100, -200, and -300 series airplanes. TCCA advises that a certain beta back-up test switch is incorrectly identified as an allowable replacement in the wiring diagram manuals. This incorrect switch is used elsewhere on the aircraft and is physically interchangeable with the correct switch. However, the internal contacts of the incorrect switch are different. This difference prevents the beta back-up system of the propeller control system from functioning correctly if a mechanical failure of the propeller control system occurs. In the event of such an occurrence, the automatic overspeed protection could be lost. This condition, if not corrected, could result in a propeller overspeed condition and possible damage to the engine and propeller.

The manufacturer has issued de Havilland Alert Service Bulletin S.B. A8-61-30, Revision ‘B,’ dated December 6, 1999, which describes procedures for a one-time visual inspection to determine the part numbers of the beta back-up test switches of the propeller control system, and replacement of the switches with new switches, if necessary. Accomplishment of the actions specified in the alert service bulletin is intended to adequately address the identified unsafe condition. TCCA classified this alert service bulletin as mandatory and issued Canadian airworthiness directive CF-99-30, dated December 9, 1999, in order to assure the continued airworthiness of these airplanes in Canada.

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

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD is being issued to prevent loss of the automatic overspeed protection of the propeller control system, which could result in a propeller overspeed condition and possible damage to the engine and propeller. This AD requires accomplishment of the actions specified in the alert service bulletin described previously.

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-08-AD.� The postcard will be date stamped and returned to the commenter.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 747 series airplanes was published in theFederal Registeron August 20, 1999 (64 FR 45466). That action proposed to require repetitive inspections to detect broken fasteners and cracking of the forward edge frame for main entry door number 3, and repair, if necessary.

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

One commenter states that the proposed AD should clarify that previous accomplishment of the inspections required for Group 2 airplanes, in accordance with Boeing Alert Service Bulletin 747-53A2416, dated April 23, 1998, is adequate for meeting the inspection requirements of the proposed rule. (Group 2 airplanes are identified in Revision 1, dated May 6, 1999, of the alert service bulletin.) The commenter advises that all of its airplanes were included in the effectivity of the original release of the alert service bulletin and that the inspection requirements of the proposedAD, in accordance with the original release, have been accomplished. The commenter adds that no additional inspection requirements were added in Revision 1 of the alert service bulletin. For those reasons, the commenter requests changing the proposed AD to allow accomplishment of the flight safety inspections in accordance with the original release of the Boeing alert service bulletin instead of Revision 1 for Group 2 airplanes.

The FAA does not concur that it is necessary to change the proposed AD to cite the original release of the alert service bulletin rather than Revision 1 with regard to the inspections required for Group 2 airplanes. The FAA points out that the procedures in both of the alert service bulletins are identical for Group 2 airplanes. Therefore, the FAA agrees that inspections accomplished in accordance with the original release of the alert service bulletin meet the requirements of paragraph (a) of the proposed AD for Group 2 airplanes only. To clarify this, a note has been added to the final rule following paragraph (a).

One commenter requests minor editorial changes and clarification of certain terminology used in the proposed AD, as follows:

• In the second sentence of the “Explanation of Relevant Service Information,� section and in Note 3 following paragraph (a) of the proposed AD, the commenter requests changing “inspection of certain fasteners� to “inspection of certain fastener holes.� Although the “Explanation� section is not included in the final rule, the FAA concurs that such a change adds clarity to the inspection requirements, and has changed this phrase accordingly in Note 4 of the final rule. (Note 3 of the proposed rule is renumbered as Note 4 in the final rule.)

• In the first sentence of paragraph (c) of the proposed AD, the commenter requests changing “If any broken fastener or cracking� to “If any broken fasteners or cracking of structure.� The FAA concurs with this request and has clarified this phrase accordingly in paragraphs (a), (b), and (c), and in Note 4, of the final rule.

• The commenter recommends that the heading preceding paragraph (c) of the proposed AD be called “Repair� or “Correction� rather than just “Repair.� The commenter contends that “Correction� should be added to the heading because the statement of the unsafe condition specified that the action required is to detect and “correct� cracking. The FAA does not concur and considers that “Repair� is adequate for describing the action required to address the unsafe condition. For that reason, no change to the final rule is necessary in this regard.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes previously described. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 1,182 Model 747 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 251 airplanes of U.S. registry will be affected by this AD.

The FAA estimates that it will take approximately 1 work hour per airplane to accomplish the inspection of the frames at the floor intercostal, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $15,060, or $60 per airplane, per inspection cycle.

The FAA also estimates that the inspection of the frames at the top of the inner chord reinforcement strap is required to be accomplished on 103 U.S.-registered airplanes. It is estimated that it will take approximately 1 work hour per airplane to accomplish the inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $6,180, or $60 per airplane, per inspection cycle.

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

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

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

The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom (UK), recently notified the Federal Aviation Administration (FAA) that an unsafe condition may exist on Rolls-Royce plc (R-R) RB211 Trent 768-60, 772-60, and 772B-60 series turbofan engines. The CAA advises that it has received reports of excessive flank wear discovered on intermediate pressure turbine (IPT) shaft splines at overhaul. The investigation revealed that a lubrication problem, among other factors, may be causing the wear. This condition, if not corrected, could result in IPT and intermediate pressure compressor (IPC) shaft spline flank wear, which could result in loss of drive between the IPT and IPC, leading to an IPT overspeed and possible disk burst, uncontained engine failure, and potential damage to the aircraft.

R-R has issued Mandatory Service Bulletin (SB) No. RB.211-72-C329, Revision 1, dated November 6, 1998, that specifies procedures and references for performing visual inspections for flank wear on IPT shaft splines and IPC rear stub shaft splines. The SB also provides references for determining if excessive flank wear requires replacing worn components with serviceable parts. The CAA classified this SB as mandatory and issued airworthiness directive (AD) 004-04-98, dated November 6, 1998, in order to assure the airworthiness of these R-R engines in the UK.

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

Since an unsafe condition has been identified that is likely to exist or develop on other engines of the same type design registered in the United States, the AD requires initial visual inspections prior to accumulating 4,200 cycles-since-new (CSN) and repetitive inspections at intervals not to exceed 4,200 cycles-in-service (CIS) since last inspection. Components that show excessive flank wear must be replaced with serviceable parts. The actions would be required to be accomplished in accordance with the SB described previously.

There are currently no domestic operators of this engine model. Accordingly, a situation exists that allows the immediate adoption of this regulation. Notice and opportunity for prior public comment hereon are impracticable, and good cause exists for making this amendment effective in less than 30 days.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 99-NE-60-AD.� The postcard will be date stamped and returned to the commenter.

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

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

What caused this AD?This AD is the result of reports of migration in the wing attachment bushes in the front and rear spar frames of Shorts Models SC-7 Series 2 and SC-7 Series 3 airplanes.

What is the potential impact if the FAA took no action?These actions are necessary to detect and correct migration of the wing attachment bushes in the fuselage front and rear spar frames. If we did not take action, this could result in structural damage to the wing spar/fuselage fitting with possible loss of control of the airplane.

Has the FAA taken any action to this point?Yes. We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all Shorts Models SC-7 Series 2 and SC-7 Series 3 airplanes. This proposal was published in theFederal Registeras a notice of proposed rulemaking (NPRM) on September 28, 1999 (64 FR 52263). The NPRM proposed to require repetitively inspecting the wing attachment bushes in the fuselage front and rear spar frames for migration (gaps), and replacing the bushes if a gap exists that is of a certain length or more. Accomplishment of the proposed action as specified in the NPRM would be in accordance with Shorts Service Bulletin 53-68.

Was the public invited to comment?Yes. Interested persons were afforded an opportunity to participate in the making of this amendment. No comments were received on the proposed rule or the FAA's determination of the cost to the public.

What is the FAA's Final Determination on this issue?We carefully reviewed all available information related to the subject presented above and determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We determined that these minor corrections:

How many airplanes does this AD impact?We estimate that 22 airplanes in the U.S. registry will be affected by the initial inspection.

What is the cost impact of the affected airplanes on the U.S. Register?We estimate that it will take approximately 10 workhours per airplane to accomplish the inspection, and that the average labor rate is approximately $60 an hour. Based on these figures, the total cost impact of the initial inspection on U.S. operators is estimated to be $13,200, or $600 per airplane.

These figures only take into account the cost of the initial inspections and do not account for the cost of repetitive inspections or the cost necessary to replace any bushings when gaps that exceed a certain length are found. The FAA has no way of determining the number of repetitive inspections or replacements each owner/operator will incur over the life of the affected airplanes.

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

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action� under Executive Order 12866; (2) is not a “significant rule� under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA has prepared a final evaluation and placed it in the Rules Docket. You can get a copy of this evaluation at the location listed under the captionADDRESSES.

Head Start is authorized under the Head Start Act (42 U.S.C. 9801et seq.). It is a national program providing comprehensive developmental services to low-income preschool children primarily age three to the age of compulsory school attendance, and their families. To help enrolled children achieve their full potential, Head Start programs provide comprehensive health, nutritional, educational, social and other services. Also, section 645A of the Head Start Act provides authority to fund programs for families with infants and toddlers. Programs receiving funds under the authority of this section are referred to as Early Head Start programs. Head Start programs are required to provide for the direct participation of the parents of enrolled children in the development, conduct, and direction of local programs. Parents also receive training and education to foster their understanding of and involvement in the development of their children. In fiscal year 1998, Head Start served 823,000 children through a network of over 2,000 grantees and delegate agencies.

While Head Start is intended to serve primarily children whose families have incomes at or below the poverty line, or who receive public assistance, Head Start policy permits up to 10 percent of the children in local programs to be from families who do not meet these low-income criteria. The Act also requires that a minimum of 10 percent of the enrollment opportunities in each program be made available to children with disabilities. Such children are expected to participate in the full range of Head Start services and activities with their non-disabled peers and to receive needed special education and related services.

The authority for this final rule is section 646 of the Head Start Act (42 U.S.C. 9841), as amended by Public Law 103-252, Title I of the Human Services Amendments of 1994.

ACF's changes to the regulations are designed to expedite the appeals process and as specifically required by section 646(c) to specify a timeline for administrative hearings on adverse actions taken against grantees, and a timeline for conducting the administrative hearing and issuing a decision. The final rule implements these requirements.

Overall, the final rule on timelines, including the conforming changes to other affected sections of the appeals requirements in part 1303, will save time and expenses while continuing to allow due process to grantees appealing a proposed termination or denial of refunding. In the past, a number of appeal proceedings have been protracted and costly, partly because of the absence of statutory or regulatory timelines for holding a hearing. Under the final rule on timelines, decisions can be rendered in a shorter period of time thus allowing quicker removal of a deficient grantee. This will help ensure that children and their families receive high quality Head Start services from a qualified provider.

On June 30, 1998, the Administration on Children, Youth and Families (ACYF) published a Notice of Proposed Rulemaking (NPRM) in theFederal Register(63 FR 35554) proposing: (1) Timelines for the conducting of administrative hearings on adverse actions taken against Head Start grantees; and (2) additional changes to the regulations designed to expedite the appeals process. Copies of the proposed rule were mailed to all Head Start grantees and delegate agencies. Interested parties were given 60 days in which to comment. ACYF received comments from three Head Start grantees and a private law firm interested in Head Start appeals.

Of the four parties commenting on the NPRM, one was a general expression of support for the proposed rule, while the other comments were directed at specific sections of the NPRM. Only those sections for which comments were made or to which technical changes were made are discussed below. The discussion of the sections follows the order of the NPRM table of contents and a notation is made wherever the section designations have been changed or deleted in the final rule.

Comment:One commenter agreed that ACF should provide detailed notices of termination of refunding. However, the commenter believes that changes to the proposed rule would make it more equitable and would help to streamline the appeals process. The comment states that implicit in the Head Start Act's requirement for a full and fair hearing is a requirement that sanctions are available to the Departmental Appeals Board (The Board) for application to either party. Accordingly, the significant sanctions for various failures as detailed in the NPRM should be equally applicable to ACF. Without such uniformity, the commenter stated that the regulations would be in violation of the Head Start Act's requirement for a fair hearing process.

Response:Sanctions may be applied to both parties under the proposed regulations. It is unclear what additional sanctions the commenter wishes imposed on the public if the Federal agency should fail to comply with the requirements of the proposed provisions. What ACF has proposed are sanctions that would compel the issuance of clear statements of the findings and the factual and legal bases for them. We believe this is fair to grantees while permitting the removal of poor grantees from the program, both of which are within the statutory purposes of the program. For these reasons, we have made no changes based on this comment.

Comment:One commenter is concerned that the notice requirements being imposed upon ACF are not written with the same degree of specificity as § 1303.14(d)(1-7) pertaining to the requirements for Grantee Notices of Appeal. The commenter believes that ACF should be required to submit the termination in writing, submit the findings of fact, relevant citations for violations, and notice of right to appeal.

Response:The current regulations require specific statements about proposed actions. The proposed regulations would require specific findings of fact and citations of legal and policy provisions applicable to theproposed action. We believe this is adequate. Moreover, if for any reason they are not adequate, the Departmental Appeals Board can require greater specificity. We note also that the proposed and existing regulations require that termination and denial of refunding letters give notice of appeal rights.

The proposed rule requires that the notice spell out in specific terms the legal basis for the termination. The object is to reduce the need for the grantee to supplement its initial notice with additional filings after the appeal is filed, which will streamline and expedite the appeals process. Therefore, for the foregoing reasons, we have not changed this section in the final rule.

Comment:Two commenters are concerned that these sections, though they provide sanctions to be levied against ACF, do not provide for a timeline upon which ACF is barred from reissuing the termination. The commenters state that this section does not offer the deterring effect as intended and that it imposes responsibilities upon ACF, but fails to provide the enforcement element. However, the sanctions provided in § 1303.14(e) against the grantee/delegate are much more punitive than those provided against ACF.

Response:For the reasons stated above in response to the previous comment, we believe that the sanctions proposed against ACF in the event that a notice of termination is deficient provide a fair remedy. Furthermore, it would be inappropriate to penalize the public due to an error by the Federal agency. Keeping an unqualified grantee in the program would do just that. Providing a corrected notice avoids that and gives the grantee all the notice due it. Therefore, we have not made any changes.

Comment:One commenter was particularly concerned that § 1303.14(d)(5), which requires the grantee to submit a detailed request and justification for the production of documents, is unduly burdensome and serves as an effort to impede its ability to address the many issues against it in the notice of termination. The commenter believes that it should be sufficient that the request for the production of documents is relevant to the issues at hand. The commenter states that § 1303.14(c)(i) sets forth the requirements for the notification of the termination of the grant. It also believes that if § 1303.14(c)(i) was specific it would provide the grantee sufficient notice and allow the grantee to be more specific in its appeal. The commenter believes that as the regulation is now written, it should be fair to assume that any request for documents is in support of an anticipated defense in the appeal. Therefore, the commenter believes it should follow that a grantee/delegate agency should be able to request documents that are relevant to the appeal. Furthermore, the commenter believes that grantees should not be required to lay out their arguments before they are allowed to answer the allegations. The commenter believes this regulation as it is now written essentially requires that.

Response:We do not believe these objections are meritorious. Current practice and the proposed regulations require specific notice. Also, requiring a showing of relevance and reasonable basis for believing a document exists is not equivalent to requiring a full explanation of a grantee's arguments. Even if it were, the parties have to lay out their arguments or positions at the outset anyway. We also note the fact that non-renewal and termination actions rarely arise overnight. Rather, grantees have been in contact with ACF over the specifics of non-compliance deficiencies. Considerable exchange of views and information is generally the case.

Generally, on-site reviews have been conducted and the findings shared with the grantee, including the bases for those findings. Morever, with respect to documentation, the vast majority of the documents are those obtained by ACF from the grantee itself. It has been ACF's experience that considerable time is wasted on so-called “fishing expeditions� when blanket requests are filed for documents without any objective reason to believe they exist. The purpose of the regulation is to avoid those situations.

There is no desire to deny a party the ability to request and obtain relevant documents. There is a desire to avoid unfounded and generalized requests that are not based on some reasonable basis to believe the documents exist.

ACF would also note that generally it files all documents in its possession that pertain to the case, except those that are privileged. It does this even when it does not expect to rely on a particular document. The purpose in doing this is to avoid haggling over production of documents and to expedite the process. This also helps ensure that the Board has the fullest possible picture of the grantee and the dispute, and that the documents are available should they become relevant to an issue during the course of the proceedings.

Comment:One commenter suggests that the rule be clarified to indicate whether the grantee's funding will be affected during the appeals process and whether the proposed change would supplement the existing section or act as a substitute to the current section.

Response:The NPRM proposes no changes in this regard and current regulations provide for continued funding to a grantee during the appeals process unless the grant has also been suspended.

Comment:We received two comments on this section. The first indicated that the increase in time for a grantee to file an appeal from 10 to 30 days is clearly warranted. Nevertheless, the commenter believes that the new requirements for the content of the appeal not only are unworkable but also are prejudicial to grantees because they will force grantees, even more than before, to do a dump of all documents in their possession remotely related to their appeal in order to ensure that all documents necessary to a grantee's case are available at the hearing. The commenter believes that an appropriate change to the proposed rule would be to provide for a process similar to that already informally employed by the Board- an initial submission of documents followed by a final submission after the conclusion of discovery and rulings on preliminary motions. Such a process is very common in judicial and administrative proceedings and provides the parties a real opportunity to respond to fully developed issues.

Second, the commenter suggests that the requirement that the grantee provide all documents that are relevant is also prejudicial in that any documents not immediately submitted will be excluded under the proposed rules. Thus, to mount an effective defense, a grantee will be forced to expend significant sums on attorney time and other costs in order to search files for any documents remotely related to the appeal and submit them. The commenter argues, therefore, that the result of this proposed rule will be to give grantees a Hobson's choice of either high costs to file an appeal (costs that are largely not covered by Head Start) or exclusion of potentially crucial documents.

Response:We have considered the comments objecting to the requirement that grantees submit all relevant documents with their original appeals. The crux of the objection is that this will force grantees to dump all documents that might conceivably be relevant, resulting in excessive search time and, presumably, an unduly cumbersome record, although the latter point was not raised. We believe there is some merit to this comment.

In response to this comment, we have changed § 1303.14(d) by adding a new paragraph (6) and renumbering proposed paragraphs (6) and (7) as (7) and (8), respectively. Also, for purposes of clarity, we have added a time-frame for ACF's response to the appeal. The new paragraph (6) reads as follows:

ACF believes this substantially meets the concerns of the commenter, while still providing for expeditious conduct of the appeal. It also permits ACF to obtain more information on the new documents if it is unfamiliar with them. ACF does not believe any change to paragraph (e) of the regulation is necessary as a result of the change. The sanctions would apply if a grantee did not submit the documents at the outset, or within 14 days of receipt of the ACF initial filing, if the conditions for an exception do not exist. Of course, these provisions do not mean that all documents submitted by the parties are automatically entitled to be admitted into the record. The Board may exclude irrelevant documents, or those for which authenticity cannot be established, or for other appropriate reasons as the Board determines.

Comment:One commenter objects to 30 days for a grantee to initially appeal and suggested 60 days instead, with a possibility of one 30-day extension due to extreme unavoidable circumstances. In order to make the notice from ACF more useful, the commenter proposes that ACF be required to structure its notice of termination or denial of refunding in a manner similar to a complaint in Federal court with numbered paragraphs containing factual allegations. The commenter states that in this way, as in a court of law, a grantee can provide a specific response to each factual allegation and between the termination notice and the grantee's responses, it will be clear what facts, if any, are clearly in dispute.

The increase in time for a grantee to file an appeal from 10 to 30 days is clearly warranted. Nevertheless, the commenter believes that the new requirements for the content of the notice of appeal not only are unworkable but also are prejudicial to grantees.

Response:The proposed revision to paragraph (d) clarifies the existing rule by requiring ACF to state in specific details the legal basis of the decision to deny refunding to a grantee. As stated in the NPRM, the objective is to reduce the need for the grantee to supplement its initial appeal with additional filings and thereby streamline and expedite the appeals process.

The increase in the amount of time to appeal a termination from 10 to 30 days is being made to give grantees more time in which to develop their initial appeal submission, which will allow for quicker resolution of appeals. The comment presented by a public agency regarding this change states that it is fair and supports the proposed change. If more time is needed, it may be requested of the Departmental Appeals Board in advance of the due date in accordance with § 1303.8. Further, ACF does not believe that using court practice as a model is either necessary or desirable. Administrative proceedings are generally designed to be less formal and to be expeditious, goals not furthered by the suggestion. In view of the foregoing, we did not change the rule.

Comment:One commenter believes that the ability of a Head Start grantee to participate in the hearing process should not be impacted by the fact that they are a delegate agency. The commenter believes delegate agencies should be able to participate as a matter of right.

Response:We do not support this suggestion. First, the appeal right by statute is vested in a grantee and not in its delegate agencies. Secondly, a grantee may elicit evidence and testimony from delegate agencies and their personnel in support of its appeal, if such evidence and testimony is available, and present that as part of its own case. Thirdly, the proposed regulation does afford a delegate whose conduct is the source of grounds for non-renewal or termination the right to participate. ACF does not see the need to automatically expand the number of parties in a proceeding. Any other party may petition the Board to participate under the proposed regulations. It is ACF's intent that under those circumstances the Board will apply the tests under 45 CFR 16.16 in determining the right to participate. One of those conditions is that the intervention not cause undue delay. We would note that the costs of intervention by a delegate agency that is not appearing as a matter of right are not allowable costs under the grantee's grant.

In reviewing the NPRM, we realized that we had inadvertently failed to revise this paragraph to conform it to the comparable provision on terminations. The termination provisions are in Section 1303.14(c). We have done so in the final rule. We believe it is clear that the intent with respect to termination and non-renewal actions was to have them be as identical as possible since they are, for all practical purposes, identical actions. They are separately provided for due to the Head Start Act's reference to them as separate actions. We have made the assumption that those who commented on the termination provisions would have the same comments about them in the denial of refunding section. Our responses to those comments are the same here.

Comment:One commenter said that ACF's justification for the use of written direct testimony is that it is more efficient and reduces the hearing time and expense. However, the commenter maintains that ACF and the agency/delegates still will have to provide written testimony, which can be more time consuming and expensive.

Further, the commenter maintains that written direct testimony does not allow for the many nuances that may arise with live direct testimony. Also, the commenter argues that the use of prepared direct testimony does not provide active participation by the presiding officer.

One commenter believes that prepared testimony is prejudicial to grantees.

Response:ACF does not believe that the comments warrant a change in the regulations as proposed. ACF has experience with the use of prepared direct testimony in these and similar cases.

That experience does not support the commenter's view that it impairs the Board's ability to assess credibility and the demeanor of witnesses. While there may be rareinstances when a key witness is not subject to cross-examination or questioning by the Board, in our view that would be a rare occurrence. As to the cost savings, by way of clarification not only is there a reduction in transcript costs, but there is also a reduction in travel costs for all the Federal personnel and Federal witnesses.

Moreover, as we noted in the preamble to the NPRM, the use of prepared direct testimony reduces the time of the hearing. A major public benefit of this is that Federal personnel are therefore away from their other duties for less time. This means there is less disruption in the conduct of Federal business. Since these personnel also have to provide services to other grantees, this is another major benefit of the use of prepared direct testimony.

As to the comment that use of prepared direct testimony will preclude a grantee from making its case to the Board, we know of no evidence to support that statement. Our experience is that a grantee can make its case to the Board using prepared direct testimony. ACF has the same view of the comment that the use of prepared direct testimony will cost grantees more money than live direct testimony. Even if true, however, we do not believe thatthose costs would be comparable to the added costs to taxpayers of having to pay added travel costs of keeping Federal personnel and witnesses on-site during a week or more of live direct testimony.

ACF does not believe that the use of prepared direct evidence favors or prejudices any party. The provision operates equally on all parties with respect to the presentation of evidence. Observing the demeanor of witnesses is a consideration that applies to all witnesses and that intrinsically does not work for or against one party over another. Therefore, ACF does not consider the comments as warranting any change to the proposed regulations.

We believe the comment that the proposal would limit a grantee's ability to advocate for itself and children and their families is not valid. First, as noted above, our experience is that grantees can advocate for themselves when the procedure of prepared direct testimony is used. Second, ACF is charged with advocating for children and their families as well. Therefore, they are not without advocacy on their behalf. Indeed, concern over thechildren and families is the motivating factor in the intense efforts ACF engages in to secure interim grantees to take over services after non-renewal or termination of a grant. Moreover, as the District Court recently noted in denying a preliminary injunction brought by a Head Start grantee whose grant was terminated, a grantee does not have standing to raise the concerns of children and their families in receiving Head Start services from a particular provider.Mansfield-Richland-Morrow Total Operation Against Povertyv.Donna E. Shalala,“Memorandum Opinion,� p. 18, November 25, 1998.

Comment:Four commenters expressed concern regarding the amount of time for a hearing and decision. According to the commenters, the new timelines proposed by ACF have two defects.

First, the commenters believe that the rule is not clear concerning the 60-days for a decision; specifically,whether the 60-days begins to run after briefing and oral arguments or from some other point in time.

Second, with respect to the overall timelines, there was a concern that the timelines would drive up the cost of hearings to grantees. By requiring complex litigation to be concluded in approximately seven to nine months, it is stated that ACF will succeed in forcing grantees to utilize more attorneys to keep up with the demands of such litigation.

Response:We changed the regulation to clarify that the 60 days for a decision starts when the record for an appeal is closed. The record is closed when the last permissible submission is received by the Board.

In response to the first part of this comment we have changed the last sentence of § 1303.17(a) to provide that the 60 day period for the decision begins to run after the Board's receipt of the last permissible submittal. The submittal of unauthorized material will not stay or prolong the due date of the final decision.

There is no reason to believe that the total amount of attorney time devoted to an appeal will change because of the timelines. The fact it will be expended over a shorter period of time does not necessarily mean more attorney time will be required or that costs will be greater. The intent of Congress is to expedite these appeals and that is of prime importance.

Executive Order 12866 requires that regulations be drafted to ensure that they are consistent with the priorities and principles set forth in the Executive Order. The Department has determined that this rule is consistent with these priorities and principles. This final rule implements the statutory requirement for Head Start grantee appeals to be heard and decided within certain, defined time frames.

The Regulatory Flexibility Act (5 U.S.C. Ch. 6) requires the Federal government to anticipate and reduce the impact of rules and paperwork requirements on small businesses. For each rule with a “significant economic impact on a substantial number of small entities� an analysis must be prepared describing the rule's impact on small entities. Small entities are defined by the Act to include small businesses, small non-profit organizations and small governmental entities. While these regulations would affect small entities, they would not affect a substantial number. For this reason, the Secretary certifies that this rule will not have a significant impact on substantial numbers of small entities.

Under the Paperwork Reduction Act of 1995, Public Law 104-13, all Departments are required to submit to the Office of Management and Budget (OMB) for review and approval any reporting or recordkeeping requirements inherent in a proposed or final rule. This final rule contains information collection in § 1303.14, (written grantee appeal) § 1303.15 (appeal of denial of refunding) and § 1303.16(d) (written direct testimony) which have been submitted to OMB for review and approval.

The respondents to the information collection requirements in the rule are Head Start grantees, which may be State or local nonprofit or for-profit agencies or organizations.

The Department needs to require the collection of certain information to conform to the administrative rules that provide for a hearing by grantees against which adverse action is contemplated.

The grantees that will be affected by these requirements will be those for which the Department is contemplating adverse action either by terminating financial assistance or by denying an application for funding.

Based upon our experience we estimate that adverse action would be contemplated against ten grantees in a given year. A written grantee appeal (addressed in § 1303.14) and an appeal of denial of refunding (addressed in § 1303.15) is a one time activity whichis preceded by one action which is to research the allegations by checking program records and preparing a written response. We previously estimated the time it would take to research records and prepare a letter at 16 hours per instance for a total burden of 160 hours, approved under OMB control number 0980-0242. There is no new additional burden anticipated in the final rule for these sections.

A new burden is estimated for written direct testimony (addressed in § 1301.16(d)). We estimate an additional burden of 10 hours for each grantee for a total new burden of 100 hours annually.

The Administration for Children and Families (ACF) will consider comments by the public on these proposed collections of information in:

OMB is required to make a decision concerning the collection of information contained in this final rule between 30 and 60 days after publication of this document in theFederal Register. Therefore, a comment is best assured of having its full effect if OMB receives it within 30 days of publication. Written comments to OMB for the proposed information collection should be sent directly to the following: Office of Management and Budget, Paperwork Reduction Project, 725 17th Street, NW, Washington, DC 20503, Attn: Wendy Taylor.

Section 202 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532) requires that a covered agency prepare a budgetary impact statement before promulgating a rule that includes any Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year.

If a covered agency must prepare a budgetary impact statement, section 205 further requires that it select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with the statutory requirements. In addition, section 205 requires a plan for informing and advising any small government that may be significantly or uniquely impacted by the proposed rule.

We have determined that this final rule will not impose a mandate that will result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year. Accordingly, we have not prepared a budgetary impact statement, specifically addressed the regulatory alternatives considered, or prepared a plan for informing and advising any significantly or uniquely impacted small government.

This rule is not a “major� rule as defined in Chapter 8 of 5 U.S.C.

Executive Order 13132 on Federalism applies to policies that have federalism implications, defined as “regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.� This rule does not have federalism implications as defined in the Executive order.

Section 654 of the Treasury and General Government Appropriations Act of 1999 requires a family impact assessment affecting family well-being.

We have determined that this action will not affect the family. Therefore, no analysis or certification of the impact of this action was developed.

When RSPA published the final rule in theFederal Register, it inadvertently omitted industry publication API 1130, Computational Pipeline Monitoring (1st Edition, 1995), from 49 CFR 195.3, Matter incorporated by reference. This document corrects this omission in the reference list by adding a reference to API 1130 in § 195.3 (c)(2)(ii) and by renumbering subsequent references. Also, in the final rule the preamble section listed API Standard 653 (Addenda 1 and 2), but the regulatory text section listed API Standard 653 (Addendum 1). This document corrects this discrepancy by specifying API Standard 653 (Addenda 1 2) in both places. We regret any confusion these omissions may have caused.

The Hawaiian archipelago includes eight large volcanic islands (Niihau, Kauai, Oahu, Molokai, Lanai, Kahoolawe, Maui, and Hawaii), as well as offshore islets, shoals, and atolls set on submerged volcanic remnants at the northwest end of the chain (the Northwestern Hawaiian Islands). Each island was formed sequentially from frequent, voluminous basaltic lava flows (Stearns 1985). The youngest island, Hawaii, is still volcanically active, and retains its form of coalesced, gently sloping, unweathered shield volcanoes (broadly rounded dome-shaped volcanoes formed by fluid and far-spreading lava flows). Vulcanism on the older islands has long since ceased, with subsequent erosion forming heavily weathered valleys with steep walls and well-developed streams and soils (Department of Geography 1983).

This range of topography creates a great diversity of climates. Windward (northeastern) slopes can receive up to 1,000 centimeters (cm) (400 inches (in)) of rain per year, while some leeward coasts that lie in the rain shadow of the high volcanoes are classified as deserts, receiving as little as 25 cm (10 in) of rain annually. This climate has given rise to a rich diversity of plant communities, including coastal, dryland, montane, subalpine, and alpine; dry, moderately moist, and wet; and herblands, grasslands, shrublands, forests, and mixed communities (Gagneand Cuddihy 1990). These habitats support one of the most unusual arthropod faunas in the world, with an estimated 10,000 native species (Howarth 1990). Unusual characters of Hawaii's native arthropod fauna include the absence of social insects, such as ants and termites, extremely small geographic ranges, novel ecological shifts (unusual behavior and/or habitat), flightlessness, and loss of certain antipredator behaviors (Howarth 1990; Simonet al.1984; Zimmerman 1948, 1970).

Blackburn's sphinx moth (Manduca blackburni) is Hawaii's largest native insect, with a wingspan of up to 12 cm (5 in). Like other sphinx moths (family Sphingidae), it has long, narrow forewings and a thick, spindle-shaped body tapered at both ends. It is grayish brown in color, with black bands across the apical (top) margins of the hind wings and five orange spots along each side of the abdomen. The larva is a typical, large “hornworm� caterpillar, with a spinelike process on the dorsal (upper) surface of the eighth abdominal segment. Caterpillars occur in two color forms, a bright green or a grayish phase. Both color forms have scattered white speckles throughout the dorsum (back), with the lateral (side) margin of each segment bearing a horizontal white stripe, and segments four to seven bearing diagonal stripes on the lateral margins (Zimmerman 1958; Betsy Gagne, Hawaii Department of Land and Natural Resources, pers. comm. 1998).

Blackburn's sphinx moth is closely related to the tomato hornworm (Manduca quinquemaculata) and has been confused with this species. Blackburn's sphinx moth was described by Butler (1880) asProtoparce blackburni,and named in honor of the Reverend Thomas Blackburn, who collected the first specimens. It was believed to be the same as the tomato hornworm (Sphinx celeusHubner=Sphinx quinquemaculatusHawthorn) by Meyrick (1899), and then treated as a subspecies (Rothschild and Jordan 1903, as cited by Riotte 1986) and placed in the genusPhlegethontius(Zimmerman 1958). Riotte (1986) demonstrated that Blackburn's sphinx moth is a distinct taxon in the genusManduca,native to the Hawaiian Islands, and reinstated it as a full species,Manduca blackburni.D'Abrera (1986) tentatively consideredManduca blackburnito be a synonym ofManduca quinquemaculata,but subsequent authors (Howarth and Mull 1992; Nishida 1992) have disagreed with this view, and the findings of Riotte (1986) are accepted here. Several different common names have also been used for this species, including the tomato hawk-moth (Swezey 1924b), the tobacco hornworm (Browne 1941; van Dine 1905), the Hawaiian tobacco worm (Swezey 1931; Timberlakeet al.1921), the Hawaiian tomato hornworm (Fullaway and Krauss 1945; Zimmerman 1958), the Blackburn hawk moth (Hawaiian Entomological Society (HES) 1990; Howarth and Mull 1992), and Blackburn's sphinx moth (Service 1984). The name Blackburn's sphinx moth is used here.

In Hawaii, Blackburn's sphinx moth can be confused with the related sweetpotato hornworm (Herse cingulata). In contrast to the sweetpotato hornworm, adult Blackburn's sphinx moths can be distinguished by orange rather than white dorsal abdominal spots, with black borders on both the front and back margins of each segment, and a broader, marginal black band on the hind wing. The larvae of Blackburn's sphinx moth differ from those of the tomato hornworm and tobacco hornworm by having two dark longitudinal stripes on the head capsule, although this is not always the case. While these stripes are usually apparent in the dark phase, they are not always apparent in the green phase (Ellen VanGelder, University of Hawaii, pers. comm. 1997). Adult Blackburn's sphinx moth can be distinguished from the North American tomato hornworm and tobacco hornworm (Manduca sexnotata) by the presence of crescent-shaped white markings along the inner border of the black bands on the forewing (B. Gagne, pers. comm. 1998).

Larvae of Blackburn's sphinx moth feed on plants in the nightshade family (Solanaceae). The natural host plants are native shrubs in the genusSolanum(popolo), and the native tree,Nothocestrum latifolium(‘aiea) (Riotte 1986), on which the larvae consume leaves, stems, flowers, and buds (B. Gagne, pers. comm. 1994). However, many of the host plants recorded for this species are not native to the Hawaiian Islands, and includeNicotiana tabacum(commercial tobacco),Nicotiana glauca(tree tobacco),Solanum melongena(eggplant),Lycopersicon esculentum(tomato), and possiblyDatura stramonium(Jimson weed) (Riotte 1986). Development from egg to adultcan take as little as 56 days (Williams 1947), but pupae may remain in a state of torpor (inactivity) in the soil up to a year (Williams 1931; B. Gagne, pers. comm. 1994). Adult moths can be found throughout the year (Riotte 1986).

Historically, Blackburn's sphinx moth has been recorded from the islands of Kauai, Oahu, Molokai, Maui, and Hawaii, and collected from sea level to 760 meters (m) (2,500 feet (ft)) (Riotte 1986). Most historical records were from coastal, lowland, and dryland forest habitats in areas receiving less than 120 cm (50 in) annual rainfall. It appears that this moth was historically most common on Maui (Riotte 1986).

Very few specimens of this species have been seen since 1940, and after a concerted effort by staff at the B.P. Bishop Museum to relocate this species in the late 1970's, it was considered to be extinct (Gagneand Howarth 1985). In 1984, a single population was discovered on Maui (first Maui site or population) (Riotte 1986). The population is located on private and State lands, of which parts lie within a natural area reserve, part is used by the Hawaii National Guard for military training, and part is administered by the Department of Hawaiian Homelands. Between 1986 and 1991, a total of 6 specimens were taken in light traps 16 kilometers (km) (10 miles (mi)) from where the original population was discovered in 1984. These findings may indicate the presence of an additional population (Patrick Conant, Hawaii Department of Agriculture, pers. comm. 1994), although adult moths are strong fliers and these specimens could have originated at the known population. Identification of two larvae and signs of two additional larvae occurred in January 1997, although subsequent searches in September 1996 (Conant and VanGelder 1997) did not reveal any signs of eggs or larvae. Larvae are known to feed on ‘aiea and tree tobacco (Frank Howarth, B.P. Bishop Museum,in litt.1994), but the number of larvae and adults produced each year is unknown.

A second Maui site or population is known from one adult and one larvae observed in 1992 feeding on commercial tobacco in another location on private land near sea level (Fern Duvall, Division of Forestry and Wildlife (DOFAW), pers. comm. 1998), and from three larvae observed on tree tobacco on State land on Maui in January 1997, and again from the same number of larvae observed in February 1998 (F. Duvall, pers. comm. 1998). While researchers observed five to six eggs on tree tobacco in 1997, they found no eggs and no adults at the same site in 1998. There are no native host plants in this area (F. Duvall, pers. comm. 1998).

In December 1997, researchers discovered a population of Blackburn's sphinx moth on the State-owned island of Kahoolawe (Arthur Medeiros, U.S. Geological Survey (USGS)-Biological Resources Division (BRD),in litt.1998). This finding is the first record of the species on this island, and thus represents an extension of the species known range. Subsequent surveys (February and March 1998) indicate a population exists on Kahoolawe, with egg and larval densities (114 eggs and 93 larvae on 57 percent of tree tobacco plants searched) comparable to those at the Maui site (A. Medeiros,in litt.1998). In addition, a fourth population of an unknown number of individuals was recently discovered (April 1998) on State land on the island of Hawaii (A. Medeiros,in litt.1998), and a single, adult individual was observed in April 1998 in a different location on the island of Hawaii (Steve L. Montgomery, Hawaii Conservation Council, pers. comm. 1998). There are no nativeNothocestrumplants at this site, but bothNicotianaandSolanumare present in the area (S.L. Montgomery, pers. comm. 1998). On Kahoolawe, where the native host plant, ‘aiea, is not found, eggs and larvae are known to occur on the non-native tree tobacco (A. Medeiros,in litt.1998). Eggs and larvae of the Hawaii population of Blackburn's sphinx moth were found only on tree tobacco, althoughNothocestrum breviflorum(‘aiea) is also present in the area (A. Medeiros,in litt.1998).

An initial comprehensive Notice of Review for Invertebrate Animals was published in theFederal Registeron May 22, 1984 (49 FR 21664). In this notice we identified Blackburn's sphinx moth as a category 3A taxon under the Act of 1973, as amended (16 U.S.C. 1533et seq.). Category 3A taxa were those for which we had persuasive evidence of extinction. We published an updated Notice of Review for animals on January 6, 1989 (54 FR 554). Although Blackburn's sphinx moth had been rediscovered by 1985, in the 1989 Notice of Review, this taxon was again identified as category 3A. In the next Notice of Review on November 15, 1994 (59 FR 58982), this species was reclassified as a category 1 candidate for listing. Category 1 candidates were those taxa for which we had on file sufficient information on biological vulnerability and threats to support preparation of listing proposals. Beginning with our February 28, 1996, Notice of Review (61 FR 7596), we discontinued the designation of multiple categories of candidates, and only those taxa meeting the definition of former category 1 candidates are now considered candidates for listing purposes. In the February 28, 1996, Notice of Review, we identified Blackburn's sphinx moth as a candidate species (61 FR 7596). A proposed rule to list Blackburn's sphinx moth as endangered was published on April 2, 1997 (62 FR 15640). In the September 19, 1997, Notice of Review (62 FR 49398), this species was included as proposed for endangered status.

The processing of this final rule conforms with our Listing Priority Guidance published in theFederal Registeron October 22, 1999 (64 FR 57114). The guidance clarifies the order in which we will process rulemakings. Highest priority is processing emergency listing rules for any species determined to face a significant and imminent risk to its well-being (Priority 1). Second priority (Priority 2) is processing final determinations on proposed additions to the lists of endangered and threatened wildlife and plants. Third priority is processing new proposals to add species to the lists. The processing of administrative petition findings (petitions filed under section 4 of the Act) is the fourth priority. The processing of critical habitat determinations (prudency and determinability decisions) and proposed or final designations of critical habitat will no longer be subject to prioritization under Listing Priority Guidance. Processing of this final rule is a Priority 2 action. We have updated this rule to reflect any changes in information concerning distribution, status, and threats since the publication of the proposed rule.

In the April 2, 1997, proposed rule and associated notifications, we invited all interested parties to submit factual reports or information that might contribute to the development of the final rule. The public comment period ended June 2, 1997. Appropriate Federal and State agencies, county governments, scientific organizations, and other interested parties were contacted and requested to comment. We published newspaper notices inviting public comment in theMaui Newson April 18, 1997, and in theHonolulu Star-BulletinandHonolulu Advertiseron April 21, 1997.

During the public comment period, we received comments from five parties. All parties supported the listing of Blackburn's sphinx moth as endangered.None of the comments included additional information on the numbers of individuals and populations of the moth species. One of the comments suggested that listing will assist in the recovery of this species; one comment indicated that listing may aid in promoting conservation measures (e.g.,fencing and weed control) that will assist the species; and one comment indicated that cooperative efforts between a variety of interested groups would be beneficial to the species. One commentor noted that he has been working closely with several groups, including us, to preserve the unique native habitat of dryland forest of Auwahi and Kanaio. The Hawaii Division of Forestry and Wildlife supported the listing of Blackburn's sphinx moth and at the same time expressed “reservations� about future listings of Hawaiian insects and the limited resources available for attainable recovery goals. One commentor noted that the listing would have little or no impact on the Hawaii Army National Guard's mission at Kanaio.

In accordance with our policy published in theFederal Registeron July 1, 1994 (59 FR 34270), we also solicited the expert opinions of three appropriate and independent specialists regarding pertinent scientific or commercial data and assumptions relating to the taxonomy, population models, and supportive biological and ecological information for this species. We received no responses.

During the public comment period we received two letters from Arthur C. Medeiros, USGS-BRD, that included information on the newly discovered populations of Blackburn's sphinx moth. Steve L. Montgomery, Hawaii Conservation Council, provided us information on a recent moth sighting on the island of Hawaii, and Dr. Fern Duvall, DOFAW, provided information on moth larvae and eggs observed in two additional areas of Maui. We have included this information in this final rule.

Section 4 of the Endangered Species Act and the regulations (50 CFR part 424) promulgated to implement the listing provisions of the Act set forth the procedures for adding species to the Federal lists. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1). These factors and their application to Blackburn's sphinx moth (Manduca blackburni) are as follows:

Native vegetation on all of the main Hawaiian Islands has undergone extreme alteration because of past and present land management practices including ranching, agricultural development, and deliberate introductions of alien animals and plants (Cuddihy and Stone 1990; Wagneret al.1985). One of the primary threats facing Blackburn's sphinx moth is destruction of its habitat by feral (returned to an untamed state) animals. It is believed that the endemic plant,Nothocestrum latifolium(‘aiea), which is important for the survival of Blackburn's sphinx moth, is directly or indirectly affected by feral animals. All four species ofNothocestrum, N. latifolium, N. breviflorum, N. longifolium,andN. peltatum,occur in dry to mesic (moderate moisture) forests, the habitat in which Blackburn's sphinx moth was most frequently recorded. Two species,N. peltatumon Kauai andN. breviflorumon Hawaii, are now federally endangered species (59 FR 3904, 59 FR 55770) due to severe degradation of dry forest habitats.N. latifoliumoccurs on Kauai, Oahu, Molokai, Lanai, and Maui. It is not presently a protected species, but it is declining and uncommon on all these islands (Hawaiian Heritage Program (HHP) 1993; Medeiroset al.1993). The stand of trees at the first Maui site of Blackburn's sphinx moth may be the largest in the State (Medeiroset al.1993) and plays an important role in supporting a population of this moth species (A. Medeiros, pers. comm. 1994).

AlthoughNothocestrum latifoliumpresently occurs at moderate densities at the first Maui site location of Blackburn's sphinx moth (HHP 1993), there is no seedling survival (Medeiroset al.1993) and the stand is in a degraded condition as a result of the presence of feral goats (Capra hircus) (Medeiroset al.1993; F. G. Howarth, pers. comm. 1994; S.L. Montgomery, pers. comm. 1994). Goats were introduced to the Hawaiian Islands in 1792 and are now abundant in dry forests on Kauai, Molokai, Maui, and Hawaii, where they consume native vegetation, trample roots and seedlings, accelerate erosion, and promote the invasion of alien plants (Stone 1985; van Riper and van Riper 1982).Bocconia frutescens(tree poppy) is one alien plant that is spreading due to the activity of goats at the Maui Blackburn's sphinx moth site. Tree poppy was first discovered in the Hawaiian Islands in 1920 and is now naturalized in dry forests on Maui and mesic forests on Hawaii (Medeiroset al.1993; Symon 1990). On Maui, this fast-growing shrub is a serious threat to the native host plant of Blackburn's sphinx moth primarily through displacement and shading of immature plants (Medeiroset al.1993; B. Gagne, pers. comm. 1994).

While the endangeredNothocestrum breviflorumis reported in the area of the Hawaii population of Blackburn's sphinx moth (Marie Bruegmann, Service, pers. comm. 1998), there are no recorded associations of either eggs, larvae, or adults with this species. These trees are primarily threatened by habitat conversion associated with development; competition from alien species such asSchinus terebinthifolius(Christmas berry),Pennisetum setaceum(fountain grass),Lantana camara(lantana), andLeucaena leucocephala(koa haole); browsing by cattle; fire; and random environmental events; and reduced reproductive vigor due to the small number of existing individuals (59 FR 10312).

AlthoughNothocestrumis not reported from Kahoolawe, there were very few surveys of this island prior to the intense ranching activities, that began in the middle of the last century, and the subsequent use of the island as a weapons range for the past 50 years. Prior to their removal, goats played a major role in the destruction of vegetation on Kahoolawe (Cuddihy and Stone 1990). It is likely that the reappearance of some vegetation as a result of the removal of the goats and the cessation of military bombing activities, has allowed Blackburn's sphinx moth to gain a foothold on the island. Although on the island of Kahoolawe the vegetation on which Blackburn's sphinx moth is currently dependent is alien and appears to adequately support production and growth of the sphinx moth, it is believed that the native host plant, ‘aiea, is important to the survival of this species (A. Medeiros, pers. comm. 1998). Restoration of the native forests on Kahoolawe would benefit Blackburn's sphinx moth as well as other native plants and invertebrates on the island.

Rare butterflies and moths are highly prized by collectors, and an international trade exists for insect specimens for both live and decorative markets, as well as the specialist trade that supplies hobbyists, collectors, andresearchers (Morriset al.1991; Williams 1996). The specialist trade differs from both the live and decorative market in that it concentrates on rare and threatened species (US Department of Justice (USDJ) 1993). In general, the rarer the species, the more valuable it is, and prices may exceed US $2,000 for rare specimens (Morriset al.1991). For example, during a 4-year investigation, special agents of the Service's Division of Law Enforcement executed warrants and seized over 30,000 endangered and/or protected butterflies and beetles with a wholesale commercial market value of about $90,000 in the United States. The defendant, who was convicted, sold these rare butterflies and beetles in malls and State fairs (USDJ 1995). In another case, special agents found at least 13 species protected under the Act, and another 130 species illegally taken from lands administered by the Department of the Interior (USDJ 1995). The three men involved were convicted of poaching and commercial trade of butterflies protected under the Act (US Fish and Wildlife Service 1995; Williams 1996).

Sphinx moths, in general, are sought by collectors, and, as early as the 1950's, there was a standing reward for specimens of another rare Hawaiian sphinx moth (Tinostoma smargditis) (Zimmerman 1958). Specimens of Blackburn's sphinx moth have already been secured and traded by collectors and institutions (Dave Preston, B.P. Bishop Museum, pers. comm. 1994). According to unconfirmed reports specimens of Blackburn's sphinx moth from the Maui site are appearing in the specialist trade (A. Medeiros, pers. comm. 1998). Listing the species as federally endangered will increase its attractiveness to collectors (USDJ 1993). Unrestricted collecting and handling for scientific purposes are known to impact populations of other species of rare Lepidoptera (Murphy 1988), and are considered significant threats to Blackburn's sphinx moth. Because of the high value accorded such rarities, field collectors often take all individuals available (Morriset al.1991). Even limited collection from the small populations of Blackburn's sphinx moth can have deleterious effects on its reproductive or genetic viability and lead to the eventual extinction of this species.

The geographic isolation of the Hawaiian Islands restricted the number of original successful colonizing arthropods and resulted in the development of an unusual fauna. An unusually small number (15 percent) of the known families of insects are represented by native Hawaiian species (Howarth 1990). Some groups that often dominate continental arthropod faunas, such as social Hymenoptera (group nesting ants, bees, and wasps), are entirely absent from the native fauna. Commercial shipping and air cargo to Hawaii have now resulted in the establishment of over 2,500 species of alien arthropods (Howarth 1990; Howarthet al.1994), with a continuing establishment rate of 10-20 new species per year (Beardsley 1962, 1979). In addition to the accidental establishment of alien species, private individuals and government agencies began importing and releasing alien predators and parasites for biological control of pests as early as 1865. These efforts resulted in the introduction of 243 alien species between 1890 and 1985, in some cases with the specific intent of reducing populations of native Hawaiian insects (Funasakiet al.1988; Lai 1988). Alien arthropods, whether purposefully or accidentally introduced, pose the most serious threat to Hawaii's native insects, through direct predation and parasitism, and competition for food or space (Howarth and Medeiros 1989; Howarth and Ramsay 1991).

Ants are not a natural component of Hawaii's arthropod fauna, and native species evolved in the absence of predation pressure from ants. Ants can be particularly destructive predators because of their high densities, recruitment behavior, aggressiveness, and broad range of diet (Reimer 1993). Because they are generalist feeders, ants may affect prey populations independently of prey density, and may locate and destroy isolated individuals and populations (Nafus 1993a). At least 36 species of ants are known to be established in the Hawaiian Islands, and 3 particularly aggressive species have severely affected the native insect fauna (Zimmerman 1948). The island of Kahoolawe has not been extensively surveyed at this time, but since ants have adult winged reproductives, once established in Hawaii in general, they are likely to colonize suitable habitats on all islands in time, and several species are already known to occur on Kahoolawe. By the late 1870's, the big-headed ant (Pheidole megacephala) was present in Hawaii, and its predation on native insects was noted by Perkins (1913) who stated, “It may be said that no native Hawaiian Coleoptera insect can resist this predator, and it is practically useless to attempt to collect where it is well established. Just on the limits of its range one may occasionally meet with a few native beetles,e.g., species ofPlagithmysus, often with these ants attached to their legs and bodies, but sooner or later they are quite exterminated from these localities.�

With few exceptions, in areas where the big-headed ant is present, native insects, including most moths, are eliminated (Gagne; 1979; Gillespie and Reimer 1993; Perkins 1913). The big-headed ant generally does not occur at elevations higher than 600 m (2,000 ft), and is also restricted by rainfall, rarely being found in particularly dry (less than 35-50 cm (15-20 in) annually) or wet areas (more than 250 cm (100 in) annually) (Reimeret al.1990). The big-headed ant is also known to be a predator of eggs and caterpillars of native Lepidoptera, and can completely exterminate populations (Illingworth 1915; Zimmerman 1958). This ant occurs at the first Blackburn's sphinx moth Maui site and is a direct threat to this population (Medeiroset al.1993). Big-headed ants also occur on Kahoolawe and Hawaii (A. Medeiros, pers. comm. 1998).

The Argentine ant (Iridomyrmex humilis) was discovered on the island of Oahu in 1940 (Zimmerman 1941) and is now established on all the main islands. Unlike the big-headed ant, the Argentine ant is primarily confined to elevations higher than 500 m (1,600 ft) in areas of moderate rainfall (Reimeret al.1990). This species can reduce populations or even eliminate native arthropods at high elevations in Haleakala National Park on Maui (Coleet al.1992). On Maui, within 16 km (10 mi) of the Blackburn's sphinx moth population, Argentine ants are significant predators on pest fruit flies (Wonget al.1984). Argentine ants have also been reported on the islands of Kahoolawe and Hawaii (Adam Asquith, Service, and A. Medeiros, pers. comm. 1998).

The long-legged ant (Anoplolepis longipes) appeared in Hawaii in 1952 and now occurs on Oahu, Maui, and Hawaii (Reimeret al.1990). It inhabits elevations under 600 m (2,000 ft), in rocky areas with moderate annual rainfall of less than 250 cm (100 in) (Reimeret al.1990). Direct observations indicate that Hawaiian arthropods are susceptible to predation by this species (Gillespie and Reimer 1993), and Hardy (1979) documented the disappearance of most native insects from Pua'alu'u in the Kipahulu District on Maui after the area was invaded by the long-legged ant.

At least two species of fire ants,Solenopsis geminitaandSolenopsis papuana, are also important threats (Gillespie and Reimer 1993; Reagan 1986) and occur on all of the major islands (Reimeret al.1990). Ants,including the fire ant,S. geminita, are known to be the most important and consistent mortality factor on eggs, and probably larvae, of the butterflyHypolimnas bolinain Guam, even where both predator and prey are native (Nafus 1993a, 1993c).Solenopsis geminitaoccurs at the Maui moth location (A. Medeiros, pers. comm. 1998).Solenopsis geminitais also known to be a significant predator on pest fruit flies in Hawaii (Wong and Wong 1988).Solenopsis papuanais the only abundant, aggressive ant that has invaded intact mesic forest above 600 m (2,000 ft) and is still expanding its range in Hawaii (Reimer 1993).

Ochetellus glaber(No Common Name (NCN)), a recently reported ant introduction, occurs in the same habitat utilized on Kahoolawe by Blackburn's sphinx moth (A. Medeiros, pers. comm. 1998).Ochetellus glaberwas found in relatively high numbers foraging on shrubs ofNicotianawhere eggs and larvae of the sphinx moth occur. In one instance, large numbers ofOchetellus glaberwere observed emerging from a dead moth larvae they had either predated or scavenged (A. Medeiros, pers. comm. 1998).

On Kahoolawe, a large proportion of tagged Blackburn's sphinx moth eggs disappeared without hatching, potentially indicating high egg predation, likely by ants, but perhaps by birds, or dislodging by high winds (A. Medeiros, pers. comm. 1998).

Hawaii also has a limited fauna of native Hymenoptera wasp species, with only two native species in the family Braconidae (Beardsley 1961), neither of which attack Blackburn's sphinx moth. In contrast, species of Braconidae are common predators (parasitoids) on the larvae of the tobacco hornworm and the tomato hornworm in North America (Gilmore 1938). At least 74 alien species, in 41 genera, of braconid wasps are now established in Hawaii, of which at least 35 species were purposefully introduced as biological control agents (Nishida 1992). Most species of alien Braconidae and Ichneumonidae wasps parasitic on Lepidoptera are not host specific, but attack the caterpillars or pupae of a variety of moths (Funasakiet al.1988; Zimmerman 1948, 1978) and have become the dominant larval parasitoids even in intact, high-elevation, native forest areas of Hawaii (Howarthet al.1994; Zimmerman 1948). These wasps lay their eggs in the eggs or caterpillars of Lepidoptera. Upon hatching, the wasp larvae consume internal tissues, eventually destroying the host. At least one species established in Hawaii,Hyposeter exiguae(NCN), is known to attack the tobacco hornworm and the related tomato hornworm in North America (Carlson 1979). This wasp is recorded from all of the main islands except Lanai (Nishida 1992) and is a recorded parasitoid of the lawn armyworm (Spodoptera maurita) on tree tobacco on Maui, an alternate host of Blackburn's sphinx moth (Swezey 1927). No direct documentation exists of alien braconid and ichneumonid wasps parasitizing Blackburn's sphinx moth because of its rarity, but given the abundance and the breadth of available hosts of these wasps, they are considered significant threats to this species (Gagneand Howarth 1985; Howarth 1983; Howarthet al.1994; F. G. Howarth, pers. comm. 1994).

Small wasps in the family Trichogrammatidae parasitize insect eggs, with numerous adults sometimes developing within a single host egg. The taxonomy of this group is confusing, and it is unclear if Hawaii has any native species (Nishida 1992, John Beardsley, University of Hawaii, pers. comm. 1994). Several alien species are established in Hawaii (Nishida 1992), includingTrichogramma minutum(NCN), which is known to attack the sweet potato hornworm in Hawaii (Fullaway and Krauss 1945). In 1929, the waspTrichogramma chilonis(NCN) was purposefully introduced into Hawaii as a biological control agent for the Asiatic rice borer (Chilo suppressalis) (Funasakiet al.1988). This wasp parasitizes the eggs of a variety of Lepidoptera in Hawaii, including sphinx moths (Funasakiet al.1988). Williams (1947) found 70 percent of the eggs of Blackburn's sphinx moth to be parasitized by aTrichogrammawasp that was probably this species. Over 80 percent of the eggs of the alien grasswebworm (Herpetogramma licarsisalis) in Hawaii are parasitized by these wasps (Davis 1969). In Guam,Trichogramma chiloniseffectively limits populations of the sweetpotato hornworm (Nafus and Schreiner 1986), and the sweet potato hornworm is considered under complete biological control by this wasp in Hawaii (Lai 1988). While this wasp probably affects Blackburn's sphinx moth in a density-dependent manner (Nafus 1993a), and theoretically is unlikely to directly cause extinction of a population or the species, the availability of more abundant, alternate hosts (any other lepidopteran eggs) may allow for the extirpation of Blackburn's sphinx moth by this or other egg parasites as part of a broader host base (Howarth 1991; Nafus 1993b; Tothillet al.1930).

Hawaii has no native parasitic flies in the family Tachinidae (Nishida 1992). Two species of tachinid flies,Lespesia archippivora(NCN) andChaetogaedia monticola(NCN), were purposefully introduced to Hawaii for control of army worms (Funasakiet al.1988; Nishida 1992). These flies lay their eggs externally on caterpillars, and upon hatching, the larvae burrow into the host, attach to the inside surface of the cuticle, and consume the soft tissues (Etchegaray and Nishida 1975b). In North America,Chaetogaedia monticolais known to attack at least 36 species of Lepidoptera in 8 families, including sphinx moths;Lespesia archippivorais known to attack over 60 species of Lepidoptera in 13 families, including sphinx moths (Arnaud 1978). These species are on record as parasites of a variety of Lepidoptera in Hawaii and are believed to depress populations of at least two native species of moths (Lai 1988). Over 40 percent of the caterpillars of the monarch butterfly (Danaus plexippus) on Oahu are parasitized byLespesia archippivora(Etchegaray and Nishida 1975a), and the introduction of a related species to Fiji resulted in the extinction of a native moth there (Howarth 1991; Tothillet al.1930). Both of these species occur on Maui and are direct threats to Blackburn's sphinx moth.

Blackburn's sphinx moth occurs on State-owned and private lands. This species currently receives no formal protection on any of these lands.

Federal listing would automatically invoke listing under Hawaii State law, which prohibits taking and encourages conservation by State government agencies. Hawaii's Endangered Species Act (HRS, Sect. 195D-4(a)) states, “Any species of aquatic life, wildlife, or land plant that has been determined to be an endangered species pursuant to the (Federal) Endangered Species Act shall be deemed to be an endangered species under the provisions of this chapter and any indigenous species of aquatic life, wildlife, or land plant that has been determined to be a threatened species pursuant to the (Federal) Endangered Species Act shall be deemed to be a threatened species under the provisions of this chapter.� Further, the State may enter into agreements with Federal agencies to administer and manage any area required for the conservation, management, enhancement, or protection of endangered species (HRS, Sect. 195D-5(c)). Funds for these activities could be made available under section 6 of the Federal Act (State Cooperative Agreements).

Alien predatory and parasitic insects are an important reason for the reduction in range and abundance of Blackburn's sphinx moth, and may be the most serious present threat to its continued existence. Some of these alien species were intentionally introduced by the State of Hawaii's Department of Agriculture or other agricultural agencies (Funasakiet al.1988), and importations and augmentations of lepidopteran parasitoids continue. Federal regulations for the introductions of biocontrol agents have not adequately protected this species (Lockwood 1993). Presently, there are no Federal statutes that require biocontrol agents to be reviewed before they are introduced, and the limited Federal review process requires consideration of potential harm only to economically important species (Miller and Aplet 1993). Although the State of Hawaii requires that new introductions be reviewed before release (HRS Chapt. 150A), postrelease biology and host range cannot be predicted from laboratory studies (Gonzalez and Gilstrap 1992; Roderick 1992), and the purposeful release or augmentation of any lepidopteran predator or parasitoid is a potential threat to Blackburn's sphinx moth (Gagne; and Howarth 1985; Simberloff 1992).

The small, restricted populations of Blackburn's sphinx moth increase the potential for extinction from random events. Sphinx moths are typically strong fliers and likely existed as a series of metapopulations on the various islands (Harrisonet al.1988). Considerable intra-island movement between populations and continued colonizations and extinctions in new localities probably occurred, accounting for the historical records in tobacco crops and gardens (Swezey 1924a, 1924b; Zimmerman 1958). The apparent extirpation of this moth at most lower elevations and in more mesic areas is thought to correlate with the presence of alien predators and parasitoids and the loss of its preferred host plants. Thus, if any of the known populations of the Blackburn's sphinx moth is severely reduced in size, little potential exists for recolonization or “rescue� (Brown and Kodric-Brown 1977) of the remaining population by immigrants (Arnold 1983). Research studies at the first Maui site suggest that during the recent drought period, proportionally more eggs and larvae occurred on ‘aiea than on tree tobacco, in a general reversal of the trend during normal rainfall conditions (A. Medeiros, pers. comm. 1998). Tree tobacco is a quick-growing, pioneer shrub, while ‘aiea is a slow-growing, drought-adapted, long-lived native tree that does well in drought periods when tree tobacco is dying or losing its foliage (A. Medeiros, pers. comm. 1998). This adaptation emphasizes the importance of the native host plant to the survival of Blackburn's sphinx moth.

We carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by this species in determining to make this rule final. This species is threatened by habitat degradation by introduced animals and loss of its native host plant, overcollection, and predation by ants and alien parasitoid wasps. The small number of populations of this species also makes it susceptible to extinction from random events. Because this species is in danger of extinction throughout all of its range, it fits the definition of endangered as defined in the Act. Based on this evaluation, we find that the Blackburn's sphinx moth should be listed as endangered. Although we have considered all available alternatives to this action, such alternatives would not be in accordance with the Act. Listing the species as a threatened species would not accurately reflect the status of Blackburn's sphinx moth based on the information available.

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

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

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

The Final Listing Priority Guidance for FY 1999/2000 (64 FR 57114) states that the processing of critical habitat determinations (prudency and determinability decisions) and proposed or final designations will no longer be subject to prioritization under the Listing Priority Guidance. Critical habitat determinations, which were previously included in final listing rules published in theFederal Register, may now be processed separately, in which case stand-alone critical habitat determinations will be published as notices in theFederal Register. We will undertake critical habitat determinations and designations during FY 2000 as allowed by our funding allocation for that year. As explained in detail in the Listing Priority Guidance, our listing budget is currently insufficient to allow us to immediately complete all of the listing actions required by the Act.

In the proposed rule, we indicated that designation of critical habitat was not prudent for Blackburn's sphinx moth because of a concern that publication of precise maps and descriptions of critical habitat in theFederal Registercould lead to incidents of vandalism and destruction of habitat, as well as take by insect collectors. We also indicated that designation of critical habitat was not prudent because we believed it would not provide any additional benefit beyond that provided through listing as endangered. In the last few years, a series of court decisions have overturned Service determinations regarding a variety of species that designation of critical habitat would not be prudent (e.g.,Natural Resources Defense Councilv.U.S. Department of the Interior113 F. 3d 1121 (9th Cir. 1997);Conservation Council for Hawaiiv.Babbitt,2 F. Supp. 2d 1280 (D. Hawaii 1998)). Based on the standards applied in those judicial opinions, we have re-examined the question ofwhether critical habitat for Blackburn's sphinx moth would be prudent.

Due to the small number of populations, Blackburn's sphinx moth is vulnerable to unrestricted collection, vandalism, or other disturbance. Rare butterflies and moths are highly prized by collectors and an international, commercial trade exists for insect specimens which are sought for both live and decorative markets, as well as the specialist trade that supplies hobbyists, collectors, and researchers (Morriset al.1991) (see Factor B). We are concerned that these threats might be exacerbated by the publication of critical habitat maps and further dissemination of locational information. However, consistent with recent case law, at this time, we believe there may be benefits of critical habitat designation in some areas that may outweigh the risks.

In the case of this species, there may be some benefits to designation of critical habitat. The primary regulatory effect of critical habitat is the section 7 requirement that Federal agencies refrain from taking any action that destroys or adversely modifies critical habitat. While a critical habitat designation for habitat currently occupied by this species would not be likely to change the section 7 consultation outcome because an action that destroys or adversely modifies such critical habitat would also be likely to result in jeopardy to the species, there may be a few instances where section 7 consultation would be triggered only if critical habitat is designated, such as occupied habitat that may become unoccupied in the future. There may also be some educational or informational benefits to designating critical habitat. Therefore, at least in areas where opportunity for public access is limited, we find that critical habitat is prudent for Blackburn's sphinx moth.

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

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

For these reasons, deferral of a proposal to designate critical habitat will allow us to concentrate our limited resources on higher priority critical habitat and other listing actions, while allowing us to provide the basic protections under the ESA for this species. We will develop a proposal to designate critical habitat for this species as soon as feasible.

Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain activities. Recognition through listing encourages and results in conservation actions by Federal, State, and private agencies, groups, and individuals. Hawaii's Endangered Species Act states that, “Any species of aquatic life, wildlife, or land plant that has been determined to be an endangered species pursuant to the (Federal) Endangered Species Act shall be deemed to be an endangered species under the provisions of this chapter.� (Hawaii Revised Statutes (HRS), sect. 195D-4(a)). Therefore, Federal listing automatically invokes listing under Hawaii State Law, which prohibits taking of listed wildlife in the State and encourages conservation by State agencies (HRS, sect. 195D-4 and 5). The Endangered Species Act provides for possible land acquisition and cooperation with the State and requires that recovery plans be developed for all listed species. The protection required of Federal agencies and the prohibitions against certain activities involving listed animals are discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened. 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 insure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with us. Federal agency actions that may require conference and/or consultation include military training of the Hawaii National Guard on State land near the first Maui site, and unexploded ordnance cleanup that is funded by the U.S. Navy near the Kahoolawe population on State land.

Federally supported activities that could affect Blackburn's sphinx moth and its habitat in the future include, but are not limited to, the following: releaseor augmentation of biological control agents; road and firebreak construction; troop movements; removal of unexploded ordnance; and fire resulting from the use of live ammunition. Conservation of this moth is consistent with most ongoing operations at the occupied sites; however, listing of the species may entail consultation in regard to activities taking place on military lands, or insect pest control operations in Hawaii supported by Federal agencies.

The Act and its implementing regulations found at 50 CFR 17.21, 17.22, and 17.23 set forth a series of general trade prohibitions and exceptions that apply to all endangered wildlife. With respect to animal species listed as endangered, all trade prohibitions of section 9(a)(1) of the Act, implemented by 50 CFR 17.21, apply. These prohibitions, in part, make it illegal with respect to any endangered animal 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 take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, or collect-or attempt any of these). Certain exceptions apply to our agents and State conservation agencies. The Act and 50 CFR 17.22 and 17.23 also provide for the issuance of permits to carry out otherwise prohibited activities involving endangered animal species under certain circumstances. Such permits are available for scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities.

It is our policy, published in theFederal Registeron July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of this listing on proposed and ongoing activities within the species' range. We believe that, based on the best available information, the following actions will not result in a violation of section 9:

(1) Possession, delivery, or movement, including interstate transport and import into or export from the United States, involving no commercial activity of dead specimens of this taxon that were collected prior to the date of publication in theFederal Registerof this final rule;

(2) Activities authorized, funded, or carried out by Federal agencies when such activity is conducted in accordance with any reasonable and prudent measures given by the Service in a consultation conducted under section 7 of the Act, and;

(3) Activities on private lands that do not result in the take of Blackburn's sphinx moth, and do not require Federal authorization and/or involve Federal funding.

Potential activities involving Blackburn's sphinx moth that we believe will likely be considered a violation of section 9 include, but are not limited to, the following:

(1) Collection of specimens of this taxon for private possession, or deposition in an institutional collection without a proper permit;

(2) Sale or purchase of specimens of this taxon, except for properly documented antique specimens of this taxon at least 100 years old, as defined by section 10(h)(1) of the Act;

(3) Use of pesticides/herbicides in violation of label restrictions resulting in take of Blackburn's sphinx moth;

(4) Unauthorized release of biological control agents that attack any life stage of this taxon, and;

(5) Removal or destruction of the native host plant, defined as any species in the genusNothocestrum, within areas occupied by this taxon that results in harm to the Blackburn's sphinx moth. Regulations at 50 CFR 17.3 defines “harm� in the definition of take as an act that actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.

Permits may be issued to carry out otherwise prohibited activities involving endangered wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 and 17.23. Such permits are available for scientific purposes, to enhance the propagation or survival of the species, and/or for incidental take in connection with otherwise lawful activities.

Questions regarding whether specific activities will constitute a violation of section 9 of the Act should be directed to the Pacific Islands Manager (seeADDRESSESsection). Requests for copies of the regulations concerning listed animals and inquiries regarding prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Ecological Services, Endangered Species Permits, 911 N.E. 11th Avenue, Portland, Oregon, 97232-4181 (telephone: 503/231-6241; facsimile 503/231-6243).

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 Endangered Species Act of 1973, as amended. We published a notice outlining our reasons for this determination in theFederal Registeron October 25, 1983 (48 FR 49244).

This rule does not contain any collection of information for which Office of Management and Budget (OMB) approval under the Paperwork Reduction Act, 44 U.S.C. 3501et seq.is required. An information collection related to the rule pertaining to permits for endangered and threatened species has OMB approval and is assigned clearance number 1018-0094. For additional information concerning permits and associated requirements for endangered and threatened wildlife, see 50 CFR 17.22 and 17.23.

A complete list of all references cited in this document, as well as others, is available upon request from the Pacific Islands Ecoregion Office (seeADDRESSESsection).

The primary authors of this final rule are Dr. Adam Asquith, U.S. Fish and Wildlife Service, Kauai National Wildlife Refuge Complex, P.O. Box 1128, Kilauea, Hawaii 96754, (808/828-1413), and Dr. Annie Marshall, Ecological Services, Pacific Islands Ecoregion Office (seeADDRESSESsection) (808/541-3441).