On March 13, 1998, the President addressed the underemployment of people with disabilities by signing Executive Order 13078 establishing the Presidential Task Force on Employment of Adults with Disabilities. The Task Force's mission is to create a coordinated and aggressive national policy to bring adults with disabilities into gainful employment at a rate as close as possible to that of the general adult population.

The Task Force issued their first report, “Recharting the Course,” on November 15, 1998. The report recommended that OPM explore paralleling the excepted service “hiring standards” of adults with psychiatric disabilities with the excepted service “hiring standards” of individuals with mental retardation and severe physical disabilities. After reviewing, we agree that the “hiring standards” for employing individuals with severe physical disabilities, mental retardation, and psychiatric disabilities should be the same.

The first step is amending the Civil Service Rules to broaden the category of people who may noncompetitively convert from the excepted service to the competitive service. Currently under the Governmentwide Schedule A excepted service authorities 5 CFR 213.3102(t) and (u), employees with mental retardation and severe physical disabilities are able to acquire competitive status after two years of satisfactory service. Executive Order 13124, signed June 4, 1999, now permits adults with psychiatric disabilities the same opportunity for noncompetitive conversion. In order for agencies to appoint adults with psychiatric disabilities, we are proposing the following.

By way of background, OPM has authority to except some positions from competitive examining procedures under Schedules A and B when it is determined that examining is impracticable for those positions, or that open competition cannot take place. Excepted authorities listed in 5 CFR part 213 under Schedules A and B (§ 213.3102 or 3202) may be used by any agency covered under title 5 appointing procedures to appoint individuals based on the criteria outlined in the authority. Agencies may also obtain specific Schedule A and B authorities for their own use. To do so, the agency must demonstrate to OPM that the competitive examining process cannot be used for the position(s) the agency wishes to place in Schedule A or B.

Employment of individuals under Schedules A and B follows the guidelines in 5 CFR part 302. Those appointed under Schedule A do not have to meet OPM qualification standards; agencies may develop their own standards. Those appointed under Schedule B must meet OPM qualification standards for the positions in question.

Currently, there are two Governmentwide excepted appointing authorities for specific categories of individuals with psychiatric disabilities. Schedule A excepted appointing authority 213.3102(h) is used to appoint former patients of Federal mental institutions who are partially recovered. Appointments are made to positions at Federal mental institutions only, because the persons still need the support and structure that the institutions provide.

Schedule B excepted appointing authority 213.3202(k) is used to update the job skills of individuals whose psychiatric disabilities are severe enough to cause significant disruption to their employment. The appointments help establish a successful performance record to counteract employer prejudice.

In order to parallel employment opportunities for all individuals with psychiatric disabilities with those appointed under 5 CFR 213.3102(t) and (u) (the appointing authorities for those with severe physical disabilities and mental retardation), Executive Order 13124 was signed June 4, 1999. The Executive Order amended the Civil Service Rules to permit noncompetitive conversion of persons with psychiatric disabilities in the excepted service to the competitive service.

After evaluating the two current excepted appointing authorities for persons with psychiatric disabilities, we felt they were not defined broadly enough to encompass all persons with psychiatric disabilities. Therefore, we are proposing a new Governmentwide Schedule A excepted appointing authority 213.3102(gg). The authority would permit a person with a psychiatric disability who either served under a competitive service temporary appointment, or is certified by a State vocational rehabilitation office or the U.S. Department of Veterans Affairs, to be appointed for any job for which they qualify and meet suitability requirements. After two years of satisfactory job performance under the (gg) authority, agencies may noncompetitively convert them to the competitive service.

Because the new Governmentwide authority is broad enough to encompass those individuals who may currently qualify for appointments under 5 CFR 213.3102(h) and 213.3202(k), we propose abolishing these two appointing authorities. Individuals currently appointed to these authorities would be given new appointments under 213.3102(gg). Current service under 5 CFR 213.3102(h) and 213.3202(k) would count toward the two-year service requirement of the new (gg) authority. Individuals would be eligible for noncompetitive conversion after serving two years total under the old (h) and (k) authorities and the new (gg) authority combined. Agencies may not require individuals to serve under a competitive temporary appointment, or begin new two-year service periods under the (gg) authority, if individuals are currently serving under the (h) and (k) authorities and are moved to the new authority.

To reflect the Executive Order permitting noncompetitive conversion of adults with psychiatric disabilities, we are amending § 3.1 to add these employees to the list of individuals who may noncompetitively acquire status.

We propose amending § 315.709 to reflect the addition of those with psychiatric disabilities to the list of employees who may be noncompetitively converted to the competitive service.

I certify that these regulations will not have a significant economic impact on a substantial number of small entities (including small businesses, small organizational units, and small governmental jurisdictions) because the regulations apply only to appointment procedures for certain employees in Federal agencies.

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

Accordingly, OPM is proposing to amend parts 3, 213, and 315 of title 5, Code of Federal Regulations, as follows:

Executive Order 12866

This proposed rule has been classified as “not significant.” In conformity with this designation, except for requirements under the Paperwork Reduction Act of 1995, the rule has not been reviewed by the Office of Management (OMB). The provisions of this proposed rule would not: (1) Result in an annual effect on the economy of $100 million or more; (2) adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; or (3) regulate issues of human health, human safety, or the environment.

Furthermore, the proposed rule would not: (1) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (2) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients; or (3) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866.

The Regulatory Flexibility Act ensures that regulatory and information requirements are tailored to the size and nature of small businesses, small organizations, and small governmental jurisdictions. This proposed rule will not have a significant economic impact on a substantial number of small entities. Participation in the programs is voluntary. Direct and indirect costs are likely to be very small as a percentage of revenue and in terms of absolute costs. The minimal regulatory requirements impact large and small businesses equally, and the licensing program should improve small businesses' cash flow and liquidity.

The paperwork and record keeping requirements must be approved by the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995. A Paperwork Reduction Act submission has been prepared for the proposed rule and copies of the information collection may be obtained from Kimberly Chisley, the Agency Information Collection Coordinator, at (202) 720-2568 or e-mail at Chisley@fas.usda.gov.

The information collection is necessary to enable FAS to implement and administer the licensing system that will be established by the proposed rule. The proposed rule will require eligible applicants for historical or nonhistorical licenses to submit a letter of application to the Department for each TRQ year that a license is being requested. All applicants shall provide the standard business information set forth in § 6.53 (e.g., address, fax number). For applicants for historical licenses, § 6.53(c)(8) also requires that: (1) Importers of sugar-containing products entered in retail size containers, submit either U.S. Customs Service Forms 7501 to document entries during the representative period, or submit a summary listing of such import entries; and (2) buyers of imports in bulk form which were packaged or processed in the United States by or for the account of an applicant, submit supporting documentation (e.g., purchase orders) that provides a record of the quantities of bulk imports that were entered during the representative period for processing or packaging in the United States. In addition, all applicants for historical licenses shall submit a notarized certification statement that the information submitted is true and accurate.

The estimated public reporting burden for the information collection for the three years period for which OMB approval is being requested is indicated in following table:

The estimated burden hours in the first TRQ year is higher than in the second and third TRQ years because the supporting documentation required to establish eligibility for a historical license will be compiled and submitted in that TRQ year. Once eligibility for a historical license is established, applicants will be required only to submit the standard business information and certification statement.

During the first TRQ year, it is estimated that: (1) Five applicants will apply for a historical license to import from Canada, and 10 applicant will apply for a historical license to import from other countries, and the information collection will take an estimated 6 hours per applicant (total 90 hours); (2) five applicants will apply for a nonhistorical license and the information collection will take an estimated 15 minutes per applicant (total 1.25 hours). During the second and third TRQ years, it is estimated that 20 applicants will apply for either renewal of a historical licenses or issuance of a nonhistorical license. The information collection will take an estimated 15 minutes per applicant (total 5 hours).

The total average hourly burden for the three TRQ years will be 33.75 hours. The total estimated average cost associated with the information collection, based on costs of preparing similar information collections, for the three TRQ years will be $1,012.50.

The Department requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of collection of information to those who are to respond, including through use of appropriate automated, electronic, mechanical or other technological collection techniques or other form of information technology. Comments on the information collection should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10202, New Executive Office Building, Washington, DC 20503. Attention: Desk Officer for USDA/FAS. Comments on the issues covered by the Paperwork Reduction Act should be submitted no later than 60 days from the date of publication to be assured of consideration.

This proposed rule has been reviewed under Executive Order 12988. The provisions of this proposed rule would not have preemptive effect with respect to any state or local laws, regulations, or policies which conflict with such provision or which otherwise impede their full implementation. The proposed rule would not have retroactive effect. Administrative proceedings are not required before parties may seek judicial review.

The Secretary of Agriculture has determined that this action will not have a significant affect on the quality of the human environment. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is necessary for this proposed rule.

These Executive Orders and Public Law 104-4 require intergovernmental review of programs. This proposed rule does not impose an unfunded mandate or any other requirement on state, local or tribal governments. Further, the program is national in scope and involves a power delegated to the United States by the Constitution to regulate international trade. Accordingly, these programs are not subject to the provisions of Executive Order 12372, Executive Order 12875, or the Unfunded Mandates Reform Act.

Executive Order 12612 requires implications of “federalism” be considered in the development of regulations. The Secretary of Agriculture certifies that this proposed rule has been reviewed in light of Executive Order 12612 and that it is consistent with the principles, criteria and requirements stated in sections 2 through 5 of this Executive Order. The Secretary of Agriculture further certifies that this proposed rule would impose no additional cost or burden on the states, nor affect the state's abilities to discharge traditional State governmental functions.

Executive Order 12606 requires that government action include consideration of maintaining stability and strengthening the family. The Secretary of Agriculture has determined, under the principles and criteria established in Executive Order 12606, that this proposed rule will have no effect on the family.

This Order requires careful evaluation of governmental actions that interfere with constitutionally protected property rights. This proposed rule would not interfere with any property rights and, therefore, does not need to be evaluated on the basis of the criteria outlined in Executive Order 12630.

Presidential Proclamation 5294 of June 28, 1985 imposed absolute quotas on imports of certain sugar-containing products pursuant to the provisions of section 22 of the Agricultural Adjustment Act of 1933, as amended (7 U.S.C. 624). Action was taken to restrict imports which were entering the United States in circumvention of the absolute quota on imports of raw sugar and were entering under such conditions and in such quantities as to cause or threaten to cause material interference with the price support program for sugar beets and sugar cane. Presidential Proclamation 5340 of May 17, 1985, modified these section 22 quotas to limit their scope to imports containing over 10 percent by dry weight of sugar, and to exclude “articles not principally of crystalline structure or not in dry amorphous form that are prepared for marketing to the retail consumers in the identical form and package in which imported.”

On April 15, 1994, the President entered into trade agreements resulting from the Uruguay Round of multilateral trade negotiations (“Uruguay Round Agreements”). As part of those agreements, countries agreed that all systems of absolute quotas for all agricultural products would be eliminated and converted to TRQs, including imports of certain sugar-containing products containing over 10 percent dry weight of sugar. In section 101(a) of the Uruguay Round Agreements Act (the URAA) (Pub. L. 103-65; 108 Stat. 4809), Congress approved the Uruguay Round Agreements, including the General Agreement on Tariffs and Trade 1994. Presidential Proclamation 6763 of December 23, 1994, implemented the Uruguay Round Agreements (URAA). The Proclamation terminated section 22 quotas; proclaimed TRQs for such articles; and modified the HTS accordingly. Under the HTS, Additional U.S. Note 3 to chapter 17 defines the term sugar-containing products containing over 10 percent by dry weight of sugar. Additional U.S. Note 8 to chapter 17 provides that the aggregate quantity of articles described in Additional U.S. Note 3 which are entered under 10 specific HTS numbers are subject to a TRQ which limits imports entered from October 1 through September 30 to 64,709 metric tons. Imports from Mexico are not permitted entry under this TRQ.

Subsequent to the Uruguay Round, the United States and Canada entered into a bilateral agreement (September 4, 1997). As a result of that agreement, the United States Trade Representative announced on September 16, 1998, (effective October 1, 1998) an allocation of 59,250 metric tons to Canada for certain sugar-containing products entered under the TRQ set forth in U.S. Additional Note 8 of chapter 17 of the HTS. This allocation was based on Canada's historical exports to the United States. In addition, an allocation to other countries (excluding Canada) of 5,459 metric tons became effective on October 1, 1998.

The United States and Canada also signed a Record of Understanding Regarding Areas of Agricultural Trade (December 4, 1998) which requires export permits issued by the Canadian Government to accompany imports of articles containing more than 10 percent by dry weight of sugar as a condition of entry under this TRQ, effective February 4, 2000. On June 11, 1999, the Canadian Government issued the Notice to Exporters No. 117 pursuant to the Export and Import Permits Act which governs the issuance of export permits for each shipment of sugar-containing products covered by the U.S. TRQ. For each of three years beginning in 1999/2000, six percent of each licensee's bulk shipment allocation will be converted to a retail packaged allocation or moved to a retail packaged allocation pool. This proposed rule is intended to establish a U.S. import licensing system to ensure that the opportunity to fill this TRQ continues to be based on customer requirements.

Section 404(a) of the URAA, 19 U.S.C. 3601(a), directs the President to take such action as may be necessary in implementing Uruguay Round TRQs (set forth in Schedule XX—United States of America, annexed to the Marrakesh Protocol to the General Agreement on Tariffs and Trade 1994) to ensure that imports of agricultural products do not disrupt the orderly marketing of commodities in the United States.

Presidential Proclamation 6763 delegated authority under the statutes cited in the proclamation, including section 404(a), to the Secretary of Agriculture, the Secretary of the Treasury, and the United States Trade Representative, as necessary to perform functions assigned to them to implement the proclamation.

Presidential Proclamation 7235 of October 7, 1999, delegated authority under section 404(a) to administer the TRQs relating to agricultural products to the United States Trade Representative and delegated authority to the Secretary of Agriculture to issue licenses governing the importation of such products under the applicable TRQs. The Secretary of Agriculture exercises such licensing authority in consultation with the United States Trade Representative.

This proposed rule specifies which sugar-containing products may be entered only by or for the account of a person to whom a license has been issued. Licenses issued pursuant to the provisions of this subpart will permit a license holder to import quantities of the subject articles into the United States at the applicable TRQ rate of duty. Imports may enter without an import license (with certain exceptions) at the applicable high-tier rate of duty.

License Eligibility —Eligibility for either a historical or nonhistorical license requires that a person have a business office in the United States, be doing business in the United States, and have an agent for service of process. Eligibility for a historical license also requires that an applicant, during the representative base period, must have imported sugar-containing products under the TRQ and have been either: (1) An importer of sugar-containing products in retail size packages; or (2) a buyer of sugar-containing products entered in bulk form for processing or packaging in the United States by, or for, the account of such person.

License Applications —The annual period begins on May 1 of each TRQ year. Applicants will be requested to submit applications by August 30 in order for licenses to be issued by October 1. An application for a nonhistorical license must provide the standard business information required in § 6.53(b). An application for a historical license must provide the standard business information required in § 6.53(c), and the supporting documentation and certification statement required in § 6.53(c)(8) with respect to transactions during the representative base period. In subsequent TRQ years, historical licenses may be renewed for the same quantity from the same country without re-submission of supporting documentation. An applicant issued a historical license is not eligible for a nonhistorical license.

License Issuance —Of the total TRQ quantity of 64,709 metric tons, 59,250 metric tons will be issued for licenses to import from Canada and 5,459 metric tons will be issued to import from other countries. All licenses will specify a quantity and the country of origin. Historical license quantities will be based on an applicant's supporting documentation submitted under § 6.53(c)(8). Nonhistorical license quantities will be based on the TRQ quantities not allocated to historical licenses and the number of applicants for nonhistorical licenses. Once licenses are issued, licensees will be responsible for maintaining records on license usage.

The Secretary of Agriculture has determined that this subpart will, to the fullest extent practicable, result in fair and equitable allocation of the right to import articles subject to such TRQ. The subpart will also maximize utilization of the TRQ for such articles, taking due account of any special factors which may have affected or may be affecting the trade in the articles concerned.

The Department invites comments on all aspects of the proposed rule including the: eligibility and performance requirements for historical licenses; representative historical period; percentage of the total TRQ that should be set aside for new entrants to establish themselves in the sugar-containing products business; minimum license sizes for nonhistorical licenses for imports in bulk and retail size packages; costs and unintended market consequences of the licensing requirement to importers, buyers and consumers; and less restrictive alternatives to licensing that would address concerns that Canada's export permit system does not alter trade flows (e.g., continuing not to require the submission to the U.S. Customs Service of export permits from the Government of Canada).

Accordingly, the regulations at 7 CFR part 6 are proposed to be amended by adding a new subpart, Licensing for Certain Sugar-Containing Products Under Tariff-Rate Quota, to read as follows:

The Regulatory Flexibility Act (5 U.S.C. 601-612) requires the Agency to examine the impact of a proposed rule on small entities. Small businesses in the fluid milk processing industry have been defined by the Small Business Administration as those processors employing more than 500 employees. For purposes of determining a processor's size, if the plant is part of a larger company operating multiple plants that collectively exceed the 500-employee limit, the plant will be considered a large business even if the local plant has fewer than 500 employees. There are approximately 275 fluid milk processors subject to the provisions of the Fluid Milk Promotion Order. Most of these processors are considered small entities.

The Fluid Milk Promotion Order (7 CFR Part 1160) is authorized under the Fluid Milk Promotion Act of 1990 (Act) (7 U.S.C. 6401 et seq. ). The Order provides for a 20-member Board with 15 members representing geographic regions and five at-large members which include at least three fluid milk processors and at least one member from the general public. To the extent practicable, members representing geographic regions should represent processing operations of differing sizes.

The National Fluid Milk Processor Promotion Board has proposed amendments to the membership provisions of the Order. The proposed amendments would allow up to three representatives of a fluid milk processor to serve on the 20-person Board. Currently, the Order states that a fluid milk processor shall be represented on the Board by no more than two members. The Board indicates that this proposal is due to changes in the industry which have resulted in the formation of larger regional and national companies.

The proposed amendments also would allow a Board member whose fluid milk processor company affiliation changes to serve on the Board for a period of up to six months or until a successor is appointed, whichever is sooner, provided that the eligibility requirements of the Order are still met. Under current Order provisions, a Board member whose company affiliation changes may continue to serve on the Board for a period of up to 60 days or until a successor is appointed, whichever is sooner, provided that such member continues to meet the Order's eligibility standards. The Board states that the proposed amendment would more accurately reflect the time needed to fill a Board vacancy.

The Board believes that the proposed amendments would ensure Board continuity and full representation and allow it to operate in an effective and efficient manner.

The proposed amendments to the Order should not add any burden to regulated parties because they relate to provisions concerning Board membership. Additionally, the proposed changes would not impose additional reporting or collecting requirements. No relevant Federal rules have been identified that duplicate, overlap, or conflict with this rule.

Accordingly, pursuant to 5 U.S.C. 605(b), the Agricultural Marketing Service has certified that this rule would not have a significant economic impact on a substantial number of small entities.

The Department is issuing this proposed rule in conformance with Executive Order 12866.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have a retroactive effect. If adopted, this proposed rule would not preempt any State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule.

The Fluid Milk Promotion Act of 1990, as amended, authorizes the Fluid Milk Promotion Order. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 1999K of the Act, any person subject to a Fluid Milk Promotion Order may file with the Secretary a petition stating that the Order, any provision of the Order, or any obligation imposed in connection with the Order is not in accordance with the law and request a modification of the Order or to be exempted from the Order. A person subject to an order is afforded the opportunity for a hearing on the petition. After a hearing, the Secretary would rule on the petition. The Act provides that the district court of the United States in any district in which the person is an inhabitant, or has his principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided a complaint is filed not later than 20 days after the date of the entry of the ruling.

In accordance with the Paperwork Reduction Act (44 U.S.C. Chapter 35), the forms and reporting and recordkeeping requirements that are included in the Fluid Milk Promotion Order have been approved by the Office of Management and Budget (OMB) and were assigned OMB No. 0581-0093, except for Board members' nominee information sheets that were assigned OMB No. 0505-0001.

The proposed rule would amend certain provisions of the Fluid Milk Promotion Order. The proposed amendments would modify the membership provisions of the Order. One proposal would allow up to three representatives of a fluid milk processor to serve on the 20-member Board. Currently, the Order states that a fluid milk processor shall be represented by no more than two representatives on the Board. The Board indicated that this proposal is due to consolidations in the industry which have resulted in the formation of larger regional and national companies. Additionally, the Board asserts that the proposed amendment would provide the Secretary greater flexibility in those situations that warrant additional representation for a fluid milk processor.

The proposed amendments also would allow a Board member who changes fluid milk processor company affiliation to serve on the Board for a period of up to six months or until a successor is appointed, whichever is sooner, provided that the eligibility requirements of the Order are still met. Under current Order provisions, a Board member whose company affiliation changes may continue to serve on the Board for a period of up to 60 days or until a successor is appointed, whichever is sooner, provided that such member continues to meet the Order's eligibility standards. The Board states that the proposed amendment would more accurately reflect the time needed to fill a Board vacancy.

The Board believes that the proposed amendments would ensure Board continuity and full representation and allow it to operate in an effective and efficient manner.

Interested parties are invited to comment on this proposed rule. A 30-day comment period is provided. This period is deemed appropriate so as to implement the proposed changes, if adopted, as soon as possible, in order to avoid unnecessary vacancies on the Board.

For the reasons set forth in the preamble, it is proposed that 7 CFR part 1160 is amended as follows:

The Watermelon Research and Promotion Plan (7 CFR Part 1210), regulates the development and financing (through assessments on watermelons produced in or imported into the United States) of effective, continuous, and coordinated programs of research, development, advertising, and promotion designed to strengthen, maintain, and expand domestic and foreign markets for watermelons. The Watermelon Research and Promotion Plan (Plan) is authorized under the Watermelon Research and Promotion Act, as amended by the Watermelon Research and Promotion Improvement of 1993 (7 U.S.C. 4901-4916), hereinafter referred to as the Act.

On February 18, 1999, AMS published in the Federal Register (63 FR 8014) its plan to review certain regulations, including the Plan, under the criteria contained in sec. 610 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612). Because many AMS regulations impact small entities, AMS decided, as a matter of policy, to review certain regulations which, although they may not meet the threshold requirement under sec. 610 of the RFA, merit review. The February 18 notice stated that AMS would list the regulations to be reviewed in AMS' regulatory agenda which is published in the Federal Register as part of the Unified Agenda. However, after further consideration, AMS has decided to announce the reviews in the Federal Register separate from the Unified Agenda. Accordingly, this notice and request for comments is made for the review of the Plan.

The purpose of the review will be to determine whether the Plan should be continued without change, amended, or rescinded (consistent with the objectives of the Act) to minimize the impacts on small entities. In conducting this review, AMS will consider the following factors: (1) The continued need for the Plan; (2) the nature of complaints or comments received from the public concerning the Plan; (3) the complexity of the Plan; (4) the extent to which the Plan overlaps, duplicates, or conflicts with other Federal rules, and, to the extent feasible, with State and local governmental rules; and (5) the length of time since the Plan has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the Plan.

Written comments, views, opinions, and other information regarding the Plan's impact on small businesses are invited.

Definition of Other Consumer Protections (OCP)

As defined in the Federal Meat Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA), meat and poultry products are economically adulterated if any valuable constituent has been omitted or abstracted; any substance has been substituted; if damage or inferiority has been concealed in any manner; or if any substance has been added so as to increase its bulk or weight, or to reduce its quality or strength, or to make it appear better or of greater value than it is. Also, as defined in these Acts, meat and poultry products are misbranded if the labeling is false or misleading, or if the product purports to be a food for which there is a regulatory standard of identity, but the product fails to comply with that standard.

FSIS conducts a range of activities to ensure that meat and poultry products are not economically adulterated, misbranded, or otherwise unacceptable for reasons that do not necessarily raise food safety considerations. Some OCP activities are based on specific regulatory requirements. These are the food labeling requirements (Parts 317 and 381, Subpart N); definitions and standards of identify and composition (Parts 319 and 381, Subpart P); and the definitions of nonconformance and the finished product standards found in section 381.76. Other OCP activities are tied to specific regulations but are designed to verify that establishments are not producing economically adulterated or misbranded product as defined by the acts.

FSIS activities directed at preventing misbranded product from reaching the consumer include label review activities, formulation verification checks, net weight checks, and laboratory food chemistry analyses. (Note: The presence of illegal drug residues is considered a food safety issue.) FSIS activities that are designed to ensure that products have not been economically adulterated by the addition or undeclared substitution of lower valued ingredients include weighing poultry carcasses to verify that water retention limits are not exceeded during immersion chilling.

FSIS recognizes that its program activities do not fit cleanly into one of two well-defined categories, OCP and food safety. For example, while most consumers would view an unidentified ingredient as a misbranding issue, those with allergy concerns would view the same unidentified ingredient as a serious food safety concern. Similarly, many FSIS activities are related to enforcement of statutory provisions declaring that product is adulterated if it consists in whole or in part of any filthy, putrid, or decomposed substance or is for any other reason unsound, unhealthful, unwholesome, or otherwise unfit for human food. This provision speaks to both food safety and OCP concerns. FSIS conducts many activities to identify and prevent from entering commerce product that is unwholesome or unfit for human food but does not present a food safety concern. Examples of FSIS activities of this type include determining conformance with carcass Acceptable Quality Levels (AQL's)(e.g., checking the number of hairs remaining on the hide) and conducting boneless manufacturing meat reinspection tasks.

In this ANPR, FSIS has defined OCP activities to include verification and enforcement activities that are directed to achieving objectives that do not necessarily, or primarily, involve food safety. Issues related to humane and religious exempt slaughter are not clearly OCP matters and, therefore are not addressed in this ANPR. Also, FSIS will address all issues related to egg products in future proposed rulemaking. In an effort to provide the public with more information about the Agency's current OCP activities and to illustrate the need for change, FSIS has made a technical paper available in the FSIS Docket Room (See ADDRESSES) and the FSIS homepage (www.fsis.usda.gov).

FSIS intends to propose change to its approach to OCP activities for three reasons. First, the Agency needs to clarify the respective roles and responsibilities of FSIS and industry. Second, the Agency needs to use the resources allocated to OCP activities more efficiently. Third, the Agency needs to be more accountable to the public on how it allocates its OCP resources and on the results that are being achieved.

The first reason for changing the Agency's approach to OCP activities is to clarify roles and responsibilities. As FSIS described in the preamble to its Pathogen Reduction; Hazard Analysis and Critical Control Point (PR/HACCP) final rule (61 FR 38806, 7/26/96), the responsibilities of FSIS and industry have become blurred. In part, this blurring has developed because some establishments rely on inspection program personnel to find deficiencies. It is more appropriate that inspected establishments take responsibility for meeting the regulatory requirements, and that FSIS personnel verify that establishments do so.

Responsibilities have also been blurred because of the excessive reliance of the FSIS inspection program on the detection and correction of problems after the fact, rather than on assurance that problems will be prevented systematically and by design in the first place.

The second reason for changing its approach to OCP activities is the need for FSIS to manage and allocate its resources more effectively and efficiently. In most cases, inspection program personnel routinely perform OCP verification activities at the same frequency in all plants. FSIS is considering that a more suitable use of inspection resources would be to base the rate of these verification checks on the compliance history of a particular establishment.

Finally, FSIS intends to change its approach to OCP activities to improve program accountability. By “improving accountability,” FSIS seeks to improve its measure of establishments” compliance and its ability to inform the public about the industry's overall compliance with OCP requirements. Accountability also implies having more consistent and effective methods for making resource allocation decisions and explaining those decisions to all interested parties.

FSIS intends to develop an approach to OCP that measures compliance, targets the Agency's inspection resources, and provides program accountability.

FSIS is not contemplating a reduction in the level of attention that it pays to misbranding, economic adulteration, or wholesomeness issues. FSIS remains committed to protecting consumers from economic adulteration and improperly labeled products.

In preparing this ANPR, FSIS began with the premise that consumer protection concerns other than food safety are important to consumers, and that the public expects the Agency to provide a broad range of consumer protections that involve more than ensuring food safety.

This section outlines the changes that FSIS is evaluating and that will most likely be needed for FSIS to continue to protect consumers from economic adulteration, misbranding, and unwholesome products while enhancing food safety. These changes will likely occur in the four following areas:

1. Revision of FSIS regulations and guidance.

2. Inspected establishments taking more responsibility for producing products that comply with all OCP requirements.

3. Changes to FSIS verification activities.

4. Changes in approach to enforcement.

The change in approach to OCP activities will require that the Agency reform its regulations. Certain current regulations charge FSIS with responsibilities that more appropriately belong to the industry. For example, at the time when FSIS established the compliance monitoring system for cured pork products (9 CFR 381.19) the Agency's approach was to assume responsibility for ensuring establishments' compliance. Therefore, the system effectively became a government run quality control system. The regulations implementing the system go so far as to provide an exemption for establishments that take responsibility and institute their own quality control procedures. (Note: Published elsewhere in this issue of the Federal Register , FSIS is proposing to withdraw the regulations that prescribe the compliance monitoring system for cured pork products.)

FSIS will also carefully evaluate its prior label approval program and consider streamlining its label approval programs. The Agency also intends to consider what use, if any, it should continue to make of the Standards and Labeling Policy Book.

The Agency also intends to consider its role in ensuring the soundness and wholesomeness of raw products. As noted earlier, none of the product quality criteria for meat carcasses or raw meat products are published as regulations. The Agency requests comments on whether FSIS' regulations should contain quality criteria and if so, what the criteria should be.

The Agency has already initiated a review of the standards of identity and composition for meat products and poultry products. The Agency published an ANPR on September 9, 1996 (61 FR 47453). While that ANPR focused on the continuing need for the standards of identity and composition, it noted that, in light of budget constraints and the need to address higher priority food safety concerns, the Agency was examining whether any of its approaches to regulating meat products and poultry products for economic adulteration and mislabeling should be changed.

The Agency recognizes that some of its regulations are overly prescriptive in telling industry how it must comply with certain standards. For example, the Mechanically Separated (Species)(MS(S)) regulations (9 CFR 319.5) specify how many samples an establishment needs to analyze to ensure compliance. The Agency intends to institute rulemaking to revise these regulations. FSIS has tentatively concluded that the purposes for which it adopted these regulations can be achieved by the standards of composition that are already included in the regulations. The Agency also has proposed the removal of regulations that require Partial Quality Control (PQC) programs for specific production activities, such as the production of MS(s).

FSIS is responsible for verifying that industry is complying with regulatory requirements. A verification activity can have a narrow establishment-by-establishment focus or an industry-wide scope. FSIS believes that it can operate more efficiently and effectively by making greater use of surveys.

A verification survey can involve either collecting product samples that are sent to laboratories for analysis or conducting in-plant activities such as formulation checks. Collecting product labels that are sent to a central location for review is another type of verification survey. The survey approach to verification allows the Agency to: (1) draw conclusions about overall industry compliance, (2) inform the public, i.e., improve “accountability,” and (3) use such industry-wide findings as inputs to subsequent resource allocation decisions.

Surveys are not, however, sufficient to verify compliance at individual establishments. The Agency intends to use surveys and other information resources to target establishments where overall compliance with OCP requirements is not satisfactory. In these establishments, FSIS could focus verification activities on specific products and specific requirements.

FSIS' approach to OCP verification has historically been to select a task or sampling frequency for a specific regulatory requirement, e.g., once per week or once per shift, and then apply that fixed frequency to all establishments where the requirement applies. To improve the effectiveness of verifying establishments' compliance with OCP requirements, FSIS needs to conduct inspection procedures and collect samples at the point in the production and distribution process where doing so is most efficient, and where taking these actions makes the most sense.

The concepts of measuring the level of compliance, or evaluating whether a particular level of compliance is acceptable or unacceptable, have not been adequately incorporated into FSIS regulatory design initiatives. FSIS must devise a more comprehensive and methodical approach to verification that would involve the sequential steps of: (1) Measuring compliance; (2) evaluating the level of compliance to determine causes of noncompliance, and whether there are feasible interventions that might be effective in improving compliance; (3) implementing interventions; and, (4) reassessing the overall level of compliance.

For example, FSIS has considered using a “building-block” approach to net weight compliance that has been advanced by the Codex Alimentarius Commission. This approach is modeled on a statistical limits of variance technique developed by Switzerland for application to imported, prepackaged foods. Inspection program personnel would make limited inspections for net weight compliance at retail. If the sampling technique indicates a compliance problem, additional inspection of the same product would be made at retail and, if necessary earlier in the marketing chain, such as the processing plant. If the problem continues following notification of the producers, a more precise enforcement test would be applied. This approach should lead to a more efficient and effective verification system.

Another potential innovation for verification would involve the development of an annual OCP verification plan. Annual plans would describe and assess findings from the previous year, consider the applicability of findings from ongoing research projects, and define areas of emphasis for the current year. FSIS is developing a list of factors to be considered in setting OCP priorities. These factors would include findings from consumer research and findings from analysis of consumer and industry complaints.

FSIS also believes it is practical to solicit and use input from its inspection program personnel in setting its OCP priorities.

Additionally, FSIS could use consumer research to help set its priorities for verifying the industry's OCP compliance. FSIS could use existing consumer research such as surveys compiled by trade organizations or develop its own consumer surveys to determine whether consumers are concerned about any particular OCP issues. Based on the findings, FSIS could use this information to focus its OCP verification activities. This approach would be responsive to consumer concerns.

The above examples are intended to illustrate the kinds of approaches that the Agency is considering for OCP verification. Whatever final decisions it makes, the Agency's verification activities must:

• Yield data that will allow the Agency to draw accurate conclusions about establishments' compliance.

• Permit the Agency to allocate inspection and laboratory resources to product categories that have been shown to present compliance problems, while requiring inspected establishments to maintain satisfactory control of their production processes and products.

• Provide appropriate bases for enforcement actions against establishments or companies producing and shipping economically adulterated or misbranded products.

• Accommodate any changes to the system of product standards of identity that the Agency may adopt.

FSIS also needs to change its enforcement approach to repeated noncompliance with OCP requirements. FSIS will evaluate each OCP noncompliance in terms of an establishment's overall compliance record to determine whether the establishment has an effective system in place to ensure compliance with all OCP requirements and standards. For example, the Agency will not view added water noncompliance as independent from species substitution noncompliance or independent from noncompliance with fat and protein requirements.

FSIS is examining how best to communicate to establishments its findings of noncompliance and FSIS' conclusions regarding the adequacy of the establishment's control system. The role of FSIS is to verify compliance and take enforcement actions when the overall level of OCP noncompliance reaches a level that indicates that an establishment is not controlling its OCP processes effectively.

FSIS is soliciting comments on all aspects of its OCP activities. FSIS requests comments from all interested parties, including individuals, consumer groups, inspected establishments and industry groups, academia, importers and exporters, State and local governments, and the international community. The following questions are provided to facilitate public comment on this ANPR.

1. What level of resources should FSIS allocate to OCP program activities? What criteria should FSIS consider in allocating its resources between food safety and OCP issues?

2. What role, if any, should the Agency have in examining raw product for quality defects?

3. What priorities should FSIS give to misbranding concerns? For example, should the presence of excess sodium take priority over a misleading picture on a label?

4. Should FSIS continue testing products to determine compliance with requirements related to fat content or water retention, or whether the product is fresh or frozen? If so, how should FSIS prioritize the sampling of products?

5. Should FSIS consider which OCP issues concern consumers? If so, how could FSIS determine this? For example, are there existing data FSIS can use or should FSIS conduct its own consumer surveys? To what extent should FSIS use information about consumers' concerns to prioritize the verification of the industry compliance with the OCP requirements?

6. How should FSIS weigh the severity of noncompliance that leads to public health concerns versus noncompliances related to OCP concerns? What sanctions or penalties are appropriate for economic adulteration? How should FSIS deal with establishments that demonstrate no deliberate intent to cheat the public but experience intermittent problems of noncompliance that result in misbranding or economic adulteration?

7. What enforcement strategy is appropriate for addressing noncompliance with OCP requirements? What portion of the Agency's enforcement resources should be allocated to OCP concerns? What levels of noncompliance with OCP requirements warrant the use of severe sanctions, such as withholding the marks of inspection?

8. The Agency believes that inspected establishments need to have systems, i.e., quality control systems, managerial systems, or administrative systems, that ensure compliance with OCP requirements. Should FSIS consider promulgating a general process control regulation, or are there alternatives to such a regulation that would still enable the Agency to effectively and efficiently verify that an establishment's control systems for OCP requirements are satisfactory?

This advance notice of proposed rulemaking has been reviewed under Executive Order 12866. This rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.

FSIS is seeking the data necessary to assess how the regulatory changes discussed in this document might affect various sectors of the meat and poultry industries. Therefore, the Agency invites comment on potential effects, including economic costs or benefits.

Pursuant to Department Regulation 4300-4, “Civil Rights Impact Analysis,” dated September 22, 1993, FSIS will conduct a civil rights impact analysis on any proposed rule that results from this ANPR. To improve the Agency's analysis, FSIS is seeking the data necessary to assess how the resulting regulatory changes discussed in this document might affect minorities, women, and persons with disabilities.

ANPR's generally are designed to provide information and receive public comments on substantive issues that may lead to new or revised agency regulations or instructions. Public involvement in all segments of rulemaking and policy development is important. Consequently, in an effort to better ensure that minorities, women, and persons with disabilities are made aware of this ANPR and are informed about the mechanism for providing their comments, FSIS will announce it and provide copies of this Federal Register publication in the FSIS Constituent Update.

FSIS provides a weekly FSIS Constituent Update, which is communicated via fax to over 300 organizations and individuals. In addition, the update is available on line through the FSIS web page located at http://www.fsis.usda.gov . The update is used to provide information regarding FSIS policies, procedures, regulations, Federal Register Notices, FSIS public meetings, recalls, and any other types of information that could affect or would be of interest to our constituents/stakeholders. The constituent fax list consists of industry, trade, and farm groups, consumer interest groups, allied health professionals, scientific professionals and other individuals that have requested to be included. Through these various channels, FSIS is able to provide information with a much broader, more diverse audience. For more information and to be added to the constituent fax list, fax your request to the Office of Congressional and Public Affairs, at (202) 720-5704.

FSIS will use a variety of methods to reach consumers and those individuals who work directly with consumers—information multipliers—to publicize the issues identified in this OCP ANPR. FSIS will send electronic messages to electronic discussion lists that reach thousands of educators, health professionals, media, industry representatives, and consumers. FSIS will use Department mailing lists for minority media and constituent groups to send information releases that can be published in local newspapers. In addition, FSIS intends to translate briefing materials and consumer information into Spanish in order to encourage publication in non-English media that directly reach consumers.

FSIS expects to arrange for one or more public meetings to be held in large urban areas with diverse populations in order to encourage public participation by individuals not typically represented by consumer-organizations or who do not have access to electronic communication, including fax machines, internet-accessible equipment, televisions, radios, or non-English printed materials.

FSIS does not expect that this ANPR or resulting rulemaking will have an adverse effect on its own employees since the ratio of tasks performed on OCP activities will be shifted more in favor of tasks performed on food safety activities.

Background

FSIS' mission is to ensure that meat, poultry, and processed egg products are safe, wholesome, and properly marked, labeled, and packaged. FSIS has carried out its food safety responsibilities primarily by managing an inspection program within meat and poultry slaughter and processing establishments. This program has relied heavily on FSIS inspection personnel to detect and correct establishments' noncompliance.

FSIS is in the process of reforming its regulatory and administrative approach to achieving its mission. The Agency's “Pathogen Reduction; Hazard Analysis and Critical Control Point (HACCP) Systems” final rule (61 FR 38806, 7/26/96) announced and provided the framework for modernization of FSIS' inspection system, particularly with respect to its food safety goals. This rule established requirements applicable to all meat and poultry establishments that were designed to reduce the occurrence and numbers of pathogenic microorganisms on meat and poultry products. As part of FSIS' modernization of its food safety strategy, the Agency stresses the need to clarify and strengthen the responsibilities of establishments in meeting the requirements of FSIS' regulations, plus the concomitant responsibility of the Agency to hold establishments accountable for meeting those requirements.

As FSIS shifts its emphasis from telling the regulated industry how to comply with regulatory requirements to oversight of industry-developed HACCP systems and other related process control procedures, the Agency must reevaluate its regulatory approach to consumer protection issues other than food safety. In an advanced notice of proposed rulemaking (ANPR) published elsewhere in this issue of the Federal Register , FSIS is presenting its plans for a new approach to verifying compliance with these other consumer protection requirements. FSIS is referring to these verification activities as its other consumer protection (OCP) activities. Among these activities are the Agency's efforts to ensure that products that are subject to food standards comply with those standards.

Cured pork products, such as hams, shoulders, picnics, and butts, must comply with food standards that specify a minimum percentage of meat protein after all fat has been removed from the product. These food standards are referred to as “minimum meat Protein Fat Free (PFF) percentage requirements” or simply as “PFF requirements.” The PFF requirements that establishments must meet are codified at 9 CFR 319.104 and 319.105. In 9 CFR 318.19 and 327.23, FSIS has established a monitoring system that details the sampling frequencies and enforcement procedures FSIS uses to ensure that domestic and imported cured products meet the PFF requirements.

FSIS' compliance procedures for cured pork products are not consistent with the Agency's planned approach to economic sampling. The Agency plans to consider economic risk factors, such as an establishment's compliance history, and apparent consumer protection needs in determining which products to sample and test. The PFF system generates from 6,000 to 7,000 samples annually and thus represents an impediment to efficient and effective resource allocation. This number of samples did not stand out in the mid-l980's when FSIS was analyzing approximately 100,000 food chemistry samples annually. Today, with overall food chemistry samples in the 15,000 to 25,000 range, the Agency cannot afford to devote such a large portion of its overall food chemistry activity to one issue.

The existing compliance procedures for cured pork products have contributed to confusion concerning the respective roles and responsibilities of FSIS and industry. Industry has responsibility for complying with regulatory requirements. FSIS has responsibility for verifying compliance with regulatory requirements and taking enforcement actions when it finds noncompliance. The ANPR makes clear that this basic division of responsibilities applies to other consumer protection activities in the same way that it applies to food safety. However, when FSIS established the PFF compliance monitoring system, the Agency's approach was to assume responsibility for ensuring compliance. The system has thus effectively been a government run quality control system. The regulations implementing the system go so far as to provide an exemption for establishments that take responsibility and institute their own quality control procedures. The centrally directed PFF sampling system has been applied to only those establishments that have not implemented their own control systems.

The compliance procedures for cured pork products are an anomaly within the regulatory framework for enforcing food standards. FSIS is responsible for verifying compliance with 60 different food standards. The PFF requirements for cured pork products is the only standard of identity or composition where regulations direct FSIS sampling frequencies in response to specific laboratory findings. For other products, e.g., cooked sausage, FSIS directives state that Agency sampling frequencies are to be based on cumulative laboratory results. In still other cases, such as enforcement of the 30 percent fat limit for ground beef, there are no written instructions concerning Agency responses to findings that product exceeds the limit.

Because the compliance procedures for cured pork products in §§ 318.19 and 327.23 are not consistent with the Agency's planned approach to economic sampling, require too great an expenditure of Agency resources, and are not consistent with what the Agency considers to be the appropriate division of responsibilities between itself and industry, FSIS is proposing to remove these compliance procedures from its regulations. However, as noted above, eliminating the PFF compliance monitoring system would not affect the PFF content performance standards that establishments are required to meet.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. When the rule is adopted (1) all State and local laws and regulations that are inconsistent with this rule would be preempted; (2) no retroactive effect would be given to this rule; and (3) administrative proceeding would not be required before parties may file suit in court challenging this rule.

This proposed rule has been reviewed under Executive Order 12866. The Administrator has determined that this proposed rule would not have a significant economic impact on a substantial number of small entities. However, this proposed rule is part of FSIS' new approach to OCP as discussed in the ANPR published elsewhere in this issue of the Federal Register . Because the Office of Management and Budget designated the OCP ANPR as significant, FSIS submitted this rule to OMB for review.

Establishments producing cured pork products must comply with the food standards that specify a minimum percentage of meat protein after all fat has been removed from the product (9 CFR 319.104 and 319.105). This proposed rule only removes the requirements that specify the frequency at which FSIS samples such products.

This regulatory action would enable FSIS to better allocate its resources to address matters involving food safety. Because some establishments depend on FSIS' testing as a substitute for their own quality control responsibilities, such establishments may bear higher costs. Conversely, FSIS' new approach to economic sampling will focus enforcement actions on establishments that violate the requirements of the regulations. Sample collection will be less random and arbitrary. Therefore, some sample collection activities would be reduced in some establishments.

FSIS has considered the potential civil rights impact of this public meeting on minorities, women, and persons with disabilities. FSIS anticipates that this proposed rule will not have a negative or disportionate impact on minorities, women, or persons with disabilities. Proposed rules generally are designed to provide information and receive public comments on substantive issues that may lead to new or revised agency regulations or instructions. Public involvement in all segments of rulemaking and policy development is important. Consequently, in an effort to better ensure that minorities, women, and persons with disabilities are made aware of this proposed rule and are informed about the mechanism for providing their comments, FSIS will announce it and provide copies of this Federal Register publication in the FSIS Constituent Update.

FSIS provides a weekly FSIS Constituent Update, which is communicated via fax to over 300 organizations and individuals. In addition, the update is available on line through the FSIS web page located at http://www.fsis.usda.gov. The update is used to provide information regarding FSIS policies, procedures, regulations, Federal Register Notices, FSIS public meetings, recalls, and any other types of information that could affect or would be of interest to our constituents/stakeholders. The constituent fax list consists of industry, trade, and farm groups, consumer interest groups, allied health professionals, scientific professionals and other individuals that have requested to be included. Through these various channels, FSIS is able to provide information with a much broader, more diverse audience. For more information and to be added to the constituent fax list, fax your request to the Office of Congressional and Public Affairs, at (202) 720-5704.

There are no paperwork or recordkeeping requirements associated with this proposed rule.

For the reasons set forth in the preamble, FSIS proposes to amend 9 CFR Parts 318, 319, and 327, as follows:

I. Objectives

The objectives of our proposed amendment are to:

• Provide greater flexibility for banks and associations to approve loans to designated parties (System “insiders” and those FCA and FCSIC employees who may legally borrow from the System);

• Keep adequate controls on loans that banks and associations make to designated parties; and

• Make our regulations easier to understand and use.

Sections 614.4450, 614.4460, and 614.4470 of our regulations require a funding bank to approve all loans that it and its associations make to designated parties. On August 9, 1999, we published a direct final rule with opportunity to comment. 1 This direct final rule would have, in relevant part, repealed two of these regulations and amended the third. The revision would have allowed a bank or association to make a loan to a designated party with the approval of its own board of directors. Under direct final rulemaking, a rule becomes effective without further proceedings unless we receive significant adverse comment.

One association provided a significant adverse comment on the revision. Four other associations also provided comments on the revision. Because of these comments, we withdrew the portion of the direct final rule on loans to designated parties on October 14, 1999. 2

All five commenters objected to our direct final rule's requirement that the board of directors of a bank or association must approve all loans made to designated parties. Four commenters stated that we should allow an association board of directors to delegate approval of loans to designated parties to management, with post review by the board. One commenter stated that we should allow an association board of directors to delegate approval of loans under a certain dollar amount to association staff, with post review by management. The commenter further suggested that management preapprove loans over that dollar amount.

The commenters provided five main reasons for their concern. Their comments and our responses are as follows:

First Comment: Directors do not have the expertise to make credit decisions; this is a task that professional lending staff should perform.

Response: We believe directors, who are elected by their shareholders to represent them in conducting the business of their banks and associations, are qualified to make decisions on loans to designated parties. We remind directors that, as we explain in our publication entitled The Director's Role: Farm Credit System Institutions, 3 they are ultimately responsible for all decisions their banks and associations make. In making these decisions, directors may want to consult with the professional lending staff at their banks and associations, as well as with other credit experts.

Second Comment: Directors may be biased in reviewing and analyzing audit results if they have made the credit decisions.

Response: Part 612 of our regulations requires directors to remain impartial in carrying out their duties. We expect that directors will review and analyze audit results on their credit decisions in an unbiased manner.

Third Comment: It may be difficult for the lending staff to remain independent and responsible to the board if they disagree with the board's credit decision.

Response: Boards of directors have the ultimate responsibility for conducting the affairs of the banks and associations they are elected to serve. Boards hire management and staff to conduct day-to-day operations. Management and boards must work together as teams to ensure that banks and associations meet the needs of their borrowers and satisfy safety and soundness concerns.

Fourth Comment: Directors may find it difficult to “pass judgment” on other directors.

Response: We agree that some directors may find it difficult to make decisions on the loans of other directors. We believe, however, that management may find it even more difficult to make such decisions. Because directors are ultimately responsible for the affairs of their bank or association, we believe it is more appropriate for them to consider and act on the credit requests of other directors. If directors feel unable to make an unbiased decision in a particular situation, they always have the choice of recusing themselves from that particular decision.

Fifth Comment: Directors do not want other directors to have access to their financial information.

Response: Section 612.2140(b) of our regulations prohibits directors from divulging or making use of any information they learn as directors. In addition, § 612.2135(b) requires directors to “exercise diligence and good judgment in carrying out their duties.” We believe, therefore, that our regulations sufficiently address the misuse of financial information.

When we withdrew the portion of the direct final rule on loans to designated parties, we said that we would continue with this rulemaking at a later date. We now propose an amended rule governing loans to designated parties. In developing this proposed rule, we considered carefully all the comments that we received.

Our proposed regulation would provide greater flexibility for you  4 to approve loans to designated parties, while keeping adequate controls on these loans. The proposed regulation would continue to allow you to make loans to designated parties with bank approval, but it would also let an association's board of directors, and in some situations its own management, approve such loans. Because we are proposing the regulation in plain language, we believe it will be easier to understand and carry out.

The proposal would delete all references to district boards because the Agricultural Credit Technical Corrections Act of 1988  5 abolished these boards. The proposal would also repeal § 614.4450, which provides “the authority for loan approval is vested in the Farm Credit banks and associations.” More specific regulations providing for System lending authorities make this provision unnecessary. 6

We provide definitions of three key terms used in the proposed regulation. As part of our goal to use plain language in our regulations, we use the word “you” in the text of the proposed rule. Accordingly, we define “you” as a bank or association.

We define the term “designated parties” by providing a list of these parties. We updated this list from the existing §§ 614.4460 and 614.4470. The list includes bank and association “insiders” as well as certain employees of FCA and FCSIC. 7

We define the term “loan” broadly. “Loan” means:

• The total of all loans and undisbursed commitments from you to a designated party; plus

• The total of all loans and undisbursed commitments from you to any other borrower if the designated party has a significant interest in the loan, proceeds or collateral.

The proposed rule would require you to adopt a policy addressing the approval of loans to designated parties. Your policy must describe the procedures, as set forth in the proposed rule, you will follow in making these loans.

Depending on the size of the loan, you may choose any one of three procedures for making loans to designated parties. The first procedure allows your board of directors (or a committee of your board) to approve loans that you make to designated parties. The second procedure permits the existing practice of allowing the funding bank to approve a loan made by an association. Finally, the third procedure permits your board of directors to delegate approval of loans of $25,000 or less to designated parties to your management. Your board of directors must post review all loans to designated parties that management approves.

We continue to believe that management should not approve loans over $25,000 to designated parties. Because of their size, these loans have greater risk potential for banks and associations. Requiring board or funding bank preapproval of these credit decisions will help ensure the approval decision is independent, objective, and free from any real or perceived conflicts of interest. The commenters contended that association boards may be uncomfortable with their own members approving loans to designated parties. If this is the case, association boards have the option of continuing to have decisions on loans to designated parties made by their funding banks.

Because loans of $25,000 or less are relatively smaller, they create less potential risk for the banks and associations that make them. We believe our proposal will help to reduce the administrative burden of making loans of $25,000 or less to designated parties. 8

For the reasons stated in the preamble, we propose to amend part 614 of chapter VI, title 12 of the Code of Federal Regulations to read as follows:

I. Objectives

The objectives of our proposed amendment are to:

• Allow banks (and indirectly their related associations and their shareholders) to save significant printing and mailing costs by relaxing the requirement that they must routinely distribute their annual reports to the shareholders of their related associations; and

• Ensure that association shareholders continue to receive the information they need about how their associations' relationships with related banks affect their own investments in the associations.

On August 18, 1998, we published a notice in the Federal Register that invited commenters to identify existing regulations and policies that impose unnecessary burdens on the System. See 63 FR 44176 (Aug. 18, 1998). 1 We specifically requested commenters to focus on those regulations and policies that are ineffective, duplicate other requirements, or impose burdens that are greater than the benefits received. We took this action as part of our continuing effort to improve the regulatory environment so the System can better serve farmers and ranchers.

Among the comment letters we received, two asked us to repeal the requirement imposed by § 620.4(b)(1). This regulation requires any bank that presents its financial statements on a combined basis with its related associations to distribute its annual report to the shareholders of the related associations. One comment letter was from the Farm Credit System Accounting Standards Work Group (ASWG), on behalf of banks that present their financial statements on a combined basis. The other comment letter was from the Farm Credit Bank of Texas (which also has a representative on the ASWG). Both commenters contended the requirement that banks distribute their annual report to an association's shareholders is of minimal benefit to those shareholders. The commenters pointed out that we already require associations to include in their own annual reports information about their financial and supervisory relationships with their related banks. The commenters stated that because of the high costs of printing and mailing annual reports to the associations' shareholders (costs that are reflected in the costs of funds of the associations and interest rates to their shareholders), the regulation imposes an undue burden. We considered these comments in drafting this proposed rule.

We first required banks to distribute their annual reports to their related associations' shareholders in March 1986. At that time, our regulations required banks to supervise closely the activities of their related associations. In addition, many associations were experiencing severe financial difficulties and were relying heavily on their related banks for financial assistance. During the mid-1980s, banks were also experiencing their own financial difficulties. These financial difficulties were caused both by rapid changes in interest rates that hindered the banks' debt funding strategies and by the financial stress from the banks providing financial assistance to their related associations.

In part because banks and associations were so interdependent, in the mid-1980s we issued a regulation requiring banks to distribute their annual reports to shareholders of related associations. In this way, the associations' shareholders had access to full information about how the financial condition of the related banks affected their own investments in their associations. In addition, we issued a regulation requiring banks to present their financial statements on a combined basis with their related associations. 2

Through the intervening years, with the objective of making associations more accountable for their actions, we have changed or removed many of the regulatory provisions that caused associations to be financially dependent on their banks. For instance, we adopted regulations that have caused associations to strengthen their capital positions. In addition, we are using our enforcement authorities effectively to cause associations to operate in a more safe and sound manner. Because of these and other factors, all associations have improved their financial strength to a point that they are able to operate in a more independent manner.

In 1997, recognizing that circumstances had changed and that GAAP may no longer require certain banks to present their financial statements on a combined basis, we amended our regulations to allow banks to present their financial statements on any basis that conforms to GAAP. 3 At the same time, we amended the annual report distribution requirement to allow any bank that presents its financial statements on a bank-only basis ( e.g. , CoBank, ACB (CoBank)) not to distribute its annual reports to the shareholders of its related associations on a routine basis. We now require banks that prepare their financial statements on a bank-only basis to provide annual reports to their related associations' shareholders only when the banks are affected by a “significant event.”  4 We have ensured, however, that shareholders continue to receive information about the financial and supervisory relationship between their associations and the related bank. In another regulation, we require all associations to disclose in their annual reports information about these relationships. 5 We believe this set of regulations strikes the proper balance between a bank's desire to minimize costs and shareholders' needs to receive information about how the bank's condition affects the operations and financial condition of their associations.

This revision would make several changes based on our plain language initiatives. In addition, it would allow shareholders to obtain copies of an institution's financial reports by electronic mail or on its Web site, as well as by mail or telephone.

Finally, the revision would provide that a bank generally need not distribute its annual report to the shareholders of any related association that discloses, in a separate section of its annual report, specified information about its financial and supervisory relationship with the bank. The regulation would, however, require any bank that experiences a “significant event” to distribute its annual report to the shareholders of its related associations. We believe our proposed revision would provide the regulatory relief the commenters requested. As discussed above in section II.B., we have allowed CoBank not to distribute its annual reports to the shareholders of related associations since 1996. We believe this arrangement has been beneficial for the affected shareholders and associations as well as CoBank. This revision would extend similar relief to the FCBs. 6

Existing § 620.2(h) requires institutions, in relevant part, to provide telephone numbers and addresses where shareholders may get copies of certain financial reports the institutions are required to make available. We propose to amend this rule to provide that institutions must also provide electronic mail and Web site addresses, if available. For institutions and shareholders that have this capability, we believe this extra method of receiving and responding to requests for financial reports would be cost-effective and convenient.

We also propose to reorganize this section using plain language. Other than the change discussed in the previous paragraph, we do not propose to change the meaning of the section.

Existing § 620.4(b)(2) generally allows banks that present their financial statements on a bank-only basis not to distribute their annual reports to the shareholders of their related associations. These banks must distribute the reports to shareholders of related associations only when the banks experience a “significant event” that has a “material effect” on the associations, as those terms are defined in § 620.1 of our regulations. Currently, CoBank is the only bank that presents its financial statements on a bank-only basis. CoBank, therefore, is the only bank that we have not generally required to distribute its annual report to the shareholders of its related associations. 7

Our amended regulation would treat all banks (including CoBank) in a similar way with respect to the distribution of annual reports. Banks generally would not need to distribute their annual reports to the shareholders of any associations that disclosed, in a separate section of their own annual reports, specified information about their financial and supervisory relationship with their banks. 8 Any bank that experienced a “significant event” that has a “material effect” on the associations, however, would have to distribute its annual report to the shareholders of its related associations. The information included in this separate section is information that other existing regulations already require associations to disclose in their annual reports. 9 Our amendment would merely provide that if an association presented this information in a separate section of its annual report, its related bank would not be required to distribute its own annual report to the association's shareholders. 10

The separate section, which could incorporate by reference information from other sections of the annual report, would have to include:

1. The statement required by § 620.2(h)(2), telling shareholders:

• That their investment in the association may be materially affected by the financial condition and results of operations of the related bank;

• That (if not otherwise provided) a copy of the bank's financial reports to shareholders will be made available free of charge upon request; and

• The telephone numbers and addresses (including, if available, electronic mail and Web site addresses) where shareholders may obtain copies of the related bank's financial reports.

2. If applicable, the following information required by § 620.5:

• The association's obligation to borrow only from the bank unless the bank gives approval to the association to borrow elsewhere;

• The major terms of any capital preservation, loss sharing, or financial assistance agreements between the association and the bank;

• Any bank bylaw provisions authorizing the bank to access the capital of the association;

• The extent to which the bank has assumed the association's exposure to interest rate risk; and

• Any other material operational and financial conditions that may contribute to an interdependent relationship between the association and the bank.

If associations chose to present this information in a separate section of their annual reports, we believe shareholders would be able to review the information they need about how their associations' relationships with their related banks affect their own investments more easily. With this information, we believe shareholders would be able to decide whether they should ask for a copy of the bank's annual report. If a particular association chose not to present this information in a separate section, its related bank would continue to be required to distribute its annual report to the shareholders of that association.

We considered an alternative to our bank distribution proposal that would require the association, rather than its bank, to distribute the bank's annual report. Currently, associations reimburse their banks either directly or indirectly for the cost of preparing and distributing the banks' annual reports to the shareholders of associations. Allowing the banks to require their associations to distribute the banks' annual reports would provide added flexibility to the distribution process. We believe this added flexibility could lead to cost savings that would benefit not only the banks and their related associations, but also association shareholders. We note that regardless of whether a bank or an association makes this distribution, the cost to the association should remain more or less the same. We ask commenters to consider whether this alternative is more appropriate.

Since 1996 we have permitted CoBank (because it presents its financial statements on a bank-only basis) not to distribute its annual reports to the shareholders of its related associations even if the associations have not presented the specified information in a separate section. We believe, however, that presenting this information in a separate section would impose minimal, if any, burden on CoBank's four related associations. In addition, we believe it is important to treat all System banks and associations in a consistent manner. Therefore, this rule would apply to CoBank as well as to the FCBs.

For the reasons stated in the preamble, we propose to amend part 620 of chapter VI, title 12 of the Code of Federal Regulations to read as follows:

Comments Invited

Interested persons are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Communications should 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 or withdrawn in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of this 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 action 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 No. 2000-ANE-91.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NRPM by submitting a request to the Federal Aviation Administration, Airspace Branch, ANE-520, Federal Aviation Administration, 12 New England Executive Park, Burlington, MA 01803-5299. Communications must identify the docket number of this NRPM. Persons interested in being placed on a mailing list for future NPRM's should also request a copy of Advisory Circular No. 11-2a, which describes the application procedure.

The State of Connecticut has notified the FAA that it has approved plans for the construction of a permanent Air Traffic Control Tower (ATCT) at Waterbury-Oxford Airport (KOXC), Oxford, Connecticut. Construction of the new ATCT should be complete in May 2000, and the State has applied to have the ATCT operated under the FAA Contract Tower Program. Accordingly, the State has requested that the FAA establish a Class D airspace area in vicinity of the Waterbury-Oxford Airport commensurate with the commissioning of the new ATCT. Air traffic at the Waterbury-Oxford Airport has grown over the past year and presently includes both high-speed jets and slower speed reciprocating powered light aircraft and rotorcraft.

The FAA establishes Class D airspace where necessary to provide a safe environment for aircraft transiting between the enroute and terminal airspace structures. This is particularly true when aircraft with greatly different performance characteristics operate at the same airport. Class D airspace areas encompass that airspace in the vicinity of an airport from the surface upward to a specified altitude in which pilots of aircraft must establish and maintain two-way radio communications with the ATCT at that airport. This proposal would create a Class D airspace area in the vicinity of the Waterbury-Oxford Airport extending upward from the surface to 3,200 feet MSL within a 5-mile radius of the airport.

In addition, the FAA finds that Class E airspace area, extending from the surface as an extension of the Class D airspace area, is necessary in order to provide sufficient controlled airspace to accommodate those aircraft arriving at the airport using a standard instrument approach procedure (SIAP). The Waterbury Oxford Airport has a SIAP that requires the establishment of a Class E surface airspace area extending to northwest of the airport along the TBY NDB 353° bearing to a point 7.6 miles from the airport. These proposals will provide for the safe and efficient use of the navigable airspace in the vicinity of the Waterbury-Oxford Airport, and promote safe flight operations under both Instrument Flight Rules (IFR) and Visual Flight Rules (VFR) by aircraft transiting to and from enroute airspace structure.

Class D airspace designations are published in Paragraph 5000 of FAA Order 7400.9G, and Class E airspace designations for airspace designated as extensions of a Class D airspace area are published in paragraph 6004 of FAA Order 7500.9G. FAA Order 7400.9G, dated September 1, 1999, and effective September 16, 1999, is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in this Order.

This rule does not have federalism implications, as defined in Executive Order 13132, because it does 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. Accordingly, the FAA has not consulted with state authorities prior to publication of this rule.

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) Is not a “significant regulatory action“ under Executive Order 12866; (2) Is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) Does not warrant preparation of a Regulatory Evaluation as these routine matters will only affect air traffic procedures and air navigation. It is certified that these proposed rules will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) as follows:

Request for Comments

The Coast Guard encourages interested persons to participate in this rulemaking by submitting comments and related material. Each person submitting comments should include his/her name and address, identify the docket number for this rulemaking [CGD1-99-194-195-196], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8\1/4\ by 11 inches, suitable for copying. Persons requesting acknowledgment of receipt of comments should include a stamped, self-addressed postcard or envelope. All comments and material received during the comment period will be considered by the Coast Guard and may change this proposed regulation.

The Coast Guard does not plan to hold a public hearing. Persons may request a public meeting by writing to Commander, First Coast Guard District (m) via Marine Safety Office Portland, at the address listed under ADDRESSES. The request should include reasons why a public hearing would be beneficial. If the Coast Guard determines that oral presentations would aid this rulemaking, a hearing will be held at a time and place announced by a later notice in the Federal Register .

OPSAIL Maine 2000, Inc. is sponsoring the OPSAIL Maine 2000 Parade of Tall ships as well as a fireworks display. These events are scheduled to take place between July 28th and 30th 2000 in the Port of Portland and surrounding waters. The Coast Guard anticipates up to 1,000 spectator craft for these events. The proposed rulemaking will provide specific guidance on temporary anchorage regulations, vessel movement controls, and safety zones that will be in effect at various times in those waters during the period July 28-30, 2000. The Coast Guard may establish additional regulated areas, anchorage grounds and safety zones once confirmation of the exact number of participating vessels becomes available.

OPSAIL MAINE 2000, Inc is sponsoring OPSAIL MAINE 2000. This event will consist of a parade of sailing vessels from Portland Head Light past a reviewing stand located at Anchorage B. This parade will continue to Portland Main where the vessels will turn west-southwest and go to berth throughout the Port of Portland.

The Coast Guard estimates up to 1,000 spectator craft will attend the events. The proposed regulations create temporary anchorage regulations, vessel movement controls, and safety zones. The regulations will be in effect at various times in Portland Harbor between July 28-30, 2000. The vessel congestion due to the large number of participating and spectator vessels poses a significant threat to the safety of life. This proposed rulemaking is necessary to ensure the safety of life on the navigable waters of the United States.

The Coast Guard proposes to establish a regulated area in Portland Harbor that will be in effect on July 28, 2000. This proposed regulated area is needed to protect the maritime public and participating vessels from possible hazards to navigation associated with a parade of tall ships transiting the waters of Portland outer harbor in close proximity; and a large number of Tall Ships and spectator craft anchored in close proximity throughout the duration of these events. This regulated area includes vessel anchoring and operating restrictions.

This Regulated Area covers the waters of Portland Harbor Outer Harbor, Main Harbor and vicinity. It includes the following temporary anchorages established under 33 CFR § 110.T133 created under this rule: Anchorage B, Anchorage C, Anchorage D offshore of South Portland, and Anchorage E off the southeast shore of Cushing Island. Following the tall ship parade, Portland Harbor will reopen in sequence with the movement and mooring of the final flotilla of tall ships. After the final flotilla of tall ships has passed Anchorage B, vessel operators anchored in the anchorage areas may depart for locations outside Portland Harbor. This proposed regulated area is effective from 11 a.m. until 4 p.m. on July 28, 2000.

The Coast Guard also proposes to establish temporary Anchorage Regulations for participating OPSAIL MAINE 2000 ships and spectator craft. The Anchorage regulations in 33 CFR § 110.132 will be temporarily suspended by this regulation and new Anchorage Grounds and regulations will be temporarily established. The proposed anchorage regulations temporarily establish Anchorage grounds for spectator vessel use only. They restrict all other vessels from using these anchorage grounds during a portion of the OPSAIL MAINE 2000 event. Anchorage B will contain the official reviewing vessel. Anchorage C is designated for small vessel temporary anchorages. Additionally, Spectator Anchorage D is designated offshore of South Portland in the Outer Harbor, and Spectator Anchorage E is designated on the southeast shore of Cushing Island. These are needed to provide viewing areas for spectator vessels while maintaining a clear parade route for the participating OPSAIL MAINE 2000 vessels and to protect boaters and spectator vessels from the hazards associated with a parade of tall ships transiting in close proximity in the waters of Portland Harbor. These proposed regulations are effective from 11 a.m. until 4 p.m. on July 28, 2000.

The Coast Guard proposes to establish a safety zone in Portland Harbor for a fireworks display, that will be in effect on July 28, 2000. In the case of inclement weather, the fireworks display will be held on either July 29, or July 30, 2000 and the safety zone would be in effect on those dates. The proposed safety zone is needed to protect the maritime public from possible hazards associated with the launching of fireworks in Portland Harbor. The safety zone covers a 1500 foot radius around a barge located in Anchorage A for the fireworks display. This proposed regulation is in effect from 9 p.m. until 11 p.m. on July 28-30, 2000.

This proposed rule 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. The office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979).

Due to the short duration of these marine events and fireworks events and the advance notice provided to the maritime community, the Coast Guard expects the economic impact of this regulation to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of the Department of Transportation is unnecessary.

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

Because it expects the impact of this rule to be so minimal, the Coast Guard certifies under section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) that this proposed rule will not have a significant economic impact on a substantial number of small entities.

In accordance with Sec. 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 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 you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

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

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

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

This proposed rule would 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 proposed rule meets applicable standards in sections 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 proposed 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.

We have considered the environmental impact of this proposed rule and concluded that, under Figure 2-1, paragraph 34 (f), (g) and (h), 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” is available in the docket where indicated under ADDRESSES.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR Parts 100, 110, and 165 as follows:

Background and Purpose

These proposed regulations are required to provide for the safety of life on navigable waters because of the inherent danger of fireworks during the Skull Creek July 4th celebration, Skull Creek, Hilton Head GA.

The Coast Guard encourages interested persons to participate in this rulemaking by submitting written views, data, or arguments. Persons submitting comments should include their names and addresses, identify this notice [CGD07-00-012] and the specific section of this proposal to which their comments apply and give reasons for each comment. The Coast Guard requests that all comments and attachments be submitted in an 8″ X 11″ unbound format suitable for copying and electronic filing. If that is not practical, a second copy of any bound material is requested. Persons requesting acknowledgment of receipt of comments should enclose a stamped, self-addressed postcard or envelope. The Coast Guard will consider all comments received during the comment period. The regulations may be changed in view of the comments received. All comments received before the expiration of the comment period will be considered before final action is taken on this proposal.

The Coast Guard plans no public hearing. Persons may request a public hearing by writing to Commander Coast Guard Group Miami at the address under ADDRESSES . The request should include the reasons why a hearing would be beneficial. If it determines that the opportunity for oral presentations will aid this rulemaking, the Coast Guard will hold a public hearing at a time and place announced by a notice in the Federal Register .

This proposal 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. The Office of Management and Budget has not reviewed it under that order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). The 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 DOT is unnecessary. The regulated area will only be in effect for 2 hours on one day.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), the Coast Guard must consider whether this rule will have a significant economic effect upon a substantial number of small entities. “Small entities” include small business, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities as the regulations will only be in effect for 2 hours in a limited area near Hilton Head, South Carolina.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-221), we offer to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small entities may contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding and participating in this rulemaking. We also have a point of contact for commenting on actions by employees of the Coast Guard. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This proposal calls for no new collection of information requirements under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

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

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

This proposal 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 proposal meets applicable standards in sections 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 proposal 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 safety that may disproportionately affect children.

The Coast Guard considered the environmental impact of this proposal and has determined pursuant to Figure 2-1, paragraph 34(h) of Commandant Instruction M16475.1C, that this proposal is categorically excluded from further environmental documentation.

In consideration of the foregoing, the Coast Guard proposes to amend 33 CFR Part 100 as follows:

Regulatory Information

On December 17, 1999, the Coast Guard published an advanced notice of proposed rulemaking; request for comments (ANPRM) entitled OPSAIL 2000, Port of Miami in the Federal Register (64 FR 70650). The Coast Guard received no letters commenting on the anticipated rulemaking. No public hearing was requested and none was held.

We encourage interested persons to participate in this rulemaking by submitting comments and related material. Your comments should include your name and address, identify the docket number for this rulemaking (COTP Miami 00-015) and the specific section of this proposal to which each comment applies and give the reason for each comment. Please submit two copies of all comments and attachments in an unbound format, no larger than 8- 1/2 by 11 inches, suitable for copying and electronic filing. If you want to know if your comment is received, enclose a stamped, self-addressed postcard or envelope. We will consider all comments received during the comment period and may change this proposal in view of the comments. The comment period for this regulation is 45 days. This time period is adequate to allow local input because we previously published an ANPRM, no comments were received, the event is highly publicized, and the shortened comment period will allow the full 30-day publication requirement prior to the final rule becoming effective. Copies of this proposal will also be placed in the local notice to mariners.

The Coast Guard plans no public meeting. You may request a public meeting by writing to the Port Management and Response Department of Coast Guard Marine Safety Office Miami at the address under ADDRESSES. The request should include the reasons why a hearing would be beneficial. If we determine that the opportunity for oral presentations will aid this rulemaking, it will hold a public hearing at a time and place announced by a later notice in the Federal Register .

The proposed temporary regulations are for OpSail Miami 2000 events scheduled to be held in portions of the Port of Miami over the period of June 6-10, 2000. This rule is proposed to provide for the safety of life and property on navigable waters during OpSail Miami 2000 events.

OpSail Miami 2000, Inc., is sponsoring OpSail Miami 2000 activities which consist of the arrival, display, and departure parade of numerous large U. S. and foreign flagged sail vessels. One or more fireworks displays may be conducted during the period of sail vessel visit. Currently, approximately 20 Class A (175 feet or larger in length) and 20 smaller Class B (100 feet up to 175 feet) and C (up to 100 feet) sail vessels have confirmed that they will participate in OpSail Miami 2000. Event sponsors anticipate as many as 100 sail vessels may ultimately be involved.

Participant sail vessels will begin arriving in the Port of Miami on June 6, 2000 and will moor alongside Dodge Island within the Port of Miami. These vessels will be open to the public during certain hours between June 7 and June 9, 2000. On June 10, 2000, these vessels will make their departure from the Port of Miami in a parade commencing approximately 12 noon EST and ending approximately 2 p.m. EST. Participant sail vessels will proceed from their moorings to the turning basin at the west end of the Main Channel. From the turning basin, they will proceed in 300 to 500 yard intervals in an ocean bound direction along the Main Channel, thence along Government Cut, thence along Bar Cut, thence along Outer Bar Cut, to the vicinity of Miami Lighted Bouy M (Light List Number (LLNR) 10455-895), located at 25 degrees, 46.0 minutes North latitude, 080 degrees, 05.0 minutes West longitude. The area of Miami Lighted Buoy M is the termination area for the parade.

Vessels subject to local pilotage rules shall have a Biscayne Bay pilot embarked for the outbound parade from moorings. Pilots are expected to disembark from their assigned sail vessels in the area of Miami Lighted Buoy M. Once out of the parade, the majority of sail vessels are expected to turn north and skirt the south Florida Atlantic Coast en route to their next port of call.

Waterborne spectator areas have been designated by the event sponsor to be on either side of Bar Cut and Outer Cut in the open ocean. These areas will be delineated by lines of marker floats placed by the sponsor. The marker floats will be round balls, orange in color, and spaced approximately 200 yards apart. They will be placed 100 yards out from the aids to navigation that mark each side of the channel. Spectator craft will be expected to remain behind the marker float lines for the duration of the parade.

Because of the number of the sail vessels, fireworks displays, and the large number of spectator watercraft expected during the parade, the Coast Guard proposes temporary regulations for the creation of a temporary safety zone and vessel movement controls in portions of the Port of Miami and its channels affected by this event. The regulations will be in effect at various times in portion of the Port of Miami during the period of June 6, 2000 through June 10, 2000. The vessel congestion due to the large number of participant and spectator vessels poses a significant threat to the safety of life and property. The Coast Guard has determined this proposed rulemaking is necessary to ensure the safety of life and property on the navigable waters of the United States within portions of the Port of Miami affected by this event.

The Coast Guard proposes to establish a temporary safety zone for the Parade of Sail on June 10, 2000. The proposed safety zone shall include all waters in the Port of Miami within the turning basin at the west end of Main Channel bounded by the bridges connecting Dodge Island and Watson Island to the mainland, respectively, the Main Channel, Lummus Island Cut east of a line drawn northward from the west end of Fisher Island, Government Cut, Bar Cut, and Outer Bar Cut. This safety zone also includes all the waters 500 yards on either side of Bar Cut and Outer Bar Cut seaward of the jetties to Miami Lighted Buoy M (LLNR 10455-895). Entry into the safety zone by non-participating vessels will be prohibited. The Coast Guard expects many spectator craft for this millennium event. These craft will be allowed to view the Parade of Sail vessels from viewing areas on either side of Bar Cut and Outer Bar Cut. These areas will delineated by marker floats placed by the sponsor of the event.

This proposed rule 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. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979).

We expect the economic impact of this proposed rulemaking to be so minimal that a full Regulatory Evaluation under 10e of the regulatory policies and procedures of DOT is unnecessary. Although the proposed rule prohibits all non-parade related traffic in the area of the temporary safety zone on Saturday, June 10, 2000, the effect of this regulation will not be significant for the following reasons: the regulation will be in effect for less than 6 hours; the maritime community will receive extensive advance notices through Local Notices to Mariners, facsimile, and marine information broadcasts, maritime association meetings, and Miami area newspapers; and specific viewing areas will be marked for spectator vessels. Mariners and commercial vessels can adjust their plans accordingly.

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

For the reasons discussed in the Regulatory Evaluation section above, the Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit those portions of the Port of Miami during the six hour periods of safety zone enforcement. These regulations would not have a significant economic impact on a substantial number of small entities for the following reasons. Although these regulations would apply to a substantial portion of the Port of Miami, the periods of the regulatory enforcement will be of short duration. Before the effective periods, the Coast Guard will make notifications to the public via mailings, facsimiles, the Local Notice to Mariners, and use of the sponsor Internet site. In addition, OpSail Miami 2000, Inc., the sponsoring organization, is planning to publish information of the event in local newspapers, pamphlets, and television and radio broadcasts. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit comments (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we will assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Joe Boudrow, Coast Guard Marine Safety Office Miami at (305) 535-8705.

The Coast Guard anticipates that this rulemaking will not require any new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and it has been determined that the rulemaking does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This proposed rule would not impose no unfunded mandate.

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

The Coast Guard has analyzed this proposed 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.

We considered the environmental impact of this action and have initially determined under Figure 2-1, paragraph 34(g) of Commandant Instruction M16475.1C, that this proposed rule will be categorically excluded from further environmental documentation. A Categorical Exclusion Determination will be available in the docket where indicated under ADDRESSES. By controlling vessel traffic during the event, this proposed rule is intended to minimize environmental impacts of increased vessel traffic during the parade of sail.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR Part 165, as follows:

On November 24, 1999, the Copyright Office published a Notice of Inquiry seeking comments in connection with a rulemaking pursuant to 17 U.S.C. 1201(a)(1), which provides that the Librarian of Congress may exempt certain classes of works from the prohibition against circumventing a technological measure that controls access to a copyrighted work. 64 FR 66139 (November 24, 1999). For a more complete statement of the background and purpose of the rulemaking, please see the Notice of Inquiry which is also available on the Copyright Office's website at: http://www.loc.gov/copyright/1201/anticirc.html.

Subsection 1201(a)(1)(A) provides, inter alia, that “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” Subparagraph (B) limits this prohibition. It provides that the prohibition against circumvention of technological measures “shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title” as determined in this rulemaking. This prohibition on circumvention becomes effective on October 28, 2000, two years after the date of enactment.

During the 2-year period between the enactment and effective date of the provision, the Librarian of Congress must make the determination as to classes of works exempted from the prohibition. This determination will be made upon the recommendation of the Register of Copyrights in a rulemaking proceeding. The determination thus made will remain in effect during the succeeding three years.

In response to the Notice of Inquiry, the Office received 235 written comments that conformed to the requirements set forth in the Notice of Inquiry, as modified. The comments have been posted on the Office's website; see http://lcweb.loc.gov/copyright/1201/comments.

The Copyright Office has received a request from Time-Warner Inc. to extend the deadline for submission of reply comments. Given the unexpectedly high volume of initial comments submitted and in order to accommodate the needs of all interested parties, the Copyright Office is extending the deadline for submissions of reply comments. Reply comments must be received in the Office of the General Counsel no later than 5:00 p.m. E.S.T. on March 31, 2000. For addresses and acceptable formats for reply comments, please see the section below entitled “Format and submission of reply comments and post-hearing comments.”

The purpose of reply comments is to respond to points made in initial comments submitted in this proceeding, and not to raise new issues for the first time.

Public hearings: The Office will be conducting public hearings in Washington, DC on Tuesday, May 2, 2000, Wednesday, May 3, 2000, and Thursday, May 4, 2000 from 9:30 a.m. to 6:00 p.m. Public hearings will also be held in Stanford, CA on Thursday, May 18, 2000 and Friday, May 19, 2000 from 9:30 a.m. to 6:00 p.m. Interested parties are invited to submit requests to testify at one of these hearings.

Requirements for persons desiring to testify: A request to testify must be submitted to the Copyright Office. All requests to testify must include:

• The name of the person desiring to testify;

• The organization or organizations represented by that person, if any;

• Contact information (address, telephone, and e-mail);

• The location and date of the hearing at which the requestor wishes to testify; and

• A one page summary of the intended testimony.

Addresses for requests to testify: If delivered by mail: requests to testify should be addressed to Robert Kasunic, Senior Attorney, Copyright GC/I&R, PO Box 70400, Southwest Station, Washington, DC 20024.

If sent by fax: requests to testify should be addressed to Robert Kasunic at (202) 707-8366.

If delivered by hand: requests to testify should be delivered to Robert Kasunic, the Office of the General Counsel, Copyright Office, Library of Congress, LM-403, James Madison Memorial Building, 101 Independence Avenue, S.E., Washington DC.

All requests to testify must be received by 5:00 E.S.T. on April 14, 2000.

Time limits on testimony at public hearings: There will be time limits on the testimony allowed for speakers. In the initial comment period, the Office received 235 written comments. Given the time constraints, only a fraction of that number could possibly testify at the hearings. The time limits will depend on the number of persons wishing to testify. Approximately one week prior to the hearings, the Office will notify all persons submitting requests to testify of the precise time limits that will be imposed on oral testimony. Due to the time constraints, the Copyright Office encourages parties with similar interests to select a single spokesperson to testify.

Post-hearing comments: At the conclusion of the public hearings, the Copyright Office will accept post-hearing written comments that relate specifically to matters addressed at the hearings or identified in the reply comments. This post-hearing comment period is not intended to be an opportunity for interested parties to reiterate points they have already made or to raise new issues. Post-hearing comments must be received in the Office of the General Counsel no later than 5:00 p.m. E.S.T. on June 23, 2000.

Format and submission of reply comments and post-hearing comments: The Copyright Office prefers to receive reply and post-hearing comments submitted in electronic format (by attachment to electronic mail or by delivery of 3.5-inch diskettes). While the Office prefers electronic submissions, reply and post-hearing comments in paper format will also be accepted. The applicable requirements for each form of submission are specified below:

1. If by electronic mail: Send to “1201@loc.gov” a message containing the name of the person making the submission, his or her title and organization (if the submission is on behalf of an organization), mailing address, telephone number, fax number (if any), and e-mail address. The subject heading of the message should also identify the document clearly as a reply or post-hearing comment. The document itself must be sent as a MIME attachment, and must be in a single file in either: (1) Adobe Portable Document File (PDF) format (preferred); (2) Microsoft Word Version 7.0 or earlier; (3) WordPerfect 7 or earlier; (4) ASCII text file format; or (5) Rich Text File (RTF) format. At a minimum, the comment must contain the name of the person submitting the comment.

2. If by regular mail or hand delivery: Send, to the appropriate address listed above, two copies of the comment, each on a 3.5-inch write-protected diskette, labeled with the name of the person making the submission and, if applicable, his or her title and organization. The document must be clearly identified as a reply or post-hearing comment. Either the document itself or a cover letter must also include the name of the person making the submission, his or her title and organization (if the submission is on behalf of an organization), mailing address, telephone number, fax number (if any), and e-mail address (if any). The document itself must be in a single file in either (1) Adobe Portable Document File (PDF) format (preferred); (2) Microsoft Word Version 7.0 or earlier; (3) WordPerfect Version 7 or earlier; (4) ASCII text file format; or (5) Rich Text File (RTF) format. At a minimum, the comment must contain the name of the person submitting the comment.

3. If in print only: Anyone who is unable to submit a comment in electronic form should submit an original and fifteen paper copies by hand or by mail to the appropriate address listed above. The reply or post-hearing comment should contain the name of the person making the submission, his or her title and organization (if the submission is on behalf of an organization), mailing address, telephone number, fax number (if any), and e-mail address (if any). At a minimum, the comment must contain the name of the person making the submission.

The following sections: Background, Analysis of the State's Submittal, and Final Action, provide additional information concerning the revisions to the ozone air quality maintenance plans for the Jacksonville and Southeast Florida areas to remove the emission reduction credits attributable to the MVIP from the future year emission projections contained in those plans.

Upon enactment of the Clean Air Act Amendments of 1990, the Jacksonville and Southeast Florida areas were classified as nonattainment for the one-hour ozone national ambient air quality standard (NAAQS). On November 16, 1992, the State of Florida submitted comprehensive inventories for volatile organic compound (VOC), oxides of nitrogen (NO X ), and carbon monoxide emissions from the Jacksonville and Southeast Florida areas. The inventories include biogenic, area, stationary, and mobile source emissions using 1990 as the base year for calculations to demonstrate NAAQS attainment and maintenance. The 1990 inventory is considered representative of attainment conditions because the one-hour ozone NAAQS was not violated during 1990. By 1993, both areas were able to demonstrate attainment of the one-hour ozone NAAQS and were able to show compliance with other requirements of the Clean Air Act as amended in 1990 (CAA) for redesignation.

On June 23, 1993, the State of Florida through the FDEP requested that the Jacksonville area be redesignated from a transitional ozone nonattainment area to attainment and on November 8, 1993, the State of Florida requested that the Southeast Florida area be redesignated from moderate ozone nonattainment to attainment. Approval of the ozone maintenance plans into the SIP, in conjunction with EPA's redesignation of the two areas to attainment with respect to the 1-hour ozone NAAQS, became effective March 6, 1995, for the Jacksonville area and March 25, 1995, for the Southeast Florida area (40 CFR 81.310).

The ozone maintenance plans for the two areas, developed pursuant to section 175A of the CAA and approved in the SIP, accounted for the MVIP in the mobile source emissions projections. The MVIP began April 1, 1991, in Duval, Palm Beach and Dade Counties and May 1, 1991, in Broward County. Currently, the MVIP is a centralized basic inspection and maintenance program. The program utilizes an idle emissions test to monitor vehicles' emission compliance.

On December 10, 1999, FDEP submitted a revision to the SIP for the ozone air quality maintenance plans for the Jacksonville and Southeast Florida areas to remove the emission reduction credits attributable to the MVIP from the future year emission projections contained in those plans. Specifically this action involves a recalculation of the motor vehicle emissions budgets (budgets) for the areas, eliminating the credit for the MVIP. In this submittal, the State originally used the MOBILE 5b model to project mobile source emissions for 2005. The mobile source budgets in the maintenance plan were calculated using the MOBILE 5a model, however the same version of the model must be used for comparisons of mobile source emissions. Subsequently, on January 18, 2000, the State submitted technical amendments to the mobile source emission projection calculations. The State recalculated the 2005 mobile source emissions using the MOBILE 5a model. The change in emissions using the MOBILE 5a versus MOBILE 5b models for 2005 was negligible.

The Transportation Conformity regulations, promulgated on November 24, 1993, established the criteria and procedures for determining conformity of transportation activities to the SIP. Under these provisions and Title I of the CAA, states may revise their emissions budgets at any time through the standard SIP revision process, provided that the revised emissions budgets will not adversely affect attainment and maintenance of the ozone NAAQS for any milestone year in the required time frame. The conformity rule provides states with the option to revise the emissions budgets to reallocate emissions among sources or between pollutants and their precursors so long as this budget maintains total emissions for the area below the attainment inventory levels.

In addition, the SIP revision must not have an adverse impact on maintenance of the NAAQS for any criteria pollutant. Guidance on this issue is contained in a memorandum dated September 17, 1993, from Michael Shapiro, Acting Assistant Administrator for Air and Radiation entitled, “State Implementation Plan Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide National Ambient Air Quality Standards on or after November 15, 1992.” This memo states:

In this revision, Florida demonstrates that the area can maintain the one-hour ozone NAAQS without the implementation of the MVIP. The EPA has reviewed the State's emissions inventory and modeling analyses and finds that they meet applicable guidance and requirements. Therefore, the State has made the necessary demonstration that the MVIP is not necessary to maintain the one-hour ozone NAAQS and that attainment of the NAAQS for any other pollutant will not be affected by removing the MVIP from the SIP. In accordance with EPA's November 15, 1992, policy, the State must include the MVIP as a contingency measure in the maintenance plan for the redesignated area, which it has done.

Tables 1 through Table 5, presented after the text in this subsection, list the revised budgets and the emissions for point, area, biogenic, on-road mobile and non-road mobile sources. The motor vehicle emission budgets are derived as a percentage of the 1990 on road emissions inventories. Upon final EPA approval, these budgets are to be used by the local metropolitan planning organizations and transportation authorities to assure that transportation plans, programs, and projects are consistent with, and conform to, the long-term maintenance of the NAAQS in the Jacksonville and Southeast Florida areas. Emissions inventories and budgets for the Jacksonville area (Duval County) are listed in Table 1. For the Southeast Florida area (Broward, Dade, and Palm Beach), the emissions inventories and budgets are based on the three-county totals which are listed in Table 5. However, in practice, the conformity test can be made for each county on the basis of its county-specific portion of the budget. For the purposes of conformity, allocation of the emissions inventories and budgets for Broward, Dade, and Palm Beach Counties are listed in Table 2 through Table 4, respectively.

I. Background

On February 28, 1992, we published a final rule with comment period in the Federal Register (57 FR 7002) to implement the Clinical Laboratory Improvement Amendments of 1988 (CLIA) (Pub. L. 100-578). One provision of CLIA, section 353(f)(4)(B)(i) of the Public Health Service Act (PHS Act), required the Department to establish a limit on the maximum number of cytology slides that an individual could examine daily, in order to ensure that he or she has sufficient time to adequately examine each slide. CLIA also required the Department to establish standards for the conduct of cytology proficiency testing (PT), with such testing “to take place, to the extent practicable, under normal working conditions” (section 353(f)(4)(B)(iv) of the PHS Act).

The February 28, 1992 final rule, at 42 CFR 493.1257(b)(1) and (b)(3)(i), established a maximum daily workload limit for personnel examining cytology slides in a normal work day. Under the regulations, cytology personnel may examine no more than 100 slides in any 24 hour period, and must have at least 8 hours to complete the examination of 100 slides, which results in an average of 12.5 slides per hour. This limit was established in order to ensure that an individual has sufficient time to adequately examine each slide.

CLIA also required the Department to develop a program for testing the proficiency of individuals who perform cytology examinations. The statute states that proficiency testing is to take place, to the extent practicable, under normal working conditions (section 353(f)(4)(B)(iv) of the PHS Act). The February 28, 1992 final rule, at § 493.855(b), provides that an individual must complete a 10-slide proficiency test in 2 hours and, if necessary, a 20-slide test in 4 hours. We established a lower slide examination rate for PT because a test contains a higher number of abnormal slides than a cytologist would encounter in a normal work day. We believe that a test that uses a higher number of abnormal slides more accurately assesses the skills of the cytologist.

The Consumer Federation of America and Public Citizen challenged the regulations in the United States District Court for the District of Columbia, arguing that the PT rate of five slides per hour did not conform to normal working conditions, since it is substantially less than the 12.5 slides per hour maximum permissible workload. The district court agreed, invalidated that portion of the regulations, and ordered us to publish new proposed regulations, within 90 days of the order, that would modify the rate of cytology proficiency testing to ensure that individuals would be tested, to the extent practicable, under normal working conditions, which the district court interpreted to be at a pace corresponding to the maximum workload rate for individuals examining cytology slides. The district court order also provided that the February 28, 1992 final cytology proficiency testing regulations would remain in effect pending the issuance of a revised final rule. Consumer Federation of America and Public Citizen v. Department of Health and Human Services, 906 F.Supp. 657, 668 (D.D.C. 1995).

In compliance with the district court's order, we published a proposed rule in the Federal Register on November 30, 1995 (60 FR 61509). The rule proposed to modify the timeframe for completing a cytology proficiency test to equal the maximum workload rate of 12.5 slides per hour. However, in the preamble, we restated our belief that the timeframe in the original rule met the statutory requirement, and indicated the Department was appealing the district court's ruling, and seeking reinstatement of the February 28, 1992 cytology PT regulations.

In a decision dated May 21, 1996, the United States Court of Appeals for the District of Columbia Circuit reversed the district court's ruling and sent back the regulation for us to either offer an adequate explanation for the original cytology PT rule or to complete the rulemaking ( Consumer Federation of America and Public Citizen v. Department of Health and Human Services, 83 F.3d 1497, 1506-07 (D.C. Cir. 1996). We continue to believe that our regulations are appropriate, and we are supplying a supplementary statement that further explains the rationale behind our policy. Our supplementary statement of rationale follows in section IV. of this notice.

For the reasons discussed above, we are withdrawing the November 30, 1995 proposed rule. We believe that the February 28, 1992 final rule appropriately fulfills the statutory requirement that cytology proficiency testing be conducted, to the extent practicable, under normal working conditions.

In compliance with the court's ruling, we received a memorandum from the Centers for Disease Control and Prevention (CDC) that sets forth the rationale for Cytology Proficiency Testing. This memorandum is part of the rulemaking record and appears as an addendum to this document.

Background

The Pecos pupfish, described by Echelle and Echelle (1978), is a member of the family Cyprinodontidae. The taxonomic status of the Pecos pupfish had been uncertain for more than 30 years because of a previous description of a pupfish ( Cyprinodon bovinus ) from the Pecos River (Baird and Girard 1853). Type specimens from the Pecos River in the original series were lost or in poor condition but were assumed to be the same as the Pecos pupfish until an extant population of C. bovinus was found at Leon Springs, Texas, and confirmed as different from the form in the Pecos River proper (Echelle and Miller 1974).

The Pecos pupfish is a small, deep-bodied (2.8 to 4.6 centimeters (cm) (1.1 to 1.8 inches (in) average length) gray-to-brown fish. Male dorsal (back) and anal fins are black almost to the margin with no yellow on the dorsal, anal, or caudal (tail) fins. The lateral (side) bars on the female are typically broken into blotches ventrolaterally (along the sides near the bottom). The abdomen is generally without scales, except for a few scales in front of the pelvic fins and a patch just behind the gill membrane isthmus (a narrow strip of tissue). There are 20 to 21 gill rakers and usually 3 or 4 preorbital (behind the eye socket) pores on each side of the head (Echelle and Echelle 1978).

The Pecos pupfish is native to the Pecos River and its tributaries, and nearby lakes, sinkholes, and saline springs in New Mexico and Texas. The historical range of the species included the Pecos River from Bitter Lake National Wildlife Refuge and Bottomless Lakes State Park near Roswell, Chaves County, New Mexico, downstream approximately 650 kilometers (km) (404 miles (mi)) to the mouth of Independence Creek, southeast of Sheffield, Pecos County, Texas (Wilde and Echelle 1992). The species was also found in gypsum sinkholes and saline springs at Bitter Lake National Wildlife Refuge; sinkholes and springs at Bottomless Lakes State Park (Brooks and Woods 1988); and in Salt Creek, Reeves County, Texas.

In Texas, genetically pure populations of the Pecos pupfish are now thought to occur only in the upper reaches of Salt Creek, Culberson and Reeves Counties, Texas (G. Garrett, TPWD, pers. comm. 1998). In New Mexico, the species still occurs in the Pecos River from north of Malaga upstream to Bitter Lake National Wildlife Refuge. The species is also found at Bottomless Lakes State Park and the BLM's Overflow Wetlands Wildlife Habitat Area/Area of Critical Environmental Concern. This range reduction represents a loss of more than two-thirds of the species' former range (Echelle and Connor 1989; Echelle et al. 1997; Hoagstrom and Brooks 1998).

Since the Pecos pupfish was proposed for listing on January 30, 1998 (63 FR 4608), the most significant threats to its continued existence have been ameliorated. The main threats to the Pecos pupfish were habitat loss caused by damming and dewatering of the Pecos River, excessive pumping of groundwater, and, since the early 1980s, hybridization with the sheepshead minnow ( Cyprinodon variegatus ). Genetically pure populations have been made more secure_a fish barrier constructed at the Bitter Lake National Wildlife Refuge has protected the population that exists there; a fish barrier constructed at Dexter National Fish Hatchery and Technical Center has created a managed wetland for establishing a refugial population; and the BLM has placed the population on the BLM's Overflow Wetlands Area of Critical Environmental Concern under active protection through BLM's Resource Management Plan. Through this plan, the BLM has prohibited surface occupancy in future oil and gas leases within a buffer zone of the Area, restricted future oil and gas surface occupancy in other areas, excluded rights-of-way in certain portions of the Area, limited use of off-highway vehicles, and retired a grazing lease. These actions, which are discussed in the Conservation Agreement, have already been implemented. Habitat for the populations at Bottomless Lakes State Park and Bitter Lake National Wildlife Refuge is being renovated. Moreover, the States of Texas and New Mexico have begun managing the introduction of the nonnative sheepshead minnow, which has hybridized and displaced the Pecos pupfish in much of the historical pupfish habitat. Both States have approved modification of existing fishing regulations to ban the use of sheepshead minnow as a bait fish in the Pecos River.

In addition to these already implemented actions, the Conservation Agreement includes commitments for long-term protective and enhancement actions for the species. For instance, various agencies in both New Mexico and Texas have committed to—(1) removing nonnative predators from sinkholes with a pupfish population, (2) replacing sheepshead minnow x Pecos pupfish hybrids with pure pupfish whenever feasible, (3) identifying additional habitats under State control for expansion of populations of Pecos pupfish, and (4) working with willing private landowners to identify potential repatriation sites on private lands. A more complete discussion is found below.

We proposed the Pecos pupfish for listing as an endangered species on January 30, 1998 (63 FR 4608). We published notices inviting public comment in seven newspapers of general circulation in the area of the Pecos River valley in both New Mexico and Texas—the Albuquerque Journal, the Fort Stockton Pioneer, the Pecos Enterprise, the Roswell Daily Record, the Carlsbad Current Argus, the Midland Reporter-Telegram, and the Odessa American. We also published notices of a public hearing in these same newspapers. We held the hearing on the proposal in Carlsbad, New Mexico on April 9, 1998.

During this extended public comment period (January 30 to November 20, 1998), we contacted State and Federal land and resource management agencies in New Mexico and Texas to determine if adequate protections could be implemented through a Conservation Agreement. We made the Conservation Agreement developed by these agencies available for public review through a notice of availability in the Federal Register (63 FR 71424) on December 28, 1998. The comment period was reopened and extended to January 27, 1999, in order to receive additional comments on the proposal and on the draft Conservation Agreement. We sent approximately 200 copies of the draft Conservation Agreement to agencies and individuals on the mailing list maintained by our New Mexico Ecological Services Field Office. The mailing included a request to the interested entities for review and comments. Finally, we reopened the comment period from February 24, 1999, to March 26, 1999 (64 FR 9119).

In accordance with our peer review policy published in the Federal Register on July 1, 1994 (59 FR 34270), we drafted the Conservation Agreement with the expert input of researchers who have spent decades investigating the Pecos pupfish and its habitats in Texas and New Mexico. In addition to the input received during the development of the document, we also sought peer review during periods of public comment. We presented the draft conservation agreement to the Rio Grande Fishes Recovery Team for review at the annual meeting of the team in November 1998. During the reopened public comment period, we provided the draft document for peer review to Recovery Team members in addition to other experts on the species at the University of Texas Pan-American, the University of New Mexico, Oklahoma State University, Arizona State University, and the University of Michigan. We did not receive any comments from the peer review of the draft Conservation Agreement.

We received 15 comments on the proposal to list the Pecos pupfish. We received one letter of support from a scientist working on the species. Three commenters—the NMDGF; the New Mexico Energy, Minerals & Natural Resources Department; and the Texas Commissioner to the Pecos River Compact— recommended the use of alternative methods, such as a Conservation Agreement, to protect the species. One Federal agency provided comments concerning editorial corrections to the proposal but with no position regarding the listing of the species. Ten comment letters opposed the listing.

We received a total of 11 comments on the draft Conservation Agreement: from 1 municipality, 2 private organizations, 1 county agency, 1 water power and control district, and 6 State agencies.

Below we address issues raised concerning the proposal, followed by the issues and our responses to the comments on the Conservation Agreement. We grouped comments of a similar nature into general issues delineated below for purposes of response.

Issue 1: The Service should attempt proactive management to address the threats to the pupfish posed by the sheepshead minnow. Given that the primary threat to the Pecos pupfish is introgressive hybridization with the sheepshead minnow and that hybrids are common in the Pecos River, the prudent course at this point seem to be the establishment of secure off-channel refugia until the hybrid swarm can be eliminated, if that is possible.

Our Response: We concur that management of the sheepshead minnow to reduce or remove the threat of hybrids replacing pure Pecos pupfish in this ecosystem is important for conservation of the pupfish. Under the Conservation Agreement, fish barriers have been installed to protect off-channel refugia for remaining populations of pure Pecos pupfish. In addition, the States of Texas and New Mexico have approved regulations banning the use of sheepshead minnows as bait.

Issue 2: The Service should propose critical habitat.

Our Response: When we list a species as threatened or endangered, the Act requires that the listing rule specify, “to the maximum extent prudent and determinable,” the species' critical habitat. However, this issue is now irrelevant because we are not listing the Pecos pupfish.

Based on the comments received during the first public comment period, particularly from the NMDGF, the TPWD, and the Texas Commissioner to the Pecos River Compact, we initiated efforts in February 1998 to develop an agreement among the management entities to address the identified threats to the Pecos pupfish. The Conservation Agreement that resulted from the meetings set forth the commitments of State and Federal agencies to control nonnative competing species and to protect and manage the Pecos pupfish and its habitat to ensure its survival and promote its conservation.

Significant threats to the species include problems associated with small, isolated populations and the potential for hybridization with the sheepshead minnow. The signatory agencies to the Conservation Agreement made commitments to protect known extant populations of pure Pecos pupfish, to expand the distribution of the species within its native range by establishing new populations, and to prohibit the use of sheepshead minnow through revision of baitfish regulations in New Mexico and Texas. As discussed above, several of the provisions of the Conservation Agreement have been implemented.

Below is a description of comments received on the Conservation Agreement provided for public review on December 28, 1998. Some commenters raised issues on the proposal to list the Pecos pupfish in their comments on the Conservation Agreement. For the issues concerning the data upon which the biological status of the Pecos pupfish was determined, please refer to the above discussion of comments.

Issue 3: What set of circumstances would create a situation where reintroduction of the Pecos pupfish into the mainstream of the Pecos would be appropriate? To what extent would the signatories attempt to modify the environment of the mainstream of the Pecos River in order to create circumstances appropriate for reintroduction?

Our Response: The primary factor to be addressed in any consideration of repatriation of the Pecos pupfish to its historical habitat in the mainstream of the Pecos River is the presence or absence, or relative dominance within the fish community, of the sheepshead minnow. Should a significant fishkill occur naturally, such as that observed in 1985-86 in the Pecos River in Texas as a result of an algal bloom, sheepshead minnow and other nonnatives may be removed or significantly reduced. At that time, the Conservation Agreement participants would determine whether the biological conditions support the repatriation of the Pecos pupfish to the river. The signatory agencies may undertake other efforts, quite likely on a much more localized level, to eradicate the sheepshead minnow if the conditions are favorable.

We and other species experts recognize that major efforts to repatriate the pupfish to large reaches of its historical habitat in the Pecos River will not likely occur either in the near future or without significant events, either natural or induced, affecting the existing fish community. However, we believe that the potential for restoration of the species to its historical habitat should be included in any plan or agreement for its conservation. It should be noted that one of the major purposes of this Conservation Agreement is to protect and enhance habitat conditions to facilitate population expansion.

Issue 4: Several commenters requested the clarification of goals and objectives of the Conservation Agreement, particularly with respect to those objectives considered essential to the continued conservation of the Pecos pupfish and, thus, the removal of the need to protect the species by listing it under the Act.

Our Response: We modified the Conservation Agreement to include quantifiable and time-certain standards by which the agreement and its applicability to the conservation of the Pecos pupfish will be measured. However, the Conservation Agreement partners have already implemented a number of protective measures (see Background section of this rule) that, combined with measures to be implemented in the future as part of the Conservation Agreement, have reduced the threats so that the species is no longer in danger of extinction, nor likely to become so, in the foreseeable future throughout all or a significant portion of its range.

Issue 5: Some commenters objected to section V.F.8 of the draft Conservation Agreement, in which the agencies participating in the Conservation Agreement agreed to support the listing of the Pecos pupfish should the measures and actions be found insufficient to remove the threats to the species.

Our Response: We amended this section by removing the sentence regarding the support of listing by the Conservation Agreement entities should we determine that listing the species is necessary.

Issue 6: One commenter requested that we extend the time for the decision on the proposal to list by six months, in part, to better assess or gather additional biological information. The commenter felt that the biological information was not adequate to proceed with the withdrawal of the proposed rule.

Our Response: In accordance with section 4(b)(6) of the Act and the implementing regulations at 50 CFR 424.17, within one year of the publication of a proposed listing action, we generally must publish a final determination or a notice withdrawing the proposed action if we find that the available evidence does not justify the action. When there is “substantial disagreement among scientists knowledgeable about the species concerned regarding the sufficiency or accuracy of the available data relevant to the determination concerned,” the Act and regulations allow for a 6-month extension of a proposed listing action.

We cannot use an extension to obtain more information or to provide more time before making a decision. We can only use this provision if there is a legitimate disagreement among scientific experts and a definitive resolution is expected that will clarify the subject of the disagreement. We do not agree with the assessment of the adequacy of the biological information presented by the commenter. We consulted experts on the Pecos pupfish (see the discussion in the paragraph on peer review, above), including scientists who performed the original research and reported the results that formed the basis of the commenter's review. No disagreement exits among these species experts concerning the status and distribution of the species to support the 6-month delay.

Issue 7: Four commenters raised concerns regarding the proposed actions of the BLM within the Conservation Agreement, including changes in grazing leases. We requested that the BLM respond to those comments. Their response is summarized as follows:

The BLM's Roswell Field Office is responsible for managing all uses of about 602,973 hectares (1,490,000 acres) where both the surface and subsurface estates are in Federal ownership. The land use plan governing management of these public lands addressed all proposed actions included in the Conservation Agreement and was, after public review and comment, signed by the Bureau's State Director on October 10, 1998. In addition, the Roswell Field Office prepared the Overflow Wetlands Habitat Management Plan and Environmental Assessment for the Overflow Wetlands Wildlife Habitat Area in 1992. The adjustment of grazing leases for Allotments 65060, 65062, and 65069, and the cancellation of the grazing lease on Allotment 65041 were presented during the development of the Roswell Resource Management Plan, as were the oil and gas lease stipulations, mineral entry closure, and rights-of-way exclusion. Socio-economic impacts of implementing the Plan were analyzed in Chapter 4 of the Proposed Plan and Final Environmental Impact Statement.

The BLM disclosed the adjustment of grazing leases for the above allotments in the Plan to inform the public of this possible action. The types of adjustments were listed as changes in stocking rate and seasons of use, but a reduction in the number of livestock was not listed in the Resource Management Plan. Reductions could occur based on range monitoring studies for the entire allotment and not necessarily for the Pecos pupfish Conservation Agreement. The specific adjustments, if necessary, would be made by the BLM at the grazing lease/permit level with an accompanying environmental analysis, not at the Conservation Agreement level. Therefore, no specific adjustments are presented in the Conservation Agreement.

The grazing lease for Allotment 65041 was canceled. In 1991, the BLM acquired the private lands within this allotment from a willing seller (who also held the grazing lease) for the protection of the Overflow Wetlands Wildlife Habitat Area, which is now designated an Area of Critical Environmental Concern. Allotment 65041 is no longer an active grazing allotment.

Section 4(a)(1) of the Act and the regulations (50 CFR part 424) that implement the listing provisions of the Act set forth the procedures for adding species to the Federal lists. We must consider the five factors described in section 4(a)(1) of the Act when determining whether to list a species. These factors and their application to our decision to withdraw the proposal to list the Pecos pupfish are as follows:

A. The present or threatened destruction, modification, or curtailment of its habitat or range . Historical habitat of the Pecos pupfish in New Mexico has been drastically altered or destroyed by human uses of the Pecos River and activities in its watershed. These alterations include conversion of flowing waters into slack waters by impoundment; alteration of flow regimes (including conversion of perennial flow to intermittent or no flow, and the reduction, elimination, or modification of natural flooding patterns); alteration of silt and bed loads; loss of marshes and backwaters; increases or decreases in water temperatures; and alteration of stream channel characteristics from well-defined, surface-level, heavily vegetated channels with a diversity of substrates and habitats to deeply cut, unstable arroyos with little riparian vegetation, uniform substrate, and little habitat diversity.

Causes of such alterations include water diversion, damming, channelization, channel down-cutting, excessive groundwater pumping with resultant lowering of water tables, destruction of riparian vegetation, and other watershed disturbances. These changes in habitat conditions, along with displacement of the species by hybrids, threatened the survival of the Pecos pupfish throughout its entire range (Wilde and Echelle 1992; Echelle et al. 1997).

Low-velocity floodplain habitats adjacent to the main channel of the Pecos River provide refugia for the small Pecos pupfish from high flows in the main channel. These habitats are also characterized by higher levels of productivity and more stable food sources for the omnivorous pupfish. However, channelization and stream incision of the Pecos River, exacerbated by encroachment and channel armoring by salt cedar, have eliminated extensive floodplain habitat along the Pecos River. Wetlands and marshes adjacent to the river, once regularly flooded by peak river flows, are now dry or are only sporadically wetted. Base flows were also reduced by dam construction and reservoir operation, greatly reducing the number and extent of these habitats linked to the main river channel.

Pecos pupfish living in sinkholes and springs are threatened by groundwater depletion. In southeastern New Mexico, groundwater is the primary water source for a variety of uses, including drinking water and irrigation. This dependence on groundwater has lowered the water tables, resulting in a decline in water levels in sinkholes and springs where Pecos pupfish live. When the water table was higher, water flowed between sinkholes but because the water table has been lowered, these sinkholes are no longer interconnected (Lee Marlatt, Service, Bitter Lake National Wildlife Refuge, pers. comm. 1987). Because they are isolated from the river that is inhabited by sheepshead minnow, sinkhole populations of Pecos pupfish are more protected from the threat of hybridization than are river populations. Therefore, the loss of these populations would seriously affect the survival of the species.

The Conservation Agreement executed by the State and Federal agencies specifically addresses the protection of all known off-channel, pure populations of Pecos pupfish. As discussed in the Background section of this rule, a number of protective actions have already been implemented. Further, both State and Federal land management entities will ensure that the management of the species is incorporated into resource management plans. Additionally, each has committed to identifying additional habitats under its control for expansion of populations of Pecos pupfish. Resource management agencies in both New Mexico and Texas are committed to working with willing private landowners to identify potential repatriation sites on private lands and establish populations of the species on those lands.

In summary, while the Pecos pupfish has been eliminated from a significant portion of its historical range, we believe that the measures provided in the Conservation Agreement have significantly reduced threats to the species and will ensure its continued existence.

B. Overutilization for commercial, recreational, scientific, or educational purposes . We are unaware of threats to the species from these factors. Anglers may occasionally collect Pecos pupfish as bait and scientists may collect specimens for scientific study, but these uses probably have a negligible effect on total population numbers.

C. Disease or predation . We are unaware of threats to the species from disease. Sinkholes that support introduced game fish have lower numbers of pupfish than sinkholes without game fish (Echelle and Echelle 1978). As the Pecos pupfish population is impacted by habitat loss and degradation and refugia become scarce, predation could become a more important threat. However, the measures through the Conservation Agreement to remove nonnative predators from sinkholes will reduce this threat.

D. The inadequacy of existing regulatory mechanisms . New Mexico State law provides limited protection for the Pecos pupfish. The State of New Mexico lists the Pecos pupfish as a threatened species. Threatened species, as defined by the State of New Mexico, are those species “* * * whose prospects of survival or recruitment within the State are likely to be in jeopardy within the foreseeable future.” This designation provides the protection of the New Mexico Wildlife Conservation Act (sections 17-2-37 through 17-2-46) and prohibits taking of such species except under the issuance of a scientific collecting permit. The State also has a limited ability to protect the habitat of the species through the Habitat Protection Act (sections 17-6-1 through 17-6-11) and through water quality statutes and regulations. The species' habitat is also somewhat protected through a provision of the Habitat Protection Act (section 17-4-14) that makes it illegal to de-water areas used by game fish.

The State of Texas listed the Pecos pupfish as threatened by on March 1, 1987. The State prohibits taking, possessing, and transporting State-listed species or goods made from such species (Texas Parks and Wildlife Code, section 68.015 (1975)). However, State-listing in Texas provides no protection for the habitat of listed species.

State regulations in New Mexico and Texas allow for the use of live bait in the Pecos River in areas containing the Pecos pupfish. This situation has encouraged the spread of detrimental species, specifically the sheepshead minnow, which replaces and/or hybridizes with the Pecos pupfish (see Factor E). However, the NMDGF and the TPWD modified fishing regulations to ban the use of sheepshead minnow as a bait fish. Additionally, all signatories of the Conservation Agreement have committed to, when and where feasible, replacing the sheepshead minnow x Pecos pupfish hybrids within the Pecos River and at other sites with pure Pecos pupfish.

E. Other natural or manmade factors affecting its continued existence . The primary cause for the recent (post 1980) range reduction of Pecos pupfish is the introduction of the sheepshead minnow, a species once confined to shallow, brackish, coastal waters of the Gulf and Atlantic coasts of the continental United States. The two Cyprinodon species appear to have little in the way of premating isolating mechanisms and readily hybridize (Cokendolpher 1980). Hybridization with and/or replacement by the sheepshead minnow poses a major threat to the Pecos pupfish. The sheepshead minnow was introduced into the Pecos River, probably in the vicinity of Pecos, Texas, sometime between 1980 and 1984. Sheepshead minnow x Pecos pupfish hybrids have since moved upstream and downstream at a rapid pace despite the presence of six irrigation diversion dams. The spread of hybrids has occurred both naturally and presumably through “bait bucket” introductions.

The purity of the pupfish populations in Salt Creek, Texas, and in the abandoned gravel pits near Grandfalls, Texas, were unknown at the time of the proposal. Both populations occur on privately owned lands, and surveys had not been conducted on these lands since 1989. Because the gravel pits are close to the Pecos River and because hybrids occur in that portion of the river, the gravel pit populations were considered extremely vulnerable to introgression. Research conducted during the proposal period confirmed that the gravel pit populations are hybrid.

The northward expansion of sheepshead minnow x Pecos pupfish hybrids reduced the range of the Pecos pupfish by approximately 60 percent by the late 1980s (Wilde and Echelle 1992). Subsequent expansion of the hybrids into the Pecos River upstream from Red Bluff Reservoir has further constricted the range of the pupfish. Genetically pure populations of Pecos pupfish may now occur only in off-channel habitats. While the river populations are most susceptible to replacement by and/or hybridization with sheepshead minnow, the sinkhole populations are also considered vulnerable to hybridization due to the possibility of anglers releasing sheepshead minnows into sinkholes. However, actions by the States of New Mexico and Texas to restrict the use of sheepshead minnows for bait, plus the construction of a fish barrier at Bitter Lake National Wildlife Refuge, have enhanced the security of the off-channel pupfish populations. Additionally, all signatories of the Conservation Agreement have committed to, when and where feasible, replacing the sheepshead minnow x Pecos pupfish hybrids within the Pecos River and other sites with pure Pecos pupfish.

Large-scale fish kills caused by algal blooms occurred in the Pecos River, Texas, in 1985 and 1986 (Rhodes and Hubbs 1992). Such algal blooms may affect the Pecos pupfish (Rhodes and Hubbs 1992).

Other threats to the Pecos pupfish include nonnative fish introductions and piscicide applications. Anglers interested in developing sport fisheries in sinkholes apply piscicides to remove unwanted fish species prior to introducing sport fish. Such manipulation, conducted exclusively on private lands and without the knowledge by the landowner of the presence of the Pecos pupfish, can adversely affect or eliminate Pecos pupfish populations. Enforcement by either State of its prohibitions against take of protected species on private lands is not considered an effective bar to these activities. However, we do not consider such applications of piscicides a significant threat to the species and do not specifically address piscicide application in the Conservation Agreement.

Oil spills from pipelines into Salt Creek in Texas are a threat because they have occurred in the past and represent an ongoing threat to water quality and Pecos pupfish habitats. However, Salt Creek is believed to be the only population clearly vulnerable to such a catastrophe, and the Salt Creek population, although the only known naturally occurring pure population in Texas, represents only about one-tenth of the species' population throughout its range. Catastrophic spills of oil or other contaminants into pupfish-occupied privately owned habitats are not considered controllable by the Conservation Agreement. However, establishment of more populations, as delineated in the agreement, would act as a buffer against such losses.

We consider the latter two threats, the introduction of nonnative fish and use of piscicides on private land and uncontrolled oil spills or other contamination of isolated habitats, far less significant threats to the Pecos pupfish than hybridization. Thus, we do not specifically address them in the Conservation Agreement. However, both the States of New Mexico and Texas have committed to conducting public outreach and education to inform private landowners of the occurrence of the Pecos pupfish and to increasing the numbers and security of populations of the Pecos pupfish. Hence, the increased numbers of fish diminish the potential impacts of isolated losses arising from the latter two threats.

The Conservation Agreement signed by the NMDGF, New Mexico Department of Agriculture, NMSPD, TPWD, the BLM, and us was specifically developed to address and alleviate the known threats to the Pecos pupfish.

The two most significant threats, security of existing populations and loss of genetic purity of Pecos pupfish populations through hybridization with the sheepshead minnow, have received immediate action—physical barriers now prohibit access by the sheepshead minnow to occupied Pecos pupfish habitat; the resource entities have included the conservation of the Pecos pupfish as a specific management goal in planning documents; and the NMDGF and the TPWD approved revision of State regulations to ban the use of sheepshead minnow as a bait fish in the Pecos River. Additionally, signatories of the Conservation Agreement committed to establishing and protecting additional populations on lands they administer and, with the cooperation of willing landowners, on private lands within the historical range of the species. Based on these commitments, we determine that listing the Pecos pupfish as endangered or threatened under the Act is not warranted. Therefore, we withdraw our January 30, 1998, proposed rule (63 FR 4608) to list the Pecos pupfish as endangered.

A complete list of all references we cited, as well as others, is available upon request from our New Mexico Ecological Services Field Office (see ADDRESSES section).

The primary author of this document is Jennifer Fowler-Propst, New Mexico Ecological Services Field Office (see ADDRESSES section).

The reef fish fishery is managed under the FMP as prepared by the Gulf of Mexico Fishery Management Council (Council) and approved and implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

This proposed rule would implement FMP Amendment 17 and extend the moratorium on the issuance of new commercial reef fish vessel permits that was initiated by Amendment 4 in 1992. Amendment 4 was intended to last for 3 years but was extended twice. The second extension in 1995 was for 5 years ending on December 31, 2000. The permit moratorium was deemed necessary to moderate short-term future increases in fishing effort and to stabilize fishing mortality while the Council was considering a more comprehensive effort limitation program. During the moratorium, the Council developed an individual transferable quota system for red snapper. However, before it was implemented, Congress prohibited individual fishing quotas (IFQs) under sections 303(d) and 407 of the Magnuson-Stevens Act. The current Congressional prohibition of IFQs will lapse on October 1, 2000.

The Council intends to evaluate a broad range of controlled access systems, including IFQs, for the commercial reef fish fishery. Development and implementation of a comprehensive controlled access system are expected to extend past the period of the current moratorium. Without a moratorium, fishing effort in the resulting open access reef fish fishery is likely to increase and complicate allocation of fishing privileges, creating an unstable fishery environment.

Additional background and rationale for the measures discussed above are contained in Amendment 17, the availability of which was announced in the Federal Register on December 17, 1999 (64 FR 70678). Written comments on Amendment 17 were solicited and must have been received by February 15, 2000, to be considered in the approval/disapproval decision on Amendment 17. All comments received on Amendment 17 or on this proposed rule during their respective comment periods will be addressed in the preamble to the final rule.

At this time, NMFS has not determined that the amendment that this rule would implement is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. NMFS, in making that determination, will take into account the data, views, and comments received during the comment period on Amendment 17.

This proposed rule has been determined to be not significant for purposes of E.O. 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities as follows:

For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:

The notice of a control date for the purposes of controlling entry in the deep-sea red crab fishery was published in the Federal Register on March 1, 2000 (65 FR 11029), and invited public comment. The fax number identified in the announcement was incorrect and this action corrects the error.

Accordingly, the publication on March 1, 2000, of the advance notice of proposed rule for the deep-sea red crab fishery (I.D. 020300A), which was the subject of FR Doc. 00-4910, is corrected as follows:

On page 11029, column 3, ninth line in the ADDRESSES section is corrected to read as follows:

“facsimile (fax) to (978) 465-3116.”