In an interim rule effective and published in the Federal Register on May 21, 1999 (64 FR 27657-27660, Docket No. 98-125-1), we amended the imported fire ant (IFA) regulations in 7 CFR part 301 by designating as quarantined areas all or portions of three counties in California, two counties in Georgia, one county in New Mexico, four counties in North Carolina, and one county in Tennessee. We also amended the treatment provisions in the Appendix to the IFA regulations by removing all references to the granular formulation of chlorpyrifos.

Comments on the interim rule were required to be received on or before July 20, 1999. We did not receive any comments. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule.

This action also affirms the information contained in the interim rule concerning Executive Orders 12866, 12372, and 12988, and the Paperwork Reduction Act.

Further, for this action, the Office of Management and Budget has waived the review process required by Executive Order 12866.

This rule affirms an interim rule that amended the IFA regulations by designating all or portions of the following counties as quarantined areas: Los Angeles, Orange, and Riverside Counties in California; Habersham and White Counties in Georgia; Dona Ana County in New Mexico; Bertie, Chowan, Martin, and Perquimans Counties in North Carolina; and Madison County in Tennessee. The interim rule was necessary because surveys conducted by APHIS and State and county agencies revealed that IFA has spread to these areas. As a result, the interstate movement of regulated articles from these areas is restricted.

The following analysis addresses the economic effect of this rule on small entities, as required by the Regulatory Flexibility Act.

There are approximately 3,227 agricultural entities in the newly regulated areas with annual sales totaling almost $3.8 billion. We have identified approximately 905 affected entities in the newly regulated areas, including nurseries, sod and hay growers, farm equipment dealers, landscaping companies, and construction companies. The majority of these entities would be considered small businesses. In 1997, the market value of crop sales for the affected entities was more than $467,262,000. We do not know how many of the affected entities move regulated articles interstate; however, the availability of various IFA treatments, which permit the interstate movement of regulated articles with only a small additional cost, minimizes any adverse economic effects due to the interim rule. The average cost for treating a 1 gallon container, which contains one nursery plant, is 2 cents. The average treatment cost for a standard shipment of 10,000 nursery plants, worth anywhere between $10,000 and $250,000, is $200. Entities that do not move regulated articles interstate remain unaffected by the interim rule.

The interim rule also amended the treatment provisions in the Appendix to the IFA regulations by removing all references to the granular formulation of chlorpyrifos because it is no longer marketed for the treatment of grass sod or woody ornamentals. Removing all references to granular chlorpyrifos in the Appendix to the IFA regulations will not have any economic effect on affected entities.

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

On May 26, 1991, a Boeing Model 767-300ER series airplane was involved in an accident as a result of an uncommanded in-flight deployment of a thrust reverser. Following that accident, a study was conducted to evaluate the potential effects of an uncommanded thrust reverser deployment throughout the flight regime of the Boeing Model 747 series airplane. The study included a re-evaluation of the thrust reverser control system fault analysis and airplane controllability. The results of the evaluation indicated that, in the event of thrust reverser deployment during high-speed climb using high engine power, these airplanes also could experience control problems. This condition, if not corrected, could result in possible failure modes in the thrust reverser control system, inadvertent deployment of a thrust reverser during flight, and consequent reduced controllability of the airplane.

The FAA has prioritized the issuance of AD's for corrective actions for the thrust reverser system on Boeing airplane models following the 1991 accident. Based on service experience, analyses, and flight simulator studies, it was determined that an in-flight deployment of a thrust reverser has more effect on controllability of twin-engine airplane models than of Model 747 series airplanes, which have four engines. For this reason, the highest priority was given to rulemaking that required corrective actions for the twin-engine airplane models. AD's correcting the same type of unsafe condition addressed by this AD have been previously issued for specific airplanes within the Boeing Model 737, 757 and 767 series.

Service experience has shown that in-flight thrust reverser deployments have occurred on Model 747 airplanes during certain flight conditions with no significant airplane controllability problems being reported. However, the manufacturer has been unable to establish that acceptable airplane controllability would be achieved following these deployments throughout the operating envelope of the airplane. Additionally, safety analyses performed by the manufacturer and reviewed by the FAA have been unable to establish that the risks for uncommanded thrust reverser deployment during critical flight conditions are acceptably low.

This AD is related to AD 94-15-05, amendment 39-8976 (59 FR 37655, July 25, 1994), which is applicable to all Boeing Model 747-400 series airplanes, and requires various inspections and tests of the thrust reverser control and indication system, and correction of any discrepancy found. Accomplishment of the actions required by this AD would terminate certain inspections and tests required by AD 94-15-05.

The FAA has reviewed and approved the following Boeing Service Bulletins:

• 747-45-2016, Revision 1, dated May 2, 1996, and 747-45-2007, dated March 29, 1990, which describe procedures for modifications to the central maintenance computer system hardware and software.

• 747-73-2052, Revision 1, dated April 23, 1992, which describes procedures for modification of the fuel temperature indicating system. This service bulletin references Rolls-Royce Service Bulletin RB.211-71-9043, dated May 4, 1990, which describes additional procedures for modification of the fuel temperature indicating system. Accomplishment of Boeing Service Bulletin 747-73-2052, Revision 1, requires prior or concurrent accomplishment of Boeing Service Bulletin 747-45-2007; and Rolls-Royce Service Bulletin RB.211-71-9043.

• 747-31-2246, dated May 2, 1996, which describes procedures for modifications of the integrated display system software.

• 747-78-2157, Revision 2, dated November 26, 1997, and 747-78-2121, dated October 29, 1992, which describe procedures for the installation of provisional wiring for an additional thrust reverser locking device. These service bulletins reference the Boeing Standard Wiring Practices Manual, which describes wire installation and separation procedures.

• 747-78-2158, Revision 2, dated July 29, 1999, which describes procedures for installation of an additional locking system on the thrust reversers. This service bulletin references the following Rolls-Royce Service Bulletins:

—RB.211-71-9600, Revision 8, dated May 24, 1996; and RB.211-71-9608, Revision 3, dated April 18, 1997, which describe procedures for the installation of provisions on the engines to accommodate the installation of an additional thrust reverser locking gearbox; and

—RB.211-78-9601, Revision 5, dated February 20, 1998, which describes additional procedures for installation of an additional locking system on the thrust reversers; and

—RB.211-78-B207, dated November 19, 1994, which describes procedures for installation of a thrust reverser translating cowl assembly seal support.

—Accomplishment of Boeing Service Bulletin 747-78-2158 requires prior or concurrent accomplishment of the following service bulletins:

1. Boeing Service Bulletin 747-45-2052, Revision 1;

2. Boeing Service Bulletin 747-78-2121;

3. Boeing Service Bulletin 747-45-2016, Revision 1;

4. Boeing Service Bulletin 747-31-2246;

5. Boeing Service Bulletin 747-78-2157, Revision 2;

6. Rolls-Royce Service Bulletin RB.211-71-9600, Revision 8; and

7. Rolls-Royce Service Bulletin RB.211-71-9608, Revision 3.

In addition, this service bulletin requires concurrent accomplishment of Rolls-Royce Service Bulletins RB.211-78-9601, and RB.211-78-B207.

The modification procedures described by Boeing Service Bulletin 747-78-2158 were previously validated by the manufacturer, and the necessary changes have been incorporated into the latest revisions of the service bulletins. The FAA has determined that the procedures specified in Boeing Service Bulletin 747-78-2158, Revision 1, and Revision 2, as well as the other service bulletins referenced in this AD, have been effectively validated; therefore the FAA requires that this modification be accomplished. Several airplanes have been successfully modified in accordance with the service bulletins, and this past experience should minimize the likelihood for subsequent service bulletin revisions, requests for alternative methods of compliance, and superseding AD's.

Accomplishment of the actions described in all service bulletins listed previously would eliminate the need for certain repetitive inspections and tests.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design, this AD is being issued to prevent possible failure modes that can result in inadvertent deployment of a thrust reverser during flight and consequent reduced controllability of the airplane. This AD requires installation of a modification of the thrust reverser control and indication system and wiring on each engine; and repetitive operational checks of that installation to detect discrepancies, and repair, if necessary. The actions are required to be accomplished in accordance with the service bulletins described previously, except as discussed below.

Repetitive operational checks to detect discrepancies of the gearbox locks and the air motor brake are required to be accomplished in accordance with procedure included in Appendix 1 (including Figure 1) of this AD. Correction of any discrepancy detected is required to be accomplished in accordance with the procedures described in the Boeing 747 Airplane Maintenance Manual.

Operators should note that, although Boeing Service Bulletin 747-78-2158, Revision 2, does not recommend a specific compliance time for accomplishment of the additional system lock installation, the FAA has determined that an unspecified compliance time would not address the identified unsafe condition in a timely manner. In developing an appropriate compliance time for this AD, the FAA considered not only the manufacturer's recommendation, but the degree of urgency associated with addressing the subject unsafe condition, the average utilization of the affected fleet, and the time necessary to perform the installation. In light of all of these factors, the FAA finds a 36-month compliance time for completing the required actions to be warranted, in that it represents an appropriate interval of time allowable for affected airplanes to continue to operate without compromising safety.

Operators also should note that, although the service bulletin does not specify operational checks of the actuation system lock installation following accomplishment of that installation, the FAA has determined that repetitive operational checks of the additional system lock on each thrust reverser will support continued operational safety of thrust reversers with actuation system locks.

None of the Model 747 series airplanes affected by this action are on the U.S. Register. All airplanes included in the applicability of this rule currently are operated by non-U.S. operators under foreign registry; therefore, they are not directly affected by this AD action. However, the FAA considers that this rule is necessary to ensure that the unsafe condition is addressed in the event that any of these subject airplanes are imported and placed on the U.S. Register in the future.

Should an affected airplane be imported and placed on the U.S. Register in the future, it would require approximately 397 work hours to accomplish the required modifications, at an average labor rate of $60 per work hour. Required parts would be provided by the manufacturer at no cost to the operators. Based on these figures, the cost impact of the modifications required by this AD would be $23,820 per airplane.

It would require approximately 185 work hours to accomplish the required installation of the locking gearbox, at an average labor rate of $60 per work hour. Required parts would be provided by the manufacturer at no cost to the operators. Based on these figures, the cost impact of the installation of the locking gearbox required by this AD would be $11,000 per airplane.

It would require approximately 2 work hours to accomplish the required operational check, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the operational check required by this AD would be $120 per airplane, per check.

Since this AD action does not affect any airplane that is currently on the U.S. register, it has no adverse economic impact and imposes no additional burden on any person. Therefore, prior notice and public procedures hereon are unnecessary and the amendment may be made effective in less than 30 days after publication in the Federal Register .

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 99-NM-76-AD.” The postcard will be date stamped and returned to the commenter.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to all British Aerospace (Jetstream) Model 4101 airplanes was published in the Federal Register on November 24, 1999 (64 FR 66121). That action proposed to require manufacture and installation of a placard on the left-hand instrument panel in the cockpit to prohibit push-backs of the airplane while the engines are running. In lieu of accomplishing the placard installation, the action proposed to require repetitive installation of a new tow bracket sub-assembly that has the serial number and date of installation vibro etched on it.

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

Paragraph (b) of the final rule has been changed to correct the citation of Jetstream Service Bulletin J41-32-070, Revision 1, dated September 14, 1999. “Revision 1” was inadvertently omitted in the citation.

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

The FAA estimates that 59 airplanes of U.S. registry will be affected by this AD.

It will take approximately 1 work hour per airplane to accomplish the required placard installation, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the placard installation required by this AD on U.S. operators is estimated to be $3,540, or $60 per airplane.

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

Should an operator elect to accomplish the optional action that is provided by this AD action, it will take approximately 2 work hours per airplane to accomplish it, at an average labor rate of $60 per work hour. The cost of required parts will be approximately $733 per airplane. Based on these figures, the cost impact of the optional action will be $853 per airplane, per replacement cycle.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 95-13-12, amendment 39-9292 (60 FR 36976, July 19, 1995), as revised by AD 95-13-12 R1, amendment 39-9528 (61 FR 9092, March 7, 1996); which is applicable to certain Boeing Model 767 series airplanes; was published in the Federal Register on June 14, 1999 (64 FR 31764). That action proposed to supersede AD 95-13-12 R1 to continue to require tests, inspections, and adjustments of the thrust reverser system. That action also proposed to continue to require installation of a terminating modification, and repetitive follow-on actions. In addition, that action proposed to reduce the repetitive intervals for the follow-on actions.

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, the airplane manufacturer, requests that paragraphs (c), (e), and (f) of the proposed AD [paragraphs (c), (f), and (h) of the final rule] be revised to provide credit for airplanes on which the third locking system was installed in production. The commenter states that Model 767 series airplanes having line numbers 475 and subsequent and equipped with General Electric Model CF6-80C2 series engines had a third locking system installed in production in accordance with Production Revision Record (PRR) B11481-70, and were not modified in accordance with Boeing Service Bulletin 767-78-0063, Revision 2, dated April 28, 1994, as specified in paragraph (c) of the proposed AD.

The FAA concurs that credit should be provided for airplanes that had a third locking system installed in production. This third locking system is equivalent to that described in Boeing Service Bulletin 767-78-0063, Revision 2. Therefore, paragraph (c) of the final rule has been revised to apply only to airplanes having line numbers 1 through 474 inclusive, and NOTE 2 has been added to identify airplanes modified in production. In addition, paragraphs (f) and (h) of the final rule have been revised to clarify the compliance time for airplanes modified in production.

One commenter, the airplane manufacturer, requests that paragraph (d) of the proposed AD [paragraphs (d) and (e) of the final rule] be revised to provide credit for airplanes on which the functional test of the cone brake of the center drive unit (CDU) was accomplished during production. The commenter states that a functional test is accomplished prior to delivery in accordance with procedures equivalent to those described in Boeing Service Bulletin 767-78A0081, Revision 1, dated October 9, 1997. The commenter states that an initial functional test equivalent to that specified in paragraph (d) of the proposed AD is effectively accomplished on newly delivered airplanes at zero hours time-in-service, and, therefore, the next functional test should be required at 1,000 hours time-in-service.

The FAA concurs that credit should be provided for airplanes on which a functional test of the CDU cone brake was accomplished during production. The FAA agrees that the production functional test is equivalent to the functional test described in Boeing Service Bulletin 767-78A0081, Revision 1. Therefore, paragraphs (d) and (e) of the final rule have been revised accordingly.

Three commenters request that the interval for the repetitive functional tests and operational checks specified in paragraphs (d) and (e) of the proposed AD be extended. Two of the commenters request that the interval be revised to “on the maintenance (letter) check nearest to the 1000-hour frequency.” The third commenter requests that the interval be revised to 90 days or 1,500 hours time-in-service, whichever occurs first. The commenters state that their scheduled maintenance intervals do not coincide with the 1,000-hour interval specified in the proposed AD. Two of the commenters state that they are currently performing these tests and checks every 4,000 hours and have not had any adverse findings.

The FAA does not concur with the commenters' request to extend the interval for the repetitive functional tests and operational checks. The thrust reverser safety assessment developed by the airplane manufacturer for the Model 767 series airplane suggests a 650-hour interval for the functional test of the CDU cone brake. However, based on concerns about introducing errors through more frequent maintenance of the thrust reverser system, the FAA has determined that the 1,000-flight-hour interval for the functional tests of both the CDU cone brake and the electro-mechanical brake, as proposed, represents the maximum interval of time allowable to ensure the integrity of the fail safe features of the thrust reverser system for those airplanes that have incorporated a third locking system. In addition, this interval is consistent with recent rulemaking for similar installations on other Boeing airplane models. No change to the final rule is necessary in this regard.

The FAA's intent in paragraph (d) of the proposed rule was to require a functional test of the CDU cone brake within 1,000 hours time-in-service after the most recent test, or within 650 hours time-in-service after the effective date of this AD, whichever occurs later. The compliance time stated in the proposed rule was within 1,000 hours time-in-service after the most recent test of the cone brake performed in accordance with paragraph (a) of this AD, or within 650 hours time-in-service after the effective date of this AD, whichever occurs first. This statement was in error, in that the tests required by paragraph (a) of this AD do not include a test of the CDU cone brake. In addition, the statement “whichever occurs first” would have unnecessarily grounded airplanes. Therefore, the compliance time stated in paragraph (d) of the proposed rule has been corrected in the final rule, and new paragraphs (d)(1) and (d)(2) have been added to the final rule. In addition, the repetitive intervals for the test of the CDU cone brake that were specified in paragraphs (d)(1) and (d)(2) of the proposed rule are included as a new paragraph (e) of the final rule, and subsequent paragraphs have been renumbered accordingly.

In addition, in the “Explanation of Requirements of Proposed Rule” section of the preamble of the NPRM, the FAA stated that this AD would continue to require “various inspections and functional tests to detect discrepancies of the thrust reverser control and indication system, and correction of any discrepancy found.” However, the FAA finds that the instructions for correcting discrepancies found during a functional test of the cone brake [as described in paragraph (d) of the proposed rule and paragraphs (d) and (e) of this final rule] or an operational check of the electro-mechanical brake [as described in paragraph (e) of the proposed rule and paragraph (f) of this final rule] were inadvertently omitted from the body of the proposed rule. Therefore, a new paragraph (g) has been added to the final rule to specify that, if a test or check specified in paragraph (d), (e), or (f) of this AD cannot be performed successfully, repairs must be accomplished and the test successfully performed prior to further flight. Subsequent paragraphs have been renumbered accordingly.

Also, operators should note that paragraph (d) of the proposed rule specified the compliance time for the actions required by that paragraph in terms of hours time-in-service. However, other paragraphs in the proposed rule specified compliance times in flight hours. Therefore, for consistency of terminology, the FAA has revised paragraphs (d) and (e) of this final rule to specify the compliance time in flight hours for the actions required by those paragraphs.

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.

This is considered to be interim action. The manufacturer has advised that it currently is developing a modification that will positively address the unsafe condition addressed by this AD. Once this modification is developed, approved, and available, the FAA may consider additional rulemaking.

There are approximately 143 Boeing Model 767 series airplanes equipped with General Electric Model CF6-80C2 series engines in the worldwide fleet. The FAA estimates that 45 airplanes of U.S. registry will be affected by this AD.

The tests, inspections, and adjustments that are currently required by AD 95-13-12 R1, and retained in this AD, take approximately 30 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact on U.S. operators of the currently required tests, inspections, and adjustments that are retained in this AD is estimated to be $81,000, or $1,800 per airplane, per inspection cycle.

The terminating modification currently required by AD 95-13-12 R1, and retained in this AD, takes approximately 786 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts will be provided by the manufacturer at no cost to the operator. Based on these figures, the cost impact on U.S. operators of the terminating modification required by this AD is estimated to be $2,122,200, or $47,160 per airplane.

The repetitive operational checks required by AD 95-13-12 R1, and retained in this AD, take approximately 2 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact on U.S. operators of the repetitive operational checks required by this AD is estimated to be $5,400, or $120 per airplane, per operational check 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. However, the FAA has been advised that all U.S.-registered airplanes have accomplished the terminating modification in accordance with the requirements of this AD. Therefore, the future economic cost impact of this rule on U.S. operators will not include those costs.

The regulations adopted herein will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 90-02-16, amendment 39-6452 (55 FR 602, January 8, 1990), which is applicable to certain Boeing Model 727 series airplanes, was published in the Federal Register on August 10, 1999 (64 FR 43318). The action proposed to continue to require repetitive inspections of the front spar web between the upper and lower seals of the center section of the wings, and repair, if necessary. That action also proposed to require a new terminating modification for the repetitive inspections, and, for certain airplanes, new repetitive inspections to detect discrepancies of the front spar web.

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 supports the proposed rule.

One commenter, the manufacturer, requests that the proposed rule be revised to allow accomplishment of repetitive high frequency eddy current (HFEC) inspections to detect cracks in the front spar web, in lieu of the repetitive detailed visual inspections specified in paragraph (a) of the proposed rule. (In the proposed rule, the FAA stated that this AD would not provide for an HFEC inspection in lieu of the detailed visual inspection because Boeing Service Bulletin 727-57-0177, dated December 22, 1988, does not contain procedures for such an HFEC inspection, and, without such procedures, the FAA could not be sure that an HFEC inspection would detect cracks in a timely manner.) The commenter states that the option of an HFEC inspection would give operators more flexibility and reduce requests to the FAA for an alternative method of compliance. The commenter provides a reference for procedures for performing an HFEC inspection, and suggests a repetitive interval of 4,500 flight cycles. The commenter also states that it is revising Boeing Service Bulletin 727-57-0177 to incorporate procedures for an HFEC inspection and requests that the FAA delay issuance of the final rule until the release of Revision 4 of the service bulletin.

The FAA concurs with the commenter's requests. Since the issuance of the notice of proposed rulemaking (NPRM), the FAA has reviewed and approved Boeing Service Bulletin 727-57-0177, Revision 4, dated October 28, 1999. Revision 4 of the service bulletin is essentially similar to Revision 3 of the service bulletin, dated February 15, 1996. (Revision 3 of the service bulletin was cited in the NPRM as an appropriate source of service information for accomplishment of the proposed actions.) However, Revision 4 of the service bulletin also incorporates procedures for accomplishment of an HFEC inspection as an alternative to the close visual inspection. The FAA finds that the HFEC inspection described in the service bulletin would ensure that any cracks are detected in a timely manner. Therefore, paragraph (a) of this final rule has been revised to provide for accomplishment of repetitive HFEC inspections in lieu of the repetitive detailed visual inspection proposed in the NPRM. For clarity, paragraphs (a)(1) and (a)(2) have been added to specify appropriate sources of service information and repetitive inspection intervals for the two types of inspection. Also, the cost impact section of the final rule has been revised to provide an estimate of the cost for the HFEC inspection. In addition, paragraphs (b), (c), (d), and (e) of this final rule have been revised to allow accomplishment of the actions specified in those paragraphs in accordance with Revision 4 of the service bulletin.

One commenter requests that a reference to AD 90-02-15 in the “Alternative Method of Compliance” section of the NPRM be revised to refer to AD 90-02-16. The FAA concurs with the commenter's request and acknowledges that the correct reference should have been to AD 90-02-16. Paragraph (g)(2) of this AD has been revised accordingly.

The same commenter requests that a reference to Boeing Model 747 series airplanes in the “Other Relevant Rulemaking” section in the preamble of the NPRM be revised to refer instead to Boeing Model 727 series airplanes. The FAA acknowledges that the correct reference should have been to Boeing Model 727 series airplanes; however, that section is not restated in the final rule and, therefore, 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 described previously. 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 1,524 Model 727 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 1,098 airplanes of U.S. registry will be affected by this AD.

The detailed visual inspection that is currently required by AD 90-02-16, and retained in this AD as one option for compliance, and the HFEC inspection that may be accomplished in lieu of the detailed visual inspection, take approximately 3 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of either the currently required detailed visual or the HFEC inspection on U.S. operators is estimated to be $197,640, or $180 per airplane, per inspection cycle.

The modification that is required by this new AD will take approximately 360 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts will cost approximately $1,430 per airplane. Based on these figures, the cost impact of the new requirements of this AD on U.S. operators is estimated to be $25,286,940, or $23,030 per airplane.

The visual inspection that is required for certain airplanes in this new AD action will take approximately 1 work hour per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this inspection on U.S. operators is estimated to be $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 substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 97-09-14, amendment 39-10010 (62 FR 24008, May 2, 1997); which is applicable to certain Boeing Model 737-100, -200, -300, -400, and -500 series airplanes; was published as a supplemental notice of proposed rulemaking (NPRM) in the Federal Register on April 26, 1999 (64 FR 20226). The action proposed to continue to require an inspection of reworked aileron/elevator power control units (PCU) and rudder PCU's to determine if reworked PCU manifold cylinder bores containing chrome plating are installed, and replacement of the cylinder bores with bores that have been reworked using the oversize method or the steel sleeve method, if necessary. The action also proposed to require expanding the applicability of the existing AD to include airplanes equipped with certain rudder PCU's.

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 it supports the supplemental NPRM and will be able to meet the requirements as proposed.

One commenter recommends that the order of applicability should be reversed to “serial number less than xxx, except those with ‘ss’,” to minimize confusion.

The FAA concurs with the intent of the commenter's request. The FAA concurs that the applicability statement in the supplemental NPRM may be confusing to operators. However, the FAA finds that it would be more clear to state only what serial numbers are excluded from the applicability of the AD, rather than stating certain serial numbers that are included as well as certain serial numbers that are excluded from the applicability of this AD. Therefore, the applicability statement of this final rule has been revised to state that this AD applies to “Model 737-100, -200, -300, -400, and -500 series airplanes; * * * equipped with:

• A rudder power control unit (PCU), having part number (P/N) 65-44861-( ), P/N 65C37052-( ), or P/N 65C37053-( ), except those having a serial number of 1252A or greater or having a serial number that contains ‘ss’; or

• An aileron or elevator PCU having P/N 65-44761-( ), except those having a serial number of 5360A or greater or having a serial number that contains ‘ss.’ ”

In addition, paragraphs (a) and (d) of this final rule have been revised similarly.

Two commenters request that the wording of paragraph (a) of the supplemental NPRM be revised to clarify the FAA's intent. The commenters point out that paragraph (a) of the supplemental NPRM reads, “Perform an inspection of reworked or overhauled aileron and elevator PCU's * * * in accordance with Boeing Service Letter 737-SL-27-30, dated April 1, 1985.” The commenters state that Boeing Service Letter 737-SL-27-30 does not contain information on means of inspection of PCU cylinder bores that have been reworked or repaired using chrome plating. One of the commenters recommends that determination of whether cylinder bores have chrome plating should be based on either maintenance records or physical inspection of the PCU's. The other commenter recommends that, to prevent confusion, paragraph (a) be revised to read, “Perform an inspection of reworked or overhauled PCU's to determine if reworked manifold bores containing chrome plating as described in Boeing Service Letter 737-SL-27-30 are installed * * *.” The commenters state that these recommendations are also applicable to paragraph (d).

The FAA concurs with the commenters' request. Paragraph (a) has been revised to clarify acceptable methods to determine whether the PCU cylinder bores have chrome plating. Paragraph (a)(1) has been added to the final rule to allow inspection of maintenance records to determine whether the PCU has a chrome-plate-repaired cylinder bore.

Paragraphs (a)(1)(i), (a)(1)(ii), (a)(1)(iii), and (a)(1)(iv) identify criteria that demonstrate that a PCU does not have a chrome-plated cylinder bore.

Paragraph (a)(2) has been added to specify a physical inspection of the PCU to detect vibroengraved text “737-SL-27-30”, as evidence of prior inspection to verify that the PCU does not contain a cylinder bore repaired with chrome plating.

Paragraph (a)(3) has been added to specify performance of the PCU Non-Destructive Test (NDT) as identified in Boeing Service Letter 737-SL-27-120, dated January 28, 1998.

Compliance times for performance of the requirements of AD 97-09-14, which were contained in paragraphs (a)(1) and (a)(2) of the supplemental NPRM, are unchanged, but have been incorporated within paragraph (a) of the final rule.

Paragraph (d) of the final rule has been revised to be similar to the revised paragraph (a) and to refer to paragraphs (a)(1), (a)(2), and (a)(3) for inspection instructions.

One commenter requests that the NDT inspection noted in Boeing Service Letter 737-SL-27-120 be expressly approved as meeting the requirements of paragraphs (a) and (d) of the proposed AD. The commenter states that it believes that this is preferable to the wording of the supplemental NPRM, which states that alternative methods of compliance, approved previously in accordance with AD 97-09-14 are approved as alternative methods of compliance for this AD.

The FAA concurs with the intent of the commenter's request. As stated previously, paragraph (a)(3) has been added to list the NDT inspection method noted in Boeing Service Letter 737-SL-27-120 as an approved method to determine the presence of chrome plating. No additional change to the rule is necessary in this regard.

One commenter requests that paragraph (b) of the proposed rule be revised to allow replacement of the PCU in accordance with the operator's FAA-approved maintenance procedures for removal and installation of the affected aileron and elevator PCU's and rudder PCU's. The commenter states that reference to the Boeing Airplane Maintenance Manual as the means for removal and replacement of an affected PCU may result in difficulties for operators, because their approved means of airplane maintenance may not be the Boeing 737 Airplane Maintenance Manual. (An individual operator has the option to develop its own FAA-approved maintenance program.)

The FAA concurs with the commenter's request. Paragraphs (b) and (e) of this AD have been revised to add an option to perform the replacement of the PCU in accordance with procedures in the operator's FAA-approved maintenance program that are equivalent to the Boeing AMM procedures.

One commenter requests that paragraph (b)(1) be revised to require replacement of the PCU with a PCU that does not have a chrome-plate-repaired cylinder bore, instead of requiring replacement of the cylinder bore. The commenter cites no rationale for its request. Additionally, the commenter requests that the requirement be revised to allow use of any PCU that has been confirmed to not contain a chrome-plated cylinder bore. The commenter states that the request to revise paragraph (b)(1) is also applicable to paragraph (e)(1) of the AD.

The FAA concurs with the commenter's request. The FAA finds that it is not possible to remove the cylinder bore without removing the PCU from the airplane. Paragraphs (b)(1) and (e)(1) have been revised to require replacement of any PCU with a chrome-plate-repaired cylinder bore with a PCU that does not have a chrome-plate-repaired cylinder bore, instead of replacement of the chrome-plate-repaired cylinder bores.

One commenter requests that the reference to “a PCU having serial number of 5306A or higher” in paragraph (b)(2) of the supplemental NPRM be revised to reflect the correct serial number, which is 5360A or higher. The FAA concurs, and has corrected paragraph (b)(2) to refer to serial number 5360A or higher.

One commenter requests that paragraphs (c) and (f) of the supplemental NPRM be revised to refer to units that are defined as acceptable for installation per paragraphs (b) and (e), respectively, of the AD. The commenter states that Boeing Service Letter 737-SL-27-30 does not define inspection criteria, and the definition of acceptable units is not complete in the supplemental NPRM.

The FAA concurs with the commenter's request. Paragraphs (c) and (f) have been revised to refer to units eligible as replacement PCU's per paragraphs (b) and (e), respectively.

One commenter requests that the proposed AD be revised to allow an option to perform PCU disassembly and inspection of the cylinder bore for chrome plating as an alternative to the NDT of the PCU, which, as stated previously, is specified in paragraph (a)(3) of the final rule.

The FAA does not concur with the commenter's request. The manufacturer has not provided the FAA with any specific requirements or instructions to perform such an inspection. Therefore, the FAA cannot include such an option in the AD. However, operators that wish to perform PCU disassembly and inspection of the cylinder bore for chrome plating as an alternative to the NDT of the PCU specified in paragraph (a)(3) of this AD, may request approval of a method of and criteria for such disassembly and inspection as an alternative method of compliance, in accordance with paragraph (g)(1) of the AD.

Paragraphs (b) and (e) of the supplemental NPRM state that the actions specified in those paragraphs are to be accomplished in accordance with certain chapters of the Boeing Airplane Maintenance Manuals. The FAA finds that specific revisions of the airplane maintenance manuals are not required for accomplishment of the actions specified in those paragraphs. Therefore, paragraphs (b) and (e) of this AD have been revised to call for use of certain chapters of the Boeing Airplane Maintenance Manuals as guidance for procedures to replace the PCU's.

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 2,675 Model 737 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 1,091 airplanes of U.S. registry will be affected by this AD.

The actions that are currently required by AD 97-09-14 take approximately 5 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the currently required actions on U.S. operators is estimated to be $327,300, or $300 per airplane.

The new actions that are required by this new AD will take approximately 5 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the new requirements of this AD on U.S. operators is estimated to be $327,300, or $300 per airplane.

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 substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

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

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 McDonnell Douglas Model DC-9, DC-9-80, and C-9 (military) series airplanes, and Model MD-88 airplanes was published in the Federal Register on July 14, 1999 (64 FR 37911). That action proposed to require a one-time inspection to determine the type of engine ignition switch installed in the hinged forward overhead switch panel, and replacement of certain rotary ignition switches with new design rotary ignition switches.

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 supports the proposed rule.

One commenter request that the FAA clarify the requirements of paragraph (a) of the proposed AD. The commenter states that paragraph (a) of the proposed AD requires the visual inspection be accomplished in accordance with McDonnell Douglas Service Bulletin DC9-74-001, dated May 23, 1997, or McDonnell Douglas Alert Service Bulletin DC9-74A001, Revision 01, dated October 26, 1998. The commenter notes that Service Bulletin DC9-74-001 addresses only the five position ignition switches, whereas Alert Service Bulletin DC9-74A001 addresses both the four and five position ignition switches. The commenter states that using Service Bulletin DC9-74-001 instead of Alert Service Bulletin DC9-74A001 could result in the suspect four position switches not being removed.

The FAA concurs with the commenter that clarification is necessary. Because only the alert service bulletin provides instructions to address both types of switches, it is the only service bulletin referenced in the final rule for that purpose. The FAA has added a new note to clarify that inspection of the five position switches prior to the effective date of the AD in accordance with McDonnell Douglas Service Bulletin DC9-74001, dated May 23, 1997, is considered acceptable for compliance with paragraph (a) of this AD.

One commenter requests that the FAA clarify what spare parts are affected by paragraph (b) of the proposed AD. The commenter states that paragraphs (a)(2)(i) and (a)(2)(ii) require that both four position and five position “old” style rotary ignition switches be replaced in accordance with McDonnell Douglas Alert Service Bulletin DC9-74A001. However, the commenter points out that paragraph (b) of the proposed AD addresses only the four position ignition switches.

The FAA concurs with the commenter's request that clarification is necessary. The omission of the five position ignition switches was an error. The FAA has revised paragraph (b) of the final rule accordingly.

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 2,000 airplanes of the affected design in the worldwide fleet. The FAA estimates that 1,000 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the inspection required by this AD on U.S. operators is estimated to be $60,000, or $60 per airplane.

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

The regulations adopted herein will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Airbus Model A300, A310, and A300-600 series airplanes was published in the Federal Register on November 4, 1999 (64 FR 60138). That action proposed to require either replacement of the spring rod assemblies of the rudder servo controls with improved spring rod assemblies; or modification of the existing spring rod assemblies. For certain airplanes, that action proposed to require a one-time visual inspection to determine whether certain parts of the spring rod assemblies of the rudder servo controls are installed; and corrective actions, if necessary.

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

Since issuance of the proposed AD, the Direction Go no rale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, has revised the corresponding French airworthiness directive. The DGAC issued 1999-240-288(B) R1, dated December 15, 1999, to provide operators with an exhaustive list of appropriate part numbers (P/N) for rudder servo control input spring rod assemblies. The FAA has reviewed this information and has determined that paragraphs (b)(1) and (b)(2) of the proposed AD should be revised to include an additional part number. These paragraphs specify acceptable spring rod assemblies as those having either P/N A2727086500400 or A2727086500600. However, P/N A2727114900000 also is acceptable for installation. Paragraphs (b)(1) and (b)(2) of the AD have been revised to include this P/N.

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

The FAA estimates that 156 airplanes of U.S. registry will be affected by this AD.

If an operator elects to replace the spring rod assemblies: It will take approximately 4 work hours per airplane to accomplish the replacement, at an average labor rate of $60 per work hour. Required parts will cost approximately $3,720 per airplane. Based on these figures, the cost impact of the replacement on U.S. operators is estimated to be $3,960 per airplane.

If an operator elects to modify the spring rod assemblies: It will take approximately 7 work hours per airplane to accomplish the modification, at an average labor rate of $60 per work hour. Required parts will cost approximately $294 per airplane. Based on these figures, the cost impact of the modification on U.S. operators is estimated to be $714 per airplane.

If an operator is required to accomplish the one-time inspection: It will take approximately 1 work hour per airplane to accomplish that inspection, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the inspection on U.S. operators is estimated to be $60 per airplane.

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 caption ADDRESSES .

Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

Section 182(b) of Clean Air Act (the Act) requires states with ozone nonattainment areas classified as moderate or higher to submit a plan demonstrating a 15 percent reduction in VOC emissions from 1990 baseline emission levels. These reductions were to be achieved by November 15, 1996. This requirement of the Act demonstrating “rate of progress” (or ROP) toward attainment is known commonly as the “15% Plan.”

The Baltimore ozone nonattainment area consists of the City of Baltimore plus the counties of Anne Arundel, Baltimore, Carroll, Harford, and Howard, and is classified as severe. On July 12, 1995, Maryland submitted a 15% Plan SIP revision for the Baltimore nonattainment area. On October 9, 1997 (62 FR 52661), EPA conditionally approved the Maryland's July 12, 1995 SIP revision of the 15% Plan for the Baltimore nonattainment area because, while on its face, the 15% Plan achieved the required 15% VOC emission reduction to satisfy the requirements of the Act, the plan itself did not provide sufficient documentation on the measures included in the plan for EPA to take action on at that time. Instead, EPA granted conditional approval of the July 12, 1995 15% Plan and ruled that the State must supplement its submittal to demonstrate that it achieved the required emission reductions. EPA's October 9, 1997 rule established the following four conditions for full approval of the Baltimore 15% Plan:

1. Maryland's 15% Plan calculations must reflect the EPA approved 1990 base year emissions inventory (found at 61 FR 50715, September 27, 1996).

2. Maryland must meet the conditions listed in the October 31, 1996 conditional I/M rulemaking notice, including its commitment to remodel the vehicle inspection and maintenance (I/M) reductions using the following two EPA guidance memos: “Date by which States Need to Achieve all the Reductions Needed for the 15 Percent Plan from I/M and Guidance for Recalculation,” memorandum from John Seitz and Margo Oge dated August 13, 1996, and “Modeling 15% VOC Reductions from I/M in 1999—Supplemental Guidance,” memorandum from Gay MacGregor and Sally Shaver dated December 23, 1996.

3. Maryland must remodel to determine affirmatively the creditable reductions from reformulated gasoline (RFG) and federal Tier I vehicle emission standards in accordance with EPA guidance.

4. Maryland must submit a SIP revision amending the 15% Plan with a determination using appropriate documentation methodologies and credit calculations that the 64.2 tons per day (TPD) reduction, supported through creditable emission measures in the submittal, satisfies Maryland's 15% ROP requirement for the Baltimore area.

In a September 4, 1997 letter to EPA, the State committed to meet all the conditions listed in EPA's rulemaking within 12 months of final conditional approval. The State of Maryland submitted a revised 15% Plan for the Baltimore area addressing the conditions on October 7, 1998. Additionally, today's action will approve minor revisions to the SIP approved 1990 base year emissions inventory for NO X and VOC emissions that is used as a basis for demonstrating rate of progress.

Maryland's October 7, 1998 submittal of the revised 15% Plan contains the following:

• Emissions projections or projected growth in emissions during the period 1990-1996.

• VOC emissions target level calculation for 1996.

• Description of control measures used to demonstrate the 15 required VOC reduction.

• Revisions to the 1990 base year inventory for VOC and NO X emissions. The inventory was revised in part, in response to EPA's first condition of the October 9, 1997 conditional rulemaking.

The 1990 base year inventory is an inventory of actual VOC, NO X , and carbon monoxide emissions that occurred in Maryland in 1990. This inventory is the basis for calculating future years emissions growth and the required 15% emissions reduction to demonstrate rate of progress. EPA SIP approved Maryland's state-wide 1990 base year inventory on September 27, 1996 (61 FR 50715).

The October 7, 1998 submittal of the revised 15% Plan for the Baltimore nonattainment area references revisions to the 1990 base year inventory submitted as a separate SIP revision to EPA on December 24, 1997. The December 24, 1997 SIP revision contained the Post-1996 Rate of Progress Plan for the Baltimore nonattainment area. As part of the Post-1996 ROP Plan SIP revision, Maryland revised the 1990 base year inventory for both VOC and NO X emissions in the Baltimore nonattainment area. EPA has not yet taken rulemaking action on Maryland's December 24, 1997 Post-1996 ROP Plan submittal. However, because the inventory revisions submitted as part of Post-1996 ROP SIP are also the basis of calculation for the revised 15% Plan target level, EPA will be taking action in today's rulemaking on that portion of the December 24, 1997 SIP revision as it relates solely to the 1990 base year inventory revisions for NO X and VOCs in the Baltimore nonattainment area.

Maryland made several modifications to the earlier emission estimates for VOCs and NOx for point, area and mobile sources. These changes are due to improvements in inventory estimation techniques, the availability of more accurate data, revised estimates of population and employment and other technical improvements. There are no changes to the biogenic VOC emissions portion of the inventory being requested at this time. EPA is approving the requested revisions to the 1990 base year inventories for the Baltimore ozone nonattainment area that were submitted as part of Maryland's December 24, 1997 SIP submittal. Table 1 illustrates the base year inventory revisions that will be approved into the Maryland SIP.

Section 182(b) of the Act requires that the SIP achieve a reduction of 15% of the 1990 baseline VOC emissions accounting for any growth in emissions (i.e, growth occurring between 1990 and 1996). EPA issued guidance to the states to assist them in calculating emission reductions necessary for demonstrating ROP. To determine the amount of emissions reductions necessary to demonstrate the 15% ROP requirement, states must first calculate a target level of emissions for 1996. The 1996 target level facilitates planning for the 15% VOC reduction. Maryland has based the calculation of the 1996 target level of emissions on the revised 1990 base year inventory established in Table 1 above. The 15% emissions reduction target level for the Baltimore nonattainment area is calculated in Table 2 below. EPA believes that the VOC 1996 target level of 253.3 tons per day (TPD) for Baltimore has been properly calculated according to EPA guidance and is approveable.

To meet the ROP requirements, reductions must occur to both achieve a 15% reduction in 1990 emission levels plus offset growth in emissions between 1990-1996. These estimates are made by projecting the 1990 base year VOC inventory out to 1996 considering only the current control strategy. The projected inventories must reflect expected growth in activity, as well as regulatory actions which will affect emission levels. EPA recommends that emission projections for point sources be based on information obtained directly from facilities and/or permit applications. Area and mobile source emission projections may be developed from information from local planning agencies. In the absence of source-specific data, credible growth factors must be developed from accurate forecasts of economic variables and the activities associated with the variables. Economic variables that may be used as indicators of activity growth are: product output, value added, earnings, and employment. Population can also serve as a surrogate indicator. According to EPA guidance, economic data and models which provide acceptable growth factors for emission projections include the U.S. Department of Commerce Bureau of Economic Analysis forecasts for states and metropolitan statistical areas; the Economic Growth Analysis System, which models economic growth and estimates corresponding increases in emissions-producing activity; and the Emissions Preprocessor System for urban airshed modeling, which produces spatially and temporally resolved emission inventories for input into urban airshed models.

Maryland's revised 15% Plan submittal for the Baltimore nonattainment area discusses how Maryland projected growth from 1990 to 1996 for each emissions category. The growth projections are based on the revised 1990 base year inventory discussed earlier in this document. The State's methodology for selecting growth factors and applying them to the 1990 base year emissions inventory to estimate growth in emissions from 1990 to 1996 is acceptable for all source categories. Maryland predicts VOC emissions will grow by 18.4 TPD from 1990 to 1996. Maryland's total VOC emissions growth projections are shown in Table 3 below.

The 15% Plan for the Baltimore area claims creditable reductions of 85.6 TPD from identified emission control programs. To be creditable, each control measure must meet the creditability requirements of EPA policy and of the Act. A measure is creditable if it is real, quantifiable, permanent, and enforceable. To be enforceable a reduction must meet any one of the following:

1. It must result from a rule in the approved State SIP, or

2. It must result from a rule promulgated by EPA, or

3. It must result from a reduction enforceable under a permit issued pursuant to Title V of the Act.

Emission reductions from rules adopted and implemented before 1990 are not creditable because the base year inventory reflects the effects of these rules. Below is a brief description of each of the control measures in the Baltimore 15% Plan.

This measure addresses sources required to comply with federal air toxics requirements that have or will achieve VOC reductions between 1990 and 1996. Two sources in the Baltimore nonattainment area were required to comply with a federal maximum available control technology (MACT) standard or national emissions standard for hazardous air pollutants (NESHAP) between 1990 and 1996. Maryland claimed 0.4 TPD from this control measure. Credit is allowable from MACTs and NESHAPs; thus, 0.4 TPD from federal air toxics is fully creditable toward the Baltimore 15% Plan.

Under section 183(e) of the Act, EPA was required to study emissions from architectural and industrial maintenance (AIM) coatings operations, group them by order of significance, and establish a schedule to regulate the largest contributors. On September 11, 1998, EPA promulgated a national rule (63 FR 48848) for reducing VOC emissions from architectural coatings. Architectural coatings are commonly applied by consumers and contractors, and include exterior and interior paints, industrial maintenance coatings, wood and roof coatings, primers, and traffic paints. EPA's rule establishes a VOC content limit for 61 categories of architectural coatings. The requirements are based on product reformulation, a pollution prevention method. Manufacturers and importers were required to comply with rule by September 1999. EPA's final regulation is expected to reduce emissions of VOCs by 20%.

EPA has issued several memoranda allowing states to take credit in their 15% Plans from the AIM coatings rule, and also the federal Autobody Refinishing and Consumer/Commercial products rules. The promulgation dates and hence the compliance dates for these rules did not occur by the November 15, 1996 implementation date for the 15% Plan. It is EPA's intention to still allow credit from the federal rules in states 15% Plans for the reasons discussed below.

Disapproval of the 15% Plan because these federal measures were delayed and did not achieve the required reductions by November 15, 1996 would require the SIP to be revised to make up the shortfall. EPA would propose approval of such a remedial measure if the SIP would achieve the 15% level as soon after November 15, 1996 as practicable. EPA believes that Maryland had limited ability to effectuate the reductions from these (or any other measures achieving equivalent reductions) any more expeditiously than EPA was able to promulgate the federal rules.

In the policy memo, “Credit for the 15% Rate-of-Progress Plans for Reductions from the Architectural and Industrial Maintenance (AIM) Coating Rule,” dated March 22, 1995, EPA provided guidance on the expected reductions from the national rule—allowing up to a 20% reduction from the 1990 baseline levels. The March 22, 1995 policy memo was subsequently updated on March 7, 1996 (“Update on the Credit for the 15% Rate-of-Progress Plans for Reductions from the Architectural and Industrial Maintenance (AIM) Coating Rule”) to state that states may still take a 20% emission reduction credit from the AIM coatings rule in their 15% Plans even though the rulemaking has been delayed beyond the November 15, 1996 implementation date specified in the Act for 15% Plan measures. In light of the significant delays EPA experienced in promulgating the AIM rule, EPA has continued to allow the AIM emission reduction credits to count in state 15% Plans. EPA believes that although the compliance date was pushed back to September 1999, the emission reductions from the national AIM rule are still creditable in state 15% Plans. For the purposes of the 15% ROP plan calculations then, EPA will allow Maryland to take credit for any of the federal measures even though the emission reductions from these measures did not occur until after November 15, 1996.

Following both EPA's published guidance and in concurrence with the final AIM rule, Maryland assumed a 20% reduction in VOCs from the AIM rule or a 5.4 TPD reduction. EPA has determined that the 5.4 TPD emission reduction from AIM coatings is creditable toward the 15% ROP Plan requirement for the Baltimore nonattainment area.

Section 183(e) of the Act also required EPA to conduct a study of VOC emissions from consumer and commercial products and to compile a regulatory priority list. EPA is then required to regulate those categories that account for 80% of the consumer product emissions in ozone nonattainment areas. Group I of EPA's regulatory schedule lists 24 categories of consumer products to be regulated by national rule, including personal, household, and automotive products.

On September 11, 1998, EPA issued a final rule (63 FR 48819) to reduce the VOC content of 24 categories of household consumer products by 20% from levels emitted in 1990. Manufacturers must meet the VOC content limits by December 11, 1998 for all products, except pesticides regulated under the Federal Insecticide, Fungicide and Rodenticide Act, which have one year to comply with applicable VOC content limits. EPA policy allows states to claim up to a 20% reduction of total consumer product emissions towards the ROP requirement.

For reasons discussed previously under “Architectural and Industrial Maintenance (AIM) Coatings,” EPA will allow the states to take credit for this measure even though emission reductions from this measure did not occur until after November 15, 1996. Maryland claimed a 20% reduction or the equivalent reduction of 2.6 TPD from their 1996 projected uncontrolled consumer and commercial products emissions in the Baltimore nonattainment area. EPA believes this measure is creditable in Maryland's 15% Plan for the Baltimore nonattainment area.

Maryland has adopted an autobody refinishing regulation, COMAR 26.11.19.23, “Control of VOC Emissions from Vehicle Refinishing.” VOC emissions emanate from the evaporation of solvents used in the coating, drying and clean-up process. Maryland's autobody refinishing regulation was approved into the SIP on August 4, 1997 (62 FR 41853). This state rule assumes a 45% reduction (5.3 TPD) from 1996 projected uncontrolled autobody emissions in the Baltimore area. These reductions are creditable toward the ROP requirement.

This measure regulates emissions from formerly uncontrolled small lithographic printing operations, such as heatset web, non-heatset web, non-heatset sheet-fed, and newspaper non-heatset web operations. VOCs are emitted from the inks, fountain solutions and solvents used to clean the printing presses. Maryland's rule to control VOC emissions from lithographic printing operations (COMAR 26.11.19.11) was approved into the SIP on September 2, 1997 (62 FR 46199). VOC emissions are controlled from lithographic printers by limiting the allowable amount of isopropyl alcohol in the fountain solution. The 0.5 TPD VOC emission reductions achieved through this measure are creditable.

This measure controls VOC emissions from surface cleaning/degreasing operations that fall into the area source category. Maryland amended existing regulations for surface cleaning devices and operations to require more stringent emission control requirements and enlarge the field of applicable sources. Maryland's more stringent surface cleaning and degreasing regulation (COMAR 26.11.19.09) was approved into the SIP on August 4, 1997 (62 FR 41853). Surface cleaning/degreasing operations impacted include, gasoline stations, autobody paint shops and machine shops that fall into the area source category. VOC emissions are controlled by requiring the reformulation of cold degreasers to either aqueous solutions or low VOC formulations. Maryland estimates that this rule reduces VOC emissions by 70%. Maryland claims 7.3 TPD reduction in the 15% Plan for the Baltimore nonattainment area from surface cleaning and degreasing controls. These reductions are creditable toward the 15% ROP requirement.

According to Maryland's revised 15% Plan for the Baltimore area, this control measure relies on a federal rule to regulate emissions from municipal landfills. The 15% Plan states that “the Department expects to promulgate a regulation requiring the use of a collection and control system or energy recovery system that would control VOC emissions at landfills by 98%.” However, neither a state rule nor a federal rule was promulgated to control landfill emissions by November 15, 1996. Guidelines for the approvability of reductions credible for rate-of-progress plans dictate that the emission reductions be federally enforceable. Because there was no federal program nor any federally-approved state program to require controls on municipal landfills prior to November 15, 1996, the emission reductions claimed through this measure are not creditable toward the 15% ROP Plan. The 0.2 TPD VOC emission reductions claimed for the Baltimore nonattainment area in the revised 15% Plan are not approvable for the purposes of satisfying the 15% Plan requirements.

This measure increases the effectiveness of existing regulations by enhancing rule compliance through increased or enhanced inspections and other enforcement activities. Maryland has targeted rule effectiveness (RE) improvement at tank truck unloading operations at gasoline dispensing facilities and at specified bulk terminals. Specific measures that Maryland used to enhance rule effectiveness at the targeted sources include increased administrative and civil penalties; enhanced monitoring; quarterly reporting requirements for sources; workshops; increased inspector training; increased source inspections and mandatory follow-up of violations. Maryland estimates that these enhancements improve rule effectiveness at the affected source categories to 92%, or 12% above EPA's default RE value of 80%. The increase in rule effectiveness results in an additional emission reduction benefit of 4.5 TPD in the Baltimore area. This program is enforceable under the State's Title V permit program. These reductions are creditable toward ROP in Baltimore.

This measure addresses facilities that are regulated under Maryland's air toxics program that have achieved VOC reductions above and beyond current federally enforceable limits. In general, Maryland's air toxics regulations cover any source required to obtain a permit to construct or an annually renewed state permit to operate. Maryland claimed 0.9 TPD from state air toxics. This measure is creditable and enforceable under the State's Title V permit program.

According to the Act, states are required to adopt reasonably available control technology (RACT) for specific source categories covered by a control technique guideline that has been published by EPA or listed in the Act, and for all other major sources. RACT consists of a variety of control techniques that are generally available and cost effective. Maryland is claiming a total of 1.7 TPD from RACT controls implemented post-1990 on four source categories: expandable polystyrene operations, yeast production, bakeries, and screen printing operations. Maryland's RACT regulations for each of these categories have been approved into the SIP. EPA has determined the 1.7 TPD are creditable emission reductions in the 15% Plan for the Baltimore area.

Maryland has amended COMAR 26.11.07 to institute a ban on open burning during the peak ozone season in Maryland's severe and serious ozone nonattainment areas. Maryland considers the months of June, July, and August the peak ozone season, because that is when ambient levels of ozone in Maryland are usually the highest. During the peak ozone season, the practice of burning for the disposal of brush and yard waste as a method of land clearing will be banned reducing VOC emissions. During the remainder of the year (September 1—May 31), Maryland's existing open fire regulations apply. This ban was adopted on May 1, 1995, and effective on May 22, 1995. EPA approved the ban on open burning into the Maryland SIP on January 31, 1997. The State of Maryland estimates a 3.6 TPD reduction in VOCs emissions from the ban on open burning. These reductions are creditable in the 15% Plan.

Maryland used EPA's emissions model MOBILE5b to determine the amount of VOC emission reductions that will occur by 1996 from all mobile source control measures contained in the emissions model. These measures, each discussed briefly below, include Stage II vapor recovery systems, reformulated gasoline, the enhanced I/M program and federal Tier 1 emission standards. MOBILE5b generates a lump sum emission reduction total for all emission control programs. In the Baltimore nonattainment area, the combined VOC emission reduction in 1996 from all mobile source controls is 53.2 TPD. Maryland has adopted and implemented all the mobile source controls discussed below and where necessary, EPA has approved Maryland's regulations into the SIP. EPA has determined that Maryland has correctly estimated the emission reductions generated through mobile source control programs by using the MOBILE5b emissions model. The 53.2 TPD VOC reduction is creditable toward the 15% requirement.

Section 182(b)(3) of the Act requires all owners and operators of gasoline dispensing systems in moderate and above ozone nonattainment areas to install and operate a system for gasoline vapor recovery (known as Stage II) of emissions from the fueling of motor vehicles. Stage II vapor recovery is a control measure which substantially reduces VOC emissions during the refueling of motor vehicles at gasoline service stations. The Stage II vapor recovery nozzles at gasoline pumps capture the gasoline-rich vapors displaced by liquid fuel during the refueling process. Maryland's Stage II regulation was approved into the SIP on June 9, 1994.

Section 211(k) of the Act requires that only reformulated gasoline (RFG) be sold or dispensed in severe and above ozone nonattainment areas after January 1, 1995. Thus, RFG is required in the Baltimore severe ozone nonattainment area. This gasoline is reformulated to burn cleaner and produce fewer evaporative emissions. EPA enforces this program so the emission reductions are fully creditable. The benefits of RFG are also realized in off-road gasoline engines, such as lawn maintenance equipment and motor boats.

Under section 182(c) of the Act, the Baltimore nonattainment area was required to adopt an enhanced vehicle inspection and maintenance program. Enhanced I/M programs reduce the emissions created by vehicles through periodic testing and, if needed, repair, of the vehicle's tailpipe emissions and evaporative systems.

Most of the 15% Plan SIPs originally submitted to the EPA contained enhanced I/M programs because this program achieves more VOC emission reductions than most, if not all other, control strategies. However, because most states experienced substantial difficulties implementing the enhanced I/M program using their original enhanced I/M protocols, most states did not begin actually testing cars until after the Clean Air Act implementation date.

In September 1995, EPA finalized revisions to its enhanced I/M rule allowing states significant flexibility in designing I/M programs appropriate for their needs (60 FR 48029). Subsequently, Congress enacted the National Highway Systems Designation Act of 1995 (NHSDA), which provided states with additional flexibility in determining the design of enhanced I/M programs. The substantial amount of time needed by states to re-design enhanced I/M programs in accordance with the NHSDA, to secure state legislative approval where necessary, and set up the infrastructure to perform the testing program precluded states that revised their enhanced I/M programs from obtaining emission reductions by November 15, 1996.

Given that many states, including Maryland, rely heavily upon enhanced I/M programs to help achieve the 15% VOC emissions reduction, and that the NHSDA and regulatory changes regarding enhanced I/M programs delayed their implementation, EPA believes that it was not possible for many states to achieve the portion of the 15% reductions that are attributed to   I/M by November 15, 1996. Under these circumstances, disapproval of the 15% SIPs would serve no purpose. Consequently, under certain circumstances, EPA proposed to allow states that pursue re-design of enhanced I/M programs to receive emission reduction credit from these programs within their 15% Plans, even though the emissions reductions from the I/M program will occur after November 15, 1996. The provisions for crediting reductions for enhanced I/M programs is contained in two EPA policy memoranda: “Date by which States Need to Achieve all the Reductions Needed for the 15 Percent Plan from   I/M and Guidance for Recalculation,” note from John Seitz and Margo Oge, dated August 13, 1996, and “Modeling 15 Percent VOC Reductions from I/M in 1999—Supplemental Guidance,” memorandum from Gay MacGregor and Sally Shaver, dated December 23, 1996. For the purposes of 15% Plan calculations then, EPA will allow Maryland to take credit for the enhanced I/M program even though the emission reductions from this program did not occur until after November 15, 1996.

In the case of the Baltimore nonattainment area, Maryland's 15% Plan SIP takes credit for the amount of reductions achieved by I/M through November 1999. Maryland's enhanced   I/M program is a biennial program that meets the performance standards attributable to a “high enhanced” program. Maryland began testing cars under the enhanced program in October 1997. But because Maryland's program is biennial it will take two years to complete one full cycle of testing. EPA guidance allows states to assume credit from the enhanced I/M program through 1999 in the 15% Plan SIPs (see “Modelling 15 Percent VOC Reductions from I/M in 1999—Supplemental Guidance”, memorandum from Gay MacGregor and Sally Shaver, dated December 23, 1996.) EPA converted its conditional approval of Maryland's enhanced I/M program to a full approval on October 29, 1999 (64 FR 58340).

The Act required EPA to issue Federal Motor Vehicle Control Program (Tier I) standards for new motor vehicles. The Tier I standards include exhaust (“tailpipe”) emission standards and better evaporative emission controls demonstrated through new federal evaporative test procedures. EPA promulgated the Tier I standards on June 5, 1991 (56 FR 25724). These Tier I standards were phased in beginning with model year 1994 vehicles and is a federally enforceable program. On average, Tier I cars will emit 0.077 fewer grams of VOCs per mile than older cars.

The conditions established for full approval of the Baltimore area 15% Plan were established in EPA's final conditional rulemaking on October 9, 1997 (62 FR 52661). Each of these conditions are discussed below. In response to the conditional rulemaking, Maryland submitted a revised 15% Plan for the Baltimore nonattainment area. All of the conditions have been satisfied in Maryland's revised submittal, and therefore, EPA is approving Maryland's October 7, 1998 15% Plan submittal for the Baltimore nonattainment area. Conditions of the October 9, 1997 rulemaking:

1. Maryland's 15% plan calculations must reflect the EPA approved 1990 base year emissions inventory.

Remedy: Maryland has revised the 1990 base year emissions inventory for the nonattainment area. The revised inventory is used as a basis for calculating the 15% target level according to EPA guidance. As part of today's rulemaking, EPA is also approving revisions to the base year inventory submitted by Maryland and therefore, this condition has been satisfied.

2. Maryland must meet the conditions listed in the October 31, 1996 conditional I/M rulemaking notice, including remodeling the reductions associated with I/M following EPA guidance.

Remedy: Maryland met all the conditions of EPA's October 31, 1996 conditional rulemaking on Maryland's enhanced I/M program. EPA fully approved the enhanced I/M program into the Maryland SIP on October 29, 1999 (64 FR 58340). Additionally, Maryland has remodeled the creditable emission reductions following EPA guidance documents and using EPA's MOBILE5b emissions model. This condition has been satisfied.

3. Maryland must remodel to determine affirmatively the creditable reductions from RFG and Tier 1 in accordance with EPA guidance.

Remedy: Maryland has remodeled all mobile source emission control programs, including RFG and Tier 1 following EPA guidance documents and using EPA's MOBILE5b emissions model. This condition has been satisfied.

4. Maryland must submit a SIP revision amending the 15% plan with a determination using appropriate documentation methodologies and credit calculations that satisfies Maryland's 15% ROP requirement.

Remedy: Maryland's revised 15% Plan submittal contains adequate documentation on VOC control measures to demonstrate the 15% reduction. All of the measures, except controls on landfills, have been adopted and implemented by the State and, where necessary, approved into the Maryland SIP. As documented in Table 2, “Calculation of 15% Reduction Target Level”, to satisfy the 15% reduction target plus offset emissions growth during the period 1990-1996, Maryland must demonstrate a total reduction 68.7 TPD in VOC emissions. The control measures described in Maryland's 15% Plan produce 85.4 TPD in creditable VOC emission reductions, far more than the amount needed. Therefore, Maryland's plan satisfies the requirements of section 182(b)(1) of the Act and is approvable. This condition has also been satisfied.

A more detailed description of the state submittal and EPA's evaluation are included in a Technical Support Document (TSD) prepared in support of this rulemaking action. A copy of the TSD is available, upon request, from the EPA Regional Office listed in the ADDRESSES section of this document

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on March 20, 2000 without further notice unless EPA receives adverse comment by March 6, 2000. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

EPA is converting its conditional approval of the 15% Plan for the Baltimore area to a full approval based upon Maryland's October 7, 1998 SIP revision of the 15% Plan for the Baltimore area. EPA is also approving revisions to the 1990 base year emissions inventory for the Baltimore nonattainment area submitted on December 24, 1997 as part of the Post-1996 Rate of Progress Plan for the Baltimore and Cecil County nonattainment areas.

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action to convert the conditional approval of the 15% ROP Plan for the Baltimore nonattainment area to a full approval must be filed in the United States Court of Appeals for the appropriate circuit by April 3, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Cecil County, Maryland is part of the Philadelphia-Wilmington-Trenton severe ozone nonattainment area. The Clean Air Act requires states with severe ozone nonattainment areas to develop plans to reduce emissions of volatile organic compounds (VOCs) from a 1990 baseline by three percent per year averaged over each consecutive three year period through the area's attainment date. This is known as the rate-of-progress (ROP) requirement. The first round of required ROP reductions cover the period 1990-1996 and is commonly known as the 15% ROP plan. The second round of required VOC reductions is commonly known as the Post-1996 ROP plan because it covers the three year time period from 1996-1999. The Post-1996 ROP plan, was due by November 15, 1994 and the reductions were to be achieved by November 15, 1999. The Clean Air Act also allows for the substitution of emission reductions of nitrogen oxides (NOx) occurring after 1990 for the Post-1996 VOC rate-of-progress requirements. To qualify for SIP credit under rate of progress plans, emission reduction measures, whether mandatory under the Act or adopted at the state's discretion, must ensure real, permanent, and enforceable emissions reductions.

On March 2, 1995, Assistant Administrator for Air and Radiation, Mary D. Nichols, issued a policy memorandum providing guidance to the states on an alternative approach for meeting the attainment demonstration and rate-of-progress requirements of the Clean Air Act. The policy memorandum established a phased approach for the submittal of the attainment demonstration. Under the first phase, states were to submit a plan with specific control measures, including a plan to show at least a 9% ROP reduction by 1999; interim assumptions or modeling about ozone transport; and enforceable commitments to: (1) Participate in a consultative process to address regional transport, (2) adopt additional control measures as necessary to attain the ozone national ambient air quality standard, and (3) identify any reductions that are needed from upwind areas for the area to meet the ozone standard.

On December 24, 1997, the Maryland Department of Environment (MDE) submitted a SIP for the Phase 1 attainment plans for the Baltimore nonattainment area and Cecil County. Maryland's Phase 1 attainment plan submittal contained the Post-1996 ROP requirements; revisions to the 1990 base year inventories for the Baltimore nonattainment area and Cecil County; revisions to the 15% ROP plans for Baltimore and Cecil County; and enforceable commitments to address the first phase of the attainment plan as discussed above. This rulemaking only addresses the Post-1996 ROP plan and 1990 base year inventory revisions for the Maryland portion of the Philadelphia-Wilmington-Trenton ozone nonattainment area, namely Cecil County, Maryland.

On August 17, 1998, MDE submitted additional information and revised mobile emissions modeling for the December 24, 1997 Post-1996 ROP submittal. The revised information was included in Maryland's Phase II attainment plan for the Baltimore nonattainment area and Cecil County. Specifically, the August 17, 1998 submittal requested that the chapter on conformity, including mobile source emission budgets, and Appendix E, including the target levels, emission estimates, projection year estimates and reduction credit estimates contained in the original Phase 1 plan be replaced by the information contained in the August 17, 1998 Phase 2 attainment plan submittal. For this rulemaking action, EPA has evaluated the portions of Maryland's August 17, 1998 submittal that relate to revisions to the Post-1996 ROP plan for the Maryland portion of the Philadelphia-Wilmington-Trenton ozone nonattainment area, namely Cecil County, Maryland.

Maryland submitted the original 1990 base year emissions inventory for Cecil County as a SIP revision on March 21, 1994. EPA approved the base year inventory into the SIP on September 27, 1996 (61 FR 50715). As part of the Phase 1 attainment plan submittal of December 24, 1997, Maryland is revising certain portions of the 1990 base year inventory because of refinements, such as updated information on point source emissions, and to correct certain errors in the inventory found while auditing the inventory in preparation for the attainment demonstration modeling.

EPA is approving the revisions to the 1990 base year inventory for the Cecil County. Table 1 below illustrates the inventory revisions that will be approved into the Maryland SIP. A more detailed description of the changes to Maryland's base year inventories and EPA's evaluation are included in the technical support document (TSD) prepared in support of this rulemaking action. A copy of the TSD is available, upon request, from the EPA Regional Office listed in the ADDRESSES section of this document.

The first step in demonstrating ROP is to determine the target level of allowable emissions in the given target year. The target level of emissions represents the maximum amount of emissions that can be emitted in a nonattainment area in the given target year, which in this case is 1999. The Clean Air Act allows states to substitute NO X emission reductions that occur after 1990 for VOC emission reductions in the Post-1996 ROP plan. Rate-of-progress is demonstrated when the sum of all creditable VOC and NO X emission reductions equal at least 3% per year averaged over the three year period 1996-1999, or for a total of 9%. If a state wishes to substitute NO X for VOC emission reductions, then a target level of emissions demonstrating a representative combined 9% emission reduction in VOC and NO X emissions must be developed for the year 1999. MDE has established 1999 target levels for both VOC and NO X emissions for Cecil County. However, the rate-of-progress control scenario for Cecil County is based on a 9% VOC and a 0% NO X reduction strategy. Because enough VOC emission reductions exist to demonstrate the full 9% reduction, Maryland assumed no NO X emission reductions to demonstrate rate-of-progress. Any NO X emission reductions associated with Maryland's control strategies are considered surplus for the purposes of demonstrating rate-of-progress for 1999.

To calculate the target level of emissions, the percentage of required emission reductions is subtracted from the previously established ROP target level, which in this case would be the 15% ROP plan. For VOCs, the 1999 rate-of-progress VOC target level is based on the 1996 VOC target level calculated in the 15% ROP plan. EPA approved the 1996 VOC target level for Cecil County (14.1 tons per day or TPD) when it approved the Cecil County 15% ROP plan on July 29, 1997 (62 FR 40457). For NO X , there is no previously established ROP target level, so the 1999 target level is calculated from the 1990 base year inventory. The target level calculations for Cecil County for the year 1999 are taken from the August 17, 1998 Phase 2 attainment plan SIP submittal and are presented below.

Maryland has correctly calculated the 1999 target level of emissions for Cecil County following EPA's guidance.

In addition to achieving a 9% reduction in existing emissions, the state's control strategy must also offset any new emissions growth projected to occur between 1996 and 1999. Therefore, states must project their emission inventories to estimate emissions growth between 1996 and 1999 (the ROP year for the Post-1996 plan). The projected inventories must reflect expected growth in activity, as well as regulatory actions which will affect emission levels.

EPA guidance on projecting emissions growth suggests that emission projections for point sources can be based on information obtained directly from facilities and/or permit applications. Area and mobile source emission projections may be developed from information from local planning agencies. In the absence of source-specific data, credible growth factors must be developed from accurate forecasts of economic variables and the activities associated with the variables. Economic variables that may be used as indicators of activity growth are: product output, value added, earnings, and employment. Population can also serve as a surrogate indicator.

Economic data and models which provide acceptable growth factors for emission projections include the U.S. Department of Commerce Bureau of Economic Analysis (BEA) forecasts for states and metropolitan statistical areas; the Economic Growth Analysis System (E-GAS), which models economic growth and estimates corresponding increases in emissions-producing activity; and the Emissions Preprocessor System for urban airshed modeling, which produces spatially and temporally resolved emission inventories for input into urban airshed models.

Cecil County is rural in nature, lacks a base of heavy industry and has no existing major point sources of NO X . Therefore, Maryland predicts no growth in either VOC or NO X point source emissions between 1996 and 1999.

Growth factors from the BEA were used for area sources. Maryland chose BEA over E-GAS for area source growth estimates, because two area source categories, consumer and commercial products and new motor vehicle refinishing were projected by E-GAS to decrease over the next ten years due to a predicted population decrease. Because this directly contradicts industry projections and Maryland's expectations, E-GAS was not used for area source predictions. The use of BEA or E-GAS is acceptable.

Mobile source growth in Cecil County is based on vehicle miles traveled (VMT) trends from 1986-1991. The 1990 base year inventory for Cecil County was based on Highway Performance Monitoring System data because the county is not part of an urban transportation network. The Maryland Department of Transportation and the Wilmington Area Planning Council have developed a link-based transportation modeling technique to provide a detailed analysis of travel patterns in the Cecil County-Wilmington area. Mobile source emissions estimates and VOC target levels for 1999 were developed using the link-based travel estimates. This is an acceptable approach.

Maryland used E-GAS growth factors for determining future emissions of non-road sources. These inventories were estimated as a product of equipment population, activity rates and emission factors. Population and value added were also used as surrogate indicators where appropriate. Emissions were projected by multiplying 1990 emissions by the E-GAS growth factor.

Maryland has used appropriate methodology to project emissions growth in all source categories. The growth estimates are approvable. The projection year inventories for 1999 for Cecil County are shown in Table 2 below. Total 1999 growth projections for VOCs are 2.9 TPD and 3.4 TPD for NO X .

The purpose of the Post-1996 ROP plan is to demonstrate how the State has reduced emissions 3% per year between the years 1996 and 1999, for a 9% total reduction. In general, reductions toward ROP requirements are creditable provided the control measures occurred after 1990 and before November 15, 1999 and are real, permanent, quantifiable and federally enforceable. A short description of each of the control measures implemented by Maryland follows.

a. Seasonal Open Burning Ban. On May 1, 1995, Maryland instituted a ban on open burning during the peak ozone season in Maryland's severe and serious ozone nonattainment areas. Maryland considers the months of June, July, and August the peak ozone season, because that is when ambient levels of ozone in Maryland are usually the highest. During the peak ozone season, the practice of burning for the disposal of brush and yard waste as a method of land clearing has been banned. This ban on open burning reduces both VOC and NO X emissions. EPA approved Maryland's open burning ban (COMAR 26.11.07) into the SIP on January 31, 1997. MDE estimates 4.4 TPD VOC and 0.9 TPD NO X emission reductions from the open burning ban in Cecil County. These reductions are creditable in the Post-1996 Plan.

b. Consumer and Commercial Products National Rule. On September 11, 1998, EPA issued a final rule (63 FR 48819) to reduce the VOC content of 24 categories of household consumer and commercial products by 20% from levels emitted in 1990. The regulation applies to 24 types of household consumer products, such as cleaning products, personal care products, and a variety of insecticides. EPA policy allows states to claim up to a 20% reduction of total consumer product emissions towards the ROP requirement. Maryland claimed a 20% reduction from their 1999 projected uncontrolled consumer and commercial products emissions in the Post-1996 ROP plan in Cecil County. EPA has determined that 0.1 TPD VOCs in Cecil County are creditable emission reductions.

c. Stage I Vapor Recovery. Stage I vapor recovery systems control vapor emissions at gasoline dispensing facilities that result from unloading gasoline from a tank truck into a storage tank. The vapors displaced in the storage tank by the liquid gasoline are retrieved into the tank truck and transported back to the refinery. Stage 1 vapor recovery controls were implemented in Cecil County on April 26, 1992. EPA approved Maryland's Stage I vapor recovery regulation into the Maryland SIP (60 FR 2018). Maryland claimed 0.8 TPD VOCs emission reductions in 1999 for Cecil County, which are creditable toward the Post-1996 ROP plan.

d. Autobody Refinishing. Maryland adopted an autobody refinishing regulation, COMAR 26.11.19.23, to control VOC emissions emanating from the evaporation of solvents used in the coating, drying and clean-up process. Maryland's regulation was approved into the SIP on August 4, 1997 (62 FR 41853). From this regulation, Maryland claimed a reduction of 0.2 TPD VOC emissions in Cecil County, which are creditable toward the ROP requirement.

e. Architectural and Industrial Maintenance (AIM) Coatings Reformulation. On September 11, 1998, EPA promulgated a national rule (63 FR 48848) for reducing VOCs emissions from architectural and other industrial coatings. Architectural coatings are commonly applied by consumers and contractors, and include exterior and interior paints, industrial maintenance coatings, wood and roof coatings, primers, and traffic paints. Manufacturers and importers are required to comply with requirements by September 1999. States are allowed to assume a 20% reduction in VOCs from 1990 emission levels in their ROP plans. Maryland claimed a 20% reduction in VOC emissions in Cecil County or 0.2 TPD. These emission reductions are creditable in the Post-1996 ROP plan.

f. Surface Cleaning and Degreasing. This measure strengthens an existing Maryland regulation for surface cleaning (also called cold cleaning and degreasing) devices and operations to require more stringent emission control requirements and enlarges the field of applicable sources. This regulation controls VOC emissions from surface cleaning/degreasing operations, such as gasoline stations, autobody paint shops and machine shops that fall into the area source category. Maryland's surface cleaning and degreasing regulation (COMAR 26.11.19.09) was approved into the SIP on August 4, 1997 (62 FR 41853). In Cecil County, 0.2 TPD VOC emission reductions achieved through this measure are creditable.

a. Federal Motor Vehicle Control Program—Tier I. The Clean Air Act required EPA to issue federal emission standards for new motor vehicles. The Tier I motor vehicle standards were promulgated on June 5, 1991 (56 FR 25724) and include exhaust (“tailpipe”) emission standards and better evaporative emission controls demonstrated through new federal evaporative test procedures. Both VOC and NO X emissions from passenger vehicles and light-duty trucks are reduced as a result of these standards. Tier I standards were phased in beginning with model year 1994 vehicles. Emission reductions associated with Tier 1 standards can be determined through use of EPA's mobile emissions model, MOBILE5b. The following emission reductions from Tier 1 standards are creditable through 1999 in Cecil County: VOCs 0.2 TPD and NO X 0.8 TPD.

b. Enhanced Inspection and Maintenance Program. Under section 182 of the Act, Maryland was required to adopt an enhanced inspection and maintenance (I/M) program. Enhanced I/M programs reduce the emissions created by vehicles through periodic testing and, if needed, repair of the vehicle's tailpipe emissions and evaporative systems. Maryland has adopted regulations and began implementing the enhanced I/M program in 1997. EPA approved Maryland's enhanced I/M program on October 29, 1999 (64 FR 58340). Emission reductions associated with enhanced I/M can be determined through use of EPA's mobile emissions model MOBILE5b. Maryland claimed creditable emission reductions of 1.8 TPD of VOCs and 1.4 TPD of NO X in Cecil County from the enhanced I/M program.

c. Reformulated Gasoline Federal Rule—Phase 1. The Act requires, beginning January 1, 1995, that only reformulated gasoline (RFG) be sold or dispensed in ozone nonattainment areas classified as severe or worse. Gasoline for use in motor vehicles is reformulated to reduce VOC combustion by-products and to produce fewer evaporative VOC emissions. The Act requires a reduction in VOC and toxic emissions from gasoline of 15% over base year levels beginning in 1995 and a 25% requirement beginning in the year 2000 (Phase 2 RFG). The RFG program was implemented by EPA through a national rule (59 FR 7716). Cecil County is designated as a severe nonattainment area and, therefore, subject to RFG requirements. Emission reductions associated with RFG can be determined through use of EPA's mobile emissions model MOBILE5b. Maryland has claimed 0.3 TPD creditable VOC emission reductions associated with Phase 1 RFG in Cecil County.

d. Stage II Gasoline Vapor Recovery. The Act requires all owners and operators of gasoline dispensing systems in moderate and above ozone nonattainment areas to install and operate a system for gasoline vapor recovery (known as Stage II) of emissions from the fueling of motor vehicles. Stage II vapor recovery reduces the VOC emissions during the refueling of motor vehicles at gasoline service stations. The Stage II vapor recovery nozzles at gasoline pumps capture the gasoline-rich vapors displaced by liquid fuel during the refueling process. EPA approved Maryland's Stage II regulation, COMAR 26.11.24, on June 9, 1994. Stage II is a creditable measure in counties where these controls were not required before 1990. Emission reductions associated with Stage II Vapor Recovery and On Board Vapor Recovery systems can be determined through use of EPA's mobile emissions model MOBILE5b. In Cecil County, 0.3 TPD are creditable VOC reductions.

a. Non-Road Small Gasoline Engines. In July 1995, EPA finalized the first federal regulations affecting small non-road spark-ignition (SI) engines at or below 19 kilowatts (kW), or 25 horsepower. The standards set allowable exhaust levels for hydrocarbons, carbon monoxide, and NO X from small engines of 25 HP or less. The regulations took effect for most new handheld (chainsaws and leaf blowers, etc.) and non-handheld (lawn mowers, garden tractors, tillers, etc.) engines beginning in model year 1997 and are expected to result in a 32% reduction in hydrocarbon emissions from these engines. On November 24, 1994, EPA issued a guidance memorandum to states regarding calculation of the emission reduction benefit of various non-road engine standards for the purposes of rate-of-progress planning. See “Future Non-road Emission Reduction Credits for Court-Ordered Non-road Standards”, from Philip A. Lorang, Director, Emission Planning and Strategies Division. This memorandum advised states to assume in 1999 a 22.9% reduction in VOCs for the non-road portion of the inventory affected by these standards. Maryland has claimed 0.4 TPD reduction in VOC emissions from this control measure.

b. Non-Road Heavy Duty Diesel Engines. EPA promulgated final regulations applicable to non-road compression-ignition engines at or above 37 kilowatts on June 17, 1994 (59 FR 31306). These emissions standards affect non-road engines over 50 horsepower (such as bulldozers) and are being phased-in from 1996 to 2000 based on engine power. According to the November 24, 1994 Philip Lorang memorandum, states should assume in 1999 a 7.8% reduction in NO X for the non-road portion of the inventory affected by the non-road heavy duty diesel standards. Maryland has claimed 0.2 TPD reduction in NO X emissions in 1999 from this control measure.

Table 3 below summarizes the emission reductions from the control measures used in the Cecil County Post-1996 ROP plan.

Maryland's rate-of-progress requirements for Cecil County are summarized in Table 4.

EPA's review of Maryland's submittal indicates that the State has adopted and implemented adequate measures in the Cecil County to achieve the goal of a 9% reduction in ozone precursor emissions between 1996 and 1999. EPA is approving the Post-1996 ROP plan for the Cecil County portion of the Philadelphia-Wilmington-Trenton severe ozone nonattainment area. Additionally, EPA is approving revisions to the 1990 base year inventory for Cecil County. EPA has determined that the requested revisions to the inventory satisfy the relevant requirements of the Act and EPA guidance on inventory development.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the Post-1996 ROP Plan for Cecil County if adverse comments are filed. This rule will be effective on April 3, 2000 without further notice unless EPA receives adverse comment by March 6, 2000. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

EPA is approving the Post-1996 ROP plan for the Cecil County portion of the Philadelphia-Wilmington-Trenton severe ozone nonattainment area, submitted by the State of Maryland on December 24, 1997, as modified on August 17, 1998. EPA is also approving revisions to 1990 base year VOC and NO X emission inventories for Cecil County submitted by the State of Maryland on December 24, 1997.

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action to approve Maryland's Post-1996 ROP plan for Cecil County must be filed in the United States Court of Appeals for the appropriate circuit by April 3, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

The rules being approved into the California SIP include: KCAPCD Rule 413, Organic Liquid Loading and KCAPCD Rule 414.1, Valves, Pressure Relief Valves, Flanges, Threaded Connections and Process Drains at Petroleum Refineries and Chemical Plants. These rules were submitted by the California Air Resources Board (CARB) to EPA on May 10, 1996.

On March 3, 1978, EPA promulgated a list of ozone nonattainment areas under the provisions of the Clean Air Act, as amended in l977 (1977 Act or pre-amended Act), that included the San Joaquin Valley Area which encompassed the following eight air pollution control districts (APCDs): Fresno County APCD, Kern County APCD,  1 Kings County APCD, Madera County APCD, Merced County APCD, San Joaquin County APCD, Stanislaus County APCD, and Tulare County APCD. 43 FR 8964, 40 CFR 81.305. On March 20, 1991, the San Joaquin Valley Unified APCD (SJVUAPCD) was formed. The SJVUAPCD has authority over the San Joaquin Valley Air Basin which includes all of the above eight counties except for the Southeast Desert Air Basin portion of Kern County. Thus the Kern County Air Pollution Control District still exists, but only has authority over the Southeast Desert Desert Air Basin portion of Kern County.

On May 26, 1988, EPA notified the Governor of California, pursuant to section 110(a)(2)(H) of the 1977 Act, that portions of the California SIP were inadequate to attain and maintain the ozone standard and requested that deficiencies in the existing SIP be corrected (EPA's SIP-Call).  2 On November 15, 1990, the Clean Air Act Amendments of 1990 were enacted. Public Law 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q. In amended section 182(a)(2)(A) of the CAA, Congress statutorily adopted the requirement that nonattainment areas fix their deficient reasonably available control technology (RACT) rules for ozone and established a deadline of May 15, 1991 for states to submit corrections of those deficiencies.

Section 182(a)(2)(A) applies to areas designated as nonattainment prior to enactment of the amendments and classified as marginal or above as of the date of enactment. It requires such areas to adopt and correct RACT rules pursuant to pre-amended section 172(b) as interpreted in pre-amendment guidance.  3 EPA's SIP-Call used that guidance to indicate the necessary corrections for specific nonattainment areas. The Southeast Desert Air Basin portion of Kern County was not a pre-amendment nonattainment area, and therefore, was not designated and classified upon enactment of the amended Act. Consequently, KCAPCD is not subject to the section 182(a)(2)(A) RACT fix-up requirement. The KCAPCD is subject to the requirements of EPA's SIP-Call, because the SIP-Call included all of Kern County. The Southeast Desert is classified as serious;  4 therefore, this area was subject to the RACT fix-up requirement and the May 15, 1991 deadline.

The State of California submitted many revised RACT rules for incorporation into its SIP on May 10, 1996, including the rules being acted on in this document. This document addresses EPA's direct-final action for KCAPCD Rule 413, Organic Liquid Loading and Rule 414.1, Valves, Pressure Relief Valves, Flanges, Threaded Connections and Process Drains at Petroleum Refineries and Chemical Plants. KCAPCD adopted these rules on March 7, 1996. These submitted rules were found to be complete on July 19, 1996 pursuant to EPA's completeness criteria that are set forth in 40 CFR part 51, appendix V  5 and is being finalized for approval into the SIP.

KCAPCD Rule 413 controls VOC emissions associated with the loading of organic liquids. KCAPCD Rule 414.1 applies to all valves, pressure relief valves, flanges, threaded connections and process drains at petroleum refineries and chemical plants that may be the source of fugitive VOC emissions. VOCs contribute to the production of ground level ozone and smog. These rules were originally adopted as part of KCAPCD's effort to achieve the National Ambient Air Quality Standard (NAAQS) for ozone and in response to EPA's SIP-Call and the section 182(a)(2)(A) CAA requirement. The following is EPA's evaluation and final action for these rules.

In determining the approvability of a VOC rule, EPA must evaluate the rule for consistency with the requirements of the CAA and EPA regulations, as found in section 110 and part D of the CAA and 40 CFR part 51 (Requirements for Preparation, Adoption, and Submittal of Implementation Plans). The EPA interpretation of these requirements, which forms the basis for today's action, appears in the various EPA policy guidance documents listed in footnote 1. Among those provisions is the requirement that a VOC rule must, at a minimum, provide for the implementation of RACT for stationary sources of VOC emissions. This requirement was carried forth from the pre-amended Act.

For the purpose of assisting state and local agencies in developing RACT rules, EPA prepared a series of Control Technique Guideline (CTG) documents. The CTGs are based on the underlying requirements of the Act and specify the presumptive norms for what is RACT for specific source categories. Under the CAA, Congress ratified EPA's use of these documents, as well as other Agency policy, for requiring States to “fix-up” their RACT rules. See section 182(a)(2)(A). The CTGs applicable to all of these rules are entitled: Control of Hydrocarbons from Tank Truck Gasoline Loading Terminals, (EPA-450/2-77-026); Control of Volatile Organic Emissions from Bulk Gasoline Plants, (EPA-450/2-77-035); Control of Volatile Organic Compound Leaks from Gasoline Tank Trucks and Vapor Collection Systems, (EPA-450/2-78-051); and Control of Volatile Organic Compounds Leaks from Synthetic Organic Chemical and Polymer Manufacturing Equipment, (EPA-450/3-83-006). Further interpretations of EPA policy are found in the Blue Book, referred to in footnote 1. In general, these guidance documents have been set forth to ensure that VOC rules are fully enforceable and strengthen or maintain the SIP.

KCAPCD Rule 414.1, Valves, Pressure Relief Valves, Flanges, Threaded Connections and Process Drains at Petroleum Refineries and chemical Plants has been revised to delete the definition of VOC and to reference District Rule 102, Definitions.

KCAPCD Rule 413, Organic Liquid Loading has been revised to delete the definition of VOC and to reference District Rule 102, Definitions. In addition, the Equipment section of Rule 413 was revised to clarify the pressure requirement for delivery trucks being loaded with organic liquids. The changes to Rule 414.1 and Rule 413 do not have a significant impact on air quality.

EPA has evaluated the submitted rules and has determined that they are consistent with the CAA, EPA regulations, and EPA policy. Therefore, KCAPCD Rule 414.1, Valves, Pressure Relief Valves, Flanges, Threaded Connections and Process Drains at Petroleum Refineries and chemical Plants, and Rule 413, Organic Liquid Loading are being approved under section 110(k)(3) of the CAA as meeting the requirements of section 110(a) and part D.

EPA is publishing these rules without prior proposal because the Agency views this as noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. These rules will be effective April 3, 2000 without further notice unless the Agency receives adverse comments by March 6, 2000.

If the EPA receives such comments, then EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Any parties interested in commenting on these rules should do so at this time. If no such comments are received, the public is advised that this rule is effective on April 3, 2000 and no further action will be taken on the proposed rule.

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

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

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

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

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

Under Executive Order 13084, Consultation and Coordination with Indian Tribal Governments, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments. If the mandate is unfunded, EPA must provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation.

In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.” Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

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

This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 3, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

The rules being approved into the California SIP include: KCAPCD Rule 102, Definitions; SDCAPCD Rule 2, Definitions; SJVUAPCD Rule 1020, Definitions; and SCAQMD Rule 102, Definitions Terms. In addition, SDCAPCD Rule 3, Standard Conditions, is being rescinded. The revisions were adopted by KCAPCD on July 1, 1999; SDCAPCD on June 30, 1999; SJVUAPCD on June 17, 1999; and SCAQMD on April 9, 1999. These rules were submitted by the California Air Resources Board to EPA on September 7, 1999.

On March 3, 1978, EPA promulgated a list of ozone nonattainment areas under the provisions of the Clean Air Act, as amended in 1977 (1977 Act or pre-amended Act), that included the KCAPCD, SDCAPCD, SJVUAPCD, and SCAQMD. 43 FR 8964, 40 CFR 81.305. In response to section 110 (a) of the Act and other requirements, KCAPCD, SDCAPCD, SJVUAPCD, and SCAQMD submitted many rules which EPA approved into the SIP.

On February 7, 1996 (61 FR 4588) EPA published a final rule excluding perchloroethylene from the definition of VOC. On April 9, 1998 (63 FR 17331) EPA published a final rule excluding methyl acetate from the definition of VOC. These compounds were determined to have negligible photochemical reactivity and, thus, were added to the Agency's list of Exempt Compounds.

This document addresses EPA's direct-final action for KCAPCD Rule 102, Definitions; SDCAPCD Rule 2, Definitions and Rule 3, Standard Conditions; SJVUAPCD Rule 1020, Definitions; and SCAQMD Rule 102. The revised rules were adopted by KCAPCD on July 1, 1999; SDCAPCD on June 30, 1999; SJVUAPCD on December 17, 1992, and SCAQMD on April 9, 1999. These rules were submitted by the California Air Resources Board to EPA on September 7, 1999. These rules were found to be complete on October 20, 1999, pursuant to EPA's completeness criteria that are set forth in 40 CFR part 51, appendix V  1 and is being finalized for approval into the SIP.

The following are EPA's summary and final action for these rules:

In determining the approvability of a VOC rule, EPA must evaluate the rule for consistency with the requirements of the CAA and EPA regulations, as found in section 110 and part D of the CAA and 40 CFR part 51 (Requirements for Preparation, Adoption, and Submittal of Implementation Plans). The EPA interpretation of these requirements, which forms the basis for today's action, appears in the various EPA policy guidance documents.  2

EPA approves a provision in Chapter 74:36:11 of the ARSD, Performance Testing, that allows permitted sources to request permission to test a new fuel or raw material, to determine if it is compatible with existing equipment and to determine air emission rates, before requesting a permit amendment or modification. The State originally submitted this provision in section 74:36:11:04 of the ARSD on May 2, 1997. The State submitted revisions to this provision on May 6, 1999. EPA approves this provision, as revised, because it is consistent with applicable Federal regulations and the Act.

The State's May 2, 1997 and May 6, 1999 SIP submittals included revisions to other chapters of the ARSD. We acted on most of those revisions submitted on May 2, 1997 in an October 19, 1998 rulemaking (see 63 FR 55804-55807). In this document, we only act on the revisions to ARSD 74:36:11:04. We will act on the revisions to the other chapters of the ARSD included in these two submittals in separate rulemakings.

In South Dakota's May 2, 1997 SIP submittal, the State submitted revisions to its Performance Testing requirements in Chapter 74:36:11. Specifically, ARSD 74:36:11:04 allows a source to request permission from the State to test a new fuel or raw material to determine if it is compatible with existing equipment, before requesting a permit modification or permit amendment to use the new fuel or raw material. The version of ARSD 74:36:11:04 submitted on May 2, 1997 requires the State's approval prior to a source beginning to test a new fuel or raw material; the State's approval will specify the schedule for the testing and will outline requirements which may include performance testing, visible emissions evaluation, fuel analysis, dispersion modeling, and monitoring of raw material or fuel rates. If the State determines that the use of the new fuel or raw material will increase emissions, the State will give public notice of the proposed testing and take public comment for thirty days. The State will consider any comments received prior to making a final decision on whether to allow the source to test a new fuel or raw material.

EPA had some concerns with ARSD 74:36:11:04 as originally submitted. Specifically, we were concerned that this provision might allow a source testing a new fuel or raw material to violate the NAAQS. EPA cannot approve any provision in the SIP unless it will assure attainment and maintenance of the NAAQS. Further, we were concerned that there was no time limit specified in the rule to define how long a source could test a new fuel or raw material before obtaining a revision to its permit.

Consequently, the State revised ARSD 74:36:11:04 to address our concerns and submitted those revisions for approval as part of the SIP on May 6, 1999. Specifically, a provision was added that the State will not approve a test if the test would cause or contribute to a violation of a NAAQS. In addition, the State added a provision stating that, in most cases, the owner or operator will be allowed to test for a maximum of one week. Any request for a period longer than one week will require additional justification. In any case, the revised rule provides that a test period shall not exceed 180 days. The revised rule also clarifies that the purpose of the testing of the new fuel or raw material is to determine air emission rates, as well as to determine compatibility with existing equipment.

EPA finds that ARSD 74:36:11:04, as revised, is consistent with the applicable requirements of the Act and Federal regulations. The State's rule, as revised, will not allow testing of a new fuel or raw material if the test would cause or contribute to a violation of the NAAQS. The duration of time that a source is allowed to test a new fuel or material is generally limited to one week but, in any case, cannot exceed 180 days. EPA believes that these provisions ensure that this rule is consistent with section 110 of the Act and with the applicable permitting requirements at 40 CFR part 51, subpart I. Further, the public will have the chance to submit comments prior to the State determining whether to approve the test, if the use of the fuel or raw material will result in an increase of emissions of any pollutant.

We also believe that the State has met EPA's completeness criteria, including the public participation requirements of sections 110(a)(2) and 110(l) of the Clean Air Act, for the adoption of these revisions to ARSD 74:36:11:04. Specifically, the State of South Dakota held a public hearing on November 20, 1996, after providing notice to the public, for the revisions to ARSD 74:36:11:04 submitted to EPA on May 2, 1997. For the SIP revision submitted on May 6, 1999, the State held a public hearing on February 18, 1999 after providing notice to the public.

EPA would like to provide our interpretation of how ARSD 74:36:11:04 relates to the prevention of significant deterioration (PSD) permitting regulations (which South Dakota adopted by reference in ARSD 74:36:09). Specifically, in defining what constitutes a major modification subject to review under the PSD permitting regulations, EPA's regulations provide that the use of an alternative fuel or raw material that the source was capable of accommodating before January 6, 1975 is not considered to be a physical change or a change of method in operation, unless the use of such alternative fuel would be prohibited under any Federally enforceable permit condition. See 40 CFR 52.21(b)(2)(iii)(e)(1). In order for such a change in fuel or material usage to be exempt from permitting, the source must have been designed and constructed to accommodate the alternative fuel or raw material prior to January 6, 1975, and the source must have been continuously capable of accommodating the alternative fuel or raw material since before January 6, 1975. Sources requesting to test a new fuel or raw material under ARSD 74:36:11:04 to determine compatibility with existing equipment would appear not to know whether the facility is capable of accommodating the new fuel or material. Thus, the testing of a new fuel or raw material pursuant to ARSD 74:36:11:04 would not likely qualify as exempt from consideration as a physical change or change in the method of operation under 40 CFR 52.21(b)(2)(iii)(e)(1). EPA has provided this clarification to ensure there is no confusion with respect to the relationship between ARSD 74:36:11:04 and this PSD provision.

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective April 3, 2000.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 3, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

This is a summary of the Commission's Order On Reconsideration adopted November 3, 1999, and released November 9, 1999. The full text of this Order is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW, Room CY-A257, Washington, DC. The complete text also may be obtained through the World Wide Web, at http://www.fcc.gov/Bureaus/CommonCarrier/Orders/fcc99-332.wp, or may be purchased from the Commission's copy contractor, International Transcription Services, Inc. (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036.

No comments were submitted in response to the Commission's request for comment on its certification. In this present Order on Reconsideration, the Commission promulgates no additional final rules, and our action does not affect the previous analysis.

1. In this Order, we address a petition for reconsideration or clarification of the Alarm Monitoring Order, CC Docket No. 96-152, FCC 99-241, 64 FR 52464 (09/29/99), filed by Southwestern Bell Telephone Company (SBC).

2. As part of its determination regarding the scope of the term “alarm monitoring service,” the Commission enunciated the test it would use in assessing whether a BOC was “engaged in the provision of” alarm monitoring service in violation of section 275(a), which states that “No Bell Operating Company or affiliate thereof shall engage in the provision of alarm monitoring services before the date which is 5 years after the date of enactment of the Telecommunications Act of 1996.” 47 U.S.C. 275(a). As an initial matter, the Commission determined that the prohibition on the provision of alarm monitoring services did not “flatly prohibit BOCs from entering into arrangements to act as sales agents on behalf of alarm monitoring services providers.” At the same time, however, the Commission recognized that there may be instances where a BOC is not directly providing alarm monitoring service, but the interests of the BOC and an alarm monitoring service provider are so intertwined that the BOC itself may be considered to be “engag[ed] in the provision” of alarm monitoring service. In making this assessment, the Commission concluded that it would “examine sales agency and marketing arrangements between a BOC and an alarm monitoring company on a case-by-case basis to determine whether they constitute the ‘provision’ of alarm monitoring service.” In evaluating such arrangements, the Commission determined that it would take into account a variety of factors, including whether the terms and conditions of a sales agency or marketing arrangement are made available to other alarm monitoring companies on a nondiscriminatory basis and the manner in which the BOC is being compensated for its services.

3. SBC filed a petition for reconsideration or clarification of the Commission's Alarm Monitoring Order. SBC states that the Alarm Monitoring Order did not articulate how a regulatory commitment to make a sales agency or marketing arrangement available on a nondiscriminatory basis “was germane to the ‘provision' analysis.” SBC contends that, in assessing whether a BOC is providing alarm monitoring services in violation of section 275(a), the Commission need not, and should not, consider whether the terms and conditions of a BOC's sales agency or other marketing arrangement with a particular alarm monitoring service provider are available to other alarm monitoring service providers on a nondiscriminatory basis. SBC asserts, however, that if the Commission continues to find a BOC's relationship with other alarm monitoring service providers pertinent in determining whether a BOC is “engag[ed] in the provision” of alarm monitoring services, it should only consider whether the arrangement with a particular provider is non-exclusive, not whether it is available on a nondiscriminatory basis. According to SBC, “such non-exclusivity would ensure that both the BOC and the provider would remain free to do business with others,” and thus “not ‘intertwined’ with one another * * *.”

4. In the alternative, if the Commission retains nondiscrimination as a factor in its analysis, SBC argues that the Commission should clarify that nondiscrimination is not an absolute requirement for an acceptable sales agency relationship. Rather, says SBC, the Commission should expressly affirm that nondiscrimination is not an outcome-determinative factor, but rather is only one of a multitude of factors that the Commission will consider in reviewing sales agency and other marketing arrangements. In SBC's view a BOC should be free to demonstrate that based on factors other than nondiscrimination “it has a legitimate sales agency relationship with an alarm service provider without an undue ‘intertwining’ of interests.”

5. The Alarm Industry Communications Committee (AICC) filed an opposition to SBC's petition, arguing that the statute's outright ban on the BOC's provision of alarm monitoring services for a period of five years require, as both a statutory and policy matter, that any sales or other marketing arrangement be made available on a nondiscriminatory basis in order to restrain adequately the BOC's incentive and ability to enter into arrangements that constitute the provision of alarm monitoring services. As for SBC's alternative request, AICC argues that SBC should be told, “clearly and simply,” that it cannot discriminate among alarm monitoring providers in its provision of marketing or billing and collection services. AICC asserts that there are numerous legal and policy reasons to forbid discrimination and none in its favor.

6. As the Commission stated in the Alarm Monitoring Order, we must assess on a case-by-case basis whether a BOC's interests are so intertwined with an alarm monitoring service provider that the BOC itself may be considered to be “engag[ed] in the provision” of alarm monitoring service in violation of section 275(a). In making such an assessment, the Commission will consider a variety of factors to inform our ultimate determination as to whether a BOC's sales agency or other marketing arrangement causes its interests to be so intertwined with the interests of a particular alarm monitoring service provider that the BOC itself may be considered to be “engag[ed] in the provision” of alarm monitoring service.

7. In this Order, we clarify our rationale for taking into account whether a BOC's sales agency or other marketing arrangement is available on a non-discriminatory basis in assessing whether the BOC is engaged in the “provision” or alarm monitoring service We strongly disagree with SBC that the availability of sales agency or other marketing arrangements on a nondiscriminatory basis has no relevance in determining whether a BOC is engaged in the provision of alarm monitoring services. While the Commission may consider a variety of other factors as well, the presence of sales agency or other marketing arrangements with multiple alarm monitoring service providers is an indication that the BOC's interests in such arrangements are limited only to the provision of the sales agency or marketing component of the service. Alternatively, to the extent that a BOC makes a sales agency or other marketing arrangement available to any alarm monitoring service provider on the same terms and conditions, such availability is evidence that the BOC's interests are independent of, and not intertwined with, a particular alarm monitoring service provider. Therefore, in the absence of actual sales agency or other marketing arrangements with multiple alarm monitoring service providers, a commitment to make such arrangements available on a nondiscriminatory basis would be evidence—to be considered along with other factors—that a BOC's interests are independent of, and distinct from, any particular alarm monitoring service provider. Accordingly, we do not disturb our previous finding that the availability of sales agency or other marketing arrangements on a nondiscriminatory basis is relevant to whether a BOC is engaged in the provision of alarm monitoring services.

8. Pursuant to sections 1-4, 201-205, 214, 275, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 201-205, 214, 275, 303(r), this Order on Reconsideration in CC Docket No. 96-152 is adopted.

9. The petition for reconsideration filed by Southwestern Bell Telephone Company is denied in its entirety, as described herein.

Phlox hirsuta (Yreka phlox) is endemic to Siskiyou County, California, where it grows on serpentine slopes in the vicinity of the City of Yreka (California Native Plant Society (CNPS) 1985). Serpentine soils are rocky mineral soils consisting mostly of ultramafic rocks (rocks with unusually large amounts of magnesium and iron); the large amount of magnesium in the soil gives it a green mottled color. Ultramafic rocks are found discontinuously throughout California, in the Sierra Nevada and in the Coast Ranges from Santa Barbara County, California, to British Columbia. Soils produced from ultramafic rocks have characteristic physical and chemical properties, such as high concentrations of magnesium, chromium, and nickel, and low concentrations of calcium, nitrogen, potassium, and phosphorus. Serpentine soils alter the pattern of vegetation and plant species composition nearly everywhere they occur. While serpentine soils are inhospitable for the growth of most plants, some plants are wholly or largely restricted to serpentine substrates (Kruckeberg 1984).

Elias Nelson (1899) described Phlox hirsuta based on a collection made by Edward L. Greene in 1876 near Yreka, Siskiyou County, California. Willis L. Jepson (1943) reduced the species to varietal status, treating the taxon as Phlox stansburyi var. hirsuta. Edgar Wherry (1955) in his monograph of the genus Phlox and most recently Patterson and Wilken (1993) recognize this taxon as Phlox hirsuta E. E. Nelson.

Phlox hirsuta is a perennial subshrub in the phlox family (Polemoniaceae). The species grows 5 to 15 centimeters (cm) (2 to 5.9 inches (in)) high from a stout, woody base and is hairy throughout. Narrowly lanceolate to ovate leaves with glandular margins are crowded on the stem. The leaves are 1.5 to 3 cm (0.6 to 1.2 in) long and 4 to 7 millimeters (mm) (0.2 to 0.3 in) wide. Pink to purple flowers appear from April to June. The corollas (petals) of the flowers are 12 to 15 mm (0.5 to 0.6 in) long and are smooth-margined at the apex (tip) (CNPS 1977, 1985). The 5 to 8 mm (0.2 to 0.3 in) style (female reproductive organ in a plant) is contained within the corolla tube (tube formed by the flower petals) (CNPS 1977, 1985; Pattersen and Wilken 1993). Several other phlox species may occur within the range of P. hirsuta. Of these, P. speciosa (showy phlox) has notched petals and grows to 15 to 40 cm (5.9 to 15.8 in), considerably taller than P. hirsuta. Phlox adsurgens (northern phlox) is also larger than P. hirsuta growing to 15 to 30 cm (5.9 to 11.8 in). In addition, P. adsurgens blooms later (from June to August) than P. hirsuta and is glabrous (lacking hairs and glands) rather than hairy. Prostrate (lying flat on the ground) to decumbent (mostly lying on the ground but with tips curving up) stems and herbage lacking glands separate P. diffusa (spreading phlox) from P. hirsuta (CNPS 1977, 1985). Although found at the same latitudes, P. stansburyi (Stansbury's phlox) occurs 112 kilometers (km) (70 miles (mi)) farther to the east in Lassen and Modoc Counties (CNPS 1977). Phlox cespitosa is glandular-hairy, has a matted growth habit, and is one of several species of phlox that forms mats (Hickman 1993 third printing with corrections 1996), which is unlike the erect stem, open branch habit of P. hirsuta.

Phlox hirsuta is found on serpentine soils at elevations from 880 to 1,340 meters (2,800 to 4,400 feet) in association with Pinus jeffreyi (Jeffrey pine), Calocedrus decurrens (incense cedar), and Juniperus spp. (junipers) (CNPS 1985; California Department of Fish and Game (CDFG) 1986; California Natural Diversity Data Base (CNDDB) 1997). Phlox hirsuta is known from only two locations in the vicinity of Yreka, California. One occurrence is an open ridge in a juniper woodland within the city limits of Yreka (CNPS 1977, 1985; CNDDB 1997). Estimates of the area occupied by the occurrence range from approximately 15 hectares (ha) (37 acres (ac)) (Grant and Virginia Fletcher, in litt . 1995) to approximately 36 ha (90 ac) (Nancy Kang, Service, in litt . 1995a). Other extreme serpentine sites searched in the area do not support additional populations of Phlox hirsuta (Adams 1987). The second occurrence is about 8 to 10 km (5 to 6 mi) southwest of Yreka along California State Highway 3 in an open Jeffrey pine forest (CNPS 1977, 1985; CNDDB 1997) and includes approximately 65 ha (160 ac) of occupied habitat (Service maps on file). A third location, where the species was last reported in 1930, is in the vicinity of Mill Creek near Etna Mills. The area was searched, but no plants or appropriate habitats were identified (CNPS 1985), and the location may be incorrect (CDFG 1986; Adams 1987). Surveys have been conducted on 80 percent of the potential habitat (defined as the presence of suitable soils) on Klamath National Forest (Ken Fuller and Diane Elam, Service, in litt . 1997; Barbara Williams, Klamath National Forest, pers. comm. 1997) and Bureau of Land Management (Joe Molter, Bureau of Land Management, pers. comm. 1997) lands within the Redding Resource Area; no new populations of P. hirsuta have been discovered.

Land ownership of the two occurrences of Phlox hirsuta is a mixture of private, the City of Yreka, and the US Forest Service (CNDDB 1997). The City of Yreka occurrence of P. hirsuta is the more vigorous and dense of the two occurrences (Linda Barker, Klamath National Forest, in litt . 1985; Adams 1987; CNDDB 1997). Part of the P. hirsuta occurrence in the City of Yreka is owned by the City of Yreka; the remainder is privately owned (Larry Bacon, City of Yreka, pers. comm. 1997). The Highway 3 occurrence is partially on US Forest Service lands on the Klamath National Forest, partially within a State highway right-of-way, and partially privately owned (CDFG 1986; CNDDB 1997). Approximately 50 percent of occupied habitat at the Highway 3 occurrence and 25 percent of the occupied habitat of the species is on land administered by the Klamath National Forest (based on maps in Service files; B. Williams, pers. comm. 1997). Phlox hirsuta is threatened by urbanization at the City of Yreka location and by inadequate State regulatory mechanisms throughout its range. The small number of populations and small range of the species also make it vulnerable to decline or extirpation due to random events throughout its range.

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

We published an updated Notice of Review for plants on December 15, 1980 (45 FR 82480), that identified those plants currently being considered for listing as endangered or threatened. We included Phlox hirsuta as a category 1 candidate species. Category 1 candidates were defined as taxa for which we had on file substantial information on biological vulnerability and threats to support preparation of listing proposals. Our November 28, 1983, supplement to the Notice of Review (48 FR 53640) as well as the subsequent revision on September 27, 1985 (50 FR 39526), included P. hirsuta as a category 2 candidate. Category 2 taxa were those for which data indicated listing was possibly appropriate, but for which substantial data on biological vulnerability and threats were not currently known or on file to support a listing proposal.

We revised the plant notice of review again on February 21, 1990 (55 FR 6184), and September 30, 1993 (50 FR 51143). In both notices, we included Phlox hirsuta as a category 1 candidate. In our February 28, 1996, Notice of Review (61 FR 7596), we ceased using the category designations and included P. hirsuta as a candidate species. Candidate species are those taxa for which we have on file sufficient information on biological vulnerability and threats to support proposals to list the species as threatened or endangered.

Section 4(b)(3)(B) of the Act requires the Secretary to make certain findings on pending petitions within 12 months of their receipt. Section 2(b)(1) of the 1982 amendments further requires that all petitions pending on October 13, 1982, be treated as having been newly submitted on that date. That provision of the Act applied to Phlox hirsuta , because the 1975 Smithsonian report had been accepted as a petition. On October 13, 1982, we found that the petitioned listing of the species was warranted, but precluded by other pending listing actions, in accordance with section 4(b)(3)(B)(iii) of the Act; notification of this finding was published on January 20, 1984 (49 FR 2485). Such a finding requires the petition to be recycled, pursuant to section 4(b)(3)(C)(i) of the Act. The finding was reviewed annually in October of 1984 through 1997.

On April 1, 1998, we published a proposed rule to list Phlox hirsuta as an endangered species in the Federal Register (63 FR 15820). The comment period was open until June 1, 1998. With publication of this final rule, we now determine that P. hirsuta is endangered.

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

We have updated this rule to reflect any changes in distribution, status, and threats since publishing the proposed rule and to incorporate information obtained through the public comment period. This additional information did not alter our decision to list these species.

In the proposed rule published April 1, 1998, in the Federal Register (63 FR 15820) and associated notifications, we requested all interested parties to submit factual reports or information that might contribute to development of a final rule. We contacted and requested comments from appropriate Federal agencies, State agencies, county and city governments, scientific organizations, and other interested parties. We published an announcement of the proposed rule in the Siskiyou Daily News on April 3, 1998, which invited general public comment. The public comment period closed on June 1, 1998. We received no request for a public hearing.

During the public comment period, 22 individuals or agencies submitted comments. Four commenters supported the listing, 11 commenters opposed the listing, and 7 commenters were neutral. Supporting comments were received from the State and local chapter of the California Native Plant Society and two private citizens. Opposing comments were received from the Pacific Legal Foundation and 10 private citizens. Opposing comments and other comments questioning the proposed rule have been organized into specific issues. We summarized these issues and our response to each as follows:

Issue 1: One commenter opposed the listing of Phlox hirsuta , stating that the Federal Government lacks authority under the Commerce Clause of the Constitution to regulate this plant species.

Service Response: A recent decision in the United States Court of Appeals for the District of Columbia Circuit National Association of Home Builders of the U.S. v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) makes it clear in its application of the test used in the United States Supreme Court case, United States v. Lopez , 514 U.S. 549 (1995), that regulation of endangered species limited to one State under the Act is within Congress' Commerce Clause power. On June 22, 1998, the Supreme Court declined to accept an appeal of this case (118 S. Ct. 2340 (1998)). Therefore, our application of the Act to Phlox hirsuta is constitutional.

Issue 2: Two commenters stated that existing State regulations, such as the California Environmental Quality Act (CEQA) regulatory mechanisms, were sufficient to protect Phlox hirsuta , and thought that federally listing P. hirsuta would be a duplication of effort.

Service Response: We believe that the existing State regulatory mechanisms are inadequate to protect Phlox hirsuta . Please see factor D in the “Summary of Factors Affecting the Species,” section in this rule.

We do not believe that federally listing Phlox hirsuta would be a duplication of effort. Federal and State regulations complement each other. As discussed further in factor D in the “Summary of Factors Affecting the Species” section, the CEQA and California Endangered Species Act (CESA) apply to actions on private and State lands. As applied to plant species, the Federal Endangered Species Act primarily covers Federal land and Federal actions that may affect proposed and listed species.

Issue 3 : Three commenters questioned the rarity of Phlox hirsuta . One of the commenters, in response to seeing an article in the Siskiyou Daily News , stated there is a lot of Yreka phlox growing in Siskiyou and Shasta Counties. Another commenter provided a long list of places to check. A third commenter provided photos of Phlox occurring in Scott Valley, noting that these plants appear to be very similar to the photo of Phlox hirsuta published in the Siskiyou Daily News on April 3, 1998.

Service Response : We maintain that Phlox hirsuta is a very rare plant. As discussed in the “Background” section of this rule, several other Phlox species, that are much more abundant, may occur within the range of Phlox hirsuta . We sent the photos of Phlox from Scott Valley to Barbara Williams, Forest Botanist for the Klamath National Forest, who identified the Phlox as Phlox diffusa .

Issue 4 : One commenter stated that we should consider the economic effects of the listing on the local economies where the plant occurs.

Service Response : Under section 4(b)(1)(A) of the Act, a listing determination must be based solely on the best scientific and commercial data available about whether a species meets the Act's definition of a threatened or endangered species. The legislative history of this provision clearly states the intent of Congress to “ensure” that listing decisions are “based solely on biological criteria and to prevent non-biological considerations from affecting such decisions,” H.R. Rep. NO. 97-835, 97th Cong., 2nd Sess. 19 (1982). As further stated in the legislative history, “applying economic criteria . . . to any phase of the species listing process is applying economics to the determinations made under section 4 of the Act and is specifically rejected by the inclusion of the word ‘solely’ in the legislation,” H.R. Rep. NO. 97-835, 97th Cong. 2nd Sess. 19 (1982). Because we are precluded from considering economic impacts in a final decision on a proposed listing, we did not examine such impacts.

Issue 5 : Three commenters were concerned the listing would violate private property rights under the Fifth Amendment to the US Constitution. A fourth commenter stated that public and private property owners should be adequately compensated for setting aside land for Phlox hirsuta .

Service Response : We disagree that the listing of Phlox hirsuta would constitute a taking of private property in violation of the Fifth Amendment to the Constitution. The regulatory protection afforded listed plant species under the Act is limited. In particular, section 9 of the Act does not prohibit the “take” of listed plant species on private lands. Generally, as applied to private property, only the removal, damage, or destruction of listed plant species in violation of a State law or regulation or in the course of a violation of a State criminal trespass law is a violation of the Act. Further, the mere issuance of a regulation, like the enactment of a statute, is rarely sufficient to establish that private property has been taken unless the regulation itself appears to deny the property owner economically viable use of personal property. In order to establish that their properties have been taken as a result of a regulatory action, such as the listing of a species, property owners must first initiate an attempt to utilize their property and receive a determination regarding the level of use that is less than allowed prior to the listing. Property owners must ordinarily apply for all available permits and waivers before takings could potentially be established. The commenters have not provided any cogent legal basis for their assertions that listing Phlox hirsuta will result in a Fifth Amendment taking of private property.

Issue 6 : Several commenters were concerned about how private landowners may be affected by the listing of Phlox hirsuta .

Service Response : Portions of the two Phlox hirsuta populations do grow on private land. As noted above, Federal listing does not restrict the damage or destruction of listed plants due to otherwise lawful private activities on private land beyond any level of protection that may be provided under State law. Federal listing of plants does not restrict any uses of privately owned land unless Federal funding or a Federal permit is involved. Listing Phlox hirsuta as endangered likely will not affect logging, farming, or ranching operations, including cattle grazing, on private land. Other activities that do not violate the taking prohibitions of section 9(a)(2) of the Act, as well as prohibited activities, are discussed further under the “Available Conservation Measures” section of this rule.

Issue 7: Four commenters questioned the prudence of saving endangered species.

Service Response: The Act directs us to conserve endangered and threatened species. The Act reflects the value Congress and the American people place upon the biological diversity of the United States. When a species goes extinct, part of our natural heritage has been lost and cannot be replaced. Additionally, every species is part of the biological network that supports all life. A species in decline is a sign that something may be wrong in the environment. By addressing the causes of a plant or animal's decline we are protecting the environment on which we all depend.

Issue 8: One commenter asked how the threats to Phlox hirsuta might be eliminated.

Service Response: Generally, recovery strategies for plants focus first on protection and management of known populations. This process would involve working with landowners to avoid adverse effects to the species. If use of private land does not involve Federal funding or permitting, or violate a State law, we do not have the authority to prevent any action that might affect federally listed plants. In these situations, the Service hopes that private landowners will work with us voluntarily to minimize the effects of their projects to listed species. When actions involve Federal land (as with U.S. Forest Service land) or Federal funding (as may be the case with California Department of Transportation (Caltrans) activities), we work with the Federal agency involved to minimize effects to listed species. When plant species consist of very few populations and/or very small ranges, like Phlox hirsuta , recovery strategies also include collection of seed for storage in botanic gardens. This action is designed to prevent extinction of the species due to catastrophic events (such as a flood) and to provide seeds for introduction to other sites, should we find that introductions are appropriate.

Issue 9: Three commenters wanted to know the difference between Phlox hirsuta and other phloxes such as “common phlox,” P. caespitosa (tufted phlox), and P. diffusa (spreading phlox).

Service Response: The Jepson Manual, Higher Plants of California (Hickman 1993 third printing with corrections 1996), provides the technical description of differences in these species. We recognize The Jepson Manual as the most recently accepted taxonomic treatment of plants in California. The Jepson Manual is the most recent taxonomic identification key (or flora, i.e. , a treatise on the plants of an area) for plants of California, and the flora to which we refer for plant taxonomy. Earlier treatments of P. caespitosa , and its varieties, suggest it has smaller flowers than P. hirsuta . All of the treatments also describe P. caespitosa , and its varieties, as having a densely clumped (not open), tufted, or cushion-like growth form. In contrast, P. hirsuta is described as a subshrub (small shrub) having an erect stem and open branches. Please see the “Background” section of this rule for a discussion on how P. hirsuta differs from P. diffusa and other common phloxes.

In accordance with Interagency Cooperative Policy published on July 1, 1994 (59 FR 34270), we solicited formal scientific peer review and expert opinions of three independent and appropriate specialists regarding pertinent scientific or commercial data and assumptions relating to the taxonomy, population status, and supportive biological and ecological information for the proposed plant.

Only one of the three requested reviewers provided comments. This reviewer supported the listing of Phlox hirsuta and commented specifically on the rarity of P. hirsuta . The reviewer stated that a number of botanists and other professionals interested in Phlox , in addition to those mentioned in the proposed rule, have searched very carefully for P. hirsuta populations without success. The reviewer thought that finding additional sites for P. hirsuta is very unlikely.

Section 4 of the Act (16 U.S.C. 1533) and the regulations (50 CFR part 424) issued to implement the listing provisions of the Act set forth the procedures for adding species to the Federal lists. A species may be determined to be endangered or threatened due to one or more of the five factors described in section 4(a)(1). These factors and their application to Phlox hirsuta E.E. Nelson (Yreka phlox) are as follows:

A. The present or threatened destruction, modification, or curtailment of its habitat or range. The Phlox hirsuta population within the City of Yreka represents at least 18 percent, and possibly 45 percent, of occupied habitat for the species (calculated from Service records). This population is threatened by development, with the majority of the site already subdivided into lots for development (CNPS 1985; CDFG 1986). Eight of the subdivision lots support P. hirsuta ; of these eight, seven have P. hirsuta on at least 75 percent of the lot (N. Kang, in litt. 1995a). Six of the eight lots are privately owned, and two are owned by the City of Yreka. Additionally, a smaller piece of land in the same area supports P. hirsuta and is also owned by the City (N. Kang, in litt. 1995a; L. Bacon, pers. comm. 1997). The P. hirsuta occurrence within the City of Yreka has been disturbed by road construction associated with the subdivision (CNPS 1985; CDFG 1986). An unmaintained roadway bisects the occurrence and likely represents permanent destruction of habitat at the site (N. Kang, in litt. 1995a). Additional disturbance resulted from grading for a house pad on one lot in 1994; Phlox hirsuta has not reinvaded the disturbed area (N. Kang, in litt. 1995a, 1995b). For most of the lots in the subdivision, “the likely ones to be developed currently provide P. hirsuta habitat” (N. Kang, in litt. 1995a, 1995b). Because P. hirsuta plants are fairly evenly distributed across the lots, strategic placement of development in occupied habitat would not necessarily minimize impacts to the species. Additionally, over the long-term, private landowners may not maintain their properties in a manner consistent with protection of the plants and their habitat (N. Kang, in litt. 1995a). Formerly, some lots at the site were registered with The Nature Conservancy landowner contact program, but that program no longer exists (Lynn Lozier, The Nature Conservancy, pers. comm. 1997). While we are unaware of specific development plans on any lots at this time, a “for sale” sign was posted on the private property in May 1997 (K. Fuller and D. Elam, in litt. 1997).

The only other occurrence of Phlox hirsuta , located along California State Highway 3, has been disturbed in the past by logging and road construction. Although selective logging (CNPS 1985; Adams 1987) resulted in roads and bulldozer trails through the site (Adams 1987), logging is probably not a threat to P. hirsuta at this time (K. Fuller and D. Elam, in litt. 1997; B. Williams, pers. comm. 1997). Thirty years ago, the realignment of Highway 3 impacted part of this occurrence (Sharon Stacey, Caltrans, pers. comm. 1996). The area has since been designated by Caltrans as an Environmentally Sensitive Area (S. Stacey, pers. comm. 1998), which provides limited protection in that it requires acknowledgment of a sensitive species occurrence in project planning. Although road maintenance crews are to be made aware that no new ground is to be disturbed along this stretch of highway (Bob Sheffield, Caltrans, pers. comm. 1997), the portion of the occurrence within the Caltrans right-of-way could be disturbed by road maintenance (Charlotte Bowen, Caltrans, in litt. 1991). The area within the right-of-way consists of 5 small subpopulations with approximately 100 plants, occupying less than 0.8 hectare (2 ac) along 4 km (2.5 mi) of California State Highway 3. While encroaching development has been considered to be a potential threat to the plants occurring on private lands at the Highway 3 site (CNPS 1985; CDFG 1986), the threat from development at this site does not appear imminent.

B. Overutilization for commercial, recreational, scientific, or educational purposes. Overutilization is not known to be a threat to Phlox hirsuta , although it has been suggested that the species may be of interest to rock garden enthusiasts (CNPS 1977).

C. Disease or predation. Disease presents no known threat to Phlox hirsuta. Parts of the Highway 3 site have been grazed in the past, perhaps by trespassing cattle (CNPS 1985; Adams 1987). However, grazing is probably not a threat to P. hirsuta at this time (K. Fuller and D. Elam, in litt. 1997; B. Williams, pers. comm. 1997).

D. The inadequacy of existing regulatory mechanisms. The State of California Fish and Game Commission (CFGC) listed Phlox hirsuta as an endangered species under the California Endangered Species Act (CESA) (Chapter 1.5 section 2050 et seq. of the California Fish and Game Code and Title 14 California Code of Regulations 670.2). Although the “take” of State-listed plants has long been prohibited under the California Native Plant Protection Act (CNPPA) (Chapter 10 § 1908) and CESA (Chapter 1.5 section 2080), in the past these statutes have not provided adequate protection for such plants from the impacts of habitat modification or land use change. For example, under the CNPPA, after the California Department of Fish and Game notifies a landowner that a State-listed plant grows on his or her property, the statute requires only that the landowner notify the agency “at least 10 days in advance of changing the land use to allow salvage of such a plant” (CNPPA, Chapter 10 § 1913). Under recent amendments to CESA, a permit under Section 2081(b) of the California Fish and Game Code is required to “take” State-listed species incidental to otherwise lawful activities. The amendments require that impacts to the species be fully mitigated. However, these requirements have not been tested with respect to State-listed plant species, and several years will be required to evaluate their effectiveness.

CEQA requires full disclosure of potential environmental impacts of proposed projects, including impacts on State-listed plant species. Therefore, before proceeding with development of private and City of Yreka lands where Phlox hirsuta grows, the City of Yreka would require CEQA review (L. Bacon, pers. comm. 1997). The public agency with primary authority or jurisdiction over the project is designated as the lead agency and is responsible for conducting a review of the project and consulting with the other agencies concerned with the resources affected by the project. Section 15065 of the CEQA Guidelines requires a finding of significance if a project has the potential to “reduce the number or restrict the range of a rare or endangered plant or animal.” Once significant effects are identified, the lead agency may require mitigation for these effects through changes in the project or a mitigation plan. When mitigation plans are required, they often involve transplantation of the plant species to an existing or artificially created habitat, followed by destruction of the original site. Therefore, if the mitigation effort fails, the resource has already been lost. Furthermore, CEQA does not guarantee that such conservation efforts will be implemented. Finally mitigation is at the discretion of the lead agency, which may decide that overriding considerations make mitigation infeasible. In the latter case, projects that cause significant environmental damage, such as destruction of endangered species, may be approved. Protection of listed species through CEQA is, therefore, dependent upon the discretion of the agency involved.

E. Other natural or manmade factors affecting its continued existence. Phlox hirsuta is known from only two small occurrences, which occupy fewer than 121 ha (300 ac) in a restricted habitat type (serpentine soils) over a very small range (approximately 65 square-km (25 square-mi)). The combination of only two populations, small range, and restricted habitat makes the species highly susceptible to extinction or extirpation from a significant portion of its range due to random events such as fire, drought, disease, or other occurrences (Shaffer 1981, 1987; Meffe and Carroll 1994). Such events are not usually a concern until the number of populations or geographic distribution become severely limited, as is the case with Phlox hirsuta . Once the number of populations or the plant population size is reduced, the remnant populations, or portions of populations, have a higher probability of extinction from random events (Primack 1993).

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by Phlox hirsuta in determining to finalize this rule. Urbanization, inadequate State regulatory mechanisms, and extirpation from random events due to the small number of populations and small range of the species threaten P. hirsuta . The two occurrences of P. hirsuta total fewer than 121 ha (300 ac) of occupied habitat in the vicinity of the City of Yreka, Siskiyou County, California. The site within the City of Yreka is already subdivided, has been disturbed by activities associated with urbanization in the past, is situated in an area that is suitable for development, and is unprotected from this threat. In addition, both occurrences are at risk due to inadequate State regulatory mechanisms and due to potential extirpation of all or part of the occurrences due to random events. Therefore, the preferred action is to list P. hirsuta as endangered.

Alternatives to listing were considered before publication of this final rule. The other alternatives were not preferred because they would not provide adequate protection and would not be consistent with the Act. Listing Phlox hirsuta as endangered would provide Federal protection for the species and result in additional protection as outlined under the “Available Conservation Measures” section.

In the proposed rule, we indicated that designation of critical habitat was not prudent for Phlox hirsuta because of a concern that publication of precise maps and descriptions of critical habitat in the Federal Register could increase the vulnerability of this species to incidents of collection and vandalism. 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 Council v. U.S. Department of the Interior 113 F. 3d 1121 (9th Cir. 1997); Conservation Council for Hawaii v. Babbitt , 2 F. Supp. 2d 1280 (D. Hawaii 1998)). Based on the standards applied in those judicial opinions, we have reexamined the question of whether critical habitat designation for Phlox hirsuta would be prudent.

Due to the small number of populations, Phlox hirsuta is vulnerable to unrestricted collection, vandalism, or other disturbance. We remain concerned that these threats might be exacerbated by the publication of critical habitat maps and further dissemination of locational information. However, we have examined the evidence available for P. hirsuta and have not found specific evidence of taking, vandalism, collection, or trade of this species or any similarly situated species. Consequently, consistent with applicable regulations (50 CFR 424.12(a)(1)(i)) and recent case law, we do not expect that the identification of critical habitat will increase the degree of threat to this species of taking or other human activity.

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

The Final Listing Priority Guidance for FY 2000 (64 FR 57114) states, “The processing of critical habitat determinations (prudency and determinability decisions) and proposed or final designations of critical habitat will be funded separately from other section 4 listing actions and 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 the Federal Register , may now be processed separately, in which case stand-alone critical habitat determinations will be published as notices in the Federal 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 complete immediately all of the listing actions required by the Act. Deferral of the critical habitat designation for Phlox hirsuta will allow us to concentrate our limited resources on higher priority critical habitat and other listing actions, while allowing us to put in place protections needed for the conservation of P. hirsuta without further delay.

We plan to employ a priority system for deciding which outstanding critical habitat designations should be addressed first. We will focus our efforts on those designations that will provide the most conservation benefit, taking into consideration the efficacy of critical habitat designation in addressing the threats to the species and the magnitude and immediacy of those threats. We will develop a proposal to designate critical habitat for Phlox hirsuta as soon as feasible, considering our workload priorities.

Conservation measures provided to species listed as endangered 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. The Act provides for possible land acquisition and cooperation with the State and requires that recovery actions be carried out for all listed species. The protection required of Federal agencies and the prohibitions against certain activities involving listed plants are discussed, in part, below.

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered and with respect to its critical habitat, if any is being designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR Part 402. Section 7(a)(1) requires Federal agencies to use their authorities to further the purposes of the Act by carrying out programs for listed species. Section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with us.

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

Federal activities potentially affecting Phlox hirsuta include issuance of special use permits and rights-of-way. Approximately one-half of the Highway 3 occurrence of Phlox hirsuta occurs on lands managed by the U.S. Forest Service. The U.S. Forest Service would be required to consult with us if any activities they authorize, fund, or carry out may affect P. hirsuta . For example, consultations with U.S. Forest Service may be required on road maintenance and right-of-way authorizations for projects that include adjacent or intermixed private land.

Other Federal agencies that may become involved if this rule is finalized include the Federal Highway Administration through funding provided to Caltrans. In addition, when we issue a permit under section 10 of the Act for a habitat conservation plan (HCP) prepared by a non-Federal party, we must prepare an intra-Service section 7 biological opinion regarding the effects of issuance of the section 10(a) permit on affected listed plant species.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered plants. All prohibitions of section 9(a)(2) of the Act, implemented by 50 CFR 17.61 for endangered plants, apply. These prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to import or export, transport in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale in interstate or foreign commerce, or remove and reduce to possession from areas under Federal jurisdiction any such plant. In addition, the Act prohibits malicious damage or destruction on areas under Federal jurisdiction, and the removal, cutting, digging up, or damaging or destroying of such plants in knowing violation of any State law or regulation or in the course of any violation of a State criminal trespass law. Certain exceptions to the prohibitions apply to our agents and State conservation agencies.

The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of permits to carry out otherwise prohibited activities involving endangered plant species. Such permits are available for scientific purposes and to enhance the propagation and survival of the species. We anticipate that few trade permits would ever be sought or issued for this species because it is not common in cultivation or in the wild.

As published in the Federal Register on July 1, 1994 (59 FR 34272), it is our policy 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 the listing on proposed and ongoing activities within a species' range. One of the two occurrences of Phlox hirsuta is on U.S. Forest Service lands. We believe that, based upon the best available information, the following actions will not likely result in a violation of section 9, provided these activities are carried out in accordance with existing regulations and permit requirements:

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

(2) Activities on private lands that do not involve Federal agency funding or authorization on private lands, such as construction of fences, livestock-water ponds, and livestock grazing, unless such activities are carried out in knowing violation of State law or regulation or in the course of any violation of a State criminal trespass law.

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

(1) Unauthorized collecting of the species on Federal lands, and

(2) Interstate or foreign commerce and import/export without previously obtaining an appropriate permit. Permits to conduct activities are available for purposes of scientific research and enhancement of propagation or survival of the species.

Questions regarding whether specific activities will constitute a violation of section 9 should be directed to the Field Supervisor of the Service's Sacramento Fish and Wildlife Office (see ADDRESSES section).

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

This rule does not contain any new collections of information other than those already approved under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , and assigned Office of Management and Budget clearance number 1018-0094. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless it displays a currently valid control number. For additional information concerning permit and associated requirements for endangered plant species, see 50 CFR 17.62 and 17.63.

A complete list of all references in this document is available upon request from the Field Supervisor, Sacramento Fish and Wildlife Office (see ADDRESSES section).

Author: The primary authors of this final rule are Diane Elam and Kirsten Tarp, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office (see ADDRESSES section) (telephone 916/414-6645).

Section 101(a)(5)(A) of the Marine Mammal Protection Act (Act) gives the Secretary of the Interior (Secretary) through the Director of the U.S. Fish and Wildlife Service (We) the authority to allow the incidental, but not intentional, taking of small numbers of marine mammals in response to requests by U.S. citizens (you) [as defined in 50 CFR 18.27(c)] engaged in a specified activity (other than commercial fishing) in a specific geographic region. We may grant permission for incidental takes for periods of up to 5 years. On January 28, 1999, we published in the Federal Register (64 FR 4328) regulations to allow such incidental takes in the Beaufort Sea and adjacent northern coast of Alaska for the period January 28, 1999, through January 30, 2000. These regulations were based on the findings for the 1-year period that the effects of oil and gas related exploration, development, and production activities in the Beaufort Sea and adjacent northern coast of Alaska would have a negligible impact on polar bears and Pacific walrus and their habitat and no unmitigable adverse impact on the availability of these species for subsistence uses by Alaska Natives, if certain conditions were met.

Our present action reinstates the current regulations that expired on January 30, 2000, which are located at 50 CFR Part 18, Subpart J, effective through March 31, 2000. This rulemaking was intended to avoid a lapse in these regulations while we considered public comments on our proposed regulations published December 9, 1999 (64 FR 68973), the comment period for which closed on January 10, 2000. Those proposed regulations would allow the incidental, unintentional take of small numbers of polar bears and Pacific walrus for a 3-year period during year-round oil and gas activities, including incidental takes resulting from the construction and operation of a subsea pipeline associated with the offshore Northstar facility.

We are reinstating our now expired regulations through March 31, 2000, to ensure that we have adequate time to thoroughly review and respond to public input on our December 9, 1999, proposed rule. We believe it is important to maintain the coverage and protection for polar bears and Pacific walrus provided by those regulations. Existing Letters of Authorization, which require monitoring and reporting of all polar bear interactions as well as site-specific mitigation measures, will be reissued.

Prior to issuing regulations at 50 CFR Part 18, Subpart J, we evaluated the level of industrial activities, their associated impacts to polar bears and Pacific walrus, and their effects on the availability of these species for subsistence use. Based on the best scientific information available and the results of 6 years of monitoring data, we found that the effects of oil and gas related exploration, development, and production activities in the Beaufort Sea and the adjacent northern coast of Alaska would have a negligible impact on polar bears and Pacific walrus and their habitat. We also found that the activities as described would have no unmitigable adverse impacts on the availability of these species for subsistence use by Alaska Natives.

The regulations that we are reinstating include permissible methods of taking and other means to ensure the least adverse impact on the species and its habitat and on the availability of these species for subsistence uses along with other relevant sections. This includes requirements for monitoring and reporting. The geographic coverage is the same as the regulations we issued on January 28, 1999. All existing Letters of Authorization will be reissued.

This rulemaking covers activities as described in the existing rule issued on January 28, 1999, that we expect to occur during the brief duration of this rule. These activities include exploration activities such as geological and geophysical surveys, which include geotechnical site investigation, reflective seismic exploration, vibrator seismic data collection, air gun and water gun seismic data collection, explosive seismic data collection, geological surveys, and drilling operations. Development and production activities located on the North Slope along the shores of the Beaufort Sea are included. The activities are limited to those that occur during the winter. The level of activity expected is similar to that as occurred last winter under existing regulations that we issued on January 28, 1999. This region contains more than 11 separate oil fields. All of the fields lie within the range of polar bears.

Winter oil and gas activities may affect polar bears. Polar bears that continue to move over the ice pack through the winter are likely to encounter Industry activities. Curious polar bears are likely to investigate artificial or natural islands where drilling operations occur. Any on-ice activity creates an opportunity for interactions between bears and industry. Offshore drill sites may modify habitat and attract polar bears to artificial open leads downwind from the activity. Polar bears attracted to these open water leads create the potential for Industry/polar bear encounters. Winter seismic activities have a potential of disturbing denning females, which are sensitive to noise disturbances. Prior to initiating surveys, industry consults with us through applications for Letters of Authorization. Specific terms of a Letter of Authorization require that industrial activities avoid known or observed dens by 1 mile through cooperative operating procedures. In addition, Letters of Authorization require development of polar bear interaction plans for each operation. Industry personnel participate in training programs while on site to minimize detrimental effects on personnel and polar bears. During the past 6 years, Letter of Authorization conditions have limited the time and location of Industry activities in known polar bear denning habitat. In addition to avoiding known den locations of radio collared polar bears, Industry has conducted aerial survey overflights of potential denning habitat using forward looking infrared thermal sensors to detect dens located beneath snow. A number of den locations have been identified prior to Industry activities, avoiding potential disturbance. Regarding polar bear/human interactions, Industry has taken proactive steps to minimize the aspect of scent attraction to sites through proper disposal of garbage and waste products. Yet a number of potentially dangerous encounters have occurred in recent years. These encounters have not resulted in injury to polar bears or humans. A degree of credit for this success rate is attributed to enhanced employee awareness and proper responses to polar bear encounters brought about through materials contained within polar bear interaction plans.

Pacific walrus rarely use the geographical area during the preferred open water season and do not occur in the area during the winter including the February and March period of the final regulations. Consequently, no direct or cumulative effect of Industry activities to Pacific walrus are expected.

Polar bears may be hunted in February and March by residents of Barrow, Nuiqsut, and Kaktovik, although the numbers of bears taken in mid-winter months is typically less than during the spring or fall seasons. Hunter success varies from year to year and with seasonal variations within a year. As required in the existing regulations, Industry is required to work through plans of cooperation with potentially affected subsistence communities to minimize and mitigate for potential impact on the availability of polar bears for subsistence uses, where necessary. We do not expect conflicts between subsistence users and Industry during the February and March term of these regulations. Previously, we have not noted conflicts between subsistence users and Industry under the existing regulations.

Pacific walrus are not present and thus are unavailable for harvest during the winter in this area. No direct or cumulative effect on their availability for take for subsistence use would occur from industrial activities.

Based on the previous discussion of direct, indirect, and cumulative effects, and 6 years of results of prior monitoring programs, we make the following findings regarding this final rulemaking. We find, based on the best scientific evidence available and the results of 6 years' monitoring data, that the effects of oil and gas exploration, development, and production activities for the period February 3, 2000 through March 31, 2000, in the Beaufort Sea and adjacent northern coast of Alaska will have a negligible impact on polar bears and Pacific walrus and their habitat, and that there will be no unmitigable adverse impacts on the availability of these species for take for subsistence uses by Alaska Natives if conditions contained within Letters of Authorization are met. Consistent with our regulations at 50 CFR Part 18, Subpart J, issued on January 28, 1999, our findings apply to exploration, development, and production related to oil and gas activities, excluding any construction and production activities associated with subsea pipelines at the Northstar facility.

The proposed rule and request for comments was published in the Federal Register (65 FR 105) on January 3, 2000. The closing date for comments was January 13, 2000. We received 2 comments in the same letter, as follows:

Comment: the public comment period was insufficient and should be extended 30 days.

Response: We acknowledge that 10 days is a brief comment period. Nonetheless, the short comment period was considered unavoidable give the timeframe for publishing a rule intended to extend existing regulations at 50 CFR part 18, subpart J by 61 days through March 31, 2000, thereby avoiding a lapse in polar bear and Pacific walrus protections. Reinstating the current regulations will provide sufficient time to evaluate public comments received on our proposed 3 years regulations (64 FR 68973) published on December 9, 1999, the comment period for which closed on January 10, 2000, for the incidental take of polar bears and Pacific walrus in the Beaufort Sea region. The primary benefit of maintaining regulations while we continue our review is to ensure that mitigation and monitoring requirements remain in place for the ongoing activities in the region. However, because existing regulations at 50 CFR part 18, subpart J expired before this final rule could be published, this final rule now reinstates those regulations effective on date of publication through March 31, 2000.

Comment: The expected level of activity is much greater than in previous years and significant harassment could occur in 60 days.

Response: We do not anticipate a significant increase in activity in the region that would cause a greater than negligible effect on the polar bear and Pacific walrus populations, or an unmitigable adverse impact on the availability of these species for taking for subsistence uses by Alaska Natives. Monitoring of the activity associated with the Northstar Project during the previous year's construction season reported minimal interaction with polar bears. Based on polar bear distribution and movements during mid-winter (the period of the 2 month extension), we do not expect significant differences in the rate of encounters as compared to last year.

Environmental documents prepared for our regulations at 50 CFR Part 18, Subject J concluded in a finding of no significant impact. These final regulations cover the same activities as analyzed under the current environmental assessment and are therefore consistent with those findings and the requirements of the National Environmental Policy Act.

This document has not been reviewed by the Office of Management and Budget under Executive Order 12866 (Regulatory Planning and Review). This rule will not have an effect of $100 million or more on the economy; will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; does not alter the budgetary effects or entitlement, grants, user fees, or loan programs or the rights or obligations of their recipients; and does not raise novel legal or policy issues. The final rule is not likely to result in an annual effect on the economy of $100 million or more. Expenses will be related to, but not necessarily limited to, the development of applications for regulations and Letters of Authorization (LOA), monitoring, record keeping, and reporting activities conducted during Industry oil and gas operations, development of polar bear interaction plans, and coordination with Alaska Natives to minimize effects of operations on subsistence hunting. Compliance with the rule is not expected to result in additional costs to Industry that it has not already been subjected to for the previous 6 years. Realistically, these costs are minimal in comparison to those related to actual oil and gas exploration, development, and production operations. The actual costs to Industry to develop the petition for promulgation of regulations (originally developed in 1997) and LOA requests probably does not exceed $500,000 per year, short of the “major rule” threshold that would require preparation of a regulatory impact analysis. As is presently the case, profits would accrue to Industry; royalties and taxes would accrue to the Government; and the rule would have little or no impact on decisions by Industry to relinquish tracts and write off bonus payments.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The rule is also not likely to result in a major increase in costs or prices for consumers, individual industries, or government agencies or have significant adverse effects on competition, employment, productivity, innovation, or on the ability of U.S.-based enterprises to compete with foreign-based enterprises in domestic or export markets.

We have also determined that this final rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Oil companies and their contractors conducting exploration, development, and production activities in Alaska have been identified as the only likely applicants under the regulations. These potential applicants have not been identified as small businesses. The analysis for this rule is available from the person in Alaska identified above in the section, FOR FURTHER INFORMATION CONTACT.

This final rule is not expected to have a potential takings implication under Executive Order 12630 because it would authorize the incidental, but not intentional, take of polar bear and walrus by oil and gas industry companies and thereby exempt these companies from civil and criminal liability.

This final rule also does not contain policies with Federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132. Coordination with appropriate Alaska State agencies has occurred, and necessary permits have been received to ensure State consistency. In addition, extensive coordination with the North Slope Borough and other Alaska Native organizations has occurred concerning this issue. In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, et seq. ), this rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. The Service has determined and certifies pursuant to the Unfunded Mandates Reform Act that this rulemaking will not impose a cost of $100 million or more in any given year on local or State governments or private entities. This rule will not produce a Federal mandate of $100 million or greater in any year, i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

The Departmental Solicitor's Office has determined that these regulations meet the applicable standards provided in Sections 3(a) and 3(b)(2) of Executive Order 12988.

The information collection contained in 50 CFR part 18, subpart J has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ) and assigned clearance number 1018-0070. The OMB approval of our collection of this information will expire in October 2001. Section 18.129 contains the public notice information—including identification of the estimated burden and obligation to respond—required under the Paperwork Reduction Act. Information from our Marking, Tagging, and Reporting Program is cleared under OMB Number 1018-0066 pursuant to the Paperwork Reduction Act. For information on our Marking, Tagging, and Reporting Program, see 50 CFR 18.23(f)(12).

The Administrative Procedure Act, 5 U.S.C. 553(d), generally requires that the effective date of a final rule not be less than 30 days from publication date of the rule. Section 553(d)(1) provides that the 30 day period may be waived if the rule grants or recognizes an exemption or relieves a restriction. Since this rule relieves certain restrictions concerning take of marine mammals, and the previous exemption has expired, we have determined that this final rule should be made effective upon the date of publication.

The President signed the AFA into law on October 20, 1998, as part of the Omnibus Appropriations Bill for fiscal year 1999 (Pub. L. 105-277). The AFA required the Federal Government to pay, not later than December 31, 1998, $90 million to the owners of nine large catcher processors harvesting OC pollock. In return, eight of these vessels had to stop all commercial fishing in the EEZ immediately and be scrapped by December 31, 2000. Although the ninth vessel did not have to be scrapped, it also had to stop all commercial fishing in the EEZ immediately and the owner had to certify that neither the owner nor anyone who purchased the vessel from the owner intended to use the vessel outside the EEZ to harvest any fish that also occur within the EEZ.

On December 30, 1998, NMFS paid the required amount to the owners of these vessels. In accordance with the AFA, NMFS paid $15 million of this amount from an AFA appropriation and the remaining $75 million from the proceeds of a fishing capacity reduction loan under sections 1111 and 1112 of Title XI of the Merchant Marine Act, 1936 (46 U.S.C. App. 1279f and g) (Title XI). The AFA requires the loan to be repaid by fees under section 312(d)(2)(C) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1861a(d)(2)(C)) (Magnuson-Stevens Act).

Upon payment of the $90 million, NMFS revoked all nine vessels' domestic fishing permits, one owner provided the certificate required for the ninth vessel, and the other owners began preparing for scrapping the remaining eight vessels. All eight vessels are presently undergoing scrapping. Scrapping is scheduled to be completed before December 31, 2000.

Under the AFA and section 312(d)(2)(C) of the Magnuson-Stevens Act, all vessel owners harvesting IC pollock (fish sellers) are required to pay the fee and all parties making the first ex-vessel purchase of IC pollock (fish buyers) are required to collect the fee and account for and forward the fee revenue to NMFS for the purpose of repaying the loan. The fish sellers pay, and the fish buyers collect, the fee when the fish buyers deduct the fee from the ex-vessel value of all IC pollock before paying the net ex-vessel value of the fish to the fish sellers.

The fee is six-tenths (0.6) of one cent for each pound, round-weight, of all IC pollock that fish sellers land. The AFA provides that fee payment and collection shall begin on or after January 1, 2000. Under this final rule, the fee must be paid and collected for all landed fish that were harvested after February 10, 2000.

Although the loan's scheduled maturity is 30 years, the AFA also provides that fee payment and collection “shall * * * continue without interruption until such loan is fully repaid * * *” (section 207(b)(2)). Whether the loan is repaid before, at, or after its scheduled maturity depends on when fee payment begins, the rate at which loan principal bears interest, annually determined total allowable pollock catches after December 31, 1999, and IC pollock allocations after December 31, 2004.

NMFS has determined the loan's principal will bear interest under the statutory formula at the rate of 7.09 percent per annum. Under the AFA, the loan's interest rate is 2 percent plus the percentage rate of interest that the U.S. Treasury charges NMFS for the $75 million that NMFS borrowed from the U.S. Treasury. The latter percentage rate is 5.09 percent.

The other variables controlling the time required to fully repay the loan are not presently determinable. Several assumptions are, consequently, necessary to project how long repayment will take. The first assumption involves the time at which fee payment begins. For projection purposes, NMFS assumes that the fee will be paid on all IC pollock harvested in calendar year 2000 and in each year thereafter until the loan is fully repaid. The second assumption involves the annual total allowable catch (TAC) of pollock after December 31, 1999, which may vary from year to year. For projection purposes, NMFS assumes that the average annual TAC of pollock after December 31, 1999, will be the same as the average annual TAC of pollock over the 14-year period from the beginning of 1985 through end of 1998. This was 2.769 billion pounds, which equals 1.256 million metric tons. The third assumption involves IC pollock allocations after December 31, 2004. This depends on whether the North Pacific Fishery Management Council maintains IC pollock allocations after December 31, 2004, at the same level as IC pollock allocations under the AFA from January 1, 1999, to December 31, 2004. The AFA level is 42 percent of TAC. For the purposes of this projection, NMFS assumes that IC pollock allocations after December 31, 2004, will be at the same level as IC pollock allocations from January 1, 1999, to December 31, 2004.

Under these 3 assumptions, the loan will be repaid in 21 years. This is 9 years less than the loan's scheduled maturity. Actual conditions different than those NMFS assumes for the purpose of this projection may, however, cause loan repayment to occur sooner or later than here projected. Future TAC may be the biggest determinate of the time actually required to repay this loan.

Under this rule fee payment and collection begin on February 10, 2000 and continue without interruption until the loan is fully repaid, without regard to whether this is a period longer or shorter than the loan's scheduled maturity of 30 years.

On December 30, 1998, NMFS disbursed all $75 million of the loan's original principal amount. Interest at the rate of 7.09 percent per annum has been accruing since that date. NMFS will apply all fee receipts, first, to the payment of accrued interest and, second, to the reduction of loan principal.

Section 312(b)-(e) of the Magnuson-Stevens Act provides for fishing capacity reduction programs, which may be funded by loans under sections 1111 and 1112 of Title XI. Although the IC pollock loan is authorized by the AFA rather than by section 312(b)-(e) of the Magnuson-Stevens Act, the AFA specifies that the IC pollock loan is repayable under section 312(d)(2)(C) of the Magnuson-Stevens Act. NMFS has already proposed a framework rule for implementing section 312(b)-(e) of the Magnuson-Stevens Act (64 FR 6854, February 11, 1999). The proposed framework rule would establish detailed provisions for paying, collecting, disbursing, accounting for, and reporting about fees repaying fishing capacity reduction loans.

NMFS had hoped to implement the fishing capacity reduction framework rule before NMFS had to provide for payment and collection of the IC pollock fee. NMFS intended to provide for payment and collection of the IC pollock fee by making the loan subject to the framework rule provisions about fee payment and collection. Because NMFS has not yet adopted and promulgated the framework rule, however, NMFS must now separately provide for payment and collection of the IC pollock fee by adding a temporary subpart G to 50 CFR part 679 (subpart G). NMFS has drawn most of the procedural provisions of subpart G from the proposed framework rule. After a framework rule is adopted and promulgated, NMFS will revoke subpart G and concurrently provide, by a program implementation rule under the framework rule, for the continuing payment and collection of the IC pollock fee.

This action adds subpart G to 50 CFR part 679 establishing regulations to implement an inshore fee system for IC pollock. The proposed regulations which preceded this action were published on December 21, 1999 (64 FR 71396-71400), with a public comment period that ended on January 5, 2000.

NMFS received comments from 2 entities. The following summarizes the comments and gives NMFS' responses.

Comment 1 : One comment questioned the necessity of setting up a separate account for the collected funds and suggested that fee payments be made from a regular corporate account.

Response : This is the first loan that will be repaid from fees generated by a fishery resource. We believe that it is important to the fish sellers who will repay this loan that we maintain the credibility of the collection process. Separate accounts are preferable because the fee receipts can be easily segregated from the fish buyer's normal cash flows. We also want to reduce the administrative costs of the loan collection process and separate accounts will make the audit process simpler and less expensive.

Comment 2 : One comment asked if it would be possible for NMFS to be authorized to make regular wire transfer withdrawals from the separate account instead of the company sending in a check each month.

Response : We do not believe it is possible to set up a system whereby NMFS could make regular wire transfer withdrawals for several reasons. The amounts deposited in the accounts will differ from month to month. If the account was simply swept to zero, there would be no way to differentiate between funds deposited and interest earned. The contractual mechanism we set up with the bank would have to be turned on or off as the seasons begin and end. We would also encounter administrative difficulties in making separate contractual agreements with the different banks used by the companies. Finally, the rule requires the fish buyer to provide a settlement sheet tied to the amount of money transferred. This would not be possible if the account was periodically swept.

Comment 3 : One comment questioned whether deposits into the separate account have to be made on a weekly basis or could be made biweekly or monthly.

Response : As we discussed in our first response, it was incumbent upon us to set up a credible system to assure the fish sellers that their payments were applied against the loan accurately and on a timely basis. One way of achieving this credibility was to set up a system that segregates the collected funds from the fish buyer's normal cash flow. Ideally, such a system should require daily deposits. We attempted to be sympathetic to operational problems daily deposits would create for the fish buyers by allowing weekly deposits.

Comment 4 : One comment suggested a 5-day grace period before late payment penalties would be imposed.

Response : NMFS has amended § 679.64 of the final rule to allow a 5-day grace period before late charges will accrue.

Comment 5 : One comment suggested a 2-week grace period for submission of the annual report.

Response : NMFS has amended section 679.63 of the final rule by making the due date January 15, thereby providing a 2-week grace period after year end.

Comment 6 : One comment questioned the meaning of the term “business week” for fee collection purposes, since the fishing industry does not operate on a normal Monday to Friday “business week”.

Response : NMFS has added a definition of “business week” in § 679.60 which designates Friday as the end of a business week.

Comment 7 : One comment involved the effective date of the fee collection and suggested that fees should be paid for all inshore pollock harvested in 2000, regardless of when the fee system becomes effective.

Response : NMFS is not authorized to collect any fees until this rule is finalized. Although we made our best effort to have the system in place before the FY 2000 season starts, we were unable to do so.

Comment 8 : One comment sought the clarification of the rule to indicate that the fee and any future appropriations would be the exclusive source of loan repayment.

Response : The proposed rule states that the fee shall be the exclusive source of loan prepayment. Future appropriations could over ride this.

Comment 9 : One comment suggested that any late charge or penalty should be the responsibility of the fish buyer.

Response : NMFS agrees that the fish seller should not be obligated for any late charges and has added language in section 679.64 to clarify this point.

Comment 10 : One comment objected to the possibility that fish buyers may earn interest on fees paid by fish sellers.

Response : State law may or may not permit such accounts to earn interest. If the accounts can earn interest, the time limitations on transferring the funds to the Government's lock box will allow for minimal interest accrual. Nevertheless, the fish buyers collecting will incur administrative expenses in the process. Any interest earned by fish buyers would help defray the administrative costs incurred.

The following sections of this final rule revise the proposed rule:

(1) Section 679.60 . This section has been amended to include a definition of “business week” which designates Friday as the end of a business week.

(2) Section 679.61 . This section is revised to state the loan's actual interest rate.

(3) Section 600.63 . This section is revised to change the due date for the annual report from December 31 to January 15, thereby effectively providing a 2-week grace period for submission of the annual report.

(4) Section 679.64 . This section is revised to provide for a 5-day grace period before late charges will accrue and to clarify that fish sellers should not be obligated for any late charges.

The final rule further revises the proposed rule to increase brevity, clarity, accuracy, and/or sufficiency.

The Assistant Administrator for Fisheries (AA), NMFS, determined that this final rule is consistent with the AFA, the Magnuson-Stevens Act, Title XI, and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS prepared a Final Regulatory Flexibility Analysis (FRFA) describing the impact of the action on small entities. In summary, the FRFA states that the rule would apply to about 100 fish sellers and about eight fish buyers. All of the fish sellers are small entities; none of the fish buyers are. The FRFA indicates that the average annual fee expense for each fish seller would likely be about $60,000. Recordkeeping and reporting requirements would fall primarily on the fish buyers, who collect the fee. The estimated annual compliance cost to fish buyers is about $5,568 per fish buyer. Several minimal recordkeeping and reporting requirements also apply to fish sellers. A fish seller must, for example, report to NMFS if a fish buyer refuses to collect the fee. The estimated compliance cost of this requirement is about $25 per report. In specific and limited circumstances when a fish seller becomes a de facto fish buyer for recordkeeping and reporting requirements, the estimated compliance cost is the same as a fish buyer's compliance cost. The Paperwork Reduction Act (PRA) discussion further details these costs. This final rule does not duplicate or conflict with any other Federal rules of which NMFS is aware.

In the FRFA, NMFS considered two alternatives that might have lessened the economic impact on small entities. These alternatives were not collecting the fee and delaying fee collection. Not collecting the fee would both cost the Nation $75 million and violate the AFA. Delaying fee collection would increase the ultimate cost to fish sellers because interest would continue to accrue on an unreduced $75 million principal balance. It would also prolong the time required for fish sellers to repay the loan because the AFA requires that the fee system remain in effect until the loan is fully repaid. The FRFA further discusses these alternatives and their economic impact on IC pollock fish sellers and fish buyers. Although no comments on the IRFA were received, public comments led to changes from the proposed rule that we believe will benefit affected entities, e.g., grace periods for submission of late charges and the annual report.

The AA determined that there is good cause to waive the 30-day delay in effectiveness for this rule under 5 U.S.C. 553 (d)(3). While the AFA stipulates that an inshore pollock fee collection system be established by January 1, 2000, or thereafter, it is important to begin collecting the fee as early in the fishing season (which begins January 20, 2000) as possible, to avoid confusion, to treat all landings similarly, and to minimize the accumulation of interest on the $75 million loan. Therefore, the rule must be in effect as soon as practicable. NMFS believes that persons needing to comply with this rule should be afforded 7 calendar days to open accounts and otherwise prepare for the fee collection. The affected inshore fleet has been aware of the imposition of this fee in exchange for the buyout of certain factory trawlers for an allocation of catch since October 1998 when the AFA was enacted. Delaying this rule beyond 7 days after publication would be contrary to the public interest and unnecessary.

Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the PRA requirements unless that collection of information displays a currently valid OMB Control Number.

This final rule contains collection of information requirements subject to the PRA that have been approved by OMB under OMB Control Number 0648-0376. This PRA approval occurred in connection with proposal of the framework rule for implementing section 312(b)-(e) of the Magnuson-Stevens Act, including a collection of information burden for fee payment, collection, disbursement, accounting, and reporting under section 312(d)(2)(C) of the Magnuson-Stevens Act. The AFA provides that payment and collection of the IC pollock fee shall be in accordance with 312(d)(2)(C) of the Magnuson-Stevens Act.

The estimated response times for this collection of information are: 10 minutes per fishing trip to maintain records on transactions, 2 hours per fish buyer's monthly report, 4 hours per fish buyer's annual report, and 2 hours per fish buyer's or fish seller's report about fish sellers who refuse to pay, or fish buyers who refuse to collect, the fee.

These estimated response times include the time needed for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and revising the collection of information.

Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to NMFS (see ADDRESSES ) and to OMB (see ADDRESSES ).

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

The interim 2000 pollock TAC in Statistical Area 620 outside the Shelikof Strait conservation area as amended by the emergency interim rule implementing Steller sea lion protection measures for the pollock fisheries off Alaska (65 FR 3892, January 25, 2000) is 3,252 metric tons (mt), determined in accordance with § 679.20(c)(2)(i).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the interim TAC of pollock in Statistical Area 620 outside the Shelikof Strait conservation area will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,752 mt, and is setting aside the remaining 500 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 620 outside the Shelikof Strait conservation area in the GOA.

Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).

This action responds to the best available information recently obtained from the fishery. It must be implemented immediately to prevent overharvesting the seasonal allocation of pollock in Statistical Area 620 outside the Shelikof Strait conservation area. Providing prior notice and an opportunity for public comment is impracticable and contrary to the public interest. Further delay would only result in overharvest. NMFS finds for good cause that the implementation of this action should not be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

This action is required by § 679.20 and is exempt from review under E.O. 12866.

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

In accordance with § 679.20(a)(5)(i)(C)(2), § 679.20 (a)(5)(i)(D)( 3 ), and the revised interim 2000 TAC amounts for pollock in the Bering Sea subarea (65 FR 4520, January 28, 2000) the A season allocation of TAC specified to the sector of the inshore component fishing independently of a cooperative for harvest within the SCA is 5,027 metric tons (mt).

In accordance with § 679.22(a)(11)(iv)(A) and (D)( 2 ) the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the A season allocation of pollock TAC specified to the inshore sector fishing for pollock independently of a cooperative for harvest within the SCA will be reached. The Regional Administrator has estimated that 1,000 mt is likely to be harvested by catcher vessels less than or equal to 99 ft LOA fishing independently of a cooperative during the remainder of the A season and is reserving that amount to accommodate fishing by such vessels after the closure of the SCA to vessels greater than 99 ft LOA fishing independently of a cooperative.

Consequently, NMFS is prohibiting directed fishing for pollock by vessels greater than 99 ft LOA fishing independently of a cooperative that are catching pollock for processing by the inshore component in the SCA, as defined at § 679.22(a)(11)(iv).

Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).

This action responds to the best available information recently obtained from the fishery. It must be implemented immediately in order to prevent exceeding the A season allocation of pollock TAC specified to the sector fishing independently of a cooperative for harvest within the SCA. A delay in the effective date is impracticable and contrary to the public interest. Further delay would result in noncompliance with reasonable and prudent management measures implemented to promote the recovery of the endangered Steller sea lion. NMFS finds for good cause that the implementation of this action can not be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

This action is required by § 679.22 and is exempt from review under E.O. 12866.

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

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the ITAC for non-jig gear Atka mackerel in the Eastern Aleutian District and the Bering Sea subarea will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 6,653 mt, and is setting aside the remaining 500 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance soon will be reached. Consequently, NMFS is prohibiting directed fishing for Atka mackerel in the Eastern Aleutian District and the Bering Sea subarea of the BSAI.

Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).

This action responds to the ITAC limitations and other restrictions on the fisheries established in the Interim 2000 Harvest Specifications for Groundfish for the BSAI. It must be implemented immediately to prevent overharvesting the 2000 ITAC of Atka mackerel in the Eastern Aleutian District and the Bering Sea subarea of the BSAI. A delay in the effective date is impracticable and contrary to the public interest. Further delay would only result in overharvest. NMFS finds for good cause that the implementation of this action should not be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

This action is required by § 679.20 and is exempt from review under E.O. 12866.

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

The interim 2000 pollock TAC in Statistical Area 610 as amended by the emergency interim rule implementing Steller sea lion protection measures for the pollock fisheries off Alaska (65 FR 3892, January 25, 2000) is 5,465 metric tons (mt), determined in accordance with § 679.20(c)(2)(i).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the interim TAC of pollock in Statistical Area 610 will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 4,965 mt, and is setting aside the remaining 500 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 610 of the GOA.

Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).

This action responds to the best available information recently obtained from the fishery. It must be implemented immediately to prevent overharvesting the seasonal allocation of pollock in Statistical Area 610. Providing prior notice and an opportunity for public comment is impracticable and contrary to the public interest. Further delay would only result in overharvest. NMFS finds for good cause that the implementation of this action should not be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

This action is required by § 679.20 and is exempt from review under E.O. 12866.