The Franklin, PA, nonappropriated fund (NAF) Federal Wage System (FWS) wage area is presently composed of one survey county, Franklin County, and one area of application county, Blair County, PA. Under section 532.219(b) of title 5, Code of Federal Regulations, NAF wage areas are established when there are a minimum of 26 NAF wage employees in the survey area, the local activity has the capability to host annual local wage surveys, and there are within the survey area a minimum of 1,800 private enterprise employees in establishments within survey specifications. Although there are approximately 26 NAF FWS employees stationed in the Franklin wage area, downsizing at the Franklin, PA, wage area's host activity, Letterkenny Army Depot, left the Department of Defense (DOD) without an activity in the survey area with the capability to conduct local NAF wage surveys in the wage area. DOD recommended that the Office of Personnel Management (OPM) abolish the Franklin, PA, NAF wage area, and redefine its counties as area of application counties to the Cumberland, PA, NAF wage area. The Cumberland, PA, wage area will be composed of one survey county, Cumberland County, PA, and two area of application counties, Blair and Franklin Counties, PA.

When defining NAF wage areas, OPM evaluates several factors under 5 CFR 532.219. OPM considers the following criteria when defining NAF wage area boundaries:

(i) Proximity of largest activity in each county;

(ii) Transportation facilities and commuting patterns; and

(iii) Similarities of the counties in :

(A) Overall population;

(B) Private employment in major industry categories; and

(C) Kinds and sizes of private industrial establishments.

For Franklin County, the closest major Federal installation to Letterkenny Army Depot is Carlisle Barracks in Cumberland, PA. Letterkenny Army Depot is approximately 50 km (31 miles) from Carlisle Barracks. Commuting patterns indicate that approximately 5 percent of the Franklin County, PA, resident workforce commutes into Cumberland County, PA. Transportation facilities consist of major Interstate and State highways and do not favor one county more than another. Also, a review of the similarities of the counties in terms of overall population, employment, and kinds and sizes of industrial establishments does not favor one county more than another.

For Blair County, the closest major Federal installation to the Department of Veterans Affairs Medical Center, Altoona, is the U.S. Army Support Element in Allegheny County, PA. The VA Medical Center is approximately 175 km (109 miles) from the U.S. Army Support Element. However, the VA Medical Center is approximately 190 km (118 miles) from Carlisle Barracks. Commuting patterns were indeterminate. Transportation facilities consist of major Interstate and State highways and do not favor one county more than another.

Also, a review of the similarities of the counties in terms of overall population, employment, and kinds and sizes of industrial establishments did favor Cumberland County, PA. Therefore, OPM finds that Blair County best fits with Cumberland County because the proximity and commuting patterns criteria offered no convincing evidence for combining Blair County with the Allegheny wage area, but demographic and economic statistics show that Blair County is more similar to the Cumberland, PA, wage area.

Based on an analysis of these regulatory criteria, OPM is abolishing the Franklin, PA, NAF FWS wage area and redefining its counties as area of application counties to the Cumberland, PA, NAF FWS wage area. FWS employees remaining in the Franklin wage area will be transferred to the Cumberland, PA, wage area schedule on the first day of the first applicable pay period beginning on or after March 16, 2000. The Federal Prevailing Rate Advisory Committee, the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, has reviewed and concurred by consensus with these changes.

Pursuant to section 553(b)(3)(B) of title 5, United States Code, I find that good cause exists for waiving the general notice of proposed rulemaking. Also, pursuant to 5 U.S.C. 553(d)(3), I find that good cause exists for making this rule effective in less than 30 days. The notice is being waived and the regulation is being made effective in less than 30 days because of the need to transfer the remaining NAF FWS employees in Franklin and Blair Counties to a continuing wage area as soon as possible.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because it will affect only Federal agencies and employees.

The Lebanon, PA, nonappropriated fund (NAF) Federal Wage System (FWS) wage area is presently composed of one survey county, Lebanon County, and one area of application county, Columbia County, PA. Under section 532.219(b) of title 5, Code of Federal Regulations, NAF wage areas are established when there are a minimum of 26 NAF wage employees in the survey area, the local activity has the capability to host annual local wage surveys, and there are within the survey area a minimum of 1,800 private enterprise employees in establishments within survey specifications. There are approximately 22 NAF FWS employees stationed in Lebanon County. Downsizing at the Lebanon, PA, wage area's host activity, Fort Indiantown Gap, left the Department of Defense (DOD) without an activity in the survey area with the capability to conduct local NAF wage surveys in the wage area. DOD recommended that the Office of Personnel Management (OPM) abolish the Lebanon, PA, NAF wage area, redefine Lebanon County, PA, as an area of application county to the York, PA, NAF wage area, and remove Columbia County, PA, as part of an NAF wage area.

Under section 5343(a)(1)(B)(i) of title 5, United States Code, NAF wage areas “shall not extend beyond the immediate locality in which the particular prevailing rate employees are employed.” There are no longer any NAF FWS employees stationed in Columbia County, PA. Therefore, Columbia County, PA, should not be defined as part of an NAF wage area. However, Lebanon County, PA, continues to have NAF FWS employment in the county and needs to be defined to an NAF wage area. Therefore, the York, PA, NAF wage area will be composed of one survey county, York County, PA, and one area of application county, Lebanon County, PA.

When defining NAF wage areas, OPM evaluates several factors under 5 CFR 532.219. OPM considers the following criteria when defining NAF wage area boundaries:

(i) Proximity of largest activity in each county;

(ii) Transportation facilities and commuting patterns; and

(iii) Similarities of the counties in:

(A) Overall population;

(B) Private employment in major industry categories; and

(C) Kinds and sizes of private industrial establishments.

A review of these criteria produced mixed findings. The closest major Federal installation to Fort Indiantown Gap is the Defense Distribution Center in York, PA. Fort Indiantown Gap is approximately 42 km (26 miles) from the Defense Distribution Center. Commuting patterns indicate that approximately 2 percent of the Lebanon County, PA, resident workforce commutes to Cumberland County, PA, while less than 1 percent commutes to York County, PA. Transportation facilities consist of major Interstate and State highways and do not favor one county more than another. Also, a review of the similarities of the counties in terms of overall population, employment, and kinds and sizes of industrial establishments revealed that Lebanon County is most similar to Frederick County, MD.

Based on an analysis of these regulatory criteria, OPM finds that Lebanon County should be defined to the York, PA, NAF wage area. OPM proposes to abolish the Lebanon, PA, NAF FWS wage area, redefine Lebanon County as an area of application county to the York, PA, NAF FWS wage area, and remove Columbia County, PA, as part of an NAF wage area. FWS employees remaining in Lebanon County will be transferred to the York, PA, wage area schedule on the first day of the first applicable pay period beginning on or after March 2, 2000. The Federal Prevailing Rate Advisory Committee, the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, has reviewed and concurred by consensus with these changes.

Pursuant to section 553(b)(3)(B) of title 5, United States Code, I find that good cause exists for waiving the general notice of proposed rulemaking. Also, pursuant to 5 U.S.C. 553(d)(3), I find that good cause exists for making this rule effective in less than 30 days. The notice is being waived and the regulation is being made effective in less than 30 days because of the need to transfer the remaining NAF FWS employees in Lebanon County to a continuing wage area as soon as possible.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because it will affect only Federal agencies and employees.

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

The Food Stamp Program (FSP) is listed in the Catalog of Federal Domestic Assistance under No. 10.551. For the reasons set forth in the final rule in 7 CFR 3015, Subpart V and related Notice (48 FR 29115), this program is excluded from the scope of Executive Order 12372 which requires intergovernmental consultation with State and local officials.

This final rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Samuel Chambers, Jr., the Administrator of the Food and Nutrition Service, has certified that this final rule will not have a significant economic impact on a substantial number of small entities. State agencies and their EBT service providers will be the most affected to the extent that they administer or operate EBT services for FSP benefit delivery.

On February 23, 1999, when this rule was proposed (64 FR 8733), FNS inadvertently stated that the Office of Management and Budget (OMB) control number 0584-0083 already covered the information collection burden which would result from the proposed requirements. On October 12, 1999, a notice was published in the Federal Register (64 FR 55225) to correct this error and inform the public of the new burden being added. A new OMB control number 0584-0500 has been assigned to this regulation and has an expiration date of February 28, 2003.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full implementation. This rule is not intended to have retroactive effect unless so specified in the “Dates” paragraph of this preamble. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be exhausted. In the FSP, the administrative procedures are as follows: (1) For Program benefit recipients—State administrative procedures issued pursuant to 7 U.S.C. 2020(e)(1) and 7 CFR 273.15; (2) for State agencies—administrative procedures issued pursuant to 7 USC 2023 set out at 7 CFR 276.7 for rules related to non-quality control (QC) liabilities or 7 CFR Part 283 for rules related to QC liabilities; (3) for Program retailers and wholesalers—administrative procedures issued pursuant to 7 U.S.C. 2023 set out at 7 CFR 278.8.

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

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

All States must change from paper coupon systems to EBT systems for the issuance of FSP benefits by October 1, 2002. Currently, forty-one States have implemented EBT systems and most others are in some stage of planning. The total amount of FSP benefit funds issued to recipients each month is about $1.27 billion. The amount being moved through EBT systems is about $889,000,000 or 70 per cent of the total.

For the FSP, EBT systems move money from Federal accounts held in the name of each State to accounts at banks and other financial institutions held by or for food retailers. Food retailers must first be authorized to accept FSP benefits by the FNS and then must be equipped to accept benefits via EBT. States determine the eligibility and the monthly FSP allotments for recipients. States give each recipient household a plastic EBT card and a Personal Identification Number (PIN). Recipients use the cards in authorized food stores for food purchases and may use them at Automated Teller Machines (ATMs) if the recipient is eligible for a cash program.

EBT systems operate like debit card systems with immediate decrements to a household account number. Household accounts have associated cards and PINs which are used for food purchases. The amount of the purchase is credited to the food retailer's account and funds are settled each bank working day through the Automated Clearinghouse (ACH) process.

States contract individually for EBT systems with EBT service providers. Usually States contract for EBT systems that deliver the benefits of several cash programs, such as Temporary Assistance for Needy Families (TANF) and State cash benefit programs, in addition to food stamp benefits. One State also uses EBT for the delivery of benefits of the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). Among State-administered benefit programs, only the FSP requires that States change from paper to EBT systems and only the FSP has regulations about EBT.

Data from EBT systems are reported to State and Federal financial and reporting systems and are used in financial statements of many agencies. In particular, State EBT systems report data on about 70 per cent of food stamp benefit funds to FNS financial systems which in turn provide data used in annual FNS financial statements.

On February 23, 1999, the Department proposed, and this final rule now requires, at least annual examinations of the transaction processing of EBT service providers by independent auditors. The examinations must follow the American Institute of Certified Public Accountants (AICPA) Statement on Auditing Standards No. 70, Service Organizations (SAS No. 70). Specific EBT guidance for the examinations is provided in the OMB Circular A-133 Compliance Supplement. The objective of these examinations is to determine whether there are controls in place and operating effectively over the security and accuracy of EBT transaction processing. These are typically referred to as “type 2” examinations. These examinations will provide an independent assessment of the controls over transaction processing by EBT service providers.

The Department asked for public comment in a proposed rule on February 23, 1999. Eleven comments were received. Eight were from State agencies or counties, including two EBT managers and three State auditors. Four of the States represented by those commentors do not currently operate EBT systems. Two Federal agencies and one EBT service provider also made comments.

The major concern was cost. FSP EBT cost neutrality regulations require States to compare EBT system costs to coupon system costs. States will not receive more in Federal reimbursement from the FSP for the costs of their EBT systems than they would have received for the coupon systems EBT replaced. State legislatures also want EBT costs to remain the same or become lower than paper costs. Several commentors stated that the benefits of the SAS No. 70 examinations were for the FSP and the USDA Office of the Inspector General (OIG) and that all costs should be paid by FNS. Some noted that there were no such examinations in the coupon world and fewer reviews of coupon issuance systems. Some wanted FNS or OIG to hire the auditors or complete the audits themselves and to handle the resolution of findings. One pointed out that until EBT, FNS managed and paid for all work related to coupon redemption and financial settlement to retailers and now these duties and costs were forced onto States entirely. The EBT service provider asked that we make clear that additional costs caused by the examinations are State responsibilities.

State arguments on the issue of cost neutrality are persuasive. The driving force behind this rule is to ensure the accuracy and dependability EBT financial information. State auditors are also concerned with the impact of EBT data on State financial statements. SAS No. 70 examination costs are not operational or start-up costs as described in 7 CFR 274.12(c)(5) and may be excluded from cost neutrality calculations, because they are not costs inherent in the development or operation of the EBT system itself. Although SAS NO.70 examination costs will not be included in cost neutrality calculations, they remain State administrative costs which should be reported through the usual process and will be reimbursed at the usual FSP Federal Financial Participation rate. When examination costs are shared among programs, they must be allocated and charged as appropriate.

Several commentors noted that, since there are few EBT service providers, the most efficient and inexpensive way to arrange examinations and resolve findings would be for FNS or OIG to handle them directly. This would be a change in the approach to EBT as a State responsibility. However, the idea merits consideration and FNS intends to explore this approach. However, unless or until such a change is made, States must comply with these requirements.

Several State commentors believe the regulation is ill-advised because it will drive up costs, keep down competition for the business, or because States already obtain SAS No.70 reports without such a requirement. Although we are sympathetic on each issue, this regulation is necessary. As mentioned elsewhere, both State and Federal financial systems and statements are fed by EBT system data. In addition, not all States receive SAS No. 70 reports and not all EBT transaction processing providers undergo such examinations.

There were several technical comments about the period to be examined, when the report must be available, subcontractors, single examinations of the service provider, and platforms or control environments. The intention is that the SAS No. 70 examinations be at least annual with the examination period end date to be determined by the EBT service provider after considering the needs of user auditors of the States covered by the examinations. Once started, subsequent examinations must cover the entire period since the previous examination. If the EBT service provider obtains audits every six months, that is acceptable also. If the provider serves several States on the same platform with the same control environment, then one examination may be done covering all States and a list of all States sharing the control environment must be included in the examination report. The report must be completed ninety days after the examination period ends. Once reports are completed, the Food and Nutrition Service (FNS), USDA Office of the Inspector General (OIG), or the General Accounting Office (GAO) may wish to obtain a copy of the report. If a written request for the report is made to a State, it must be answered with a copy of the report within thirty days of the written request. FNS or others may find it necessary to have access to an auditor's work papers also. A written request for access to work papers must also be responded to within thirty days and by initiating or completing appropriate arrangements for access. Typically, work papers remain under the control of the auditor and arrangements for access will need to be coordinated among the parties involved.

Some commentors noted that the language of the rule should reflect the technical language used in SAS No.70 and commonly used by auditors. We agree, therefore, terms such as examination, control environment, type 2 examinations, and platform have been used in this preamble and the regulation amendment.

Many commentors agreed that it is efficient and desirable to have a single examination of each service provider that would cover all the States for whom the service is provided. The service provider commentor asked that this become an explicit requirement. Since some States may differ in their own needs or requirements, we are not requiring this. However, we very strongly recommend that States coordinate and cooperate to obtain one examination (with appropriately allocated costs) as long as each State has the same control environment. All service providers are expected to want this less costly and disruptive arrangement.

Some commentors asked which subcontractors were subject to examination. States make varied arrangements for EBT services. Many States contract with a single provider for all EBT services. That EBT primary contractor may provide all the services or may hire subcontractors to provide some or all of the services which together constitute an EBT system. The intention is to ensure controls exist for secure, accurate, and complete transaction processing of FSP accounts for recipient use in authorized stores subsequently paid with Federal funds. Therefore, the contractor or subcontractor that maintains the account information, authorizes debits and credits on the accounts, and provides the basic data for settlement among the parties is subject to SAS No. 70 examinations. Subcontractors providing other services, such as EBT Help Desk services, Point of Sale installation, or plastic cards are not subject.

Another complication is that States sometimes do EBT work themselves. For example, one State is producing and distributing EBT cards and another is considering doing transaction processing. Only the work of contractors is covered by this rule and the SAS No. 70 examinations requirements. State work is exempt from this proposed SAS No. 70 examination requirement but subject to requirements already existing in OMB Circular A-133.

The proposed regulations referred to AICPA SAS No. 70, Reports on the Processing of Transactions by Service Organizations. Since the proposed regulation was published, the title of SAS No. 70 was changed to Service Organizations. The intention is to refer to this standard regardless of numerical or name changes or revisions. The kind of report required is now commonly referred to by auditors as a SAS No. 70, type 2 report or a type 2 service auditor's report. The intention is to obtain that kind of report regardless of future name changes.

The proposed rule referred to the Review Guidelines for Service Organizations Providing EBT Services for Government Programs (guidelines). The guidelines were endorsed by the National State Auditors Association on March 9, 1999 and available as interim guidelines for SAS No. 70 audits. These guidelines are now replaced by this rule which requires a SAS No. 70 examination to determine whether there are controls in place and operating effectively over the security and accuracy of EBT transaction processing. As mentioned above, these examinations are referred to as type 2 examinations. The OMB Circular A-133 Compliance Supplement will be revised to include guidance to assist service providers and their auditors in meeting this requirement.

USDA's OIG and FNS have always reserved the right to conduct other audits or reviews of EBT if they find they are needed. This is not a change but has always existed as stated in 7 U.S.C. 2020, 7 CFR 277.17(a) and is generally reflected in EBT Requests for Proposal or in State EBT contracts. This right is being specified here to avoid doubt or confusion on the issue.

This rule will be effective 30 days from the date of publication in the Federal Register . States must ensure that the initial period examined includes the date this rule becomes effective.

An H-1B nonimmigrant is an alien employed in a specialty occupation or as a fashion model of distinguished merit and ability. A specialty occupation is an occupation that requires theoretical and practical application of a body of specialized knowledge and attainment of a bachelor's or higher degree in the specific specialty as a minimum for admission into the United States.

On October 21, 1998, President Clinton signed the ACWIA into law, Public Law 105-277, Div. C, Title IV, 112 Stat. 2681-641. The legislation amended and created several statutory provisions relating to the H-1B nonimmigrant classification. These amendments include, among others:

(1) Revisions to the attestation requirements for labor condition applications (LCA) under section 212(n) of the Immigration and Nationality Act (Act);

(2) Definitions of violations of LCA conditions and new penalties for such violations;

(3) Amendments to prevailing wage computations for academic and research organizations; and

(4) Data collection and reporting requirements.

On November 30, 1998, the Service published an interim rule in the Federal Register (FR), at 63 FR 65657 that implemented only the provisions of section 414(a) and 415(a) of the ACWIA. Specifically, the regulation addressed the new fee for United States employers filing petitions for H-1B nonimmigrant aliens and described the organizations that are exempt from filing this new fee. The interim rule also revised the Service's regulation at § 214.2(h)(8)(i)(A) to reflect an increase in the annual limitation on the number of aliens that can be granted an H-1B visa or accorded H-1B status. Written comments were to be received on or before January 29, 1999. The Service received eight comments from individuals and organizations in response to the interim rule.

Section 414(a) of the ACWIA provides that United States employers must pay the $500 filing fee when they file H-1B petitions on or after December 1, 1999 and before October 1, 2001, for the following purposes;

(1) An initial grant of H-1B status under section 101(a)(15)(H)(i)(b) of the Act;

(2) An extension of stay for individuals currently in H-1B status (unless the employer previously has obtained an extension for such alien); or

(3) Authorization for a change in employers for aliens currently in H-1B status.

Section 415 of the ACWIA also creates a number of exemptions to the filing of the $500 fee. The organizations exempt from paying the $500 fee are:

• Institutions of higher education, as defined in section 101(a) of the Higher Education Act of 1965, or related or affiliated nonprofit entities; and

• Nonprofit research organizations or Governmental research organizations.

The Service proposed definitions for the terms “nonprofit” and “research” and the phrase “related or affiliated.” In drafting these definitions the Service drew on generally accepted definitions of the terms as well as definitions contained in the regulations of the Internal Revenue Service and the Small Business Administration.

In addition, the Service created Form I-129W, now called the “H-1B Data Collection and Filing Fee Exemption,” to be filed along with the petition in order for petitioners to be better able to determine if they were exempt from the $500 filing fee. The form also allows the Service to record information on employers that qualify for the exemption, and to collect data for the quarterly congressional reports required by section 416(c) of the ACWIA.

This rule discusses the eight comments that were received and the Service's responses to the comments. Many of the commenters addressed more than one issue in their comment. As a result, the number of issues discussed exceeds the actual number of comments received. This rule also draws on the Service's experience in implementing these changes since publication of the interim rule and incorporates a number of streamlined practices based on that experience.

The comments that the Service received came from a variety of sources. They ranged from a single individual to an organization representing thousands of companies. The 8 comments were from the following:

• A non-profit social service agency;

• A national laboratory;

• An organization that represents a large number of attorneys and law professors;

• An organization representing a coalition of more than 90 organizations that advocate immigrant and refugee rights;

• A private immigration attorney;

• A group of organizations that represent a number of public and private higher education institutions as well as a large number of independent nonprofit scientific research organizations;

• A trade organization that represents over 11,000 companies in the information technology industry;

• Two organizations representing approximately 30 corporate and institutional members with an interest in the international movement of personnel and a broad-based industrial trade association.

The Service received 11 specific comments regarding the definitions of exempt organizations contained in the interim rule. In general, eight of the comments suggested that the Service expand, in some way, the definitions contained in the interim rule in order to exempt more organizations from having to pay the additional $500 filing fee. The other three comments suggested that the Service modify the language of the interim rule in order to avoid confusion for prospective H-1B petitioners.

Turning to the specific comments, one commenter suggested that the Service include the complete language of section 101(a) of the Higher Education Act (HEA) in the Service's regulation. The commenter noted that the interim regulation makes reference to the HEA but does not contain the entire statutory language.

The Service will not adopt this suggestion. This rule incorporates by reference the statutory definition of institutions of higher education from section 101(a) of the HEA of 1965. The Service believes that this is sufficient for the public to understand this requirement. It is, therefore, unnecessary for the rule to repeat the entire statutory language of the HEA as part of the rule.

One commenter suggested that the Service allow organizations that are tax exempt under state or local law to qualify as non-profit organizations for the purposes of the ACWIA.

For reasons of legal precedent and the uniform implementation of the H-1B fee exemption provisions, the Service will not adopt this suggestion. In the absence of a plain congressional intent to incorporate diverse state laws into a Federal statute, the meaning of a Federal statute should be dependent on Federal rather than state law. See Taylor v. United States, 495 U.S. 575, 591-2 (1990); See also Federal Deposit Insurance Corporation v. Philadelphia Gear Corporation, 476 U.S. 426, 431 (1986). Finally, state laws vary from each other and from the Internal Revenue Code in their definition of “tax exempt” entities. The use of each state's particular definition would result in an inconsistent application of the H-1B fee exemption provisions.

One commenter suggested that the Service expand the definition of the organizations considered to be non-profit to include all non-profit organizations, not just non-profit research organizations.

The Service cannot adopt this suggestion because there is no statutory support for the suggestion. Section 415(a) of the ACWIA specifically limits this exemption to non-profit research organizations.

One commenter suggested that the Service include those institutions of higher education described in section 101(b) of the HEA in its definition of exempt organizations. The commenter asserts that Congress inadvertently omitted the institutions described in section 101(b) of the HEA from the list of institutions exempt from the payment of the $500 filing fee.

The Service will not adopt this suggestion because the statutory language does not support it. Section 415(a) of the ACWIA clearly limits this particular exemption to those institutions described in section 101(a) of the HEA, not section 101(b) of HEA.

One commenter suggested that Federally-Funded Research and Development Centers (FFRDCs) sponsored by an exempt contractor, e.g., institutions of higher education as defined in section 101(a) of the HEA, should be exempt from the $500 filing fee. The commenter suggested that the status of the contractor should determine whether a petition should be exempt from the $500 filing fee.

The Service cannot adopt this suggestion because the statute does not support it. The FFRDCs are organizations that are not operated by a Government agency but, instead, are merely sponsored by a Government agency. It must be noted that only a United States employer as defined in § 214.2(h)(4)(ii) may file a petition for an H-1B nonimmigrant alien. Section 414(a) of the ACWIA requires that the employer of an H-1B alien pay the $500 filing fee and specifically prohibits the employer from passing on the fee to the worker. In the case of FFRDCs, as with all other filing situations, the Service must look to the actual employer of the alien to determine if the employer is exempt from paying the $500 filing fee regardless of whether it is sponsored by a nonexempt government organization. If the FFRDC is an employer and meets the definition of one of the exemptions described in section 415(a) of the ACWIA, then the FFRDC would not be required to pay the additional $500 filing fee. The Service has no authority to create exemptions to the $500 fee other than those specifically provided for in the statute.

Two commenters suggested that the definition of Government research institution should be expanded to include all Federal, state, and local government laboratories conducting scientific and/or scholarly research.

The Service will not adopt this suggestion. It is the Service's opinion, based on a number of judicial determinations, that “Government” as used in the statute refers solely to the Federal Government and not to state and local governments. See Farzad v. Chandler, 670 F. Supp. 690, 692 (N.D. Tex. 1987) and Kalaw v. Ferro, 651 F. Supp. 1163 (W.D.N.Y. 1987). It is also the opinion of the Service that Congress would have made reference to state and local governments in the statute if it was intended for these types of organizations to be exempt. Further, the Service interprets the statute to limit the number of entities that are exempt from paying the additional $500.

Two commenters provided suggestions regarding the Service's definition of an “affiliate or related non-profit entity.'' One commenter suggested that the Service expand the definition of an “affiliate or related non-profit entity” to include cooperative or joint arrangements that do not rise to the level of a “cooperative.” The commenter noted that certain non-profit hospitals or governmental research institutions may have arrangements for the sharing of information, training, or research with educational institutions but are not exempt from paying the $500 filing fee.

The other commenter suggested that a non-profit entity that is connected or associated with a higher education institution through a documental understanding or affiliation should be included in the Service's definition of affiliated or related nonprofit entity even if it lacks shared ownership or control and is not a member of a branch, cooperative, or subsidiary of the higher education institution.

The Service will not adopt either of these suggestions because such expansive definitions of the term “affiliate or related non-profit entity” would not reflect congressional intent. Again, the Service interprets the statute to narrowly define those entities exempt from paying the $500 filing fee. In addition, it would be beyond the scope of the Service's delegated administrative authority and institutional expertise to determine and/or investigate the requisite financial or operational cooperation of such entities.

One commenter disagreed with the Service's description of basic research found in the definition of a nonprofit research organization. The definition stated that, “Basic research also is not research that advances scientific knowledge. * * *” The commenter stated that the academic community believes that basic research does advance scientific knowledge.

The inclusion of the word “not” in the Service's definition in the interim rule of basic research was a typographical error made by the Federal Register . On December 24, 1998, the Federal Register published a correction at 63 FR 71342, removing the word “not.”

One commenter noted that the ACWIA exempts research organizations that are nonprofit organizations engaged in research from the $500 filing fee. The commenter suggested that the Service clarify in the final regulation that the nonprofit organization does not have to be affiliated with an institution of higher learning to be exempt fron the fee.

As the commenter noted, section 415(a) of ACWIA exempts nonprofit research institutions from paying the $500 filing fee. Research institutions do not have to be affiliated with an institution of higher learning. In order to ensure that this point is clear, the Service has added the word “or” after § 214.2(h)(19)(iii)(B).

Although not specifically addressed in the written comments, the Service has received a number of questions from the public and the field regarding the limitations of the definition of the term “research” in the interim rule. The definition of “research” in the interim rule did not specifically described to which academic areas the term “research” applied. In order to provide additional guidance to the field on this issue, this rule amends the definition of “research” found in § 214.2(h)(19)(iii)(C) to advise that the term “research” means research conducted in the sciences, social sciences, or humanities.

The Service has modified Form I-129W, “H-1B Data Collection and Filing Fee Exemption,” to serve both a mechanism to request a fee exemption and to collect additional data as mandated by the ACWIA. As a result, all petitioners will now be required to submit the form.

In response to the interim rule, the Service received a number of inquiries on when the $500 fee must be paid. The Service has added a new § 214.(h)(19)(vi) to explain the circumstances under which the fee is paid and the requirements for establishing entitlement to the fee exemption. All Form I-129 petitioners requesting a fee exemption or who are not required to pay the $500 fee must complete Part B of Form I-129W and provide information and evidence described on the form. All Form I-129 petitions submitted without completing Part B of Form I-129W must be accompanied by a single remittance of $610. (The remittance may be in the form of two checks, $500 fee +$110.00 for petition.)

Part A of Form I-129W collects data required by the ACWIA. The Service will collect the required data on a single form, Form I-129W, to facilitate entry of data into Service databases and to minimize the cost of data entry which would otherwise be passed on to petitioners through higher filing fees. If deemed appropriate, the Service will revise and redesign the I-129 at a later time to minimize any burden on the public and to further facilitate the process for qualifying for the H-1B visa classification.

One commenter suggested that the Service modify the language in the interim rule to explain the type of documentation that must be submitted with the Form I-129W to establish that an employer is exempt from the $500 filing fee. The commenter opined that the interim rule does not provide clear guidance on this issue.

Since the publication of the interim rule, the Service has received many questions asking if supporting documentation must be submitted with the Form I-129W. The language on Form I-129W implies that supporting documentation is required but the interim rule itself does not address the issue.

In response to this comment, the Service has added a new § 214.2(h)(19)(vi) that describes the type of documentation that must be submitted with a Form I-129W to establish that the employer is exempt from the $500 filing fee.

The rule now requires that an employer claiming to be exempt from the $500 filing fee must complete both Parts A and B of Form I-129W along with Form I-129. The employer must also submit evidence as described on Form I-129W establishing how it is exempt. A United States employer claiming an exemption from the $500 filing fee on the basis that it is a non-profit research organization is required to submit evidence that it has tax exempt status under the Internal Revenue Code of 1986, section 501(c)(3), (c)(4) or (c)6), 26 U.S.C. 501(c)(3), (c)4) or (c)(6). All other employers claiming an exemption must submit a statement describing why the organization or entity is exempt.

The Service's request for limited evidence to establish an exemption from the $500 filing fee is consistent with the congressional House Report 105-825, October 21, 1998, 2nd. Sess. 1998, that provides that the Service should not impose excessive evidentiary burdens on employers to comply with the statute.

One commenter also suggested that the Service change the language in the interim rule at § 214.2(h)(19)(i)(C) since it implied that amended petitions required the additional $500 filing fee. The commenter noted that the language in the interim regulation makes reference to the term “change in employment” and suggested that the term “change in employers” would be more appropriate.

The Service will adopt this suggestion since section 414 of the ACWIA, which discusses the filing situations requiring the $500 filing fee clearly uses the term “change in employers.”

The term “change in employment” could be misinterpreted to apply to the filing of amended petitions as described in § 214.2(h)(11)(i)(A). The $500 filing fee is not required when an amended petition is filed unless the amended petition also requests that the Service grant an extension to the alien's temporary stay.

The Service received 19 comments addressing the payment of the $500 filing fee and related issues. The majority of commenters stated that the interim regulation did not provide sufficient information describing who is required to pay the $500 filing fee. One commenter actually provided suggested regulatory language to explain who is required to pay the fee and who is not.

The Service will not include the suggested regulatory language provided by the commenter in the final rule. However, as described in the following paragraphs, the Service has revised the language of the rule to clarify both the circumstances in which employers are not required to pay a fee, as well as those employers who are exempt from the fee requirement.

One commenter suggested that the regulation should indicate that a corporate restructuring does not require the filing of an amended petition and would not require the filing of the $500 fee. Another commenter suggested that an amended petition seeking a change in employment with the same employer should not require the filing of the $500 fee if no extension is requested.

Since the publication of the interim rule, the Service has received a number of comments and questions regarding whether the $500 filing fee is required when an amended petition is filed. The interim rule listed the filing situations that required the payment of the $500 filing fee. Amended petitions were not included on this list which means that the fee was not required when an amended petition was filed without a request for an extension of stay. Further, the Conference Report and section 414(a) of the ACWIA clearly indicate that the $500 filing fee is not required in the case of an amended petition unless an extension of the alien's stay is also requested.

In response to the comments and the volume of questions that the Service has received on this issue since publication of the interim rule, the Service has added a new § 214.2(h)(19)(v) that specifically discusses, among other things, the filing of amended petitions. The final rule states that the $500 filing fee is not required when an amended petition is filed unless the amended petition includes a request for an extension of stay.

In addition, the Service has modified Form I-129W in response to a number of comments regarding the filing of amended petitions. These comments are discussed later in this regulation.

The Service will not adopt the comment that makes reference to corporate restructuring in the final rule because a corporate restructuring may require the filing of either a new or an amended petition. The issue of when an amended petition must be filed is discussed in § 214.2(h)(11)(i)(A) and is outside the scope of this regulation. The final rule states that the $500 filing fee is not required when an amended petition is filed unless the amended petition includes a request for an extension of stay.

Two commenters suggested that the $110 and the $500 filing fee should not be required with a petition filed for the purpose of correcting a Service error.

The Service agrees with this suggestion. On occasion, the Service has erroneously admitted an H-1B alien for a period of time less than requested or permitted by the supporting petition. While not specifically discussed in the interim rule, the Service has, in practice, adopted the procedure discussed by the commenter. The policy has now been incorporated in the final rule at § 214.2(h)(19)(v)(B)

One commenter suggested that the $500 filing fee be called a ‘training fee” to distinguish the $500 filing fee from the normal $110 filing fee.

The Service will not adopt this suggestion. Sections 414(a) and 414(b) of the ACWIA provide that the $500 filing fee is to be used for a number of provisions that do not involve training. On the basis of the statutory language, the Service will continue to call the additional $500 fee a filing fee.

Two commenters suggested that the Service develop a procedure to reimburse petitioners when the alien beneficiary does not appear for work. The Service will not adopt this suggestion. Under existing regulations, 8 CFR 103.2(a)(1), all filing fees and fingerprint fees are nonrefundable. There is nothing unique about this situation that would justify making an exception to this policy. As a general matter, the Service relies upon monies deposited into the Examinations Fee Account to defray the costs of processing applications and petitions for immigration benefits, and does not receive appropriated funds for these purposes. In particular, the Congress has already specified the distribution of the additional $500 filing fees for H-1B petitions. Since the Service will be incurring the costs of processing the H-1B petitions, and Congress has already determined how the $500 filing fee will be distributed, the Service could not refund the filing fee for the processing of an application merely because an employer ultimately was not able to hire an intended alien beneficiary.

One commenter also discussed whether the $110 filing fee can be refunded in the case of a petition filed to correct a Service error.

Yes, the filing fee of $110.00 may be refunded in a case involving Service error. A refund may be obtained by writing to the Immigration and Naturalization Service Office where a petition was filed. A detailed explanation of the circumstances justifying the refund should be included. This information is now included on the instructions of Form I-129W.

The Service received a number of comments regarding the issue of who can write the checks for the filing fees.

Two commenters suggested that petitioners be permitted to submit two checks to cover the two filing fees, one in the amount of $500 and the other in the amount of $110. Another commenter suggested that the final rule contain language indicating that an attorney who represents both the employer and the beneficiary should be permitted to write the check for the $500 filing fee. Similarly, another commenter suggested that the Service should reject the $500 filing fee only when an attorney who represents the beneficiary writes the check. One commenter suggested that the final regulation indicate that the beneficiary may pay the $110 filing fee.

In order to clarify this issue, the Service has amended § 214.2(h)(19)(ii) to indicate that a petitioner may submit two checks to cover the filing fee as long as both checks are remitted at the same time. In such a case, one check will be for the amount of $500 and the other for the amount of $110. This would constitute a “single remittance” for the purpose of § 214.2(h)(19)(ii).

However, since it is less expensive for the Service to process one check instead of two, the Service would prefer that petitioners submit one check in the amount of $610. The rule also states that the employer or its representative must pay the $500 filing fee. Petitioners are reminded that section 413(a) of the ACWIA prohibits an employer from requiring an alien beneficiary to reimburse, or otherwise compensate the employer for part or all of the cost of the $500 filing fee.

One commenter suggested that the final rule contain language indicating that a petition filed for a change of employers that does not contain a request for an extension of stay should not require the filing of the $500 fee.

The Service cannot adopt this suggestion because it is contrary to the statutory language. Section 414(a) of the ACWIA clearly requires that a new employer of an H-1B nonimmigrant alien must pay the $500 filing fee regardless of whether or not an extension of stay is requested.

Two commenters suggested that the final rule include language reflecting that a petitioner may be reimbursed by a third party for the $500 filing fee.

The Service will not adopt this suggestion because there is no support in the statute for such a provision. Again, section 413(a) of the ACWIA prohibits an employer from requiring an alien beneficiary to reimburse, or otherwise compensate the employer for part or all of the cost of the $500 filing fee. However, the ACWIA does not discuss the issue of third party reimbursements. Therefore, the issue of third party payments is outside the scope of this rule.

One commenter suggested that the final rule include language that the $500 filing fee relates to the actions of the employer, not the beneficiary. Another commenter suggested that the final rule contain language indicating that a second extension of stay filed after December 1, 1998, does not require the filing of the $500 fee regardless of whether the employer paid the $500 filing fee for the initial petition or fist extension of stay.

In response to these comments, the Service had added § 2142(h)(19)(v) in the final rule to describe a number of filing situations where the $500 filing fee is not required. Section 214.2(h)(19)(v) reflects that the fee for the extension of stay relates to the actions of the employer not the beneficiary. It also provides pursuant to section 414(a) of the ACWIA, that a second extension of stay filed by an alien's employer never requires the filing of a $500 fee. The fee is not required even if the employer did not pay the $500 filing fee on the initial petition or first extension of stay for the alien that it filed for the beneficiary.

Another commenter suggested that a company which petitioned for an alien who was previously accorded H-1B status based on a petition filed by another company, should not be required to pay the $500 filing fee when it applies for the alien's first extension of stay.

The Service will not adopt this comment. As previously discussed, section 414(a) of the ACWIA provides that the $500 filing fee relates to the employer, not the alien. As a result, on or after December 1, 1998, the first extension of stay filed by an employer for an alien requires the filing of the $500 fee regardless of whether the beneficiary was previously petitioned as an H-1B nonimmigrant alien by another employer.

Since promulgation of the interim rule, a number of checks for the $500 filing fee have been returned to the Service as non-payable. As a result, it is important to remind the public of the provisions of 8 CFR 103.2(a)(7)(ii) that provides if a check for a filing fee is returned to the Service as non-payable, a pending petition will be rejected as improperly filed. If the petition has already been approved, the petition shall be automatically revoked.

In addition, an H-1B alien who continues his or her employment with the petitioner after the supporting petition is revoked may be subject to removal proceedings. An employer who knowingly continues to employ an alien who is not authorized to work may be liable for sanctions including civil fines and criminal penalties pursuant to section 274A of the Immigration and Nationality Act.

Finally the Service may take action under the Debt Collection ACt of 1982 to collect the filing fee to include penalties and cost for collection on returned checks.

In order to assist employers in determining whether they are required to pay the $500 filing fee, the Service developed Form I-129W. The Service received nine comments regarding the form.

One commenter suggested that the form should be revised to include the name of the petitioner. Two commenters suggested that Part B of the form, which provides information on the required documentation necessary to establish tax exempt status, be modified to discuss the evidence required to establish eligibility for the other exemptions. One commenter stated that the wording on the form implies that all employers claiming exemption from paying the $500 filing fee must submit information regarding whether they enjoy tax exempt status. Two commenters noted that the form does not accommodate the filing of amended petitions and suggested that the form be accordingly modified.

The Service will modify Form I-129W and has adopted the above suggestions. The new version of Form I-129W will now have a block for the petitioner's name. Form I-129W now contains additional information regarding the evidence to be submitted to establish exemption from the $500 filing fee. The form has also been modified to reflect that the $500 filing fee is not required when an amended petition which does not involve an extension of stay is filed.

One commenter suggested that the form be changed so that a petition filed for a change of employers without an extension of stay will not required the filing of the $500 filing fee.

As previously noted, section 414(a) of the ACWIA clearly requires that a petitioner seeking a change of employers must submit the $500 filing fee. Therefore, the Service will not adopt this suggestion.

One commenter suggested that the Service allow employers to submit copies of previously submitted Forms I-129W in support of a Form I-129 petition.

The Service requires current information from an employer an original Form I-129W in support of an I-129 petition. The Service has included the requirement that an employer submit an original Form I-129W at § 214.2(h)(19)(vii). It must be noted that the Service, pursuant to section 416(c) of the ACWIA, is required to report to Congress on a quarterly basis the number of employers claiming an exemption. As a result, the Service requires the submission of a current Form I-129W.

One commenter suggested that exempt employers should not be required to submit supporting evidence with the Form I-129W.

The Service will not adopt this comment. In order to avoid potential delays in the adjudication process, the Service requires that employers submit supporting evidence establishing their eligibility for the claimed exemption. The Service's evidentiary requirements regarding this provision are minimal and are consistent with the discussion contained in the conference report dealing with limiting the evidentiary burden to employers.

The Service has also amended 8 CFR 103.7(b)(1) to reflect that not all Form I-129 petitions must be accompanied by a $500 filing fee. The regulation now provides that only certain H-1B petitions must be submitted with the $500 filing fee.

The Commissioner, in accordance with 5 U.S.C. 605(b), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. Although there is a $500 filing fee which may have an economic impact on small entities, sections 414(a) and 415(a) of the ACWIA established the new $500 filing fee and exemptions that are effective December 1, 1998. This regulation merely implements procedures for submission of the new $500 filing fee for Form I-129, H-B nonimmigrant petitions.

This rule will not result in the expenditure by state, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to complete with foreign-based companies in domestic and export markets. While this rule is not a major rule, the Service recognizes that all businesses, regardless of size, whose hiring practices involve H-1B aliens, are affected by this rule in that they will be required to submit an additional $500 per petition, unless exempt. It is anticipated that the effect on the economy for fiscal year 2000 will be $88,550,000 and $82,775,000 for fiscal year 2001. Further, as previously stated in the supplement to this rule, sections 414(a) and 415(a) of the ACWIA established the new $500 filing fee and exemptions that became effective December 1, 1998. This regulation merely implements procedures for the submission of the new $500 filing fee for H-1B nonimmigrant petitions.

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

The regulation will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of E.O. 12988.

This rule does not impose any new reporting or recordkeeping requirements. The information collection requirements contained in this rule were previously approved for use by the Office of Management and Budget (OMB) under emergency procedures and will be submitted again under normal procedures within 6 months. The OMB control number for this collection will continue to be listed in 8 CFR 299.5, Display or control numbers.

Accordingly, the interim rule amending 8 CFR parts 103, 214, and 299 which was published at 63 FR 65657, on November 30, 1998, is adopted as a final rule with the following changes:

DOE's real property consists of about 2.4 million acres and over 21,000 buildings, trailers, and other structures and facilities. In the eight years since the end of the Cold War, DOE has been engaged in a two-part process in which DOE reexamines its mission need for real property holdings, and then works to clean up the land and facilities that have been contaminated with hazardous chemicals and nuclear materials. The end result will be the availability, over time and to widely varying degree at DOE sites, of real property for transfer. DOE may sell or lease real property under a number of statutory authorities. The primary authorities are section 161g of the Atomic Energy Act (42 U.S.C. 2201(g)) and sections 646(c)-(f) (also known as the “Hall Amendment”) and 649 of the Department of Energy Organization Act, as amended (42 U.S.C. 7256(c)-(f) and 7259). Section 161g of the Atomic Energy Act broadly authorizes DOE to transfer real property by sale or lease to another party. Section 649 applies to leasing of underutilized real property. Section 646(c)-(f) applies to specific facilities that are to be closed or reconfigured. In addition, DOE may declare real property as “excess, underutilized or temporarily underutilized,” and dispose of such real property under provisions of the Federal Property and Administrative Services Act, 40 U.S.C. 472 et seq. With the exception of sections 646(c)-(f) of the DOE Organization Act, these authorities do not deal specifically with transfer of real property for economic development.

In section 3158 of the National Defense Authorization Act for Fiscal Year 1998 (“Act”), Congress directed DOE to prescribe regulations specifically for the transfer by sale or lease of real property at DOE defense nuclear facilities for the purpose of permitting economic development (42 U.S.C. 7274q(a)(1)). Section 3158 also provides that DOE may hold harmless and indemnify a person or entity to whom real property is transferred against any claim for injury to person or property that results from the release or threatened release of a hazardous substance, pollutant or contaminant as a result of DOE (or predecessor agency) activities at the defense nuclear facility (42 U.S.C. 7274q(b)). The indemnification provision in section 3158 is similar to provisions enacted for the Department of Defense Base Realignment and Closure program under Section 330 of the Defense Authorization Act for Fiscal Year 1993, Public Law 102-484.

The indemnification provisions in section 3158 aid these transfers for economic development because, even at sites that have been remediated in accordance with applicable regulatory requirements, uncertainty and risk to capital may be presented by the possibility of as-yet undiscovered contamination remaining on the property. Potential buyers and lessees of real property at defense nuclear facilities have sometimes expressed a need to be indemnified as part of the transfer. Furthermore, indemnification often is requested by lending or underwriting institutions which finance the purchase, redevelopment, or future private operations on the transferred property to protect their innocent interests in the property. Indemnification may be granted under this rule when it is deemed essential for facilitating local reuse or redevelopment as authorized under 42 U.S.C. 7274q.

This rule is not intended to affect implementation of the Joint Interim Policy that DOE and the Environmental Protection Agency (EPA) entered into on June 21, 1998, to implement the consultation provisions of the Hall Amendment (42 U.S.C. 7256(e)). The Joint Interim Policy provides specific direction for instances in which Hall Amendment authority is used by DOE to enter into leases at DOE sites which are on the EPA's National Priorities List. As stated in the scope of the joint policy, at National Priorities List sites, EPA was given the authority to concur in the DOE determination that the terms and conditions of a lease agreement are “consistent with safety and protection of public health and the environment.”

The following discussion presents information related to some of the provisions in today's interim final rule, and explains DOE's rationale for those provisions.

Generally, real property covered by these regulations includes land and facilities at DOE defense nuclear facilities offered for sale or lease for the purpose of permitting the economic development of the property. Leases of improvements to real property that has been withdrawn from the public domain are covered, but not the withdrawn land. If any of these improvements are removable, they can be transferred under this part.

DOE has included a definition of “Community Reuse Organization” (CRO) in this rule. CROs are established and funded by DOE to implement community transition activities under section 3161 of the National Defense Authorization Act for Fiscal Year 1993 (42 U.S.C. 7274h). Membership in a CRO is composed of a broad representation of persons and entities from the affected communities. The CRO coordinates local community transition planning efforts with the DOE's Federal Advisory Committees, “Site Specific Advisory Boards,” and others to counter adverse impacts from DOE work force restructuring. CROs may act as agent or broker for parties interested in undertaking economic development actions, and they can assure a broad range of participation in community transition activities.

Section 3158 defines “defense nuclear facility” by cross-reference to the definition in section 318 of the Atomic Energy Act of 1954 (42 U.S.C. 2286(g)). These facilities are atomic energy defense facilities involved in production or utilization of special nuclear material; nuclear waste storage or disposal facilities; testing and assembly facilities; and atomic weapons research facilities, which are under the control or jurisdiction of the Secretary of Energy. DOE has identified the facilities receiving funding for atomic energy defense activities (with the exception of activities under Office of Naval Reactors) which are covered by the definition. A list of these defense nuclear facilities is included at the end of this section-by-section discussion for the convenience of the interested public.

“Excess real property” is DOE property that, after screening at all levels of DOE, is found to be unneeded for any of the DOE's missions.

The term “underutilized real property or temporarily underutilized real property” means an entire parcel of real property, or a portion of such property, that is used at irregular intervals or for which the mission need can be satisfied with only a portion of the property. These designations are reviewed on an annual basis by the certified real property specialist at each Field Office.

DOE annually conducts surveys of its real property to determine if the property is being fully utilized. In a related process, DOE annually reviews its real property to identify property that is no longer needed for DOE missions. Real property covered by this part will be initially identified by these two processes. Under this part, Field Office Managers will provide the established CRO, and other interested persons and entities with a list of the real property that may be transferred under these regulations. Field Office Managers may make this list available by mail to known entities, or other means (such as posting on DOE Internet sites), or upon request. DOE will provide existing information on listed property, including its policies under the relevant transfer authority, information on the physical condition of the property, environmental reports, safety reports, known use restrictions, leasing term limitations and other pertinent information. Section 770.6 provides that a CRO or other person or entity may request that the Field Office Manager make available specific real property for possible transfer in support of economic development.

To initiate the transfer process, the potential purchaser or lessee must prepare and provide to the Field Office Manager a proposal for the transfer of real property at a defense nuclear facility for economic development. The proposal must contain enough detail for DOE to make an informed determination that the transfer, by sale or lease, would be in the best interest of the Government. Every proposal must include the information specified in section 770.7(a)(1) relating to the scope and economic development impact of the proposed transfer. A proposal must include: a description of the real property proposed to be transferred; the intended use and duration of use of the real property; a description of the economic development that would be furthered by the transfer ( e.g. , jobs to be created or retained, improvements to be made); information supporting the economic viability of the proposed development; and the consideration offered and any financial requirements. A proposal also should explicitly state if indemnification against claims is or is not being requested, and, if requested, the specific reasons for the request and a certification that the requesting party has not caused contamination on the property. This requirement stems from section 3158(b) of the Act, which requires DOE to include in any agreement for the sale or lease of real property provisions stating whether indemnification is or is not provided (42 U.S.C. 7274q(b)).

Paragraph 770.7(b) provides that DOE will review a proposal and within 90 days notify the person or entity submitting the proposal of its decision on whether the transfer is in the best interest of the Government and DOE's intent to proceed with development of a transfer agreement. DOE may consider a variety of factors in making its decision, such as the adverse economic impacts of DOE downsizing and realignment on the region, the public policy objectives of the laws governing the downsizing of DOE's production complex, the extent of state and local investment in any proposed projects, the potential for short- and long-term job generation, the financial responsibility of the proposer, current market conditions, and potential benefits to the federal government from the transfer. Since many defense nuclear facilities have ongoing missions, particular transfers may be subject to use restrictions that are made necessary by specific security, safety, and environmental requirements of the DOE facility. If DOE does not find the transfer is in the best interest of the Government and will not pursue a transfer agreement, it will, by letter, inform the person or entity that submitted it of DOE's decision and reasons. Agreement by DOE to pursue development of a transfer agreement does not commit DOE to the project or constitute a final decision regarding the transfer of the property.

Section 3158 of the Act prohibits DOE from transferring real property for economic development until 30 days have elapsed following the date on which DOE notifies the defense committees of Congress of the proposed transfer of real property. Therefore, if DOE determines that a proposal would be in the best interest of the Government, it then will notify the congressional defense committees of the proposed transfer. In particular instances, it is possible that this notification requirement may delay the development of the transfer agreement.

Before a proposed transfer agreement is finalized, the Field Office Manager must ensure that DOE's National Environmental Policy Act (NEPA) environmental review process is completed. Depending on the transfer authority used and the condition of the real property, other agencies may need to review or concur with the terms of the agreement. For example, for Hall Amendment leases at National Priorities List sites, EPA was given the authority to concur in the DOE determination that the terms and conditions of a lease agreement are consistent with safety and the protection of public health and the environment. The DOE will also comply with any other applicable land transfer statutes.

DOE has established policy that requires public participation in the land and facility planning, management, and disposition decision process (under DOE O 403.1A, Life Cycle Asset Management). Generally, because the proposals are likely to be generated by or in coordination with a CRO, a separate public involvement process should not be necessary. However, there may be instances in which a specific authority requires separate or additional procedures ( e.g. , commitments in agreements signed with tribal, state, or local governments).

The House Conference Report for the Act (105-340) noted that DOE should address in this part, when it is appropriate for DOE to transfer or lease real property below fair market value or at fair market value. DOE will generally pursue fair market value for real property transferred for economic development. DOE may, however, agree to sell or lease such property for less than fair market value if the statutory transfer authority used imposes no market value restriction and the real property requires considerable infrastructure improvements to make it economically viable, or if in DOE's judgment a conveyance at less than market value would further the public policy objectives of the laws governing the downsizing of defense nuclear facilities. DOE has the authority to transfer real and personal property at less than fair market value (or without consideration) in order to help local communities recover from the effects of downsizing of defense nuclear facilities.

DOE real property often is viewed by the public as a potential liability even if it has been cleaned to specific regulatory requirements. To improve the marketability of previously contaminated land and facilities, DOE may indemnify a person or entity to whom real property is transferred for economic development against any claim for injury to persons or property that results from the release or threatened release of a hazardous substance, pollutant or contaminant attributable to DOE (or predecessor agencies).  1 DOE will enter into an indemnification agreement under this rule if a person or entity requests it, and indemnification is deemed essential for the purposes of facilitating reuse or redevelopment. A claim for injury to person or property will be indemnified only if an indemnification provision is included in the agreement for sale or lease and in subsequent deeds or leases.

This general DOE indemnification policy is subject to the conditions in section 770.9 of this part. As provided by section 3158(c)(1) of the Act (42 U.S.C. 7274q(c)(1)), a person or entity who requests indemnification under a transfer agreement must notify DOE (the Field Office Manager) in writing within two years after the claim accrues.

Section 770.9 contains several other requirements and conditions that are taken from section 3158(c)(1) of the Act. The person or entity requesting indemnification for a particular claim must furnish the Field Office Manager pertinent papers regarding the claim received by the person or entity, and any evidence or proof of the claim; and must permit access to records and personnel for purposes of defending or settling the claim.

DOE also is prohibited by section 3158(b)(3) from indemnifying a person or entity for a claim “to the extent the persons and entities * * * contributed to any such release or threatened release” (42 U.S.C. 7274q(b)(3)). This limitation on DOE's ability to indemnify potentially liable parties is included in the rule in paragraph 770.9(b).

One additional statutory limitation on indemnification is that DOE may not indemnify a transferee for a claim, even if an indemnification agreement exists, if the person requesting indemnification does not allow DOE to settle or defend the claim. This limitation is in paragraph 770.9(c), and it is required by section 3158(d)(2) of the Act (42 U.S.C. 7274q(d)(2)).

Section 770.10 provides, as stipulated in the Act, that if an indemnification claim is denied by DOE, the person or entity must be informed through a notice of final denial of a claim by certified or registered mail. If the person or entity wishes to contest the denial, then that person or entity must begin legal action within six months after the date of mailing of a notice of final denial of a claim by DOE. (42 U.S.C. 7274q(c)(1)).

Section 770.11 incorporates the Act's provision that a claim “accrues” on the date on which the person asserting the claim knew (or reasonably should have known) that the injury to person or property was caused or contributed to by the release or threatened release of a hazardous substance, pollutant, or contaminant as a result of DOE activities at the defense nuclear facility on which the real property is located. (42 U.S.C. 7274q(c)(2)). DOE may not waive this timeliness requirement.

List of Defense Nuclear Facilities: This list is consists of the defense nuclear facilities noted as covered facilities in House Report 105-137, and is not meant to be inclusive.

The interim final rule published today relates to public property and, therefore, is exempt from the notice and comment rulemaking requirements in the Administrative Procedure Act, 5 U.S.C. 553. Nonetheless, DOE is providing an opportunity for interested persons to submit written comments on the interim final rule. Three copies of written comments should be submitted to the address indicated in the ADDRESSES section of this rule. All comments received will be available for public inspection in the Department of Energy Reading Room, 1E-190, Forrestal Building, 1000 Independence Avenue, S.W., Washington, D.C., between the hours of 9 a.m. and 4 p.m., Monday through Friday, except federal holidays. All written comments received on or before the date specified in the beginning of this rule will be considered by DOE. Comments received after that date will be considered to the extent that time allows.

Any person submitting information or data that is believed to be confidential, and exempt by law from public disclosure, should submit one complete copy of the document and two additional copies from which the information believed to be confidential has been deleted. DOE will makes its own determination with regard to the confidential status of the information and treat it as provided in 10 CFR 1004.11.

Today's regulatory action has been determined not to be “a significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was not subject to review under that Executive Order by the Office of Information and Regulatory Affairs of the Office of Management and Budget.

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. Today's interim final rule concerning the sale or lease of real property at defense nuclear facilities is not subject to the Regulatory Flexibility Act because neither the Administrative Procedure Act (5 U.S.C. 553(a)(2)), nor any other law requires DOE to propose the rule for public comment.

No new collection of information is imposed by this interim final rule. Accordingly, no clearance by the Office of Management and Budget is required under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

Under the Council on Environmental Quality regulations (40 CFR Parts 1500-1508), DOE has established guidelines for its compliance with the provisions of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ). This interim final rule establishes procedures for real property transfers for economic development. Because the rule is procedural, it is covered by the Categorical Exclusion in paragraph A6 of Appendix A to Subpart D, 10 CFR Part 1021. Accordingly, neither an environmental assessment nor an environmental impact statement is required. As paragraph 770.3(b) of the rule notes, individual proposals for the transfer of property are subject to appropriate NEPA review.

Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999), requires that regulations, rules, legislation, and any other policy actions be reviewed for any substantial direct effects on states, on the relationship between the federal government and the states, or in the distribution of power and responsibilities among the various levels of government. DOE has analyzed this rulemaking in accordance with the principles and criteria contained in Executive Order 13132, and has determined that this rule will not have a substantial direct effect on states, the established relationship between the states and the federal government or the distribution of power and responsibilities among the various levels of government.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) Clearly specifies any effect on existing federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that this interim final rule meets the relevant standards of Executive Order 12988.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. No. 104-4) requires each federal agency to prepare a written assessment of the effects of any federal mandate in a proposed or final rule that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million in any one year. The Act also requires a federal agency to develop an effective process to permit timely input by elected officers of state, local, and tribal governments on a proposed “significant intergovernmental mandate,” and it requires an agency to develop a plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirement that might significantly or uniquely affect small governments. The interim final rule published today does not contain any federal mandate, so these requirements do not apply.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires federal agencies to issue a Family Policymaking Assessment for any proposed rule or policy that may affect family well-being. Today's proposal would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of today's interim final rule prior to the effective date set forth at the outset of this notice. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 801(2).

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 97-21-16, amendment 39-10202 (62 FR 60773, November 13, 1997), which is applicable to certain Dassault Model Mystere-Falcon 50 series airplanes, was published in the Federal Register on November 3, 1999 (64 FR 59685). The action proposed to retain the requirement to revise the Limitations section of the FAA-approved Airplane Flight Manual (AFM) to include procedures to use certain values to correctly gauge the minimum allowable N1 speed of the operative engines during operation in icing conditions, and add a new requirement for adjustment of the thrust reverser handle stop, installation of new wiring, and modification of the Digital Electronic Engine Control (DEEC) software, which would terminate the need for the AFM revision.

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 manufacturer, suggests that the applicability be revised to exclude airplanes on which Dassault Factory Modification M2193 has been accomplished. The commenter notes that this modification is equivalent to Dassault Service Bulletin F50-276, dated June 24, 1998 (which was cited in the AD as the appropriate source of service information). The FAA concurs. The actions described in the referenced Dassault service bulletin constitute terminating action for the requirements of this AD; therefore, airplanes on which the service bulletin has been accomplished are excluded in the applicability of the AD. Since Dassault Modification M2193 is equivalent to that service bulletin, the FAA has revised the final rule to also exclude airplanes having this production modification.

The same commenter also requests that the applicability of the proposed AD be revised in regard to the listing of affected airplanes. The commenter notes that the proposed AD applies to “serial numbers 251, 253, and subsequent, equipped with Allied-Signal TFE731-40 engines * * *.” The commenter suggests that the applicability be expanded to include any Falcon 50 series airplane retrofitted with Dassault Service Bulletin F50-280 or Dassault Factory Modification 2518, since this service bulletin describes procedures for installation of Allied-Signal TFE731-40 engines on any Model Mystere-Falcon 50 series airplane, including serial numbers prior to 251.

The FAA does not concur. The FAA acknowledges that all airplanes equipped with the referenced engine type should also be subject to the requirements of this AD, if all actions required by this AD have not been accomplished. However, after further discussions with the manufacturer, the FAA has been advised that Dassault Service Bulletin F50-280 is in the process of review, but has not been released, nor has the equivalent Dassault Modification 2518 been approved. The FAA does not consider it appropriate to delay issuance of this final rule while awaiting such approval; therefore, no change is made to the applicability of the AD in this regard. If the engine retrofit service information is approved, the FAA will consider further rulemaking, if necessary, to apply the requirements of this AD to additional airplanes.

The same commenter states that the estimate of 7 affected airplanes is incorrect in the cost impact information of the proposed AD, since other airplanes may have the Allied-Signal TFE731-40 engines installed as a retrofit, as discussed in the previous comment. The FAA infers that the commenter is requesting that the number of affected airplanes be increased. However, since the previously described engine retrofit service information has not been approved, no airplanes on the U.S. Register should have had such a modification at this time. No change to the AD is necessary in this regard.

The same commenter states that the estimate of 2 work hours is conservative in that it does not include hours necessary to gain access, remove and replace the unit, and perform engine ground runs and/or flight tests. The commenter believes that the economic impact per airplane will be approximately double that referred to in the proposed AD.

The FAA infers that the commenter is requesting that the cost estimate in the AD be increased to include the noted additional costs. The FAA does not concur. The cost impact information, below, describes only the “direct” costs of the specific actions required by this AD. The FAA recognizes that, in accomplishing the requirements of any AD, operators may incur “incidental” costs in addition to the “direct” costs. The cost analysis in AD rulemaking actions, however, typically does not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions. Because incidental costs may vary significantly from operator to operator, they are almost impossible to calculate. No change is made to the final rule.

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 change previously described. The FAA has determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 7 airplanes of U.S. registry that will be affected by this AD.

The action that is currently required by AD 97-21-16, and retained in this AD, takes 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 the previously required actions on U.S. operators is estimated to be $60 per airplane.

The new actions that are required by this new AD will take approximately 2 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts will cost approximately $1,026 per airplane. Based on these figures, the cost impact of the new requirements of this AD on U.S. operators is estimated to be $8,022, or $1,146 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.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 757 series airplanes was published in the Federal Register on October 19, 1999 (64 FR 56279). That action proposed to require replacement of transmission assemblies for the trailing edge flaps with modified transmission assemblies.

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 requests that paragraph (b) of the proposed rule be revised to allow installation of a transmission assembly modified in accordance with the original issue of Boeing Alert Service Bulletin 757-27A0127, dated September 10, 1998. The commenter states that this would be consistent with “NOTE 2” of the proposed rule, which states, “Replacements accomplished in accordance with Boeing Alert Service Bulletin 757-27A0127, * * * are considered acceptable for compliance with paragraph (a) of this AD.”

The FAA concurs with the commenter's request, and has revised paragraph (b) to read, “ * * * no person shall install on any airplane, a trailing edge flap transmission assembly, unless it has been modified in accordance with this AD.”

One commenter requests that paragraph (b) of the notice of proposed rulemaking (NPRM) be revised to allow installation of a new transmission that incorporates the upgraded torque limiter. The commenter states that some operators may choose to purchase a new transmission from the supplier, instead of modifying the existing unit.

The FAA concurs with the commenter's request. The FAA's intent was to allow installation of a new flap transmission assembly equipped with the new torque limiter or a modified flap transmission assembly. Therefore, in accordance with the commenter's request, paragraph (b) of this final rule has been revised to specify that no person shall install a trailing edge flap assembly, unless it has been modified in accordance with this AD, or, in the case of new transmission assemblies, it incorporates the new torque limiter. In addition, paragraph (a) of this final rule has been revised to clarify that replacement of existing transmission assemblies with new transmission assemblies that incorporate new torque limiters is acceptable for compliance with this AD.

One commenter requests that one sentence in the “Explanation of Relevant Service Information” section in the preamble of the proposed rule be revised. The proposed rule states that, “The modified transmission assemblies include new torque limiters that can prevent damage to the airplane from high system loads at the transmission assemblies, and can prevent excessive skew of the trailing edge flap.” The commenter requests that the last clause of the sentence be revised to read, “* * * and can, in some conditions, prevent excessive skew of the trailing edge flap.” The commenter states that, while a properly functioning torque limiter is expected to prevent excessive skew of the flap under some skew conditions, it is not certain that a properly functioning torque limiter will lock out under all circumstances to prevent a skewing flap from being damaged by drive system loads.

The FAA concurs with the intent of the commenter's request. While the new torque limiters represent a significant improvement over the existing torque limiters and are effective in preventing damage due to a jam, the FAA recognizes that the new torque limiters may not prevent excessive skew in all flight conditions. Also, because the new torque limiters may not prevent loss of controllability in all flight conditions, the FAA may consider further regulatory action in the future. However, despite the FAA's concurrence, no change to the final rule is necessary in this regard because the subject section is not restated in the final rule.

One commenter requests that the FAA revise the cost estimate of the proposed AD from $43,512,000 ($87,024 per airplane), to $44,172,000 ($88,344 per airplane). The commenter states that the suggested change is consistent with the estimates in the service bulletin.

The FAA does not concur with the commenter's request to revise the cost estimate. The estimate of 32 work hours specified in the NPRM represents the time necessary to perform only the actions actually required by this AD ( i.e., replacement of transmission assemblies for the trailing edge flaps with modified transmission assemblies). The FAA recognizes that, in accomplishing the requirements of any AD, operators may incur “incidental” costs in addition to the “direct” costs. The cost analysis in AD rulemaking actions, however, typically does not include incidental costs, such as the time required to gain access and close up; planning time; or time necessitated by other administrative actions. Because incidental costs may vary significantly from operator to operator, they are almost impossible to calculate. Thus, the FAA finds that the number of work hours estimated in the NPRM is consistent with the estimated number of work hours for accomplishing Part 1 of the service bulletin (excluding the work hours for “incidental” actions), and no change to the final rule is necessary in this regard.

One commenter requests that the compliance time for the actions specified in paragraph (a) of the proposed rule be extended from 36 months to 48 months, to allow the proposed actions to be accomplished on all affected airplanes at a “4C” check. (The commenter considers the “4C” check interval to be 72 months.) Alternatively, the commenter suggests that the compliance time be revised to “at the airplane's first scheduled ‘4C’ check”, for airplanes that have not undergone a scheduled “4C” check since delivery, or within 36 months after the effective date of this AD, for airplanes that have undergone a scheduled “4C” check since delivery. The commenter states that most airplanes affected by this AD will have completed at least one “4C” check cycle by the end of the proposed 36-month compliance time. Thus, most operators would be able to accomplish the proposed AD on their airplanes during a “4C” check, which would allow accomplishment of this AD with only minimal schedule disruption. However, the commenter states that there are a few airplanes that will not complete a “4C” check cycle by the end of the proposed 36-month compliance time. According to the commenter, a 36-month compliance time would place an undue burden on operators that are not able to comply with the AD at a “4C” check because it would necessitate accomplishment of the requirements of this AD at a shorter check, thus delaying the airplane's return to revenue service. The commenter contends that extension of the compliance time to 48 months would not adversely affect the safety of airplanes subject to this AD, especially since airplanes that will not complete a “4C” check cycle by the 36 month compliance time are the newest, lowest-time, airplanes.

The FAA does not concur with the commenter's request to extend the compliance time for the actions specified in paragraph (a) of this AD. As stated in the preamble of the proposed rule, 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 and the availability of required parts. With regard to the commenter's contention that an extension of the compliance time would not adversely affect safety, the FAA finds that the relative newness of the airplane or a low number of flight hours may have no effect on how the torque limiter operates in service. In light of all of these factors, the FAA finds a 36-month compliance time for initiating 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, and wherein an ample number of required parts will be available for the modification of the U.S. fleet. No change to the final rule is necessary in this regard.

One commenter requests that the FAA revise paragraph (b) of the proposed rule to allow installation of unmodified transmission assemblies for the trailing edge flaps for up to 18 months after the effective date of this AD. [Paragraph (b) of the proposal reads, “As of the effective date of this AD, no person shall install on any airplane, a trailing edge flap transmission assembly, unless it has been modified in accordance with Boeing Service Bulletin 757-27A0127, Revision 1, dated September 2, 1999.”] The commenter states that the proposed paragraph (b) seems “unnecessarily restrictive,” and that allowing installation of unmodified transmission assemblies for up to 18 months after the effective date of the AD would provide needed flexibility to operators until an ample supply of torque brake retrofit kits and seed units is available.

The FAA does not concur with the commenter's request. The FAA does not consider it to be in the interest of safety to allow installation of deficient transmission assemblies after the effective date of this AD. The FAA finds that the manufacturer's coordination with operators during preparation of the service bulletin, coupled with the time required for the rulemaking process (including the comment period following issuance of the proposed rule), has provided adequate time for operators to be able to install only modified transmissions (or new transmissions that incorporate the new torque limiter) after the effective date of this AD. As noted above, the FAA has been assured by the manufacturer that an ample number of required parts will be available for modification of the U.S. fleet. 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 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 796 Model 757 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 500 airplanes of U.S. registry will be affected by this AD, that it will take approximately 32 work hours per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. Required parts will cost approximately $85,104 per airplane. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $43,512,000, or $87,024 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 a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

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

The FAA has received a report indicating that, during a Boeing fatigue test, the upper chord and web of the upper deck floor beams located at body stations (BS) 340 and 360 failed at approximately 34,000 flight cycles. The FAA also received an operator's report of a severed upper chord and web at BS 380, which occurred in an upper deck floor beam at approximately 33,000 flight cycles. In addition, cracks were found at twelve floor panel attachment fastener holes between left buttock line 66.5 and right buttock line 58.5.

The manufacturer also reports that one operator found crack indications at multiple fastener hole locations during an inspection of the upper deck floor beams located at BS 340 and 360 on six airplanes having at least 30,000 total flight cycles. Inspections included an open-hole high frequency eddy current (HFEC) inspection from above, and a visual inspection from below. The majority of the cracks were found during open-hole HFEC inspections, and most of such cracking could be removed by oversizing the fastener holes; however, repairs were required at some locations.

The report also indicates that the floor beams at BS 340 and 360 are made from 7075 aluminum, a material which is more susceptible to fatigue cracking than 2024 aluminum. The floor beam at BS 380 is made from 2024 aluminum, which is considered a more durable material than 7075 aluminum; however, recent reports of cracking at that body station indicate that it is necessary to also require inspections in that area.

The FAA has been informed that flight-critical wire bundles and control cables are routed through the upper deck floor beams at BS 340, 360, and 380; and that failure of these floor beams could lead to large deflection or deformation of the floor and body skin, frames, and stringers, which could damage the wire bundles and result in unintended inputs to the flight control cables. Failure of the upper deck floor beams at BS 340, 360, and 380, due to fatigue cracking, could also result in rapid decompression and consequent reduced controllability of the airplane.

The FAA has reviewed and approved Boeing Alert Service Bulletin 747-53A2431, dated February 10, 2000, which describes procedures for repetitive open-hole high frequency eddy current (HFEC) and surface HFEC inspections to detect cracking of the upper chords of the upper deck floor beams at BS 340 and 360; and repair, if necessary. Procedures also include repetitive inspections if no cracking is found. The first repetitive inspection threshold may be extended from 3,000 flight cycles to 10,000 flight cycles if the floor panel attachment fastener holes are modified.

Since an unsafe condition has been identified that is likely to exist or develop on other Boeing Model 747-100, -200, and -300 series airplanes of the same type design, this AD is being issued to prevent failure of the upper deck floor beams at BS 340, 360, and 380 due to fatigue cracking that originates from the upper chord fastener holes of those floor beams, which could result in rapid decompression and consequent reduced controllability of the airplane. This AD requires accomplishment of actions specified in the alert service bulletin described previously, except as discussed below.

Operators should note that, although the alert service bulletin specifies inspections of the upper chord of the upper deck floor beam at BS 340 and 360, the FAA has determined that the same unsafe condition also exists on both the left and right sides of the floor beam at BS 380 between buttock lines 40 and 76. This determination is based on a recent report from an operator that a severed upper chord and web were found in an upper deck floor beam at BS 380.

Operators also should note that, although the alert service bulletin specifies that the manufacturer may be contacted for disposition of certain repair conditions, this AD requires the repair of those conditions to be accomplished in accordance with a method approved by the FAA, or in accordance with data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative who has been authorized by the FAA to make such findings.

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

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified under the 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-366-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.

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

A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to General Electric Company (GE) CF6-80C2 series turbofan engines was published in the Federal Register on September 8, 1999 (64 FR 48721). That action proposed to require replacement of the fuel tube connecting the flowmeter to the Integrated Drive Generator (IDG) and the fuel tube(s) connecting the Main Engine Control (MEC) or Hydromechanical (HMU) to the flowmeter with improved fuel tubes. That action was prompted by reports of fuel leaking in the core cowl cavity under high pressure that can be ignited by the hot engine case temperatures. That condition, if not corrected, could result in high-pressure fuel leaks caused by improper seating of fuel tube flanges, which could result in an engine fire and damage to the airplane.

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

Four commenters state that the compliance time should be the next shop visit only, not at the next time the fuel tubes are disconnected for on-wing maintenance.

One commenter believes that requiring compliance the next time the fuel tubes are disconnected for on-wing maintenance would call for stocking parts in many locations and would prevent possible non-compliance of this AD should an unscheduled on-wing maintenance activity occur.

One commenter believes that line maintenance personnel would require a system that tells them which fuel tubes need to be replaced and therefore performing the proposed requirements at a shop visit would be preferable.

Two commenters believe that tracking the accomplishment of this AD would be a burden and proposes that replacement of the fuel tubes after a fixed number of hours or at the next shop visit would be preferable.

The FAA does not concur. While parts availability and tracking of on wing maintenance can be a burden, the risk associated with any additional maintenance action only increases the chance of improper installation and a high-pressure fuel leak unless these old fuel tubes are replaced with the new design fuel tubes at the first opportunity. The new design fuel tubes will prevent hang-up of the flange on the fuel tube, allowing proper seating and preventing fuel leaks. Although there may be situations where a fuel tube is unavailable, the commenters provide no additional data or information that would support their changes that still show an acceptable mitigation of risk of a fuel tube leak and fire.

One commenter provided useful information as to which fuel tubes the line maintenance personnel should replace for on wing maintenance. The FAA requires only those fuel tubes that are disconnected to be replaced during on-wing maintenance and has added a clarifying statement to this final rule.

Similarly, one commenter provided a definition of “disconnected” and the FAA has added a clarifying statement to this final rule to indicate that disconnecting at “either end” triggers this AD for on wing maintenance.

One commenter suggests recommending fuel tube replacement rather than mandating it. The commenter also suggests attaching a label to the fuel tube. The commenter is concerned that in the event of unplanned maintenance trouble shooting, the AD may not be complied with. The FAA does not concur. Although the idea of a label might be useful, the FAA does not believe that the use of labels should be mandated. AD compliance should be managed under the individual operator's maintenance system. Furthermore, the FAA believes that it is necessary to have the fuel tube replacement accomplished at the earlier of on-wing maintenance or a shop visit, and that making the on-wing maintenance only a recommendation would not achieve the desired level of safety. The FAA has determined that continued use of the old fuel tubes constitutes an unacceptable risk and that this AD is necessary to achieve a substantial mitigation of that risk through the mandated replacement of the old fuel tubes with fuel tubes of an improved design. As previously stated, any additional maintenance action only increases the chance of improper installation and a high-pressure fuel leak unless these old fuel tubes are replaced with the new design fuel tubes at the first opportunity.

One commenter states that the proposal should mandate fuel tube replacement at a hard time or calendar date, and that the fuel tube replacement would best be accomplished at a shop visit. The commenter states that line maintenance actions would be more difficult to record than during a shop visit. The commenter also suggests that a trial period would be necessary to review the procedure. The FAA does not concur. While replacement on a fixed date would accomplish the required objective, replacement of fuel tubes, it would also result in requiring operators to disconnect tubes that have been on-wing and have not had an indication of a leak. Initiating action on a system that is functioning properly may result in potentially more risk and is therefore not desirable. The FAA believes that any training that may be necessary should be controlled by the operator under its individual maintenance system.

One commenter concurs with the rule as proposed.

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.

There are approximately 2,693 engines of the affected design in the worldwide fleet. The FAA estimates that 581 engines installed on airplanes of U.S. registry will be affected by this proposed AD, that it will take approximately 0.5 work hours per engine to accomplish the required actions, and that the average labor rate is $60 per work hour. Of the 581 engines, some have already complied with the GE Alert Service Bulletins (ASBs). There is no cost impact to the domestic fleet for parts complying with ASB 73-A224 since all domestic engines are now in compliance. To comply with ASB 73-A0231, required parts would cost $2,858 per engine for the remaining 128 domestic FADEC engines, and $1,229 per engine for the remaining 138 domestic Power Management Control (PMC) engines. Based on these figures, the total cost impact of the AD on US operators is estimated to be $535,426.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order (EO) No. 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under EO No. 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

The FAA published this direct final rule with a request for comments in the Federal Register on December 29, 1999 (64 FR 72922). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on April 20, 2000. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

On December 29, 1999, the FAA published in the Federal Register a direct final rule; request for comments which revises the Class E airspace at Fredericktown, MO (FR document 99-33795, 64 FR 72924, Airspace Docket No. 99-ACE-47). An error was subsequently discovered in the coordinates for the Fredericktown Regional Airport ARP and the Farmington, MO, VORTAC. This action corrects those errors. After careful review of all available information related to the subject presented above, the FAA has determined that air safety and the public interest require adoption of the rule. The FAA has determined that this correction will not change the meaning of the action nor add any additional burden on the public beyond that already published. This action corrects the error in the coordinates of the Fredericktown Regional Airport ARP and Farmington VORTAC and confirms the effective date to the direct final rule.

The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on April 20, 2000. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on December 29, 1999 (64 FR 72926). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on April 20, 2000. No adverse comments were received, and thus this notice confirm that this direct final rule will become effective on that date.

The Toxic Substances Control Act (TSCA) (15 U.S.C. 2601 et seq. ) was enacted by Congress, among other things, to protect human health and the environment by requiring testing and necessary use restrictions on certain chemical substances. Section 13 of Title I of the TSCA (15 U.S.C. 2612) governs the entry of those chemical substances into the customs territory of the United States and authorizes the Secretary of the Treasury to refuse entry of any chemical substance that (1) Fails to comply with any rule in effect under the TSCA or (2) is offered for entry in violation of section 5 or 6 of Title I (15 U.S.C. 2604 or 2605) or Title IV (15 U.S.C. 2681 et seq. ) or in violation of a rule or order under section 5 or 6 or Title IV or in violation of an order issued in a civil action brought under section 5 or under section 7 of Title I (15 U.S.C. 2606) or under Title IV. Section 13 also sets forth procedural and other requirements in connection with an entry refusal and authorizes the Secretary of the Treasury, after consultation with the Administrator of the Environmental Protection Agency (EPA), to issue rules for the administration of section 13.

The regulations implementing section 13 are contained in §§ 12.118-12.127 of the Customs Regulations (19 CFR 12.118-12.127). Within those regulations, § 12.121 concerns reporting requirements. Paragraph (a) of that section covers chemical substances imported in bulk or as part of a mixture and provides for submission of a signed certification by the importer or his authorized agent stating, in the alternative, (1) That all chemical substances in the shipment comply with all applicable rules or orders under the TSCA and that the importer is not offering a chemical substance for entry in violation of the TSCA or any rule or order thereunder (a positive certification) or (2) that all chemicals in the shipment are not subject to the TSCA (a negative certification). Paragraph (a) further requires that the certification be filed with the director of the port of entry before release of the shipment and provides that the certification may appear as a typed or stamped statement (1) on the entry document or commercial invoice, or on a preprinted attachment to the entry document or commercial invoice, or (2) in the case of a release under a special permit for an immediate delivery under § 142.21 of the Customs Regulations (19 CFR 142.21) or in the case of an entry under § 142.3 of the Customs Regulations (19 CFR 142.3), on the commercial invoice or an attachment to the commercial invoice. Paragraph (b) of § 12.121 provides that the provisions of paragraph (a) apply to a chemical substance or mixture as part of an article only if required by a rule or order under the TSCA. Paragraph (c) of that section provides that a certification under paragraph (a) may be signed by means of an authorized facsimile signature.

On January 9, 1990, Customs published a notice of proposed rulemaking in the Federal Register (55 FR 738) to amend § 12.121. The proposed amendments included the following changes to paragraph (a): (1) To provide for placement of the typed or stamped certification statement only on the invoice used in connection with the entry and entry summary procedures (and, thus, no longer on the entry document or on an attachment to the entry document or commercial invoice); and (2) in the case of entries or entry summaries processed electronically, to provide for a certification statement in the form of a certification code transmitted as part of the Automated Broker Interface (ABI) transmission. In addition, in order to simplify procedures for importers who regularly import chemicals, it was proposed to add a new paragraph (b) to permit the use of “blanket” certifications, with a consequential redesignation of present paragraphs (b) and (c) as (c) and (d), respectively. Finally, it was proposed to make a conforming change to newly redesignated paragraph (c), consisting of the addition of a reference to new paragraph (b). The notice solicited comments from the public on the proposals, and the public comment period closed on March 12, 1990. On January 22, 1990, Customs published in the Federal Register (55 FR 2100) a correction document setting forth, with regard to the proposed blanket certification procedure, a statement regarding collection of information review requirements under the Paperwork Reduction Act of 1980 (44 U.S.C. 3504(h)).

A total of 19 commenters responded to the solicitation of comments in the January 9, 1990, notice. A summary of the submitted comments, and the Customs responses to those comments, are set forth below.

Comment: Thirteen commenters were opposed to the proposal regarding inclusion of the certification only on the commercial invoice, and two commenters were in favor of that proposal. Comments against the proposal cited the procedural burden and inefficiency that would result from the proposed restriction, particularly in view of the unavailability of the original invoice for some shipments, the lack of sufficient space on the invoice, the need for a separate certification document in order to avoid delays in the case of air shipments, express consignment shipments and shipments from contiguous countries, and the lack of control by the importer of record where the certification is placed on the invoice by another party.

Customs response: The proposal in question was not intended to increase the regulatory burden or to have any of the other adverse effects cited by these commenters. Based on the submitted comments and as a result of further review of this matter, including consultation with the EPA which raised the issue that the proposal was intended to address, Customs has determined that it would be preferable to maintain the status quo under which the importer has the option of including the certification on the commercial invoice or on the entry document or on an attachment to the commercial invoice or entry document. Accordingly, the text of § 12.121, as set forth below, continues to reflect the substance of the current regulatory text in this regard.

Comment: One commenter requested that the TSCA certification be made a requirement for the entry summary rather than a condition of entry.

Customs response: As indicated above, the TSCA refers specifically to the “entry” of chemical substances into the Customs territory of the United States. Given the wording of the statute and the clear purpose of the TSCA, which is to protect the health and safety of the general public, the regulation in question must apply for admissibility purposes (that is, when a determination is made as to whether the imported merchandise may be released from Customs custody into the commerce of the United States) rather than in connection with a subsequent filing of the entry summary. Accordingly, the suggestion of this commenter should not be adopted.

Comment: Ten commenters specifically supported the proposed blanket certification procedure, four commenters were against it, and two commenters stated that the blanket certification should be optional rather than mandatory. Of the four comments against the proposal, two commenters argued that a blanket procedure is not feasible where imported mixtures are involved because changes in the chemical composition of a product prior to export could render the blanket certification inaccurate. The other two commenters stated that the proposal would not work in practice because it does not provide for nationwide acceptance of the blanket certification but rather requires separate approval at the local level.

Customs response: While it is true that changes in the composition of an imported product could negate the applicability of a previously approved blanket certification, Customs notes that the importer of record is always responsible for ascertaining the true facts regarding an individual import transaction, including for purposes of deciding whether it would be appropriate to rely on a blanket certification on file with Customs. With regard to the lack of provision for nationwide acceptance of a blanket approval, Customs remains of the view that, for operational purposes, approval must take place at the local port level.

Customs believes that the significant number of favorable comments supports the appropriateness of the blanket certification procedure which was intended to simplify procedures and thus reduce the overall regulatory burden on the importing public. Accordingly, § 12.121, as set forth below, incorporates the proposed blanket certification procedure.

With regard to the optional versus mandatory issue, Customs believes that the regulatory text clearly gives the importer the option (and thus does not impose a requirement) of using the blanket certification procedure, subject only to the port director's exercise of his discretion in accepting the blanket certification.

Comment: Three commenters proposed elimination of the TSCA certification for merchandise subject to FDA 701 requirements and for pesticides subject to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as exempted in section 3 of the TSCA and identified in the EPA publication “Toxic Substances Control Act, A Guide for Chemical Importers/Exporters.”

Customs response: Customs has been advised by EPA that the Guide referred to by these commenters provides that articles as defined in the Guide and tobacco and tobacco products do not require a certification but that food items and pesticides require a negative certification, and EPA also suggested to Customs that the Guide would become confusing in the step-by-step instructions for importers if the negative certification for food items and pesticides were to be eliminated. Moreover, while EPA advised Customs that a negative certification would not be needed if the shipment is accompanied by the appropriate form identifying the merchandise as a pesticide or as a food, food additive, drug, cosmetic or device, as is suggested in the Guide, Customs notes that this approach would not appreciably reduce the regulatory burden on importers. Accordingly, Customs believes that the suggestions of these commenters should not be adopted.

Comment: Seven commenters requested that the regulatory text provide for a waiver of the certification requirement for small shipments, samples, low value shipments, mail shipments, and shipments imported for research and development purposes.

Customs response: The EPA has advised Customs that automatic waivers of the certification requirement should not be provided for in the regulatory text because authority to grant waivers must remain with the EPA for consideration on a case-by-case basis; the Guide referred to in the preceding comment discussion sets forth the procedures applicable to the issuance of such waivers by the EPA. Therefore, the suggestion of these commenters should not be adopted.

In addition to the changes to the proposed regulatory text discussed above in connection with the public comments, Customs has determined that a number of other changes should be made both to the proposed text and to the present § 12.121 text based on further internal review. The principal additional change involves removal of the proposed new language dealing with entries or entry summaries processed electronically: On reconsidering this proposed text, Customs has concluded that it is generally preferable not to set forth specific electronic procedures in a narrow regulatory context but rather to cover them in the context of overall electronic procedures as those procedures are developed and implemented. In addition, the structure of the paragraphs under § 12.121 has been modified without change in substance by setting forth the basic certification requirement in new paragraph (a)(1) and by covering all filing procedures (including the blanket procedure which operates as an exception to the normal entry-by-entry filing procedure) in new paragraph (a)(2). Also, language has been included in the introductory paragraph of the blanket text to clarify that use of the blanket procedure is permissible only for an imported product that conforms to the product description contained in the blanket certification filed with Customs. Finally, a number of editorial, nonsubstantive changes have been made to enhance the clarity of the regulatory text.

Accordingly, based on the comments received and the analysis of those comments and based on the additional considerations as discussed above, Customs believes that the proposed regulatory amendments should be adopted as a final rule with certain changes as discussed above and set forth below. As a consequence of the adoption of these substantive regulatory amendments, this document also includes an appropriate update of the list of information collection approvals contained in § 178.2 of the Customs Regulations (19 CFR 178.2).

This document does not meet the criteria for a “significant regulatory action” as specified in E.O. 12866.

Pursuant to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), it is certified that the amendments will not have a significant economic impact on a substantial number of small entities because the amendments are specifically directed toward a reduction of the regulatory burden on the public. Accordingly, the amendments are not subject to the regulatory analysis or other requirements of 5 U.S.C. 603 and 604.

The collection of information contained in this final rule has been reviewed and approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act (44 U.S.C. 3507) under control number 1515-0173. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB.

The collection of information in this final rule is in § 12.121. This information is required in connection with importations of chemical substances under the Toxic Substances Control Act (TSCA) and will be used by the U.S. Customs Service to verify compliance with TSCA requirements on imported chemicals. The likely respondents are business organizations including importers, exporters and manufacturers.

The estimated average annual burden associated with the collection of information in this final rule is 2 minutes per respondent or recordkeeper. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be directed to the U.S. Customs Service, Information Services Group, Office of Finance, 1300 Pennsylvania Avenue, NW, Washington, DC 20229, and to OMB, Attention: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503.

Drafting Information. The principal author of this document was Francis W. Foote, Office of Regulations and Rulings, U.S. Customs Service. However, personnel from other offices participated in its development.

I. D. Russell Co., Laboratories, 1301 Iowa Ave., Longmont, CO 80501, has informed FDA that it has transferred the ownership of, and all rights and interest in, the following approved NADA's to Alpharma Inc., One Executive Dr., Fort Lee, NJ 07024:

The agency is amending parts 510 and 520 (21 CFR parts 510 and 520) to reflect the change of sponsor. The agency is amending § 510.600(c)(1) and (c)(2) to remove the sponsor name for I. D. Russell Co., Laboratories because the firm no longer is the holder of any approved NADA's.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to congressional review requirements in 5 U.S.C 801-808.

Pennfield Oil Co., 14040 Industrial Rd., Omaha, NE 68144, is sponsor of NADA 65-480 that provides for use of CTC hydrochloride soluble powder for making medicated drinking water for swine and cattle for treatment and control of bacterial enteritis and bacterial pneumonia. The firm filed a supplemental NADA that provides for a zero-day slaughter withdrawal period after use of the product for treatment and control of disease in swine. The supplemental NADA is approved as of December 22, 1999, and 21 CFR 520.445b(d)(1)(i)(A)(2) is amended to reflect the approval.

In accordance with the freedom of information provisions of 21 CFR part 20 and 514.11(e)(2)(ii), a summary of data and information submitted to support approval of this application may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

FDA has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to congressional review requirements in 5 U.S.C. 801-808.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 520 is amended as follows:

Hoechst Roussel Vet, 30 Independence Blvd., P.O. Box 4915, Warren, NJ 07059, filed supplemental NADA 140-992 that provides for use of Revalor®-200, an ear implant containing 200 milligrams (mg) of trenbolone acetate and 20 mg of estradiol in 10 pellets. The implant is used for steers fed in confinement for slaughter for increased rate of weight gain and improved feed efficiency. The supplemental NADA is approved as of November 29, 1999, and the regulations are amended in 21 CFR 522.2477 by revising paragraph (b), the heading in paragraph (d)(1), and by adding paragraph (d)(1)(i)(C) to reflect the approval. The basis for approval is discussed in the freedom of information summary.

In accordance with the freedom of information provisions of 21 CFR part 20 and 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

Under section 512(c)(2)(F)(iii) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(iii)), this approval for food-producing animals qualifies for 3 years of marketing exclusivity beginning on November 29, 1999, because the supplemental application contains substantial evidence of the effectiveness of the drug involved, any studies of animal safety, or in the case of food-producing animals, human food safety studies (other than bioequivalence or residue studies) required for the approval and conducted or sponsored by the applicant. The 3 years of marketing exclusivity applies only to use of the ear implant containing 200 mg trenbolone acetate and 20 mg estradiol for increased rate of weight gain and improved feed efficiency in steers fed in confinement for slaughter.

FDA has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

This document is available as an electronic file on The Federal Bulletin Board the day of publication in the Federal Register . By modem, dial 202/512-1387 and type “/GO FAC,” or call 202/512-1530 for disk or paper copies. This file is available for downloading without charge in ASCII and Adobe Acrobat® readable (*.PDF) formats. For Internet access, the address for use with the World Wide Web (Home Page), Telnet, or FTP protocol is: fedbbs.access.gpo.gov. This document and additional information concerning the programs of the Office of Foreign Assets Control are also available for downloading from the Office's Internet Home Page: http://www.treas.gov/ofac, or in fax form through the Office's 24-hour fax-on-demand service: call 202/622-0077 using a fax machine, fax modem, or (within the United States) a touch-tone telephone.

The Office of Foreign Assets Control (“OFAC”) is amending the Reporting and Procedures Regulations, 31 CFR part 501 (the “Regulations”), to require that license applications to unblock funds transfers be submitted in a standardized format. Section 501.801 of the Regulations provides procedures for requesting specific licenses, including application procedures under those statements of licensing policy contained in subpart E of the individual parts in chapter V, which note the availability of specific licenses for particular categories of transactions but do not establish requirements for the submission of specific information.

Assets blocked pursuant to the various economic sanctions programs administered by OFAC may be released through a specific license issued by OFAC in response to applications submitted by persons having an interest in the blocked funds. OFAC has for many years required certain information to be included in each license application. Until December 1998, applicants applied for a license by sending a letter with supporting documentation to OFAC. However, this non-standardized format was not conducive to the efficient processing of applications because many applications were incomplete, difficult to interpret and at times not submitted in English as required.

Accordingly, OFAC developed a form for OFAC license applications (TD-F 90-22.54) (OMB #1505-0170) in December 1998, which provided a voluntary standardized method for all applicants seeking the release of blocked funds transfers. This form was made available in electronic format on OFAC's website and by fax from OFAC's fax-on-demand service. Its use has greatly facilitated applicants' submission and OFAC's processing of applications, and obviated the need for applicants to write lengthy letter applications. This has resulted in a reduction of the overall burden of the application process.

OFAC is amending § 501.801 of the Regulations to make this form mandatory for applicants seeking the unblocking of funds transfers, and to require that the filing include the original signed application and two duplicate submissions of the entire application package. A new feature of the mandatory form is that the actual application form will generally become the license or license denial once stamped and signed by the appropriate OFAC official.

Section 501.801 of the Regulations is also being amended to require that all applications must be filed by mail or courier. Applications will no longer be accepted by fax or electronically, unless otherwise authorized. However, the application form for the unblocking of funds transfers will continue to be available on OFAC's website, where it may be completed but not signed electronically, and on OFAC's fax-on-demand service.

Since this final rule involves a foreign affairs function, Executive Order 12886 and the provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.

This rule is being issued without prior notice and public comment procedure pursuant to the Administrative Procedure Act (5 U.S.C. 553). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the collection of information contained in this rule has been submitted to and approved by the Office of Management and Budget (“OMB”), and has been assigned control number 1505-0170. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB.

Administrative practice and procedure, Banks, banking, Blocking of assets, Foreign trade, Reporting and recordkeeping requirements.

For the reasons set forth in the preamble, 31 CFR part 501 is amended as set forth below:

On July 15, 1999, the Coast Guard published a Notice of Proposed Rulemaking (NPRM) for this regulation in the Federal Register (64 FR 38166). The comment period ended on September 13, 1999. The Coast Guard received no comments on the proposal. A public hearing was not requested and no hearing was held.

The Coast Guard is modifying the anchorage regulations for Los Angeles-Long Beach Harbors in 33 CFR 110.214. The regulations reconfigure the anchorages to accommodate changed geographic conditions and incorporate appropriate safety standards where necessary to ensure safe navigation.

The regulations are rewritten so that paragraph (a) discusses general requirements relating to all anchorages in this section, including those activities which require Captain of the Port (COTP) permits under the various regulations enforced by the COTP. Paragraph (b) describes only the physical location of each anchorage; the designation of “non-anchorage” areas has been eliminated because the general requirement that vessels may not anchor anywhere outside of designated anchorage areas makes the designation of “non-anchorage” areas redundant and confusing. Paragraph (c) describes specific requirements applicable to individual anchorages, and has been placed in table format. Paragraph (d) describes explosives anchorage requirements.

The regulations eliminate or reconfigure several anchorages to reflect completed and ongoing construction of new facilities in the port complex.

Existing commercial anchorage area “A” is eliminated by the regulations. As part of the Port of Los Angeles Pier 400 expansion project, this existing anchorage has been replaced by a shallow water habitat area, which is unsuitable as a commercial vessel anchorage. A new commercial anchorage area “A” is established within a portion of the former commercial anchorage “C”.

Former commercial anchorages “B” and “C” are also affected by the Pier 400 construction project. The Pier 400 facility will occupy much of these former anchorage areas, eliminating entirely those portions of these anchorages within the Port of Los Angeles boundaries. New anchorage area “B” is located entirely within the southwestern portion of the Port of Long Beach, replacing former anchorage “C” and naval anchorage “J”. Naval anchorage “J” is eliminated. Anchorage “C” is moved from its present location to a new location in the northeast portion of the Port of Long Beach.

Former commercial anchorage “D” and naval anchorage “K” are consolidated into a new commercial anchorage “D”.

Although naval anchorages “J” and “K” are eliminated (becoming part of the reconfigured “B” and “D” commercial anchorages, respectively), the Department of Defense will retain priority for using the eastern portion of proposed anchorage “D”.

The boundary of anchorage “E” is adjusted as a result of a breakwater constructed in the Port of Long Beach adjacent to Pier J. This breakwater reduced the area suitable for anchoring as it extends into existing anchorage “E” and if left unchanged would make it difficult for vessels to enter or depart the Pier J facility when vessels were anchored there. Accordingly, anchorage “E” is modified to allow vessels an unobstructed passage when entering or departing the terminal at Pier J. Anchorage area “E” is also subdivided with the western portion of existing anchorage “E” retaining this designation and the eastern portion of anchorage “E” is slightly re-configured and renamed as Anchorage “C”.

The northern boundary of General Anchorage “N” is adjusted due to the establishment of small vessel slips in the northern portion of the anchorage. These slips provide the opportunity to moor to a dock instead of anchoring.

General Anchorage Area “O” is eliminated by the regulations. This area is being filled and is not currently used as an anchorage.

Boundaries for the explosives anchorage and existing anchorages “F” and “G” will not change. Finally, this rulemaking does not affect Anchorage Area “A-2” which is established as a special anchorage area as described in 33 CFR 110.100.

Although several anchorages are eliminated or reconfigured by the regulations, a sufficient number of anchorages are believed available to meet both current and anticipated future needs of the port complex. Importantly, the construction of terminals and/or landfills in U.S. navigable waters was the subject of a separate permit process administered by the U.S. Army Corps of Engineers. These anchorage areas are designed to most effectively meet the demands of vessels desiring to anchor within Los Angeles and Long Beach Harbors.

Finally, certain outdated practices and procedures are eliminated or changed and new procedures to better ensure the safety of navigation and the protection of the environment are added. The regulations also conform to the current definitions of explosives, cargoes of particular hazard and certain dangerous cargoes, which have been revised in other sections of 33 CFR. Requirements to obtain permits for certain activities such as the handling or carriage of explosives, and extended anchorage stays are all explicitly detailed. Watchkeeping and other general requirements pertinent to commercial vessels at anchorage are set forth in section (a). Additionally, some activities such as bunkering and lightering are permissible only in specified anchorage locations and are prohibited in others. These are outlined in section (c), which discusses requirements and procedures which vary from anchorage to anchorage.

No comments were received.

This regulation is not a significant regulatory action under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. It has been exempted from review by the Office of Management and Budget under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). The Coast Guard expects the economic impact of this proposal to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of Department of Transportation is unnecessary.

This regulation makes substantive changes in anchorage designations to conform to the changed geography of the harbor and to best make use of available water. Some of the designated procedures reflect various additions to, and changes in, existing regulatory requirements; however, they are all implemented in the interest of safe navigation and protection of the port complex, and most of the mariners affected already practice these procedures as a matter of prudent seamanship.

Under 5 U.S.C. 601 et seq. , the Coast Guard must consider whether this regulation would have significant impact on a substantial number of small entities. “Small entities” include small businesses, not-for-profit organizations that are not dominant in their fields, and governmental jurisdictions with populations less than 50,000. For the reasons set forth in the Regulatory Evaluation, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard wants to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If your small business or organization is affected by this rule and you have questions concerning its provisions or options for compliance, please contact Lieutenant Rob Coller at the address listed in ADDRESSES above.

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

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

The Coast Guard has considered the environmental impact of this regulation and concluded that, under figure 2-1, paragraph 34(f) of Commandant Instruction M16475.1C, it will have no significant environmental impact and it is categorically excluded from further environmental documentation. A Categorical Exclusion Determination and Environmental Analysis Checklist will be available for inspection and copying in the docket to be maintained at the address listed in ADDRESSES.

Under the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), the Coast Guard must consider whether this rule will result in an annual expenditure by state, local, and tribal governments, in the aggregate of $100 million (adjusted annually for inflation). If so, the Act requires that a reasonable number of regulatory alternatives be considered, and that from those alternatives, the least costly, most cost-effective, or least burdensome alternative that achieves the objective of the rule be selected.

No state, local, or tribal government entities will be affected by this rule, so this rule will not result in annual or aggregate costs of $100 million or more. Therefore, the Coast Guard is exempt from any further regulatory requirements under the Unfunded Mandates Act.

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

This Rule meets applicable standards in section 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

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

The Beach Channel Bridge, mile 6.7, across the Jamaica Bay has a vertical clearance of 26 feet at mean high water, and 31 feet at mean low water in the closed position. The bridge owner, New York City Transit Authority, requested a temporary deviation from the operating regulations to facilitate electrical repairs at the bridge. The existing operating regulations require the bridge to open on signal at all times.

This deviation to the operating regulations allows the owner of the Beach Channel Bridge to keep the bridge in the closed position from March 25, 2000, through April 2, 2000. Vessels that can pass under the bridge without an opening may do so at all times.

In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.

EPA is disapproving SCAQMD Rule 1623—Credits for Clean Lawn and Garden Equipment. SCAQMD adopted Rule 1623 on May 10, 1996, and the California Air Resources Board (CARB) submitted the rule to EPA on August 28, 1996.

Rule 1623 claims to provide opportunities for stationary sources to generate oxides of nitrogen (NOx), volatile organic compounds (VOCs), carbon monoxide (CO), and particulate (PM) mobile source emission reduction credits (MSERCs). Any entity interested in participating in Rule 1623 could implement one of three strategies to generate credits: (1) before January 1, 1999, permanently scrap and replace existing lawn and garden equipment with equipment which meets the 1995 California Emission Standards for Utility and Lawn and Garden Engines; (2) permanently scrap and replace existing gasoline-powered lawn and garden equipment with new low- or zero-emission equipment; or (3) after May 10, 1996 and prior to January 1, 1999, direct sale to an end user of new low-emission lawn and garden equipment, or on or after January 1, 1991, direct sale to an end user of new zero-emission equipment.

The Act broadly encourages, and under certain circumstances Title I of the Act mandates, States to develop and facilitate market-based approaches for achieving the environmental goals of the Act for attainment and maintenance of the National Ambient Air Quality Standards (NAAQS), and to meet associated emission reduction milestones. EPA has developed comprehensive guidance and rules (as required by the Act) for States and individual sources to follow in designing and adopting such programs for inclusion in SIPs. The Economic Incentive Program (EIP) Rules (40 CFR part 51, subpart U) provide a broad framework for the development and use of a wide variety of incentive strategies for stationary, area, and/or mobile sources. One such approach is the generation and trading of emission reduction credits, which historically have been allowed under guidance provided in the 1986 Emission Trading Policy Statement (see 51 FR 43631, December 4, 1986). In certain areas where emission control costs for stationary sources may be high relative to mobile source control costs, creating EIPs which allow for the trading of emission reduction credits from mobile sources to stationary sources can be beneficial.

Rule 1623 is a voluntary program, and the exact emission reductions are unknown. EPA can only approve Rule 1623 in the SIP, if the reductions are surplus and are quantifiable. In our January 18, 2000 (65 FR 2557) we proposed disapproval for Rule 1623 because the rule does not meet federal requirements including the requirement that emission reductions be real, quantifiable, enforceable, and surplus.

EPA received comments from the South Coast Air Quality Management District (“District”) and comments from Communities for a Better Environment. The following comments were submitted by the District. The District objects to EPA's proposed disapproval and requests that it be revised to a proposed conditional approval.

District Comment #1: This comment is entitled “Are Emission Reductions Surplus?” The District states that “EPA is insisting on administrative requirements so burdensome they would destroy the value of the rule.” The District further states that it is “wholly impractical to source-test each piece of law and garden equipment” and that the District properly relied upon emissions data developed by the California Air Resources Board (“CARB”). Finally, the District claims that, contrary EPA's analysis, the rule provides for sufficient “procedures to ensure that engines being scrapped or replaced are operable.”

Response to District Comment #1: The District misunderstands the Agency's point regarding quantification, completely ignores the requirement that claimed emission reductions must be demonstrated to be surplus, and is mistaken in asserting that procedures to ensure that engines being scrapped or replaced are operable can be developed in scrappage plans rather than being set forth in the rule. EPA did not propose to disapprove Rule 1623 for its failure to require that each piece of lawn and garden equipment be source-tested. The problem with Rule 1623 is that the emissions rates are merely set forth without any substantiation, in the technical support document or anywhere in the supporting materials for Rule 1623, showing that these figures are accurate. EPA might be able to accept emission rates in this form if there was sufficient data showing that the rates represented an accurate average of emissions from such sources and that the deviation from the average was relatively small and thus acceptable for quantification purposes. Lacking such data and justification, EPA cannot accept unsubstantiated emission rates as the basis for emission quantification.

A credit generating rule cannot be approved unless it is shown that the credits which would be generated are “surplus,” i.e. , not required by or assumed in the air basin's current EPA-approved implementation plan, inventory, or attainment demonstration. This is especially important in a rule, like Rule 1623, which claims to generate surplus credits through the accelerated retirement of equipment and its early replacement with cleaner equipment. Older and worn out equipment is constantly being replaced. This replacement cycle is assumed, and indeed relied upon, in virtually all air quality plans. If credits were given for this normal turnover, those credits would be invalid and would damage air quality and the planning process designed to protect it. Therefore, to be acceptable a rule which would generate credits from the accelerated retirement and replacement of equipment must demonstrate that implementation of the rule would actually reduce emissions below the level assumed in the SIP. In addition, the rule would have to be designed to grant credits only to the accelerated retirement and replacement, and not to the normal equipment turnover which would happen in any case.

Finally, elements of a rule which are critical to its integrity must be contained in the rule. Rule 1623 does not contain specific provisions to ensure that engines being scrapped or replaced pursuant to the rule are operable and have useful remaining life. If the engines being replaced are not operable, or if they do not have the remaining life assumed by the rule, inappropriate credits will be generated. Provisions to prevent this invalid credit need to be in Rule 1623, and may not be created afterward in scrappage project plans as the District suggests. This would delegate too much discretion to the District in implementation of the rule and EPA would be left with insufficient information to judge the validity of credits and, through oversight, ensure the effectiveness of the rule.

The problems with Rule 1623 described above are not new to the District. These problems, in varying degrees and forms, were experienced by the District in its implementation of a companion to Rule 1623—Rule 1610. Rule 1610 implements a car scrappage credit generating program which, according to the District's own analysis, has suffered from defects relating to emissions quantification, surplus, and operable vehicles.

District Comment #2: This comment objects to EPA's statement that penalty provisions of Rule 1623 “are not clearly defined” and thus are not practically enforceable. The District believes EPA is insisting that the underlying legal authority, California's Health & Safety Code, be repeated in the rule.

Response to District Comment #2: EPA is not insisting that the penalty authority in California's Health & Safety Code be repeated in Rule 1623. However, we do have at least two major problems with the enforcement language set forth in section (j) of Rule 1623.

Section (j) does not define the duration of a violation and this is critical in creating sufficient deterrent in enforcement. For example, providing inaccurate data could be a single violation, based on the date of submittal, and thus penalty authority could be limited to a single day. The provisions of Rule 1623 could be interpreted in this manner. In contrast, violations could be defined as continuing from the date of submittal until such time that the inaccuracies were corrected. To create clear and sufficient deterrent, Rule 1623 must define violations as continuing until they are corrected.

Section (j) incorrectly limits injunctive relief to denying or voiding credits where a generator has violated the requirements of Rule 1623. If, in violating the requirements of Rule 1623, a person has generated invalid credits which have been used by another source, the generator should be subject to injunctive relief which would require replacement of those invalid credits.

District Comment #3: In this comment, the District states that it is unable to respond to EPA's belief that a survey should be implemented with Rule 1623. The District suggests that EPA specify the information needed so the District can determine if a survey is needed.

Response to District Comment #3: In itself, the failure to have a survey would probably not prompt EPA to disapprove Rule 1623. However, EPA believes that a survey is needed to evaluate the effectiveness of Rule 1623, if it is eventually implemented. The District already has such a survey for Rule 1610, discussed earlier, and the same type of information would be important to evaluate Rule 1623.

District Comment #4: In this comment, the District states that destruction of all engine parts should not be necessary, given the small value of the engines involved.

Response to District Comment #4: The destruction of all engine parts should not be a real burden, since that would be the normal course unless those parts were made available for scavenging or as rebuildable “cores.” Under the guidelines established by the CARB for car scrappage, the entire vehicle must be scrapped to avoid parts being returned to the market to extend the life of the remaining older cars. The same principle should applies to all programs which would generate credits from the accelerated retirement of equipment.

District Comment #5: In this comment, the District questions whether it is necessary to provide definitions for eight terms (“useful life,” “surplus,” “certified engine,” “project plan,” “baseline emission standards,” “load factor,” “equipment operator,” and “permanent replacement”) which EPA believed should be further defined and clarified in Rule 1623.

Response to District Comment #5: With the exception of “surplus,” EPA would probably not have proposed to disapprove Rule 1623 for lack of further definition and clarification of these terms. This list of terms was intended to be a suggestion to help clarify the rule.

However, as set forth in the response to comment #1, above, EPA believes that the District has failed to demonstrate that emission reductions claimed pursuant to Rule 1623 would be, in fact, suprlus. For Rule 1623, the District would have to demonstrate that implementation of the rule would result in an accelerated rate of equipment retirement. In addition, the rule would have to be designed to grant credits only to the accelerated retirement and replacement, and not to the normal equipment turnover which would happen in any case.

District Comment #6a: “EPA's objection to a section allowing credits under certain circumstances before January 1, 1999 (p. 3) is meritless. The fact the date has passed is no reason to reject the remainder of the rule.”

Response to District Comment #6a: EPA agrees with this comment. We misstated our objection, which should have been tied to Option 2 of the rule and the delay in CARB's promulgation of its Tier II Lawn & Garden rule.

District Comment #6b: In this comment, the District dismisses EPA's concern that a rule which CARB intends to develop for the small off-road engines (“SORE”) category would conflict with Rule 1623 and result in double-counting. The District states that its rule cannot predict and address all possible future rules. The District also suggests that CARB could address double-counting in its rule making.

Response to District Comment #6b: Rule 1623 can and should anticipate the SORE rule. The SORE rule has been in development for some time and the District has had ample opportunity to avoid any issues of double-counting in crafting the provisions of Rule 1623. To avoid the possibility of double-counting due to the SORE rule, or any other intervening rule, Rule 1623 could provide for a yearly check on the surplus status of credits from ongoing scrappage projects. If an activity from a credit generating project becomes required by another rule, the stream of credits from that activity could be terminated on the basis that the project no longer meets the surplus requirement.

District Comment #6c: “EPA is concerned about the definitions of specialty vehicles and golf carts. Since these are not included in the rule at present, there is no need for concern about them.”

Response to District Comment #6c: Since Rule 1623 must be significantly revised to be approvable, the District can remove references to specialty vehicles and golf carts.

District Comment #6d: In this comment, the District agrees that delay in implementation of CARB's Tier II Lawn & Garden emission standards needs to be addressed. The District suggests that this could be done through adjusting the credit tables in Rule 1623 and this should be made a condition in a reproposal to conditionally approve Rule 1623.

Response to District Comment #6d: CARB's Tier II Lawn & Garden rule is critical to the implementation of Rule 1623. The emissions rates set forth in Tables 2 and 3 of Rule 1623 as “Meeting 1999 Standards” rely on Tier II. In addition, the engine certification process in Tier II is necessary to ensure that engines purchased actually meet emissions rates set forth in Rule 1623. Without this basis, the quantification procedures set forth in Rule 1623 cannot be legitimately used. It is not adequate, as the District suggests, to cure this defect through a conditional approval.

District Comment #6e: In this comment, the District states that it does not understand EPA's objection to the section (h) of Rule 1623 which allows the use of credits generated pursuant to the rule in a number of other setting, e.g., as RECLAIM trading credits, alternate compliance for Regulation XI rules, etc. The District appears to believe that EPA wants projects pursued under Rule 1623 to be individually approved into the implementation plan.

Response to District Comment #6e: EPA has no desire to have projects pursued under Rule 1623 to be individually approved into the implementation plan. EPA's objection to section h stems from our experience with credits generated via Rule 1610 being used for alternative compliance for Regulation XI requirements. The main problem is that Regulation XI rules do not have protocols for calculating mass emissions. This has allowed sources and the District to create their own emissions quantification protocols. The results have been extremely poor. In two instances, where EPA is currently taking enforcement actions, the available evidence indicates that the sources, with the District's approval, used quantification protocols which undercounted emissions subject to Regulation XI requirements by as much as two orders of magnitude. EPA has been able to address the situation through enforcement only because Rule 1610 has not been approved into the implementation plan. Rule 1623 shares the same flaw as Rule 1610 in allowing quantification protocols to be created ad-hoc. Such provisions are not practically enforceable, lack integrity, and would delegate unacceptable discretion to the District.

District Comment #6f: ``EPA states one reason for disapproval as `evidence that the program has not been implemented and enforced in a way that results in the achievement of cleaner air.' (p. 7) This objection makes no sense. The program has not been implemented at all, so EPA cannot have any evidence of improper implementation.”

Response to District Comment #6f: The District is correct in noting that EPA's objection, as written, makes no sense. It was the result of a drafting error. The intent was to make reference, as was done in response to comment #6e, above, to failures in the implementation and enforcement of Rule 1610. Since Rule 1623 shares many of the characteristics of Rule 1610, our intent was to point out that proceeding with Rule 1623 would result in the same types of problems.

District Comment entitled “Conclusion”: In the conclusion to its comments, the District claims that it has addressed “most of EPA's objections” and suggests that EPA revise its proposed disapproval to a proposed conditional approval.

Response to District Comment entitled “Conclusion”: In its current form and without much greater substantiation of critical points, EPA believes that Rule 1623 is fatally flawed. The issues concerning emissions quantification, surplus, enforceability, potential double-counting, and unacceptable delegation of discretion to the District prevent EPA from approving Rule 1623 into the implementation plan for the District.

Communities for a Better Environment Comment: CBE submitted comments in support of EPA disapproval of Rule 1623. Two specific reasons included: (1) mobile to stationary source trading, especially in highly toxic compounds, is a concept that impedes the goal of environmental justice; and (2) Rule 1623 does not ensure that the reductions it credits are quantifiable, enforceable and surplus. CBE also urged that EPA should completely disallow trading of toxic pollutants, should disallow cross-pollutant trading, especially trading of carbon monoxide and particulate matter. Finally, CBE commented that local air district rules must not frustrate federal law; scrapping under Rule 1623 does not create “quantifiable” and “surplus” reductions; and allowing credits to sellers of low-emitting equipment is nonsensical.

Response to CBE Comment: EPA's final action is consistent with CBE's comments.

EPA is finalizing disapproval of Rule 1623 because it does not meet applicable CAA requirements. The effect of this action is that the federally enforceable California SIP remains unchanged. Because the CAA does not require this rule and because today's action maintains the stringency of the current SIP, EPA's disapproval of the submitted rule does not trigger sanctions or Federal Implementation Plan (FIP) clocks under section 179 of the CAA.

As Rule 1623 is a substitute for existing requirements, EPA does not believe that disapproval of the program will have any effect on air quality in the South Coast Air Basin. Regulated entities which may have been using Rule 1623 to comply with control technology requirements have the opportunity to apply control or otherwise comply directly (in the case of ridesharing requirements) in lieu of purchasing credits generated under Rule 1623.

Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any state implementation plan. Each request for revision to the state implementation plan shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

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

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Order 12612, Federalism, and Executive Order 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 Executive Order 13132 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. Thus, the requirements of section 6 of Executive Order 13132 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 or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.” Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. 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 rule will not have a significant impact on a substantial number of small entities because disapprovals of SIP revisions under section 110 and subchapter I, part D of the Clean Air Act do not affect any existing requirements applicable to small entities. Any existing Federal requirements will remain in place. Federal disapproval of the State SIP submittal will not affect State-enforceability. Moreover, EPA's disapproval of the submittal would not impose any new Federal requirements. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities.

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 this disapproval action 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. The disapproval will not change existing requirements 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 May 1, 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).)

Section 1007(a)(2) of the Legal Services Corporation Act (“Act”), 42 U.S.C. 2996f(a)(2), requires the Corporation to establish maximum income levels for individuals eligible for legal assistance, and the Act provides that other specified factors shall be taken into account along with income.

Section 1611.3(b) of the Corporation's regulations establishes a maximum income level equivalent to one hundred and twenty-five percent (125%) of the Federal Poverty Guidelines. Since 1982, the Department of Health and Human Services has been responsible for updating and issuing the Poverty Guidelines. The revised figures for 2000 set out below are equivalent to 125% of the current Poverty Guidelines as published on February 15, 2000 (65 FR 7555-57).

This is a summary of the Commission's Order (“Order”), FCC 00-22, adopted January 27, 2000; released January 28, 2000. The full text of the Commission's Order is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257) at its headquarters, 445 12th Street, SW, Washington, D.C. 20554, or may be purchased from the Commission's copy contractor, International Transcription Service, Inc., (202) 857-3800, 1231 20th Street, NW, Washington, D.C. 20036, or may be reviewed via Internet at http://www.fcc.gov/csb/.

1. In this order, we adopt procedural rules to implement new Section 325(e) of the Communications Act of 1934, as amended, added by Section 1009 of the Satellite Home Viewer Improvement Act (“SHVIA”). Section 325(e) provides the procedures by which the Commission shall process complaints by television broadcast stations alleging that a satellite carrier has retransmitted local television signals without the stations' consent in violation of Section 325(b)(1) of the Act, as amended by the SHVIA.

2. Section 1009 of SHVIA amends Section 325(b)(1) of the Communications Act to provide, inter alia, that satellite carriers may not retransmit the signal of a broadcast station, or any part thereof, except: (1) With the express authority of the originating station; or (2) if the station has asserted must carry rights under Section 338. Section 1009 further provides that, pursuant to Section 325(b)(2), retransmission consent is not required for satellite retransmission of noncommercial stations; certain superstations under specified circumstances; and, until December 31, 2004, network stations retransmitted outside the station's local market to “unserved” households. In addition, for six months following enactment of the SHVIA, retransmission consent is not required for satellite retransmission of a local station within the station's local market. After the conclusion of this six month period, satellite carriers will be required to obtain retransmission consent to carry these local-into-local retransmissions.

3. Section 1009 also adds a new paragraph (e) to Section 325 of the Communications Act. New paragraph 325(e) creates a set of expedited enforcement procedures for the alleged retransmission of a television broadcast station in its own local market without the station's consent in violation of Section 325(b)(1). The new provision requires that a final Commission decision be issued in response to such complaints within 45 days. The statute sets out explicit procedures for these complaints, which will take effect on May 30, 2000. The expedited enforcement provision contains a sunset date which precludes the filing of any complaint with the Commission under this section after December 31, 2001.

4. These procedural rules track the statutory requirements and incorporate two additional provisions designed to facilitate enforcement of the statutory requirements. Section 325(e) of the statute specifies that the procedures apply to a complaint by a television broadcast station alleging retransmission of its signal “to any person in the local market of such station” * * * “after the expiration of the 6-month period.” Section 325(e)(1)(A) through (F) of the statute further requires that the station provide its name, address and call letters; the name and address of the satellite carrier; the dates on which the retransmission allegedly occurred; the street address of at least one person in the local market to whom the retransmission was allegedly made; a statement that the retransmission was not authorized; and the name and address of the station's legal counsel. Section 325(e)(2) of the statute provides that the satellite carrier is deemed to have designated the Secretary of the Commission as its agent for service of process and allows the station to serve the satellite carrier with the complaint by filing with the Commission and serving a copy on the satellite carrier by specified means. Section 325(e)(3) of the statute requires the satellite carrier to file an answer with the Commission within five business days. Section 325(e)(4) of the statute enumerates the exclusive defenses that are available to a satellite carrier: (1) That the satellite carrier did not retransmit the station to any person in the local market during the specified time; (2) that the station had expressly authorized retransmission in writing; (3) that the retransmission was made after January 1, 2002 and the station had elected to assert a right to carriage; and (4) the station being retransmitted is a noncommercial station. Section 325(e) (5) and (6) of the statute provides that the retransmission of a particular station on a particular day to one or more persons constitutes a separate violation and places the burden of proof on the station to establish that the satellite carrier retransmitted the station to at least one person on the day alleged. Section 325(e)(5) and (6) of the statute further provides that the satellite carrier has the burden of proof with respect to defenses 2, 3, and 4, as enumerated, above. Section 325(e)(8) of the statute requires the Commission to determine whether the satellite carrier in question has retransmitted the station to at least one person in the station's local market and has not proven one of the defenses. If the Commission so determines, it must make a finding and issue a cease and desist order within 45 days after the filing of the complaint.

5. The first additional provision incorporated in the rules requires each satellite carrier to provide the Commission's Secretary with current identifying information about its chief executive officer. This provision will facilitate service of complaints on satellite carriers in an expeditious manner within the statutorily mandated timeframe. The second additional provision requires that, to facilitate Commission oversight of remedial measures, satellite carriers found to have violated the statute must file a report regarding their remedial efforts to come into compliance. This latter provision is needed to enable the Commission to quickly determine that the satellite carrier is complying and may therefore resume authorized retransmissions.

6. The local retransmission consent complaints filed under Section 325(e) will be handled by the Cable Services Bureau.

7. This Order contains new information collections subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collections contained in this proceeding. Comments should address: (a) Whether the new or modified collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden of estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques and other forms of information technology. Written comments by the public on the new information collections are due May 1, 2000. In addition to filing comments with the Office of the Secretary, commenters should submit a copy of any comments on the information collections contained herein to Judy Boley, Federal Communications Commission, Room 1-C804, 445 12th Street, SW, Washington, DC 20554, or via the Internet at jboley@fcc.gov.

OMB Control Number: 3060-xxxx.

Title: Implementation of the Satellite Home Viewer Improvement Act of 1999; Enforcement Procedures for Retransmission Consent Violations.

Type of Review: New collection or revision of existing collection.

Respondents: Business or other for-profit entities.

Number of Respondents: Satellite carriers—xxxx.

Estimated Time Per Response: xxxx hours.

Total Annual Burden: xxxx.

Total Annual Costs: xxxx.

Needs and Uses: Congress directed the Commission to adopt regulations that enforce procedures for retransmission consent violations to satellite carriers pursuant to the changes outlined in the Satellite Home Viewer Improvement Act of 1999. The availability of such information will serve the purpose of informing the public of the method of broadcast signal carriage.

8. Accordingly, pursuant to Section 1009 of the Satellite Home Viewer Improvement Act of 1999, codified as Section 325(e) of the Communications Act of 1934, as amended, 47 U.S.C. 325(e), part 1.6000, et seq. , IS ADDED, as set forth in the Rules Appendix. The rules will become effective May 30, 2000, except for 47 CFR 1.6010, which contain information collection requirements that are not effective until approved by the Office of Management and Budget. Notice and comment is not required by the Administrative Procedure Act because the rules are procedural. 5 U.S.C. 553(b)(A). In any event, because of the 60-day statutory deadline and the ministerial nature of the rules implementing the statutory requirements, we find for good cause that notice and comment is impracticable under 5 U.S.C. 553(b)(B).

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 appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The A season apportionment of the 2000 total allowable catch for Atka mackerel in the Central Aleutian District is 11,424 metric tons (mt), of which no more than 7,654 mt may be harvested from critical habitat (65 FR 8282, February 18, 2000). See § 679.20(c)(3)(iii) and 679.22(a)(8)(iii)(B).

In accordance with § 679.22(a)(8)(iii)(A), Steller Sea lion critical habitat in the Central Aleutian District was closed to trawl gear to prevent exceeding the percentage of the interim harvest specifications of Atka mackerel allocated to the Central Aleutian District on February 10, 2000 (65 FR 7461, February 15, 2000). NMFS has determined that as of February 12, 2000, approximately 1,500 mt remains in the critical habitat percentage of the 2000 harvest specifications of Atka mackerel allocated to the Central Aleutian District.

The Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the critical habitat percentage of the interim harvest specifications of Atka mackerel established for this District has not been caught. Therefore, NMFS is terminating the previous closure and is opening trawling in critical habitat, as defined at 50 CFR part 226, Table 1 and Table 2 in the Central Aleutian District of the BSAI. All other closures remain in full force and effect.

This action responds to the best available information recently obtained from the fishery. It must be implemented immediately to fully utilize the critical habitat percentage of the 2000 harvest specifications of Atka mackerel established for this District. Providing prior notice and opportunity for public comment for this action is impracticable and contrary to the public interest. NMFS finds for good cause that the implementation of this action cannot 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 fisheries off Alaska according to the Fishery Management Plans (FMPS) for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (BSAI) and Groundfish of the Gulf of Alaska (GOA) prepared by the North Pacific Fishery Management Council under the authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMPs are at subpart H of 50 CFR part 600 and at 50 CFR part 679.

In the emergency interim rule, To Implement Major Provisions of the American Fisheries Act, published in the Federal Register on January 28, 2000 (65 FR 4520), FR DOC 00-1832, page 4533, under Table 5—INTERIM 2000 BSAI AFA CATCHER VESSEL (CV) SIDEBOARDS. AMOUNTS ARE EXPRESSED IN METRIC TONS—Continued:

1. In the 3rd column, under “Ratio of 1995-1997 AFA CV catch to 1995-1997 TAC”, remove the fourth entry “0.7291” and add in its place “0.7703”; and in the 5th column, “2000 catcher vessel sideboards”, remove the fourth entry “30,588” and add in its place “32,316”.

2. In Table 5, add the following entry at the end of the table to read as follows: