On August 7, 1992, OGE published the new Standards, which became effective on February 3, 1993. The standards, as corrected and amended, are codified at 5 CFR part 2635. On October 3, 1997, the Department's Employee Conduct and Responsibilities regulations were removed. See 62 FR 51759-51760.

5 CFR 2635.105 authorizes agencies, with the concurrence of OGE, to publish agency-specific supplemental regulations that are necessary to implement their respective ethics programs. The Department, with OGE concurrence, has determined that the following interim supplemental rules being codified in a new chapter LXXIII of 5 CFR, consisting of part 8301, are necessary to the success of its ethics program.

Section 8301.101 explains that the regulations apply to all Department employees and supplement the executive branchwide Standards. In addition, this section notes that employees of the Department are also subject to the Standards at 5 CFR part 2635, the executive branch financial disclosure regulations at 5 CFR part 2634, and additional regulations on employee responsibilities and conduct at 5 CFR part 735. This section also notes that agencies and components of the Department, with concurrence of the Designated Agency Ethics Official (DAEO), may issue explanatory guidance, internal procedures, and delegations of authority consistent with 5 CFR 2635.105. Finally, to facilitate agency employees, across the Department, in accessing and utilizing applicable agency-specific guidance and procedures, the section provides that the Deputy Ethics Official for each USDA agency or component shall retain copies of all such guidance issued by that agency or component.

The Standards, at 5 CFR 2635.803, specifically recognize that an agency may find it necessary or desirable to issue a supplemental regulation requiring its employees, or any category of employees, to obtain approval before engaging in outside employment. Department employees, pursuant to the Department's Employee Conduct and Responsibilities regulations at 7 CFR part 0, long had been required to seek prior approval before engaging in outside employment. This regulatory requirement lapsed after November 1, 1996, upon the expiration of the last grace period extension granted by OGE for agency prior approval requirements and agency prohibitions on holding or acquiring financial interests in effect prior to the effective date of the Standards.

The Department found its prior approval requirement particularly useful in ensuring that the outside employment of USDA employees conformed with all applicable laws and regulations. At the same time, the former requirement for universal prior approval had been viewed as unnecessarily burdensome and intrusive, particularly in those instances in which the employee's outside employment posed little danger to the interests of USDA and its agencies, or where there was little or no nexus between the employee's official duties and his or her outside employment.

In accordance with 5 CFR 2635.803, USDA has determined that it is necessary to the administration of its departmentwide ethics program to again require certain of its employees to seek approval before engaging in any outside employment. The Department has determined that all USDA employees who file either a public or confidential financial disclosure report (SF 278 or OGE Form 450), or an alternative form of reporting approved by OGE, must seek approval before engaging in any outside employment. Financial disclosure report filers occupy high level positions or otherwise hold positions that have a direct and substantial effect on the interests of non-Federal entities. Accordingly, prior approval of these employees' outside employment is warranted. Approval, however, merely constitutes an assessment that the employment, as described on the submission, generally does not appear likely to violate any criminal statutes or other ethics rules. It is not a determination that a criminal or ethical conflict could not arise. Thus, Department employees should remain sensitive to ethics issues and seek further ethics guidance should their outside work circumstances or official duties significantly change.

Included within the definition of employment, for purposes of this regulation, is participation in teaching, speaking, writing or editing that, irrespective of compensation, either relates to the employee's official duties or is undertaken pursuant to an invitation extended by any person who is a prohibited source to any employee of USDA. The Department is obligated, under numerous statutes, to protect from release to the public various types of information regarding its programs. For example, numerous statutes restrict the premature release of various types of information concerning the many different commodities regulated by USDA. Premature release of such information, or of other information from which such information could reasonably be derived, could result in misuse of position through unfair speculation in those commodity markets. The Department believes that its statutory interests in avoiding this result may be protected, with a minimum of interference to its employees, through the imposition of a prior approval requirement limited solely to those situations where there is a heightened potential for risk to USDA—where an employee engages in outside speaking, teaching, writing, or editing that may result in the release of protected information or where the invitation to engage in the outside employment comes from one who has an interest in obtaining such protected information.

In addition to the foregoing, departmentwide requirement for prior approval of outside employment, other USDA component offices and agencies have determined that prior approval is required for their employees not covered under the departmentwide requirement. The Department has determined that it is necessary to the administration of its ethics program to implement the additional component-specific requirements for obtaining prior approval for outside employment specified in paragraph (f) of § 8301.103, and in §§ 8301.104 through 8301.106.

The Farm Service Agency has determined that certain additional rules are necessary in order to protect the integrity of its programs. Many FSA programs, particularly farm loan programs, are administered in a highly decentralized manner. Many FSA employees reside in the same small communities as the FSA loan applicants, borrowers, and program participants they serve. At the same time, many FSA employees and/or their family members are themselves farmers. Farm Service Agency employees often are part of the very farm community being serviced by the local FSA office. Given the opportunity and, in many cases, the need for regular, non-official interaction between FSA employees and those persons in their communities serviced by FSA, there is a need to establish for FSA employees certain limitations upon outside employment and to prohibit FSA employees from obtaining certain financial holdings.

Paragraph (a) of § 8301.103 specifies that the additional rules in the section apply solely to FSA personnel who are Federal employees within the meaning of 5 U.S.C. 2105. This specification is necessary to distinguish that FSA community committee members, county committee members, and county office personnel, who serve either by election, or by being employed by a committee or county office, under 16 U.S.C. 590h, are not covered by the additional rules in this section. Such personnel consistently have been deemed by Federal courts not to be Federal employees under 5 U.S.C. 2105. See Hedman v. Department of Agriculture , 915 F. 2d 1552 (Fed. Cir. 1990); Hamlet v. United States , 14 Cl. Ct. 62 (1988), vacated and remanded, 873 F.2d 1414 (Fed. Cir. 1989); Hargens v. U.S. Department of Agriculture , 865 F. Supp. 1314, 1320 (N.D. Iowa 1994). Also contained in this paragraph is a cross-reference to rules that do apply to FSA community committee members, county committee members, and county office personnel, at 7 CFR part 7.

Paragraph (b) defines the phrase “FSA program participant” to include any person who is, or is an applicant to become, an FSA borrower, FSA grantee, or recipient of any other form of FSA financial assistance available under any farm credit, payment or other program administered by FSA.

Section 8103.103 contains two prohibitions on FSA employees acquiring certain financial interests. Paragraph (c) generally prohibits an employee, or a spouse or minor child of an FSA employee, from directly or indirectly obtaining FSA direct loans. Paragraph (d) generally prohibits an employee, or a spouse or minor child of an FSA employee, from directly or indirectly purchasing certain FSA-related real properties. These prophylactic prohibitions reinstate similar provisions that existed before the executive branchwide Standards regulation superseded agency-specific rules.

Under 5 CFR 2635.403(a), an agency may, by supplemental regulation prohibit or restrict the acquisition or holding by its employees of financial interests that the agency determines would cause a reasonable person to question the impartiality or objectivity with which agency programs are administered. Many FSA farm loan borrowers are recipients of FSA direct loans which involve FSA as a “lender-of-last-resort.” Similarly, many FSA employees are themselves farmers. The Farm Service Agency has found that permitting its employees to obtain FSA direct loans creates a high-risk ethics environment for FSA employees. The Department must shield the administration of the loan program against self-dealing and a lack of impartiality. Moreover, the close proximity of FSA employees to FSA program participants, generally, and the dependence of FSA program participants on FSA, especially FSA loan applicants, also warrant supplemental safeguards against any FSA employee in a position to secure private gain for himself or herself, or for any other person, by virtue of the public position he or she holds. Further, the restrictions will avoid the potential for disqualification of critical employees from official duties which might result in FSA being unable to fulfill its mission.

The prohibitions under paragraphs (c) and (d) apply whether the prohibited financial interest involved is obtained directly or indirectly. Thus, for example, an FSA employee would violate paragraph (c) should he or she obtain FSA direct loan funds through an agreement with another person under which the other party poses as a “front” for the FSA employee ( e.g ., by applying for an FSA loan knowing that a portion of the loan funds will be provided by him or her to the FSA employee for the employee's personal use). The same would be true for utilizing a “front” for the purchase of otherwise prohibited property.

Because application of the prohibitions in paragraphs (c) and (d) may result in undue financial hardship to various FSA employees in certain instances, the prohibitions are tempered in application by the inclusion of various exceptions and waiver provisions. Paragraph (c) is subject to an exception permitting retention of direct loans secured by FSA employees either prior to the effective date of this regulation, March 24, 2000, or secured after such date, but prior to the FSA employee being appointed to, or nominated for appointment to an FSA position. Also, this prohibition may be waived for FSA State Committee members where the conditions stated in paragraph (c)(3) have been met. As State Committee members are special Government employees, application of the prohibition under paragraph (c) would result in an undue financial hardship to those State Committee members who are farmers by occupation. The exception for pre-existing loans and the waiver for State Committee members are available for use by a relatively small number of employees, to whom application of the prohibition would pose an inordinate financial hardship when compared to any perceived ethical dangers that they are likely to encounter through having an FSA direct loan.

The prohibition under paragraph (d) is subject to waiver based on a determination made by the FSA State Executive Director, in response to a written waiver request submitted jointly to the FSA State Executive Director by both the FSA employee and FSA program participant, that the purchase is not inconsistent with part 2635 of this title; that it is not otherwise prohibited by law, including, 7 U.S.C. 1986; and that, under the circumstances, application of the prohibition is not necessary to avoid the appearance of misuse of position or loss of impartiality, nor otherwise needed to ensure confidence in the impartiality and objectivity with which agency programs are administered. FSA has chosen to employ a broad standard for exemption to this prohibition because there exist numerous situations in which the primary benefit from the exemption accrues not to the FSA employee but rather to the FSA program participant. For example, in many small farming communities, an FSA borrower may have difficulty in finding a buyer for his or her property. Since flat application of this prohibition could result in significant financial harm to the very persons whom FSA programs are intended to serve, FSA believes that an effective and fair solution involves a waiver procedure under which the FSA State Executive Director would make a determination balancing ethical considerations against the potential financial hardship to the FSA program participant. This process provides flexibility and fairness while raising the level of decision making visibility and accountability.

Paragraph (e) of this section sets forth a general prohibition against an FSA employee and a spouse or minor child of an FSA employee engaging in certain transactions with persons whom the FSA employee knows or reasonably should know to be a FSA program participant directly affected by decisions made by the employee's FSA office, unless certain exceptions apply. The transactions covered by this general prohibition include sales of real property, leases of real or personal property, the sale or purchase of personal property, and engaging for personal services. The prohibition does not apply to transactions involving goods available to the general public at posted prices that are customary and usual within the community ( e.g. , sale of a tractor through placing an advertisement in the local newspaper) or to transactions involving the purchase or sale of property pursuant to a public auction. The prohibition also does not apply where a transaction is determined in advance by the appropriate FSA State Executive Director, after consulting with the FSA Headquarters ethics advisor, to be consistent with the Standards and otherwise not prohibited by law. This general prohibition reflects, in large part, a similar requirement that existed within those current segments of FSA that formerly were part of Farmers Home Administration and which lapsed upon publication of the Standards as a final rule.

Since farm leases and other transactions between FSA employees and FSA program participants are so prevalent within the farming community, FSA has determined that a prohibition without providing FSA employees the opportunity to obtain an advance determination that the transaction would be consistent with ethics requirements would work an undue financial hardship upon both the FSA employees, their spouses and minor children, and the FSA program participants. Requiring requests for advance determinations to be submitted to the FSA State Executive Director pursuant to the exception provides for the agency's need to have control over these interactions without imposing undue financial hardship. As a result, approved transactions will have the visibility and accountability addressed previously with regard to the prohibition in paragraph (d). Further, the determination of the FSA State Executive Director is to be based upon the same standard employed in paragraph (d).

Paragraph (f) of § 8301.103 requires an FSA employee, not otherwise required to do so under § 8301.102, to obtain prior approval from the agency before engaging in outside employment with a person whom the FSA employee knows, or reasonably should know, to be an FSA program participant directly affected by decisions made by the particular FSA office in which the FSA employee serves. This requirement reflects, in large part, a similar requirement that existed within those segments of FSA that formerly were part of Farmers Home Administration and which lapsed on November 1, 1996. While outside interaction is vital to the FSA employees and to the community in which they live, the potential for outside employment opportunities to lead to favoritism and a loss of impartiality is significant enough to justify agency concerns. Thus, FSA has determined that it is necessary to require approval before any of its employees may engage in any outside employment involving an FSA program participant directly affected by decisions made by the office in which the FSA employees serves.

The Food Safety and Inspection Service has determined that it is necessary to require prior approval before any of its employees, not otherwise required to do so under section 8301.102, may engage in any outside employment. The implementation of Hazard Analysis and Critical Control Points (HACCP) systems within the regulated industry, as well as the anticipated creation of Consumer Safety Officer positions, means that FSIS employees of all pay levels will be involved in ensuring food safety and, therefore, will be facing increased exposure to the food industry. Given the vital importance to public health of maintaining high standards of food safety in light of the changing nature of FSIS responsibilities through HACCP, FSIS believes that its long-standing requirement of universal prior approval for outside employment is even more necessary.

The USDA Office of the General Counsel previously has required lawyers serving within that office to obtain prior approval before engaging in the outside practice of law. Given the fiduciary duties performed for the Department by OGC, such a requirement has been particularly useful in ensuring that the outside practice of law does not interfere or conflict with the official duties of attorneys within that Office. Accordingly, the Department has determined that it is necessary to require that all attorneys serving in OGC seek prior approval before engaging in outside employment involving the practice of law.

The Office of Inspector General has determined that it is necessary to require prior approval before any of its employees may engage in outside employment involving law enforcement, investigation, security, firearms training, defensive tactics training, protective services, auditing, accounting, tax preparation, practice of law, and employment involving personnel, procurement, budget, computer, or equal employment opportunity services. The OIG had long relied upon the departmental prior approval requirement. The OIG has a wide range of responsibilities for investigation and auditing of departmental operations. These mission activities are of a highly sensitive nature. The aforementioned types of outside employment involve duties that, under certain circumstances, are similar to the mission activities of OIG, and therefore are more likely to create an actual or apparent conflict of interest. The Department has determined that it is necessary to the administration of its ethics program to require prior approval for the identified types of outside employment that pose a potential for OIG employees to engage in conduct that might violate applicable laws and regulations.

The Department has found that good cause exists under 5 U.S.C. 553(b) and (d) for waiving, as unnecessary and contrary to public interest, the general notice of proposed rulemaking, opportunity for comment and the 30-day delay in effectiveness as to this interim rule. This rulemaking contains statements of policy, interpretive rules, and conduct regulations related solely to Department personnel and, in significant part, reissues in revised form the outside employment rules previously published in 7 CFR part 0. Delaying the effectiveness of this rule could also result in an effort by some employees likely to be affected by the rules on outside employment and prohibited financial interests to engage in covered outside employment or to obtain covered financial interests prior to the effective date of this rule.

However, because this rule may be improved, comments may be submitted on or before April 24, 2000. All comments will be analyzed and any appropriate changes to the rule will be incorporated in the subsequent publication of the final rule.

The Department has found that this rulemaking is not a rule as defined in 5 U.S.C. 804, and, thus, does not require review by Congress. This rulemaking is related to Department personnel.

Since this rule relates to Department personnel, it is exempt from the provisions of Executive Orders Nos. 12866 and 12988.

The Department has determined under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this regulation will not have a significant economic impact on a substantial number of small entities because it affects only Department employees.

The Department has determined that the Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply because this regulation does not contain any information collection requirements that require the approval of the Office of Management and Budget.

This decision will not have a significant impact upon the quality of the human environment or the conservation of energy resources.

This final rule has been determined to be “not significant” for purposes of Executive Order 12866, and therefore, has not been reviewed by the Office of Management and Budget (OMB).

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

There are no administrative procedures that must be exhausted prior to judicial challenge to the provision of this rule.

The Administrator, AMS, has certified that this action will not have a significant impact on a substantial number of small entities as defined in the Regulatory Flexibility Act.

The AMS provides, under the authority of the Agricultural Marketing Act (AMA) of 1946, a voluntary, user-fee funded seed testing and certification service to approximately 65 businesses per year. Many of the users of the testing and certification services would be considered small businesses under the criteria established by the Small Business Administration (13 CFR 121.601). Over ninety percent of the samples tested in this program represent seed and grain scheduled for export. Grain is examined for the presence of specified weed and crop seeds upon request of the Department's Grain Inspection, Packers and Stockyards Administration. A Federal Seed Analysis Certificate, containing purity, germination, noxious-weed seed examination, and other test results is issued upon completion of the testing. The Federal Seed Analysis Certificate is required documentation for shipments of seed and grain from the United States entering certain countries.

The AMS regularly reviews its user fee financed programs to determine if the fees are adequate. The most recent review determined that the existing fee schedule will not generate sufficient revenues to cover program costs while maintaining an adequate reserve balance. Without a fee increase, FY 2000 revenues for seed testing and certification services are projected at $104,000, costs are projected at $108,000, and the trust fund balance would be $78,000. With a fee increase, FY 2000 revenues are projected at $114,000, costs are projected at $113,000, and the trust fund balance would be $83,000.

This action will raise the hourly rate charged to users of the seed testing and certification services. The AMS estimates that this proposed rule will yield an additional $10,000 during FY 2000. The hourly rate for seed testing and certification services will increase by approximately 9.9 percent. The costs to entities will be proportional to their use of the service, so that costs are shared equitably by all users. The increase in costs to individual firms will be, on average, approximately $6.70 per Federal Seed Analysis Certificate issued. There will also be an increase of $1.10 for each duplicate certificate issued.

This action will result in no increase to the previously approved information collection requirements for the voluntary Federal seed testing and certification service. The information collection requirements that appear in Part 75 of the regulations have been previously approved by OMB and assigned OMB Control Number 0581-0140 under the Paperwork Reduction Act (44 U.S.C. Chapter 35).

The Secretary of Agriculture is authorized by the AMA of 1946, as amended, 7 U.S.C. 1621 et seq. , to provide voluntary Federal seed testing and certification services to facilitate the orderly marketing of seed and grain and to enable consumers to obtain the quality of seed and grain they desire. The AMA provides that reasonable fees be collected from users of the program services to cover, as nearly as practicable, the costs of services rendered.

The AMS regularly reviews its user fee financed programs to determine if the fees are adequate and if costs are reasonable. This action will increase the hourly fee rate and changes for voluntary seed testing and certification services provided to the seed and grain industries to reflect the costs currently associated with providing the services.

A recent review of the current hourly fee rate, effective October 1, 1998, revealed that anticipated revenue will not cover increased program costs. Without a fee increase FY 2000 revenues for seed testing and certification services are projected at $104,000, costs are projected at $108,000, and the trust fund balance would be $78,000. With a fee increase, FY 2000 revenues are projected at $114,000, costs are projected at $113,000, and the trust fund balance would be $83,000.

The hourly fee for service is established by distributing the projected annual program operating costs over the estimated hours of service—revenue hours—provided to users of the service. Revenue hours include the time spent conducting tests, keeping sample logs, preparing Federal Seed Analysis Certificates and storing samples. As program operating costs continue to rise, the hourly fees must be adjusted to enable the program to remain financially self-supporting as required by law. Program operating costs include salaries and fringe benefits of seed analysts, supervision, training, and all administrative costs of operating the program.

Employee salaries and benefits account for approximately 90 percent of the total budget. A general and locality salary increase of 3.68 percent for Federal employees involved in the seed testing and certification service became effective in January 1999 and has materially affected program costs. Another general and locality salary increase of 4.94 percent became effective in January 2000.

This fee increase is necessary to offset increased program operating costs resulting from: (1) salary increases for all Federal employees for 1999 and 2000, (2) increases in rent, (3) increases in costs of supplies needed for testing samples, and (4) purchases of replacement equipment needed to provide the service.

In view of these increases in costs, the Agency is increasing the hourly rate charged to applicants for the service, including the issuance of Federal Seed Analysis Certificates from $40.40 to $44.40. The fee for issuing additional duplicate certificates will increase from $10.10 to $11.10.

The action will fully recover all costs associated with providing the voluntary testing service to the seed and grain industry. Although the user-fee increase will increase costs to individual firms, the cost for providing the seed testing and certification services will increase by an average of only $6.70 per Federal Seed Analysis Certificate and $1.10 for each duplicate certificate. It is estimated that the total revenue generated will increase by approximately $10,000 annually.

A notice of proposed rulemaking was published in the Federal Register (64 FR 58358) on October 29, 1998. Interested persons were invited to submit comments until December 28, 1999. No comments were received.

This rule is issued under Marketing Order No. 985 (7 CFR Part 985), regulating the handling of spearmint oil produced in the Far West (Washington, Idaho, Oregon, and designated parts of Nevada, and Utah), hereinafter referred to as the “order.” This order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (Department) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the provisions of the marketing order now in effect, salable quantities and allotment percentages may be established for classes of spearmint oil produced in the Far West. This rule increases the quantity of Native spearmint oil produced in the Far West that may be purchased from or handled for producers by handlers during the 1999-2000 marketing year, which ends on May 31, 2000. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an 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 law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the 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 handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

The U.S. production of spearmint oil is concentrated in the Far West, primarily Washington, Idaho, and Oregon (part of the area covered by the order). Spearmint oil is also produced in the Midwest. The production area covered by the order normally accounts for approximately 63 percent of the annual U.S. production of Scotch spearmint oil and approximately 93 percent of the annual U.S. production of Native spearmint oil.

This rule amends an interim final rule that was published in the Federal Register on February 10, 2000 (65 FR 6528). That rule, which was based on a unanimous Committee recommendation made at a meeting on January 13, 2000, increased the quantity of Native spearmint oil that handlers may purchase from, or handle for, producers during the 1999-2000 marketing year, which ends on May 31, 2000. Specifically, that rule increased the salable quantity by 102,311 pounds from 1,125,755 pounds to 1,228,066 pounds, and the allotment percentage by 5 percent from 55 percent to 60 percent.

This amended interim final rule, which is based on a unanimous Committee recommendation made at a meeting on February 23, 2000, increases the salable quantity an additional 81,849 pounds from 1,228,066 pounds to 1,309,915 pounds, and the allotment percentage an additional 4 percent from 60 percent to 64 percent for Native spearmint oil for the 1999-2000 marketing year.

The initial salable quantity and allotment percentages for Scotch and Native spearmint oils for the 1999-2000 marketing year were recommended by the Committee at its October 7, 1998, meeting. The Committee recommended salable quantities of 1,199,190 pounds and 1,125,755 pounds, and allotment percentages of 65 percent and 55 percent, respectively, for Scotch and Native spearmint oils. A proposed rule was published in the November 17, 1998, issue of the Federal Register (63 FR 63804). A final rule establishing the salable quantities and allotment percentages for Scotch and Native spearmint oils for the 1999-2000 marketing year was published in the January 19, 1999, issue of the Federal Register (64 FR 2799).

The salable quantity is the total quantity of each class of oil that handlers may purchase from, or handle for, producers during a marketing year. The salable quantity calculated by the Committee is based on the estimated trade demand. The total salable quantity is divided by the total industry allotment base to determine an allotment percentage. Each producer is allotted a share of the salable quantity by applying the allotment percentage to the producer's individual allotment base for the applicable class of spearmint oil.

Sections 985.50, 985.51, and 985.52 provide the Committee authorization to consider and recommend salable quantities and allotment percentages for each class of spearmint oil for an ensuing marketing year. Section 985.51(b) provides the authority for the Committee to recommend that an increase in the salable quantity and allotment percentage for either or both classes of oil be considered.

Taking into consideration the following discussion on adjustments to the Native spearmint oil salable quantity, the revised 1999-2000 marketing year salable quantity of 1,228,066 pounds will, therefore, be increased to 1,309,915 pounds.

The original total industry allotment base for Native spearmint oil for the 1999-2000 marketing year was established at 2,046,828 pounds and was revised during the year to 2,046,214 pounds to reflect a loss of 614 pounds of base due to non-production of some producers' total annual allotments. The Committee has used this revised allotment base in computing the increases to the Native spearmint oil salable quantity.

By increasing the salable quantity and allotment percentage from 1,228,066 pounds to 1,309,915 pounds, this amended interim final rule makes an additional amount of Native spearmint oil available by releasing such oil from the reserve pool. When applied to each individual producer, the additional 4 percent allotment percentage increase allows each producer to take up to an amount equal to 4 percent of their allotment base from their Native spearmint oil reserve. If a producer does not have any reserve pool oil, or has less than 4 percent of their allotment base in the reserve pool, the increase in allotment percentage will actually make less than such amount available to the market. Currently, producers receiving 8,304 pounds of additional allotment through this increase do not have any Native spearmint oil in reserve. Thus, rather than the computed 81,849 additional pounds, this action effectively makes an additional 73,545 pounds of Native spearmint oil available to the market.

The following summarizes the Committee recommendation: Factors Affecting the Amended Native Spearmint Oil Salable Quantity and Allotment Percentage

(A) Estimated 1999-2000 Allotment Base—2,046,828 pounds. This is the figure the original 1999-2000 salable quantities and allotment percentages for both classes of spearmint oil were based on.

(B) Revised 1999-2000 Allotment Base—2,046,214 pounds. This is 614 pounds less than the estimated allotment base of 2,046,828 pounds. This is less because some producers failed to produce all of their previous year's allotment.

(C) Initial 1999-2000 Allotment Percentage—55 percent. This was recommended by the Committee on October 7, 1998.

(D) Initial 1999-2000 Salable Quantity—1,125,755 pounds. This figure is 55 percent of the estimated allotment base of 2,046,828 pounds.

(E) Initial Increase in Allotment Percentage—5 percent. This was recommended by the Committee on January 13, 2000.

(F) Initial Revision of the 1999-2000 Allotment Percentage—60 percent. This figure was derived by adding the initial increase in the allotment percentage of 5 percent to the initial 1999-2000 allotment percentage of 55 percent and was effective on February 11, 2000.

(H) Initial Computed Increase in the 1999-2000 Salable Quantity—102,311 pounds. This is the product of the revised 1999-2000 allotment base of 2,046,214 and the initial 5 percent increase.

(I) Initially Revised 1999-2000 Salable Quantity—1,228,066 pounds. This figure, effective on February 11, 2000, is the sum of the initial salable quantity of 1,125,755 pounds and the initial computed increase of 102,311 pounds, and is approximately 60 percent of the estimated 1999-2000 allotment base of 2,046,214 pounds.

(J) Additional Increase in the Allotment Percentage—4 percent. This percentage increase was recommended by the Committee at its February 23, 2000, meeting.

(K) Amended 1999-2000 Allotment Percentage—64 percent. This is the sum of the initial allotment percentage of 55 percent, and the 5 and 4 percent increases.

(L) Additional Computed Increase in the 1999-2000 Salable Quantity—81,849 pounds. This is the product of the revised 1999-2000 allotment base of 2,046,214 pounds and the additional 4 percent increase in the allotment percentage.

(M) 1999-2000 Salable Quantity as Revised by this Amended Interim Final Rule—1,309,915 pounds. This figure is the sum of the revised salable quantity of 1,228,066 and the additional computed increase of 81,849 pounds, and is approximately 64 percent of the revised 1999-2000 allotment base of 2,046,214 pounds.

In making this latest recommendation, the Committee considered all available information on supply and demand. The 1999-2000 marketing year began on June 1, 1999. Handlers have indicated that with this action, the available supply of both Scotch and Native spearmint oils appears adequate to meet anticipated demand through May 31, 2000. Without the increase, the Committee believes the industry will not be able to meet market needs. As of February 23, 2000, approximately 40,966 pounds of Native spearmint oil was available for market. During the past 5 years, the average sales of Native spearmint oil from March 1 to May 31 totaled 75,586 pounds, while the average sales for the period June 1 through February 29 totaled 1,087,385 pounds. The Far West spearmint oil industry has sold approximately 1,282,150 pounds of Native spearmint oil through February 23, 2000. This action has the effect of adding 73,545 pounds of Native spearmint oil to the amount available for market, bringing the total available supply for the remainder of this marketing year up to approximately 114,511 pounds.

The Department, based on its analysis of available information, has determined that the salable quantity and allotment percentage for Native spearmint oil for the 1999-2000 marketing year should be increased to 1,309,915 and 64 percent, respectively.

This amended rule further relaxes the regulation of Native spearmint oil and will allow producers to meet market needs and improve returns. In conjunction with the issuance of this rule, the Committee's revised marketing policy statement for the 1999-2000 marketing year has been reviewed by the Department. The Committee's marketing policy statement, a requirement whenever the Committee recommends implementing volume regulations or recommends revisions to existing volume regulations, meets the intent of section 985.50 of the order. During its discussion of revising the 1999-2000 salable quantities and allotment percentages, the Committee considered: (1) The estimated quantity of salable oil of each class held by producers and handlers; (2) the estimated demand for each class of oil; (3) prospective production of each class of oil; (4) total of allotment bases of each class of oil for the current marketing year and the estimated total of allotment bases of each class for the ensuing marketing year; (5) the quantity of reserve oil, by class, in storage; (6) producer prices of oil, including prices for each class of oil; and (7) general market conditions for each class of oil, including whether the estimated season average price to producers is likely to exceed parity. Conformity with the Department's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” has also been reviewed and confirmed.

This increase in the 1999-2000 marketing year Native spearmint oil salable quantity and allotment percentage allows for anticipated market needs for this class of oil. In determining anticipated market needs, consideration by the Committee was given to historical sales, and changes and trends in production and demand.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the AMS has considered the economic impact of this action on small entities. Accordingly, the AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are 7 spearmint oil handlers subject to regulation under the marketing order and approximately 119 producers of Scotch spearmint oil and 105 producers of Native spearmint oil in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers have been defined as those whose annual receipts are less than $500,000.

Based on the SBA's definition of small entities, the Committee estimates that 2 of the 7 handlers regulated by the order could be considered small entities. Most of the handlers are large corporations involved in the international trading of essential oils and the products of essential oils. In addition, the Committee estimates that 25 of the 119 Scotch spearmint oil producers and 7 of the 105 Native spearmint oil producers would be classified as small entities under the SBA definition. Thus, a majority of handlers and producers of Far West spearmint oil may not be classified as small entities.

The Far West spearmint oil industry is characterized by producers whose farming operations generally involve more than one commodity, and whose income from farming operations is not exclusively dependent on the production of spearmint oil. Crop rotation is an essential cultural practice in the production of spearmint oil for weed, insect, and disease control. A normal spearmint oil producing operation would have enough acreage for rotation such that the total acreage required to produce the crop would be about one-third spearmint and two-thirds rotational crops. An average spearmint oil producing farm would, thus, have to have considerably more acreage than would be planted to spearmint during any given season. To remain economically viable with the added costs associated with spearmint oil production, most spearmint oil producing farms would fall into the category of large businesses.

Small spearmint oil producers represent a minority of farming operations and are more vulnerable to market fluctuations. Such small farmers generally need to market their entire annual crop and do not have the resources to cushion seasons with poor spearmint oil returns. Conversely, large diversified producers have the potential to endure one or more seasons of poor spearmint oil markets because of stronger incomes from alternate crops which could support the operation for a period of time. Despite the advantage larger producers may have, increasing the Native salable quantity and allotment percentage will help both large and small producers by improving returns.

This rule amends an interim final rule that was published in the Federal Register on February 10, 2000 (65 FR 6528). That rule increased the salable quantity by 102,311 pounds from 1,125,755 pounds to 1,228,066 pounds, and the allotment percentage by 5 percent from 55 percent to 60 percent. This amended interim final rule increases the salable quantity an additional 81,849 pounds from 1,228,066 pounds to 1,309,915 pounds, and the allotment percentage an additional 4 percent from 60 percent to 64 percent for Native spearmint oil for the 1999-2000 marketing year. This rule relaxes the regulation of Native spearmint oil and will allow producers to meet market needs and improve returns.

The Committee considered alternatives to the 4 percent increase based on projections and historical data available at the meeting. Generally, spearmint oil producers and buyers attending the meeting recommended that the Native spearmint oil salable quantity be increased by at least an additional 55,000 pounds. The Committee reached its recommendation to increase the Native spearmint oil salable quantity by an additional 81,849 pounds and the allotment percentage by 4 percent after careful consideration of all available information, and believes that the level recommended will achieve the objectives sought. Without the increase, the Committee believes the industry will not be able to meet market needs. By recommending a greater increase than the market might otherwise demand, the Committee believes that any further unanticipated demand for Native spearmint oil during the remainder of the marketing year will be satisfied.

As of February 23, 2000, approximately 40,966 pounds of Native spearmint oil was available for market. During the past 5 years, the average sales of Native spearmint oil from March 1 to May 31 totaled 75,586 pounds, while the average sales for the period June 1 through February 29 totaled 1,087,385 pounds. The Far West spearmint oil industry has sold approximately 1,282,150 pounds of Native spearmint oil through February 23, 2000. This action has the effect of adding 73,545 pounds of Native spearmint oil to the amount available for market, bringing the total available supply for the remainder of this marketing year up to approximately 114,511 pounds.

Annual salable quantities and allotment percentages have been issued for both classes of spearmint oil since the order's inception. Reporting and recordkeeping requirements have remained the same for each year of regulation. Accordingly, this action will not impose any additional reporting or recordkeeping requirements on either small or large spearmint oil producers and handlers. All reports and forms associated with this program are reviewed periodically in order to avoid unnecessary and duplicative information collection by industry and public sector agencies. The Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

Finally, the Committee's meetings were widely publicized throughout the spearmint oil industry and all interested persons were invited to attend and participate on all issues. Interested persons are also invited to submit information on the regulatory and informational impacts of this action on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at the following website: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant matter presented, including that contained in the prior proposed and final rules in connection with the establishment of the salable quantities and allotment percentages for Scotch and Native spearmint oils for the 1999-2000 marketing year, the prior interim final rule increasing the 1999-2000 marketing year Native spearmint oil salable quantity and allotment percentage, the Committee's recommendation and other available information, it is found that to revise § 985.218 to change the salable quantity and allotment percentage for Native spearmint oil, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

This rule invites comments on a revision to the salable quantity and allotment percentage for Native spearmint oil for the 1999-2000 marketing year. A 30-day comment period is provided. Thirty days is deemed appropriate because this rule increases the quantity of Native spearmint oil that may be marketed during the marketing year ending on May 31, 2000. Additionally, the current quantity of Native spearmint oil available for market may not be adequate to satisfy market needs for the remainder of the marketing year. Any comments received will be considered prior to finalization of this rule.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) This rule increases the quantity of Native spearmint oil that may be marketed during the marketing year which ends on May 31, 2000; (2) the current quantity of Native spearmint oil may be inadequate to meet demand for the remainder of the season, thus making the additional oil available as soon as is practicable is beneficial to both handlers and producers; (3) the Committee unanimously recommended this change at a public meeting and interested parties had an opportunity to provide input; and (4) this rule provides a 30-day comment period and any comments received will be considered prior to finalization of this rule.

On October 21, 1998, the President signed into law a Fiscal Year 1999 Omnibus Appropriations Act, Public Law 105-277 (112 Stat. 2681). Division A, title IX of that statute, the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA), contained a provision, section 902, that allows certain nationals of Haiti to adjust their status to that of lawful permanent resident. On May 12, 1999, the Department of Justice (Department) published an interim rule, with requests for comments, that implemented section 902 of HRIFA. See 64 FR 25756.

Section 902 of HRIFA provides that the Attorney General shall adjust the status of certain Haitian nationals who are physically present in the United States to that of lawful permanent resident. In order to be eligible for benefits under HRIFA, an applicant must:

• Be a national of Haiti who was present in the United States on December 31, 1995;

• Have been physically present in the United States for a continuous period beginning not later than December 31, 1995, and ending not earlier than the date the application for adjustment is filed (not including any absence or absences amounting to 180 days or less in the aggregate);

• Properly file an application for adjustment before April 1, 2000;

• Be admissible to the United States under all provisions of section 212(a) of the Immigration and Nationality Act (the Act), 8 U.S.C. 1182(a), except those provisions specifically excepted by HRIFA; and

• Fall within one of the five classes of persons described in section 902(b)(1) of HRIFA.

The five classes described in section 902(b)(1) of HRIFA are:

(1) Haitian nationals who filed for asylum before December 31, 1995;

(2) Haitian nationals who were paroled into the United States prior to December 31, 1995, after having been identified as having a credible fear of persecution, or paroled for emergent reasons or reasons deemed strictly in the public interest;

(3) Haitian national children who arrived in the United States without parents and have remained without parents in the United States since such arrival;

(4) Haitian national children who became orphaned subsequent to arrival in the United States; and

(5) Haitian children who were abandoned by their parents or guardians prior to April 1, 1998, and have remained abandoned since such abandonment.

A total of 46 comments were received during the comment period. Commenters included Members of Congress, the mayor of a major city, representatives of a number of nongovernmental organizations, private attorneys, and other interested individuals. The Department appreciates the contributions of all individuals and groups who submitted comments.

The issues raised by the commenters generally fell into 17 areas:

A number of commenters requested that the Department extend the time period for submission of applications by principal applicants beyond the March 31, 2000, deadline set by statute. Such action would require new legislation, as it is clearly beyond the rulemaking authority of the Department.

Other commenters, recognizing that such change would exceed the Department's authority, requested that the Department not reject any applications as improperly filed during the final 30 days of the filing period because of a lack of documentation to establish eligibility. In light of the relatively short filing period, the Department finds this suggestion to be both reasonable and within its rulemaking authority. Accordingly, 8 CFR 245.15(c)(2) has been revised to provide that an Application to Register Permanent Residence or Adjust Status (Form I-485) submitted to either the Nebraska Service Center or the Immigration Court by a principal applicant seeking adjustment of status under HRIFA will not be rejected as improperly filed as long as it has been properly completed and signed by the applicant, identifies the applicant as a HRIFA principal applicant, and is accompanied by either the correct fee or a request for a fee waiver.

Some commenters felt that any Haitian who entered the United States prior to December 31, 1995, or who has been living in the United States since December 31, 1995, and any family members of such an individual, should be allowed to adjust his or her status to that of permanent resident. Although the Department understands the desire of the commenters to have the benefits of permanent residence extended to as many persons as possible, the suggestion is contrary to the statute, which requires that principal applicants fall within one of the five categories set forth above, be admissible to the United States, and meet all other statutory requirements. Accordingly, this suggestion cannot be adopted.

Some commenters wanted the regulations to provide that upon being granted lawful permanent residence, any HRIFA applicants who arrived in the United States after being paroled from the U.S. Naval Base at Guantanamo Bay, Cuba (Guantanamo Bay), would immediately become eligible to apply for United States citizenship. This suggestion cannot be adopted because the Act specifically requires an alien to reside in the United States for a specific period “after being lawfully admitted for permanent residence.” See Sec. 316(a)(1) of the Act, 8 U.S.C. 1427(a)(1). In the rare instances in which the Immigration and Naturalization Service (Service or INS) has recorded the date of admission for permanent residence as other than the actual date the application for such status was granted, it has only done so in accordance with explicit statutory authority.

Some commenters suggested that the regulations provide that any Haitian national who entered the United States prior to December 31, 1995, and who applied for asylum prior to December 31, 1997, should be eligible for adjustment under HRIFA. This suggestion is contrary to statute and beyond the rulemaking authority of the Department; it therefore cannot be adopted.

Finally, some commenters suggested that any asylum application that was mailed to the Service by December 31, 1995, but rejected as not properly filed, be considered to have been timely filed for HRIFA purposes. Congress could have opened the category to those who “filed or attempted to file” the application, or more simply to those who “submitted” the application. Instead, Congress required that the applicant have “filed for asylum before December 31, 1995,” in order to fall within this category. Accordingly, the Department will consider only those asylum applications that were properly filed by the deadline established by statute. The Service's long-standing regulation, 8 CFR 103.2(a)(7), which concerns the proper filing of petitions, will not be revised. The suggestion will not be adopted.

A number of commenters suggested that the Department either automatically waive those grounds of inadmissibility relating to medical conditions (especially HIV/AIDS infection) and fraud violations, or provide a more generous waiver provision such as that accorded to refugees and asylees adjusting status to lawful permanent residence under section 209 of the Act. 8 U.S.C. 158.

Section 902(a)(1)(B) of HRIFA states that, in order for the Attorney General to grant permanent residence under HRIFA, the applicant must be admissible to the United States. The specific grounds under which an alien may be found inadmissible to the United States are set forth in section 212(a) of the Act. 8 U.S.C. 1182(a). While HRIFA provides that five of these specific grounds of inadmissibility shall not apply to HRIFA applicants, it does not exempt them from the grounds pertaining to either inadmissibility under medical grounds, which is discussed in section 212(a)(1)(A), 8 U.S.C. 1182(a)(1)(A), or inadmissibility under grounds pertaining to misrepresentation, which is discussed in section 212(a)(6)(C), 8 U.S.C. 1182(a)(1)(C). Without statutory authority to waive grounds of inadmissibility, the Attorney General may not grant permanent residence to an inadmissible alien.

The statutory authority to grant waivers of medical grounds of inadmissibility is contained in section 212(g) of the Act, 8 U.S.C. 1182(g), and the authority to grant waivers of grounds of inadmissibility pertaining to misrepresentation is contained in section 212(i) of the Act. 8 U.S.C. 1182(i). Both of these sections set forth waiver eligibility criteria mandating that, among other things, the applicant have a qualifying relative who is a citizen or lawful permanent resident of the United States. Unfortunately, many HRIFA applicants who are inadmissible under section 212(a)(1) or section 212(a)(6)(C) of the Act do not have such qualifying relatives, and are therefore ineligible for these waivers.

Some commenters suggest that the authority contained in section 209 of the Act, 8 U.S.C. 1159, enables the Department to grant waivers of inadmissibility to HRIFA applicants. In so doing, a number of them quote a portion of paragraph (c) of that section. The entire paragraph provides:

When read in its entirety, it is clear that the waiver provision contained in section 209(c) of the Act applies only to aliens who are adjusting status under that section, not to aliens applying for adjustment of status under other provision of law, including HRIFA. The Department does not have the statutory authority to make this change. Accordingly, this suggestion cannot be adopted.

An applicant who is able to meet the statutory requirements set forth in sections 212(g) and 212(i) of the Act for grounds of inadmissibility pertaining to a medical condition or to fraud or willful misrepresentation must also show that his or her case warrants approval as a matter of discretion. In exercising such discretionary authority, adjudicating officers and immigration judges must take into account all factors—whether positive and negative—bearing on the case, and determine which factors carry significant weight and which do not.

A number of commenters have requested that in adjudicating the waiver application, the adjudicating officer or immigration judge take into account certain factors pertaining to the manner of the applicant's arrival in the United States or to conditions in the applicant's homeland. Specifically, commenters requested that for persons who were paroled into the United States from Guantanamo Bay for the purpose of receiving treatment of an HIV or AIDS condition, the fact that their arrival in the United States was the direct result of a government decision to provide such treatment should be viewed as a significant positive factor. Likewise, with regard to those applicants who used counterfeit documents to travel from Haiti to the United States, many commenters asked that the Department take into consideration the general lawlessness and corruption that was widespread in Haiti at the time of the alien's departure, the difficulties in obtaining legitimate departure documents at that time, and other factors peculiar to Haiti during that period that may have induced the alien to commit fraud or make willful misrepresentations. Although these factors would probably have been taken into account by the adjudicating officer or immigration judge regardless of the inclusion or exclusion of any specific language in the regulations, the Department feels that the inclusion of such language in the final rule will facilitate a general understanding of the importance of these factors in making the discretionary decision, and the suggestion has been adopted.

Some commenters requested that the Department provide a reduced fee level for families filing two or more applications for adjustment of status under the HRIFA program.

The fees charged under the HRIFA program are the same as those charged all other adjustment applicants and (on an individual case basis) the regulations already allow persons who are unable to pay the specified fees to request a waiver of the filing fee. Upon consideration of all factors, it was determined that it was not appropriate to provide a reduced fee level for HRIFA applicants in general.

A number of commenters made suggestions regarding the documentation required for proof of eligibility and the manner and timeframe in which that documentation is to be submitted. Some commenters suggested that the regulations should not require submission of proof of unavailability of primary evidence ( e.g., a birth certificate) before accepting secondary evidence ( e.g., a baptismal record or a consistent prior claim). Conversely, other commenters suggested that the standard should call for the submission of the “best evidence available.” In considering applications and petitions for benefits under the Act, the Department's policy has generally been that the applicant should submit, and the adjudication should be based on, the best evidence available. In determining whether a particular type of evidence is generally available from foreign countries, the Department is guided by the information contained in Volume 9, Part IV, Appendix C of the Department of State's Foreign Affairs Manual (FAM), which reports that birth certificates, marriage records, divorce records, death certificates, and adoption certificates are all generally available from Haiti. This is not to say, as it could be said about any country in the world, that in an individual case, a particular record may not have become lost or destroyed, or be otherwise unavailable. For this reason, the Department requires an applicant to submit proof of the unavailability of primary documentation from Haiti before considering secondary evidence. In short, the only way of knowing that secondary evidence is the “best evidence available,” and is therefore acceptable documentation, is to first establish that the primary evidence is unavailable. However, with regard to applications for adjustment of status under HRIFA, there is a very significant factor that complicates the application of the “best evidence available” standard: the March 31, 2000, HRIFA deadline for the filing of applications by principal applicants. Because of this deadline, the Department has determined that it is best to temper this standard so as to allow applicants to file for adjustment of status using secondary evidence as long as they also submit evidence that they have requested the primary evidence from an official recordkeeper ( e.g., the Haitian National Archives). This approach will avoid the risk of persons being unable to apply for adjustment under HRIFA, while at the same time ensuring the integrity of the documentation. In instances in which the primary documentation arrives prior to the applicant's interview with an immigration officer or hearing before an immigration judge, the applicant would present the primary documentation at such interview or hearing. Where the documentation does not arrive prior to the interview or hearing, the interviewing officer or presiding judge would make a determination whether to make a decision based on the evidence available or to continue the case until the primary documentation arrives.

Some commenters were under the mistaken impression that the regulations, see, e.g. 8 CFR 245.15(i), always require that a Form I-94 be submitted as proof of entry. If the alien is in possession of the Form I-94, he or she should submit it, but if the alien never received or lost the Form I-94, it cannot be submitted. Where it is crucial that the applicant establish the date of arrival, as with children who arrived without parents, secondary documents may be submitted (such as transportation company records or an affidavit) in lieu of a missing or nonexistent Form I-94. The regulations have been amended to clarify this point. However, the applicant is still required to meet the requirements set forth in 8 CFR 245.15(i) pertaining to documenting when the applicant's physical presence in the United States began.

Some commenters suggested that the Department allow applicants to submit a list of documents already known to be in their Service files. While the regulations already contain this provision, the relevant provision in 8 CFR 245.15(m) has been revised to eliminate possible confusion on this issue.

A number of commenters felt that it was not reasonable for the Department to require applicants under HRIFA to submit evidence of nationality. Many felt that any “evidence” of nationality already contained in the alien's file (including the applicant's prior claims of Haitian nationality) should be more than sufficient to prove that the applicant is Haitian. Additionally, some commenters stated that it is unreasonable to require the applicant to submit evidence of the unavailability of a document before the Service or Immigration Court will accept secondary evidence in lieu of that document. Finally, some commenters expressed concerns that children born in Guantanamo Bay of Haitian parents would be unable to document either Haitian or Cuban nationality.

It is important to note that the submission of evidence of nationality with the application for adjustment is a standard requirement for all applicants for adjustment and not a special requirement placed upon applicants under HRIFA. Likewise, it is standard practice to require evidence of the unavailability of a document of record before considering secondary evidence. (As previously stated, the Department of State's FAM reports that such documents are generally available in Haiti.) Furthermore, files that were created upon an alien's arrest or submission of an application for benefits may contain no documentary evidence of nationality, but may refer to the alien's (perhaps self-serving) statement of nationality. Despite some commenters' contention to the contrary, while rare, it is not unheard of for a non-Haitian alien to falsely claim to be Haitian when it is to his or her advantage. Accordingly, every prior claim to Haitian nationality cannot automatically be presumed to be valid.

However, even considering all of these factors, the Department is willing to concede that, in light of the relatively short filing period provided in the statute, it will be difficult—if not impossible—for many bona fide applicants to obtain the normally required documentation in time to file an application for adjustment before the March 31, 2000, deadline. Accordingly, the Department is making a number of changes to the regulation that it believes will significantly alleviate, if not eliminate, this problem.

First, as previously stated, the regulations will now allow an applicant to file the application without the birth record being included in the application package, if the applicant presents evidence that he or she is attempting to obtain the birth record. Once the birth record has been received, such applicant would present it at his or her interview before a Service officer or hearing before an immigration judge.

Second, the regulations will allow the Service or Immigration Court to consider secondary evidence of nationality, if the applicant submits evidence that he or she has unsuccessfully attempted to obtain the standard documentation. Such an unsuccessful attempt to obtain the standard documentation may be shown by submitting a photocopy of a letter from the applicant to the keeper of records requesting the document in question. If the primary evidence is received prior to the interview or hearing, the applicant can present it at that time; otherwise, the adjudicating officer or judge may make a determination based on the secondary evidence. The secondary evidence which may be taken into consideration could include baptismal and other religious records, passports, and evidence or statements already contained in the alien's Service file. However, it must also be noted that all determinations as to the weight and credibility to be given to the secondary evidence rest with the adjudicating officer or judge.

With regard to those children born in Guantanamo Bay, there are at least three methods by which an applicant could document his or her birth. First, the United States Naval authorities issued a certificate of live birth to the parents of each child born on that naval base. Second, the records of the Service would reflect the place of birth as being at Guantanamo Bay. Third, the records of the voluntary agency that assisted in the family's resettlement would also show that the applicant was born at the U.S. Naval Base at Guantanamo Bay. Any of these records could be used in support of an application for adjustment under HRIFA.

Some commenters contend that the statutory requirement contained in section 902(b)(1) that limits the benefits of HRIFA to nationals of Haiti who were “present in the United States on December 31, 1995,” also applies to those who had been present in the United States at some time before that date but had left and were not here on that specific date. This contention is based on the commenters' interpretation of the requirement in section 902(b)(2) of HRIFA that the applicant must have been physically present in the United States for a continuous period beginning not later than December 31, 1995, but allows for absences of up to 180 days in the aggregate during that period. The commenters interpret the phrase “beginning not later than December 31, 1995,” as applying not only to the period of continuous presence, but also to the absences. This would have been a logical interpretation if section 902(b)(1) of HRIFA had allowed applicants to have been present “on or before December 31, 1995,” but it does not. The only way to read both sections in concert is that persons who departed prior to December 31, 1995, and were not physically present on that date are ineligible for benefits under HRIFA as principal applicants.

Many commenters were concerned that the rough guideline for documenting continuity of presence (one document for each 90-day period) would be impossible for many bona fide applicants to meet due to cultural norms unique to Haitians. Others contended that due to other factors unique to Haitians, such as political, financial and geographical constraints, it is unlikely that any Haitians departed from the United States and returned since December 31, 1995, and that even a rough guideline of one document for each 90 days is excessive. A few commenters argued that the Department should provide a more generous guideline of one document for each 180 days, since the statute allows applicants to have been outside the United States for up to 180 days without breaking continuity of presence.

Because the statute allows an applicant to be outside the United States for up to 180 days in the aggregate without breaking continuity of presence, not absences of up to 180 days each, the Department finds that the argument that the guideline should be set at 180 days is without merit. However, the Department has determined that the guideline that had been intended to ease the burden on applicants by assisting them in gauging how much documentation to submit has instead become a hindrance that may result in some applicants believing that, without a certain minimum amount of documentation, they are ineligible to apply for or receive the benefit of adjustment of status under HRIFA. Accordingly, the guideline is being removed from the regulations and applicants should simply submit sufficient documentation to satisfy the adjudicating officer or immigration judge that they have maintained continuous presence in the United States within the meaning of the statute. The adjudicating officer or immigration judge retains the right to request additional documentation should the evidence submitted by the applicant prove insufficient to meet his or her burden of proof.

Several commenters suggested that all Haitians released from Service custody before December 31, 1995, including those released on bond or on their own recognizance pursuant to section 242(a)(1) of the Act, 8 U.S.C. 1252(a), as it was in effect at that time, should qualify as “parolees” under HRIFA. In support of this suggestion, these commenters cited an April 19, 1999, Service policy memorandum. That memorandum concerned the eligibility of certain Cuban nationals for adjustment of status under the Cuban Adjustment Act, despite their having arrived at a place other than a designated port-of-entry. It has no impact on the eligibility of a person seeking to adjust status under HRIFA as a Haitian national who was paroled in the United States prior to December 31, 1995. The April 19, 1999, memorandum provided in pertinent part that the “release of an applicant for admission from custody [pursuant to section 236 of the Act ], without resolution of his or her admissibility, is a parole.” (emphasis added.) The release from custody of someone other than an applicant for admission ( e.g. , an overstay) does not constitute a parole. In the HRIFA context, an alien who had entered the United States without inspection, was detained by the Service, and was later released prior to December 31, 1995, cannot be seen as having been paroled into the United States because the alien was not an applicant for admission at the time of his or her release. The treatment of aliens present without inspection as applicants for admission was introduced to the immigration laws as a result of the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) in September 1996. These statutory reforms applied prospectively only. See IIRIRA section 309(c)(1). Accordingly, this suggestion will not be adopted.

A number of commenters felt that the Department's interpretation of “child without parents in the United States” was too restrictive and undercut the legislative intent. Others mistakenly believed that the Department adopted this position in order to combat possible fraud. In fact, the Department had simply taken the common meaning of the phrase since no definition was provided by the statute. According to the commenters, the focus should be on whether there has been a sustainable parent-child relationship between the child and his or her parents in the United States. In other words, who has or has had parental control over the child since his or her arrival into the United States? The Department agrees that this interpretation better reflects the legislative intent behind the provisions concerning children without parents. Therefore, the regulations have been amended by placing commas before and after the phrase “without parents” in 8 CFR 245.15(b)(1)(iii)(A).

A number of commenters felt that the regulations unnecessarily and onerously require children to show proof of their manner of arrival. Some commenters were under the mistaken impression that the regulations required that a Form I-94 be submitted in all cases. Where an applicant must establish his or her date of arrival, as with children who arrived without parents, the Form I-94 should be submitted whenever possible. However, as explained earlier, if the Form I-94 is not available, secondary documents may be submitted instead. In the case of a child arriving without parents, the secondary evidence may include the child's declaration which may be supported by other documentation ( e.g. , his or her attendance record at school shortly after the claimed date of arrival). The regulations have been amended to clarify this point.

A number of commenters made suggestions regarding the documentation and level of proof required to prove eligibility as an orphaned or abandoned child. Some commenters suggested that an applicant's declaration of orphanage should be sufficient proof of orphanage or abandonment. Several commenters wanted secondary evidence to be accepted as proof of orphanage or death of parents ( e.g. , declarations, news articles, and publications). Other commenters suggested that the Department should allow any probative evidence which might be submitted to state, local, or other authority to establish orphanage or abandonment. The Department agrees that, where primary evidence ( e.g. , official state or court documents) is unavailable, secondary evidence may be submitted to prove orphanage. Accordingly, the regulations have been modified to reflect many of these suggestions.

A number of commenters felt that a broader and more general definition of orphan should be used. Some commenters wanted to include as an orphan a child who has been irrevocably released by his or her sole or surviving parent who is unable to provide support. This is particularly relevant with regard to Haitian children who have had one of their parents disappear due to the actions of the former government of Haiti or due to tragedy at sea. The Department agrees and has so amended the regulation at § 245.15(a). The regulation now allows an otherwise eligible child to qualify for to qualify for classification as an orphan under section 902(b)(1)(C)(ii) of HRIFA if (1) the child has lost one parent through death or through disappearance, (2) competent Haitian authorities have certified that parent to be presumed dead, (3)the sole remaining parent is incapable of providing the proper care, and (4) the sole remaining parent has, in writing, irrevocably released the child for immigration to the United States. However, this amended regulation pertains only to applications filed under HRIFA and has no bearing on applications or petitions filed under the Act, such as petitions for classification under section 101(b)(1)(F) of the Act, where the surviving parent provision only pertains if the other parent is deceased.

One commenter believed that HRIFA should not be read as limiting orphans to those who lost their parents while under 21 years old. While, by common definition, the term “orphan” only applies to a child, and not to an adult, who has lost his or her parents, section 902(b)(1)(C) of HRIFA includes a unique set of qualifications on applicants seeking status based on orphanage. Those qualifications provide that the applicant must have been unmarried and under 21 years old at the time of his or her arrival in the United States and on December 31, 1995, and that he or she “became orphaned subsequent to arrival in the United States.” Because it is possible for someone who became 21 years old after December 31, 1995, and was later orphaned to still meet the language of the statute, the regulations will be amended in this regard. However, this amended regulation pertains only to applications filed under HRIFA and has no bearing on applications or petitions filed under the Act.

Many commenters felt that the provision for abandoned children should be guided by the best interest of the child. A number of commenters wanted the Department to accept a broader array of evidence, besides official state, local, or court records, to prove the issue of abandonment. These suggestions include school records and declarations by the child (or Service records) indicating nonresidence or nonrelationship with the parents. One commenter suggested that if a child has been left by his or her parents with a relative, that should be sufficient to constitute abandonment along with notarized statements stating such. Other commenters wanted to allow any probative evidence which might be submitted to state, local, or other authority to establish abandonment. Several commenters suggested that runaway children should be considered abandoned, especially where the child ran way due to the home environment. A number of commenters urged the Department to adopt the standard of abandonment as defined by the law in Florida, where, if the parent or guardian of a child “makes no provision for the child's support and makes no effort to communicate with the child, * * * [the] situation is [deemed] sufficient to evince a willful rejection of parental obligations.” F.S. 1997, Sec. 39.01. Other commenters suggested that the guidelines for abandonment established by the individual state having jurisdiction over the child should be adopted. The Department agrees that a broader category of evidence to prove abandonment should be allowed. Accordingly, the Department will apply the laws governing abandonment established by the individual state where the child resides, or resided at the time of the abandonment. The regulations have been amended to reflect this change.

A number of commenters wanted the Department to allow a dependent (of a HRIFA principal) to qualify for HRIFA benefits if he or she was a child on the date of HRIFA's enactment (October 21, 1998), or, alternatively, to toll the child's age as of October 21, 1998, until the date when his or her adjustment application is adjudicated. The Department will not accommodate this request. The Department has consistently held that an applicant must be eligible for the benefit being sought at the time of adjudication of the application, not on some prior date. See, Matter of Hernandez-Puente, 20 I & N Dec. 335, 337 (BIA 1991) (citing cases). The Department reaffirms this interpretation that benefits such as adjustment cannot be granted nunc pro tunc, which is essentially what the commenters have suggested.

One commenter requested that the regulations provide a general exemption from the local police clearance requirement for persons who live or have lived in locations where the local authorities have made a blanket decision not to issue such clearances for immigration purposes, insofar as it relates to time periods when the applicant resided in that locale. The commenter listed New York City as an example of such a location. In the interest of reducing unnecessary burdens on both the applicants and on the local authorities, this suggestion has been adopted.

Some persons expressed concerns about the applicability of section 241(a)(5) of the Act. 8 U.S.C. 1231. This section provides that:

(5) Reinstatement of removal orders against aliens illegally reentering. If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this Act [chapter], and the alien shall be removed under the prior order at any time after the reentry.

In versions codified under the United States Code, the final sentence refers to any relief under “this chapter” instead of “this Act.” This difference has resulted in some persons believing that the relief which affected persons are barred from seeking is only that relief provided under section 241 of the Act, not relief provided under other sections of the Act. A brief explanation is in order.

The language of HRIFA, as enacted by Congress, is the official text of the Act. When the laws enacted by Congress are codified in the U.S. Code, that codification is not “positive law.” The titles of the U.S. Code are organized into “chapters,” and so when an Act of Congress is codified it is referred to as a “chapter” of the Code. The Immigration and Nationality Act is codified as Chapter 12 of Title 8 of the U.S. Code. Accordingly, the Immigration and Nationality Act provides that an alien subject to section 241(a)(5) of the Act is barred from any relief provided under any provision of the Act.

Some commenters contend that section 241(a)(5), which was added to the Act by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3546, applies only to an alien ordered removed from the United States in post-IIRIRA proceedings, and not to an alien ordered excluded and deported, or ordered deported, from the United States in pre-IIRIRA proceedings. These commenters fail to take into account section 309(d)(2) of IIRIRA which states that “any reference in law to an order of removal shall be deemed to include a reference to an order of exclusion and deportation or an order of deportation.” Id. at sec. 309(d)(2).

Other commenters are under the impression that the Department holds that, when a person who departed the United States with an advance parole (Form I-512) returns to the United States, he or she is re-entering illegally and is subject to section 241(a)(5) of the Act. These commenters may be confusing advance parole with the separate requirement that someone who departs the United States while under an order of exclusion, deportation, or removal obtain permission to reapply for admission after removal, even if that person receives an advance parole document. (This “permission to reapply” issue is discussed in section 15 of this preamble on advance parole.) The Department would not, without more, view a return to the United States pursuant to an advance parole as an illegal reentry that would trigger the provisions of section 241(a)(5) of the Act.

Some commenters suggested that the regulation should provide for an automatic stay of removal which would take effect upon the filing of the application for adjustment of status under HRIFA. The Department considered this issue when drafting the interim rule and concluded that it would not be appropriate.

The Department feels that the Attorney General should have the flexibility of denying stay of removal requests where there are overriding negative factors. Since the statute calls for regulations which allow the HRIFA applicant to apply for (or “seek”) a stay of deportation, removal, or exclusion, rather than to be granted or receive such stay, it is clear that the Department's interim regulation on this point is within the scope of what is intended by the statute. Accordingly, this suggestion will not be adopted.

A number of commenters made suggestions pertaining to the procedures by which the Department adjudicates HRIFA applications and otherwise administers the program. Some wanted the Service to make more frequent use of the interview waiver option and clarify unresolved issues through written correspondence. However, the decision on whether to waive an interview is made solely on a case-by-case basis and is wholly dependent on whether the adjudicating officer is satisfied that the application is approvable (or deniable) without further examination. In making his or her determination, the officer takes into consideration the information submitted by the applicant (which may include that submitted in response to a request for additional evidence from the Service), information contained in the alien's file, and all other pertinent information at the officer's disposal. The suggestion will not be adopted.

Some commenters wanted any applications postmarked by March 31, 2000, to be considered to have been properly filed, even if received at the Nebraska Service Center after that date. The Service has long held that an application may only be considered properly filed when it is received in a Service office, provided it is properly signed and executed and the requisite fee is attached. See e.g. 8 CFR 103.2(a)(7). The Department sees no reason to hold HRIFA applications to a different standard.

Finally, some commenters wanted the regulations to specify that the Service must provide notice of the cancellation of an order of exclusion, deportation, or removal, or a notice of termination of removal, deportation or removal proceedings, in addition to the notice of approval, whenever adjustment of status is granted to an alien who is subject to such order or in such proceedings. While the Service will endeavor to provide such notification, the fact remains that the regulations already provide that regardless of whether such notification is sent (or if sent, received), upon final approval of the application for adjustment of status under HRIFA by the Service or the Executive Office for Immigration Review (EOIR) (depending on which agency has jurisdiction), any pending order of exclusion, deportation or removal is canceled and any pending exclusion, deportation, or removal proceedings are terminated. Adding a regulatory requirement that separate notification to that effect be issued could only add confusion and raise questions as to whether the order had been canceled or the proceedings had been terminated.

A number of interested parties submitted comments regarding procedures involved in authorizing parole for persons who either have applied for adjustment of status or wish to travel to the United States in order to apply for adjustment of status. Section 245.15(t)(1) of Title 8 of the Code of Federal Regulations sets forth procedures for persons who have already filed for adjustment of status and wish to depart from and return to the United States. Additionally, that provision sets forth procedures for otherwise eligible persons who are outside the United States and wish to be paroled into the country in order to file the application for adjustment of status. For purposes of clarity, these will be referred to as “t-1 parole” and “t-2 parole” in this discussion.

Some commenters wanted t-1 parole authorization to be automatic for all persons who apply for adjustment of status under HRIFA. Upon consideration, the Department finds that this suggestion is likely to create more problems than it would solve. Many applicants under the HRIFA program are not in possession of acceptable travel documents and encouraging them to travel without first obtaining advance parole is likely to result in increased difficulties at ports-of-entry and departure both here and abroad. If this suggestion were to be adopted, it would also be all but impossible to determine which returning applicants had filed bona fide applications and which had filed mala fide or frivolous ones. The lack of a recognized advance parole document would considerably exacerbate problems for the applicants, as well as for government and airline officials, and would inevitably result in bona fide applicants being stranded outside the country. The Department has decided not to adopt this suggestion.

Some commenters wanted the Department to extend the time during which the alien can travel to the United States after receiving an advance t-2 parole authorization beyond the current 60 days. The Department feels that under all but the most abnormal circumstances, a 60-day period should be sufficient for this purpose. The Department also notes that if the recipient feels that he or she will need additional time to obtain travel documents and exit permits, he or she can request that the Service Officer-in-Charge in Port-au-Prince delay issuance of the advance parole document until a later date. Accordingly, this suggestion has not been adopted.

Some commenters wanted the 60-day t-2 parole issued upon the alien's arrival to be “automatically extended” upon the filing of the application for adjustment. This suggestion cannot be adopted for at least three reasons. First, technically, a parole is not extended, although at the completion of a parole, one option available to the district director having jurisdiction over the alien's residence in the United States is to reparole the alien if such action is warranted in accordance with the statutory requirements set forth in section 212(d)(5) of the Act. 8 U.S.C. 1182(d)(5). Second, the purpose of the t-2 parole is to allow the alien to file the application for adjustment of status under HRIFA, and that purpose has been accomplished once the alien files the application for adjustment. Any decision to reparole the alien would have to be made (by that district director) once the applicant for adjustment requests reparole through his or her local immigration office and presents his or her receipt for filing the application for adjustment at the Nebraska Service Center. Third, even if the other objections were overcome, the technology does not currently exist to provide for automatic reparole, and the cost of developing such technology would not be warranted by the relatively small number of persons who would benefit from it.

Some commenters wanted the regulations to extend the authority of the Director of the Nebraska Service Center to adjudicate advance t-2 parole requests. That authority currently expires on March 31, 2000. It must be noted that the authority to approve this type of parole request normally lies with the District Director in Mexico City for anyone in the Western Hemisphere, but not at a United States port-of-entry. The authority was extended to the Director of the Nebraska Service Center primarily because of the anticipated volume of requests under the HRIFA program. A decision will be made sometime during March 2000 as to whether both the Director of the Nebraska Service Center and the Director in Mexico City should have such authority, or if such authority should be vested solely with the District Director at Mexico City. Regardless of whether the authority of the Director of the Nebraska Service Center is extended beyond March 31, 2000, the District Director in Mexico City will continue to have such authority. It should also be noted that the Service can extend the authority of the Director of the Nebraska Service Center to issue such parole authorizations through an internal Service memorandum. It need not be done through the rulemaking process. See 8 CFR 2.1. However, should the authority of the Nebraska Service Center to issue such parole authorizations be extended, the Service will publish a notice to that effect in the Federal Register .

Finally, an explanation is in order regarding the effect of departure from the United States while under an order of exclusion, deportation, or removal, including situations in which the alien first obtains an advance parole authorization, Form I-512. A Form I-512 is a document which authorizes an immigration officer to parole the bearer into the United States upon inspection at a port-of-entry. It neither contains nor connotes any special benefits for the bearer at the point of his or her departure from the United States. Whenever an alien who is under an outstanding order of exclusion, deportation, or removal departs from the United States, he or she effects or executes that order. This is true regardless of whether he or she is in possession of an I-512 authorizing a parole upon his or her return. Once the exclusion, deportation, or removal order has been executed, an alien must apply for and be granted permission to reapply (Form I-212) before he or she embarks or reembarks for his or her return travel to the United States. Failure to obtain such permission results in the alien being inadmissible to the United States and, therefore, ineligible for adjustment of status in the United States.

Some commenters felt that the Service should automatically extend the work authorization for persons who had been granted Deferred Enforced Departure (DED) under the Presidential directive to the Attorney General of December 23, 1997. That order allowed the Service to grant DED status, with work authorization, to eligible applicants until December 22, 1998. Shortly before December 22, 1998, the Department published a notice in the Federal Register which explained that although it could not extend the DED program itself, it was extending the validity of the affiliated Employment Authorization Documents (EADs) for another year (until December 22, 1999) to give the Department time to promulgate regulations and eligible applicants an opportunity to apply for both adjustment of status and new EADs (as adjustment applicants). The Service recently published a notice in the Federal Register , at 64 FR 71151, which re-extended the validity of these EADs until September 30, 2000. Because this matter has been addressed by separate action, it will not be addressed here.

Many commenters suggested that Haitians eligible for HRIFA relief should be permitted to administratively close their cases without the concurrence of the Service. Currently, those aliens in proceedings before the Immigration Court or Board of Immigration Appeals (Board) may move to have these proceedings administratively closed for the purpose of filing an application for adjustment under HRIFA with the Service; however, the Service must concur with the administrative closure of the case.

The Department has decided not to change this procedure because it is established law that has been applied to other types of proceedings and not just those involving HRIFA-eligible aliens. Administrative closure is a convenience that allows for the removal of a case from the calendar in appropriate situations. An immigration judge or the Board may not administratively close a case if it is opposed by either party. See Matter of Lopez-Barrios, 20 I & N Dec. 203, 204 (BIA 1990). The Department does not find that aliens applying for HRIFA are in a substantially different position from other aliens requesting administrative closure of their cases. Therefore, an exception to the rule is not warranted.

Two groups suggested that the interim rule limits motions to reopen an EOIR decision denying HRIFA relief after a failure to appear by confining the motions to current reopening and rescission standards. They argue that reopening and rescission standards for certain applicants with final exclusion and deportation orders are improper because aliens with pre-IMMACT 90 deportation cases or aliens in exclusion proceedings predating IIRIRA's fusion of exclusion and deportation are subject to the “reasonable cause” standard for reopening or rescission of a case before EOIR.

The Department chose to apply current rescission and reopening standards in this particular situation because it has created a new proceeding applicable exclusively to HRIFA-only relief. Rescission or reopening in 8 CFR 245.15(s)(4) refers to 8 CFR 245.15(s)(1), and only discusses the situation involving aliens with final orders who applied for adjustment of status under section 902 of HRIFA with the Service, were denied that relief by the Service, and were then referred to the Immigration Court on Form I-290C for adjudication of their eligibility for such relief. The rescission or reopening of proceedings under 8 CFR 245.15(s)(4) refers exclusively to the HRIFA-only proceeding and not the original deportation or exclusion proceeding. Accordingly, the standard for determining whether an alien is eligible for rescission or reopening under this subsection refers not to the original proceeding and the old standard, but rather to the new proceedings and the current standard. Because the Department created this new type of proceeding, it considered it appropriate to choose a standard consistent with recent reopening standards for removal proceedings put in place by Congress.

Section 245.15(d)(4) has been revised to clarify that in establishing the relationship between a principal beneficiary and a dependent beneficiary, the standards of documentation set forth in 8 CFR 204.2 apply. No other changes are being made to the regulation, with the exception of minor editorial corrections.

It has come to the Department's attention that the application of current regulations (8 C.F.R. 103.2(a)(7)) and practice to HRIFA applications filed with fee waiver requests may inadvertently result in certain applicants later being deemed to have missed the application deadline due to no fault on the part of the applicant. Currently an application submitted with a fee waiver request is not considered properly filed and does not retain a receipt date until the fee waiver is granted. In cases where a fee waiver is denied, the application is returned to the applicant with instructions to resubmit the application with the appropriate fee at which time the application will be considered properly filed and will be assigned a receipt date. Thus, under current regulations and practice were the Service or Immigration Court to deny a request for a waiver of the HRIFA application fee after March 31, 2000, and return the application, the alien could not file another application with the fee because the filing deadline would have already passed. Given the statutorily mandated filing deadline of March 31, 2000, the Department believes that it would be appropriate to modify the regulations with respect to this group of cases to avoid a potentially harsh and irreversible result. Accordingly, the regulations are being amended to afford an applicant whose HRIFA fee waiver request is denied the opportunity to submit the required fee within 30 days of notice that the fee waiver request was denied and thereby maintain a timely filing date.

In addition, in a case over which the Board has jurisdiction, an application received by the Board before April 1, 2000, that has been properly signed and executed is considered to be filed before the statutory deadline without payment of the fee or submission of a fee waiver request. Upon remand by the Board, the payment of the fee or a request for a fee waiver is made upon submission of the application to the Immigration Court in accordance with 8 CFR 240.11(f). The regulations are being amended to afford an applicant whose HRIFA adjustment fee waiver request is denied the opportunity to submit the required fee within 30 days of the notice that the fee waiver request was denied. If the required fee is not paid within 30 days, the applicant will no longer be considered to have filed a timely HRIFA adjustment application.

The Department's implementation of this final rule effective upon publication in the Federal Register is based upon the “good cause” exception found at 5 U.S.C. 553(d)(3). By statute, all HRIFA principal adjustment applicants must file their applications before April 1, 2000. Immediate implementation of this final rule is necessary to ensure that HRIFA applicants are able to avail themselves of the modifications made in this final rule as soon as possible before the end of the application period. Accordingly, delaying the effective date of this final rule for 30 days would be contrary to the public interest.

In accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Attorney General has reviewed this regulation and, by approving it, certifies that this regulation will not have a significant economic impact upon a substantial number of small entities. This rule allows certain Haitian nationals to apply for adjustment of status; it has no effect on small entities as that term is defined in 5 U.S.C. 601(6).

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

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

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

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

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

The information collection requirement contained in this rule (Form I-485 Supplement C) has been revised. Accordingly, it has been submitted and approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act. The changes to the form are effective with the issuance of this rule.

The President's June 1, 1998, Memorandum published at 63 FR 31885, concerning Plain Language in Government Writing, applies to this proposed rule.

What Are the Basic Provisions of Section 202 of NACARA and the Interim Regulation Published on May 21, 1998?

The Nicaraguan Adjustment and Central American Relief Act (NACARA), enacted as title II of the District of Columbia Appropriations Act, 1998, Public Law 105-100 (111 Stat. 2160, 2193), was signed into law on November 19, 1997. As amended by Public Law 105-139 (111 Stat. 2644), which was signed into law the same day, section 202 of NACARA allows certain Nicaraguan and Cuban nationals who are physically present in the United States to adjust status to that of lawful permanent resident. In order to be eligible for benefits under NACARA, an applicant must be a national of Nicaragua or Cuba; must be admissible to the United States under all provisions of section 212(a) of the Immigration and Nationality Act (Act), other than those provisions specifically excepted by NACARA; must have been physically present in the United States for a continuous period beginning not later than December 1, 1995, and ending not earlier than the date the application for adjustment is filed (not counting absences totaling 180 days or less); and must properly file an application before April 1, 2000. In addition, certain family members of NACARA beneficiaries are also eligible for adjustment of status under NACARA.

The interim regulation published in the Federal Register by the Department of Justice (Department) on May 21, 1998, explained the forms, supporting documentation, and process through which a principal applicant, or an applicant who is a dependent of a principal applicant, may apply for adjustment of status under section 202 of NACARA. It provided that an alien who is currently in exclusion, deportation, or removal proceedings may file his or her application with the immigration court, unless the immigration court administratively closes such proceedings for the specific purpose of allowing the alien to apply for adjustment before the Immigration and Naturalization Service (Service or INS). The regulation also added an eighth method to the seven contained in the statute for proving commencement of physical presence in the United States. Additionally, it explained the process through which a NACARA adjustment applicant may seek authorization to work in the United States or to travel outside of the country. Finally, the regulation provided a vehicle through which certain aliens who are outside the United States may seek authorization to be paroled into the country for the purpose of applying for adjustment of status.

There were 36 separate comments received from various organizations, individuals, and other interested parties. That number included three Members of Congress, one representative of a foreign government, numerous nongovernmental organizations, and several attorneys and law firms. Also included in that number are 2 petitions, 1 with 426 signatures and the other with 66 signatures, and 124 identical letters signed by the members of 1 organization, making a total of 649 individuals and organizations who participated in the public comment process. The Department wishes to thank all participants for their insightful comments.

The issues raised by commenters generally fell into 14 areas, each of which will be discussed separately, as follows:

A significant number of commenters expressed concern about the requirement that a spouse or child of a principal applicant be a national of Nicaragua or Cuba in order to qualify for the benefits of section 202 of NACARA. Some questioned whether the language of the statute specified that the dependent be a national of Nicaragua or Cuba, while others recognized that the language so specified, but felt that the agency has the authority to “correct” the language through regulation. Still other commenters suggested that the Department create a family unity program for ineligible dependents and provide them with a blanket waiver of section 212(a)(9)(B) of the Act (which creates a 3-year bar for aliens who have been unlawfully present for more than 180 days and a 10-year bar for those who have been unlawfully present for 1 year or more). While the Department is sympathetic to the problem faced by non-Nicaraguan, non-Cuban dependents, section 202(d)(1)(A) of NACARA clearly states that the alien spouse must be “a national of Nicaragua or Cuba.” While the courts have held that an agency has a certain amount of latitude in drafting implementing regulations if the statute is unclear on an issue, the agency has no such latitude where the statute is clear. Only a statutory change can redress the issue of eligibility for non-Nicaraguan and non-Cuban dependents. Likewise, a statutory change would be required to create a family unity program for ineligible dependents and to waive the provisions of section 212(a)(9)(B) of the Act. Accordingly, no changes are being made to the regulation on this point.

Some commenters wanted clarification in the regulation on whether sections 212(a)(6)(B), 240B(d), 241(a)(5) (and also by extension 212(a)(9)(C)), and “the former section 242B” of the Act applied to NACARA applicants. One party also requested information regarding the number of persons affected by section 241(a)(5) of the Act. Although incorporating a discussion of each of these provisions in 8 CFR 245.13 would unnecessarily complicate the regulation, we have decided to address them in this supplementary information.

Section 212(a)(6)(B) of the Act provides that if an alien failed to attend a removal hearing, he or she is inadmissible for a period of 5 years from his or her subsequent departure or removal. In order to be barred from adjusting status under NACARA, an alien would (1) have to fail to attend a removal hearing; (2) depart or be removed from the United States; (3) re-enter the United States; and (4) apply for adjustment under NACARA. If any of these four steps is missing, the alien would not be inadmissible under section 212(a)(6)(B) of the Act; if all four are present, he or she would be inadmissible and, therefore, ineligible for adjustment of status under section 202 of NACARA.

If an alien was permitted to depart voluntarily but failed to do so, he or she would be barred by section 240B(d) of the Act from receiving benefits under certain specified provisions of the Act. Because a NACARA applicant would not be seeking benefits under one of the sections specified in section 240B(d) of the Act, section 240B(d) of the Act would not apply.

Section 241(a)(5) of the Act provides for the reinstatement of a removal order against any alien who illegally re-enters the United States after having been removed or after having departed voluntarily under an order of removal. It also bars any alien whose removal order has been reinstated from receiving any relief under the Act. An alien who has been previously deported is inadmissible for the applicable period set forth in the Act and may only overcome such inadmissibility by obtaining the applicable waiver of inadmissibility authorized under section 212(a)(9) of the Act (such waiver is more commonly referred to as permission to reapply for admission after deportation) before being granted adjustment of status (including adjustment under section 202 of NACARA). Because such a waiver is relief (from inadmissibility) under the Act for which an alien subject to reinstatement is ineligible, a previously deported alien who has re-entered the United States illegally at a time when his or her previous exclusion, deportation, or removal rendered him or her inadmissible to the United States is ineligible to adjust status under section 202 of NACARA. The Service does not know how many otherwise-eligible Nicaraguans and Cubans are barred from adjusting under section 202 due to the provisions of section 241(a)(5) of the Act, but judging solely from the volume of inquiries received on the issue, the number may be significant.

The issue of a previous exclusion, deportation, or removal also arises in connection with section 212(a)(9)(C)(i)(II) of the Act, which provides that:

The former section 242B of the Act was replaced by section 308(b)(6) of IIRIRA, and incorporated into the new section 240(b)(7) of the Act. That section bars an alien against whom a final order of removal is entered in absentia from eligibility for relief under certain specified sections of the Act. As with section 240B(d) of the Act, because a NACARA applicant is seeking adjustment under a provision of law that is separate from the Act, section 240(b)(7) (formerly section 242B) of the Act does not apply.

Some commenters inquired whether someone who is already a lawful permanent resident (LPR) may “readjust” under NACARA in order to obtain some ancillary benefit. In accordance with Board precedent, see e.g., Matter of Krastman, 11 I&N Dec. 720, 721 (BIA 1966), the ability of an alien who is an LPR to apply for and be granted adjustment of status to that of an alien lawfully admitted for permanent residence is limited to cases in which the alien is at risk of losing his or her current LPR status, i.e., the alien has been found to be subject to removal from the United States. Otherwise, an alien who is currently an LPR would have to abandon that status by leaving the United States with the intent of abandoning his or her residence in the United States before he or she could be considered eligible for NACARA adjustment. Like other eligible aliens currently abroad, a former LPR whom the Service believes has abandoned his or her status may apply for, and may be granted, parole into the United States in order to file a NACARA adjustment application. However, since each parole request must be considered on its own merits and must be based on either urgent humanitarian reasons or significant public benefit, there are no guarantees that such a parole request would be approved. The alien could end up stranded outside the United States.

One commenter felt that, because NACARA was modeled after the Cuban Adjustment Act of 1966, any Nicaraguan or Cuban who had been in the United States for 1 year should be allowed to adjust status. While there are certain similarities between the two statutes, there are also significant differences, including differences relating to the eligibility requirements. Merely being present in the United States for a year does not enable someone to apply for adjustment of status under NACARA.

Some commenters wanted the Department to provide an exception for those aliens who were deported from the United States more than 180 days before the NACARA enactment date and who as a result had already been absent for more time than allowed under section 202(b)(1) of NACARA. This suggested change exceeds the agency's rulemaking authority and could only be accomplished through new legislation.

In the supplementary information relating to the interim regulation, the Department specifically requested suggestions from interested parties concerning the documentation that may be used to establish physical presence in the United States on or prior to December 1, 1995. In particular, the Department stated that it was:

The Department received a number of suggestions regarding this matter. The suggestions ranged from expanding the list to include any type of governmental or nongovernmental document or affidavit that the applicant wishes to submit, to condensing the list by limiting it to documents issued by an agency of the Federal Government and excluding documents issued by State and local authorities. Some commenters wanted the Department to accept documents issued by certain private service providers, such as physicians, attorneys, nonpublic schools, and the clergy. Other commenters wanted the Department to give special consideration to persons who, through the nature of their presence in the United States, did not create a “paper trail,” such as domestic servants and elderly “stay-at-homes.” One commenter proposed that the Department accept any documents that were dated by the government at the time of issuance or receipt, including labor certification requests submitted by employers to the Department of Labor and visa petitions submitted to the Service.

Many commenters did not make suggestions as to how the Service could improve its ability to detect and deter fraud. Others took the view that the Service already has sufficient capability to detect and deter fraud through its interview and investigation procedures, and that there is no greater risk of fraud in NACARA applications than in other adjustment applications.

In addition, some commenters wanted the Department to clarify that under the existing regulations, the Form I-94, Record of Arrival and Departure, issued by the Service at the time of the alien's inspection and admission or parole is acceptable evidence of commencement of physical presence; others wanted the Department to clarify that the proof of commencement may relate to any time at or after entry and any time on or before December 1, 1995.

After carefully reviewing all of the comments in this regard, the Department has chosen not to expand the categories to include documents that are not based upon governmental records for the following reasons. The enumerated categories in the statute itself give strong indication that Congress intended that applicants provide the most reliable and readily verifiable evidence of the commencement of physical presence in the United States on or before December 1, 1995. Evidence in the form of contemporaneous governmental records (or copies of such contemporaneous records) provides the most reliable and readily verifiable means of documenting such physical presence. Nongovernmental records are generally more difficult to verify. Affidavits submitted by the applicant without independent corroboration raise serious reliability issues. Affidavits submitted by allegedly disinterested third parties on behalf of the applicant would also be problematic in that such affidavits would not provide a contemporaneous accounting of the relevant facts and therefore raise additional reliability concerns. In light of the foregoing, the Department does not think it prudent to extend the categories of documents that can be used to demonstrate commencement of physical presence beyond those set forth in the interim regulation, with one exception.

This one exception will allow an applicant who had attended a recognized private or religious school as a child ( i.e., under 21 years of age) to submit a transcript from that school as evidence of commencement of presence in the United States on or before December 1, 1995. This exception is being included in the regulation to ensure parity with the provisions of the regulation pertaining to the Haitian Refugee Immigration Fairness Act (HRIFA), which is in many ways comparable to section 202 of NACARA.

With this one exception, the Department will not expand the categories to include documents that are not based on governmental records. In so doing, the Department does not want to leave the impression that it is disparaging the recordkeeping processes or the integrity of nongovernmental organizations and individuals. Nor is the Department under the illusion that all governmental records are entirely reliable. Experience has shown, however, that governmental records are generally easier to verify than nongovernmental records.

Although one commenter correctly pointed out that the statutory list contains only documents that can be verified through the records of the Federal Government, the Department does not feel that it has sufficient justification at this time to make the requirement more restrictive.

The Department is, however, adopting the suggestions of those commenters who proposed that the list be expanded to include other documents for which governmental records exist. Beginning on the effective date of this final rule, the Department will accept as evidence of commencement of physical presence a certified copy of a Federal, State, or local governmental record that was created on or prior to December 1, 1995, shows that the applicant was present in the United States at the time, and establishes that the applicant sought on his or her own behalf, or some other party sought on the applicant's behalf, a benefit from the Federal, State, or local governmental agency maintaining such record. Additionally, the Department will accept as evidence of commencement of physical presence a certified copy of a Federal, State, or local governmental record that was created on or prior to December 1, 1995, that shows that the applicant was present in the United States at the time, and establishes that the applicant submitted an income tax return, property tax payment, or similar submission or payment to the Federal, State, or local governmental agency maintaining such record. These changes will allow applicants to use records such as income tax returns, labor certification requests, and immigrant visa petitions. If the record involved is maintained by the Service, such as an immigrant visa petition, the copy need not be certified.

The interim regulation set forth a lower standard for documents evidencing continuity of presence, allowing applicants to submit both governmental and nongovernmental documents, so long as the document “bears the name of the applicant, was dated at the time it was issued, and bears the signature of the authorized representative of the issuing authority.” 8 CFR 245.13(e)(3). The interim regulation also provided a general guideline which stated that submission of one document for each 90-day period since December 1, 1995, would normally be sufficient to establish continuity. Id .

The Department received numerous comments regarding evidence needed to establish continuity of presence. One commenter suggested that evidence pertaining to a child (such as school records) should also apply to other family members. Another suggested that a letter from a landlord, utility, or bank detailing the records of that person or organization should be acceptable. Still others recommended accepting affidavits from employers or requiring no documentation at all.

In response to these suggestions, the Department has decided to expand the list of documents that may be used to establish continuity of physical presence to include certified copies of records maintained by organizations chartered by the government, such as public utilities, accredited private and religious schools, and banks. Additionally, if the applicant establishes that a family unit was in existence and cohabiting in the United States, documents evidencing presence of one member of that family unit may be used by other members of that same family unit. Letters and affidavits created after the fact, regardless of the source, will not be acceptable.

A number of commenters pointed out that many documents do not normally bear the signature or seal of the originator, including many documents that are listed in the interim regulation as acceptable, such as utility bills and other receipts, employment records, and credit card statements. The Department is modifying the regulation to state that if the document is normally signed, sealed, issued on letterhead stationary, or otherwise authenticated, it must bear such indication of authenticity.

One commenter pointed out that the reference in the interim regulation to “pay checks” should read “pay stubs” since the applicant would cash, not retain, the former, but might retain the latter. This correction is being made.

Some commenters suggested that the Department be flexible with regard to persons who have not created a “paper trail” such as domestics and the elderly. Others suggested that adjudicators be given a wide range of latitude with regard to continuity documents in general, urging the Department to be flexible with regard to the 90-day guideline.

Adjudicators already have a fair amount of latitude with regard to issues involving continuity of presence. The 90-day guideline was never intended to be a hard-and-fast rule, but rather more of a suggestion designed to guide applicants in judging the amount of documentation to submit. An adjudicator who is otherwise satisfied could always accept less frequent documentation as evidence of continuity of physical presence. Likewise, an adjudicator who has doubts about the alien's claim of continuity could request additional, and more frequent, documentation.

However, the Department has determined that the guideline, which had been intended to ease the burden on applicants by assisting them in gauging how much documentation to submit, might instead become a hindrance and may result in some applicants believing that without a certain minimum amount of documentation they are ineligible to apply for or receive the benefit of adjustment of status under NACARA. Accordingly, the Department is removing the guideline from the regulation, and applicants should simply submit sufficient documentation to satisfy the adjudicating officer or immigration judge that they have maintained continuous presence in the United States within the meaning of NACARA.

As with evidence of commencement, some commenters believed that the fraud risk relating to continuity of presence was no greater than in other applications, and that the Service's existing resources were sufficient to detect and deter fraud. Others felt that the potential for fraud in adjustment of status under NACARA is quite high, and that the regulation should be carefully drafted in order to combat such fraud. The Department takes a very serious view of the potential for fraud involved in applications for adjustment of status under section 202 of NACARA, and finds that regardless of whether or not the fraud potential is greater than that pertaining to other applications, there is certainly no reason to decrease the minimal level of fraud deterrence embodied in the interim regulation.

Finally, the regulation is being modified to clarify one point regarding continuity of presence that some persons may have misinterpreted. The statute allows an applicant to be absent from the United States for up to 180 days after establishing physical presence on or prior to December 1, 1995. Some persons have erroneously interpreted this to mean that absences between the last (pre-December 2, 1995) date on which the applicant commenced physical presence and December 1, 1995, do not count toward the 180-day maximum. The correct interpretation is that all absences between the last pre-December 2, 1995, date on which the applicant commenced physical presence and the date on which the application is approved count toward the 180-day maximum, with the exception of those periods for which time is tolled pursuant to § 245.13(o).

Several commenters were concerned about the requirement that applicants for adjustment under NACARA submit local police clearances, finding it burdensome at best, and impossible to meet at worst. Some wanted the provision modified to allow for statewide (instead of local) clearances, others wanted it waived for minors or where the applicant's local police department refuses to issue a clearance; still others wanted it dropped entirely.

Although there is considerable value in obtaining local police clearances in addition to the nationwide fingerprint clearance, for certain individuals obtaining such local clearances may be extremely difficult or impossible through no fault of the individual. Accordingly, the final regulation is being modified to allow the director or immigration judge having jurisdiction over the application to waive the local police clearance. This waiver will be available upon presentation of a letter or similar documentation from the local police agencies involved showing that the applicant attempted to obtain such clearance but was unable to do so because of local or State policy.

Additionally, for persons who live, or have lived, in locations where the local authorities have made a blanket decision not to issue such clearances for immigration purposes, the regulation is being modified to provide a general exemption from the local police clearance requirement insofar as it relates to time periods when the applicant resided in that locale. One example of such location is New York City.

The regulation is being further clarified to explain that where multiple local law enforcement agencies have jurisdiction over an alien's residence (e.g., city police and county sheriff), the applicant may obtain a clearance from either agency, and that for those individuals living in states where the state police maintain a compilation of all local arrests and convictions, a statewide clearance is sufficient.

One commenter suggested that all applicants be required to establish nationality through a birth certificate that has been certified by the issuing governmental authority in accordance with 8 CFR 287.6(b).

All applicants are required to meet the proof of official records requirements set forth in 8 CFR 287.6 which, with regard to all documents submitted in support of this and other applications, requires either an official publication of the record, or a copy attested to by an authorized official. However, it should be noted that the Service regulation at 8 CFR 103.2(b) permits submission of secondary evidence and photocopies of documents under certain circumstances.

One commenter requested that the regulation clarify whether the applicant must pay an additional $25 fee for fingerprinting, in addition to the regular fee for filing an application for adjustment of status. Each applicant who is 14 years of age or older must be fingerprinted and must pay the fingerprinting fee at the time of filing the application for adjustment. The regulation has been clarified in this regard.

The Department received a number of comments on the employment authorization issuance process. As set forth in the interim regulation, the current process involves the Service's issuing employment authorization on an expedited basis to those applicants whose application is supported by evidence that may be verified through existing Service records. Other applicants must wait up to 180 days (the maximum timeframe allowed under the statute) while the Service adjudicates the application for adjustment of status. A number of commenters, citing the potential hardship to applicants, wanted the Service to issue employment authorization to all applicants immediately upon filing; one, citing the need to deter fraud, wanted the Service to wait the full 180 days in all cases; and one supported the process as set forth in the interim regulation. Upon examination of all the comments, the Department has concluded that the process set forth in the interim regulation provides the best balance between deterring fraud by mala fide applicants and alleviating financial hardship for bona fide applicants. Accordingly, no changes are being made with regard to the work authorization issue.

Some commenters pointed out the apparent conflict between the statement in the interim rule's supplementary information that the Department “will authorize employment for applicants whose cases have been pending for fewer than 180 days only if the applicant applies for work authorization and adjustment at the same time,” and the lack of such concurrent filing requirement in § 245.13(j)(2). The Department has decided not to require that an applicant file concurrently in order to benefit from the more expedited of the two procedures. Accordingly, the language in the interim regulation will not be changed.

Several commenters expressed concern about the provisions in the interim regulation that allow the Director of the Texas Service Center (TSC) to authorize parole for aliens outside the United States. One questioned the authority of the Attorney General (acting through the Director of the TSC) to authorize parole under these circumstances; a second did not want the Director of the TSC to authorize any paroles for persons to come to the United States; a third wanted the regulation to eliminate, or at least to restrict greatly the Director of the TSC's ability to authorize parole; and a fourth sought assurance that the Service would use a “tighter screening mechanism” to prevent abuse.

An explanation of the parole process, and how it relates to the NACARA adjustment program, may help to clarify the Service's approach. The authority to authorize parole into the United States is contained in section 212(d)(5) of the Act, which states:

The Attorney General has delegated her authority to authorize parole to the Commissioner of the Immigration and Naturalization Service. In the case of an alien who is seeking parole from outside the United States, that authority is normally redelegated to the Director of the INS Office of International Affairs and to the overseas district director having jurisdiction over the area in which the alien is located. The effect of the May 21, 1998, regulation was to expand the list of persons to whom this authority has been re-delegated to include the Director of the TSC for NACARA-related parole requests only. There have been no changes in the process for requesting, the standards for adjudicating, or the statutory authority for issuing parole. Parole determinations will still be made on a case-by-case basis, and the applicant for parole will still have to establish that urgent humanitarian reasons or significant public benefits exist. If the evidence shows that the positive factors (such as the desirability of reuniting a family or allowing an otherwise-eligible alien to participate in this special adjustment of status program which Congress has established) are outweighed by negative discretionary factors, the parole request will be denied as a matter of discretion. Minor changes have been made in the regulation at § 245.13(k) to clarify this point.

One commenter did not want the Department to issue parole authorization to any alien who returned to his or her home country during any portion of the 180 days of absence from the United States permitted by section 202(b)(1) of NACARA. Although the suggestion might be appropriate if NACARA were to require the applicant to establish, for example, that he or she would risk persecution or extreme hardship if he or she went home, there is no such requirement, and the commenter's suggestion will not be adopted.

One commenter felt that if the Service revoked the alien's parole, the regulation should either require the district director to make a bond redetermination or authorize the immigration judge to set bond. As indicated in the passage cited above, when parole is terminated the alien is returned to the custody of the Service and is treated as any other applicant for admission. Under existing statutory and regulatory provisions, the district director then has the option of placing the alien into removal proceedings, admitting the alien (if he or she is admissible), or reparoling the alien. If the decision is to admit or reparole the alien, the district director may require that certain conditions be met, including the posting of an appropriate bond. See 8 CFR §§ 212.5(c)(1), 214.1(a)(3).

One commenter suggested that the regulation be modified to allow an alien whose application for adjustment is denied by the Service to renew his or her application in proceedings before the Immigration Court regardless of whether the proceedings occur before or after the March 31, 2000, expiration date of the NACARA program. Although section 202(a)(1)(A) of NACARA provides that applications for adjustment must be filed by March 31, 2000, section 202(e) of NACARA also provides that applicants for adjustment of status shall have the same right to, and procedures for, administrative review as are provided to other applicants for adjustment under section 245 of the Act, or aliens subject to removal proceedings under section 240 of the Act. The Department interprets the deadline in section 202(a)(1)(A) of NACARA as relating only to the initial application for adjustment and not to any renewed application in removal proceedings following a denial of the initial application by the Service, provided that initial application was properly filed. The regulation is being modified accordingly.

Another commenter contended that all initial applications must be filed before the Service, and that EOIR only has appellate jurisdiction. The Department does not agree. The authority to adjudicate applications for adjustment of status under section 202 of NACARA rests with the Attorney General. It is well within her authority to assign initial jurisdiction over the applications to the Service (for those aliens who are not in removal proceedings) and to the Immigration Court (for those aliens who are in such proceedings), and to provide that the Board of Immigration Appeals has appellate jurisdiction over cases decided by immigration judges. This arrangement is in keeping with the provisions of section 202(e) of NACARA.

One commenter suggested that aliens in proceedings before the Immigration Court be afforded the option of applying for adjustment before either the Service or the Immigration Court. Section 245.13(d)(3) already provides an alien in proceedings with a mechanism by which he or she may request administrative closure of such proceedings for the purpose of seeking adjustment of status under section 202 of NACARA before the Service.

One commenter suggested that aliens whose requests for administrative closure are granted be required to apply for adjustment before the Service within a fixed number of days of the granting of administrative closure. The Department considered this approach when drafting the interim regulation, but concluded that the difficulties inherent in administering it would far exceed any benefits.

Finally, one commenter suggested that for those cases which are referred to an immigration judge on a Form I-290C, Notice of Certification, for a “NACARA-only hearing” because the applicant had already been subject to an order of exclusion, deportation, or removal at the time the application was filed, the “NACARA-only hearing” should be conducted under the same rules of procedure as the proceeding in which the alien received the order of exclusion, deportation, or removal. Under this suggestion, an alien who was placed in exclusion or deportation proceedings prior to the enactment of IIRIRA would not be subject to the post-IIRIRA Immigration Court procedures. The Department does not agree with this suggestion, since the “NACARA-only hearing” is a new proceeding, not a reopening of the old exclusion or deportation proceeding.

One commenter suggested that the interim rule implicated the Unfunded Mandates Reform Act of 1995. The interim rule merely implements a statutory provision providing permanent residency for certain qualified aliens. Neither the statute nor the interim rule mandates a State or local jurisdiction to provide any services not already provided to aliens who adjust their status to that of lawful permanent resident under other provisions of immigration law. The Department has no reason to believe that the implementation of section 202 of NACARA will result in any expenditures by State or local governments that are in contravention of the Unfunded Mandates Act.

The Department received a wide range of comments regarding waiver of interviews. One commenter stated that all applicants should be interviewed; a second wanted fewer restrictions on the types of interviews the Director of the TSC can waive; and a third wanted the Service to waive interviews for all children under age 14. It is important to remember that the Service does not waive interviews in order to avoid work for itself or inconvenience to the applicant, but rather because doing so enables it to concentrate its limited resources on those cases most warranting interview. The Department believes this can be best accomplished by giving the Director of the TSC the authority to waive interviews only in those cases that, first, are supported by evidence of commencement of physical presence that can be verified through Service records; second, have no unresolved questions about the applicant's eligibility; and third, do not require a waiver of inadmissibility. Accordingly, no changes will be made in the regulation in this regard.

A number of commenters felt that the Service should either grant stays of removal to all applicants for adjustment of status under section 202 of NACARA ( i.e., without fee or application), or require the application but waive the fee. Most of those who expressed the former view cited subsections 202(c)(1) and (2) of NACARA in support of their view. However, those subsections read:

Taken together, these two subsections clearly indicate that Congress intended that, with regard to any alien who is the beneficiary of a properly-filed application for adjustment of status under section 202 of NACARA and who is in exclusion, deportation, or removal proceedings before an immigration judge, or whose case is on appeal to the Board of Immigration Appeals (the Board), neither the immigration judge nor the Board may issue an order of exclusion, deportation, or removal unless and until the application for adjustment is denied. The alien does not need to file any request, motion, or other form beyond the application for adjustment itself in order to benefit from this automatic protection.

There is no such automatic protection with regard to an alien who became the subject of a final order of exclusion, deportation, or removal prior to his or her filing the application for adjustment under section 202 of NACARA. If the alien wishes to receive protection from the enforcement of an existing order of exclusion, deportation, or removal, he or she must “seek a stay of such order.” The process for seeking a stay of removal is to file Form I-246, Application for Stay of Removal, and pay the required fee, through the local Service office. It must be noted that the filing of Form I-246 is not a prerequisite to applying for, or being granted, benefits under section 202 of NACARA; the decision to seek a stay of removal is strictly up to the alien. Accordingly, no change will be made to the regulation regarding the process for seeking a stay of removal. However, the Department does see a need for guidelines on the adjudication of such request for stay of removal. Accordingly, the regulation is being modified to reflect that, absent significant negative discretionary factors, if an alien files Form I-246, pays the fee, and submits evidence of the filing of an application for adjustment of status under section 202 of NACARA, execution of the order of exclusion, deportation, or removal shall be stayed until a decision is reached on the application for adjustment of status.

One commenter pointed out that the regulation, as published in the Federal Register on May 21, 1998, contained a typographical error in 8 CFR 245.13(e)(2) wherein “1997” was typed instead of “1995”. The May 21, 1998, version also contained the typographic error “Untied” instead of “United” in § 245.13(e)(12). These errors are being corrected. It should also be noted that on June 29, 1998, and again on July 21, 1998, the Federal Register published notices correcting two other typographical errors in the May 21 version. The first notice corrected the first sentence of the segment of the supplementary information entitled “What Happens if an Application is Denied by the Immigration Court?” to read: “If the Immigration Court denies the NACARA adjustment application of an alien in exclusion, deportation, or removal proceedings before the Immigration Court, the decision may be appealed to the Board along with and under the same procedures as all other issues before the Immigration Court in those proceedings.” The second notice corrected the reference in § 240.41 to read “Public Law 105-100” instead of “Pub L. 100”; it also corrected the amendatory language for the appropriate phrase in § 274a.13(d) to read “§ 274a.12(c)(8), which is governed by paragraph (a)(2) of this section, and § 274a.12(c)(9) insofar as it is governed by § 245.13(j) of this chapter.”

A second commenter requested that the Department incorporate into the regulation a number of issues that were discussed in the supplementary information. In particular, the commenter wanted the Department to include in the regulation provisions specifying the procedure and language used by the Service to notify an alien whose application has been approved of the delivery of the Permanent Residence Card and the process for obtaining temporary evidence of alien registration. The commenter also wanted the Department to include in the regulation provisions specifying the procedure and language used by the Service to notify an alien whose application has been denied of the Service's decision and the right to renew the application for adjustment in proceedings before an immigration judge. Finally, the commenter requested that the regulation contain more specificity regarding the process by which the Board may remand a case to the immigration judge. Several of these suggestions have been adopted, especially where needed for purposes of clarity. Other suggestions pertained to matters that are standard to the adjudication process and are either already covered elsewhere in the regulation or are so basic as to not warrant special coverage in this particular section of the regulation.

Additionally, the Department has noted that in the interim regulation published on May 21, 1998, it failed to provide a mechanism whereby persons outside the United States who are seeking parole authorization pursuant to § 245.13(k)(2) and who must file either an Application for Permission to Reapply for Admission to the United States After Deportation or Removal (Form I-212) or an Application for Waiver of Grounds of Excludability (Form I-601) could file such applications concurrently with the request for parole authorization. This oversight has been corrected by making slight modifications to §§ 212.2 and 212.7. These modifications will allow such applicants to file Forms I-212 and I-601 with the Director of the TSC concurrently with the Form I-131.

Finally, it has come to the Department's attention that the application of current regulations (8 CFR § 103.2(a)(7)) and practice to NACARA applications filed with fee waiver requests may inadvertently result in certain applicants later being deemed to have missed the application deadline due to no fault on the part of the applicant. Currently an application submitted with a fee waiver request is not considered properly filed and does not retain a receipt date until the fee waiver is granted. In cases where a fee waiver is denied, the application is returned to the applicant with instructions to resubmit the application with the appropriate fee at which time the application will be considered properly filed and will be assigned a receipt date. Thus, under current regulations and practice were the Service or Immigration Court to deny a request for a waiver of the NACARA application fee after March 31, 2000, and return the application, the alien could not file another application with the fee because the filing deadline would have already passed. Given the statutorily mandated filing deadline of March 31, 2000, the Department believes that it would be appropriate to modify the regulations with respect to this group of cases to avoid a potentially harsh and irreversible result. Accordingly, the regulations are being amended to afford an applicant whose NACARA fee waiver request is denied the opportunity to submit the required fee within 30 days of notice that the fee waiver request was denied and thereby maintain a timely filing date.

In addition, in a case over which the Board has jurisdiction, an application received by the Board before April 1, 2000, that has been properly signed and executed is considered to be filed before the statutory deadline without payment of the fee or submission of a fee waiver request. Upon remand by the Board, the payment of the fee or a request for a fee waiver is made upon submission of the application to the Immigration Court in accordance with 8 CFR 240.11(f). The regulations are being amended to afford an applicant whose NACARA adjustment fee waiver request is denied the opportunity to submit the required fee within 30 days of the notice that the fee waiver request was denied. If the required fee is not paid within 30 days, the applicant will no longer be considered to have filed a timely NACARA adjustment application.

The Department's implementation of this final rule effective upon publication in the Federal Register is based upon the “good cause” exception found at 5 U.S.C. 553(d)(3). By statute, all NACARA adjustment applicants must file their applications before April 1, 2000. Immediate implementation of this final rule is necessary to ensure that NACARA applicants are able to avail themselves of the modifications made in this final rule as soon as possible before the end of the application period. Accordingly, delaying the effective date of this final rule for 30 days would be contrary to the public interest.

In accordance with 5 U.S.C. 605(b), the Attorney General certifies that this rule does not have a significant adverse economic impact on a substantial number of small entities. This rule allows certain Nicaraguan and Cuban nationals to apply for adjustment of status; it has no effect on small entities as that term is defined in 5 U.S.C. 601(6).

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

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

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

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

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

The information collection requirement contained in this rule (Form I-485 Supplement B) has been revised. Accordingly, it has been submitted and approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act. The changes to the form are effective with the issuance of this rule.

The President's June 1, 1998, Memorandum published at 63 FR 31885, concerning Plain Language in Government Writing, applies to this proposed rule.

The Direction Generale De L'Aviation Civile (DGAC), the airworthiness authority for France, recently notified the FAA that an unsafe condition may exist on Eurocopter France Model SA330F, SA330G, SA330J, AS332C, AS332L, AS332L1, and AS332L2 helicopters. The DGAC advises withdrawing tail rotor blades, part numbers (P/N) 332A12-0010, -0020, -0030, -0035, and -0045, and all dash numbers of these P/N, from service by March 31, 2000, due to an accident caused by a lightning strike on a tail rotor blade, P/N 332A-12-0010, fitted on an AS332 helicopter.

Eurocopter France has issued Service Bulletins 01.57 for the Models SA330 and 01.00.59 for the Models AS332, both dated November 23, 1999, which specify withdrawing tail rotor blades, P/N 332A12-0010, -0020, -0030, -0035, -0045, and all dash numbers of these P/N, from service. The DGAC classified these service bulletins as mandatory and issued AD's 2000-002-081(A) and 2000-003-075(A), both dated January 12, 2000, to ensure the continued airworthiness of these helicopters in France.

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

Since an unsafe condition has been identified that is likely to exist or develop on other Eurocopter France Model SA330F, SA330G, SA330J, AS332C, AS332L, AS332L1, and AS332L2 helicopters of the same type designs registered in the United States, this AD is being issued to prevent failure of a tail rotor blade due to a lightning strike. This AD requires removing from service any tail rotor blade, P/N 332A-12-0010, -0020, -0030, -0035, and -0045, and all dash numbers of these P/N. The actions are required to be accomplished in accordance with the service bulletins described previously. The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the controllability and structural integrity of the helicopter. Therefore, removing and replacing these tail rotor blades are required before further flight after April 30, 2000, and this AD must be issued immediately.

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

The FAA estimates that 7 helicopters will be affected by this AD, that it will take approximately 2 work hours to accomplish removing and replacing the tail rotor blades, and that the average labor rate is $60 per work hour. Required parts will cost approximately $150,000 per helicopter. Based on these figures, the total cost impact of the AD on U.S. operators is estimated to be $1,050,840 to replace the tail rotor blades on the entire fleet.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2000-SW-06-AD.” The postcard will be date stamped and returned to the commenter.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to ECD Model MBB-BK 117 helicopters was published in the Federal Register on December 10, 1999 (64 FR 69208). That action proposed to require changing the retirement life for the bevel gear.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed except that the part number of the affected bevel gear has been added to the applicability paragraph and the limitations paragraph to more specifically identify the affected part. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

The FAA estimates that 130 helicopters of U.S. registry will be affected by this AD, that it will take approximately 0.5 work hour per helicopter to change the retirement life in the records, and 36 work hours to replace the bevel gear. Required parts will cost approximately $14,092 per helicopter. Based on these figures, the total cost impact of the AD on U.S. operators is estimated to be $2,116,660 to change the retirement life entry and to replace the bevel gear upon reaching 18,500 hours TIS for the entire fleet.

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

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas.

The FAA published this direct final rule with a request for comments in the Federal Register on January 18, 2000, (65 FR 2537). The FAA uses the direct final rulemaking procedure for a noncontroversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on April 20, 2000. No adverse comments were received, and, thus, this action confirms that this direct final rule will be effective on that date.

This amendment to 14 CFR part 71 revises the Class D Airspace at Alexandria England AFB, LA; revokes the Class D Airspace at Alexandria Esler Regional Airport, LA; and revises the Class E Airspace at Alexandria, LA. The closure of England AFB and subsequent name change to Alexandria International Airport and closure of the air traffic control tower at Esler Regional Airport have made this rule necessary. The intended effect of this proposal is to provide adequate controlled airspace for aircraft operating in the vicinity of Alexandria International and Esler Regional Airports.

Class D and E airspace designations are published in Paragraphs 5000 and 6005 respectively, of FAA Order 7400.9G, dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR § 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the order.

The FAA anticipates that this regulation will not result in adverse or negative comment and therefore is issuing it as a direct final rule. A substantial number of previous opportunities provided to the public to comment on substantially identical actions have resulted in negligible adverse comments or objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

Although this action is in the form of a final rule and was not preceded by a notice of proposed rulemaking, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rule 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 is 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 concern 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-ASW-10.” The postcard will be date stamped and returned to the commenter.

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

Further, the FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments and only involves an established body of technical regulations that require frequent and routine amendments to keep them operationally current. Therefore, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. Since this rule involves routine matters that will only affect air traffic procedures and air navigation, it does not warrant preparation of a Regulatory Flexibility Analysis because the anticipated impact is so minimal.

The FAA published this direct final rule with a request for comments in the Federal Register on January 21, 2000, (65 FR 3382). The FAA uses the direct final rulemaking procedure for a noncontroversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on April 20, 2000. No adverse comments were received, and, thus, this action confirms that this direct final rule will be effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on January 21, 2000, (65 FR 3381). The FAA uses the direct final rulemaking procedure for a noncontroversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on April 20, 2000. No adverse comments were received, and, thus, this action confirms that this direct final rule will be effective on that date.

Background

The final regulations that are the subject of this correction are under section 1296 of the Internal Revenue Code.

As published, the final regulations (TD 8867) contain an error in the title of the official signing the document.

The procedural rules that are the subject of this correction are the result of the Juvenile Justice and Delinquency Prevention Act of 1974.

As published, the procedural rules (TD 8848) contain a typographical error that need correction to be corrected.

Accordingly, the publication of the procedural rules (TD 8848), which were the subject of FR Doc. 99-32098, is corrected as follows:

The revised editions of the documents previously incorporated by reference are: (1) Fourth Edition of the American Petroleum Institute (API) Recommended Practice for Operation and Maintenance of Offshore Cranes (API RP 2D); (2) Sixth Edition of the API Specification for Quality Programs for the Petroleum and Natural Gas Industry (API Spec Q1); (3) Second Edition of the API Manual of Petroleum Measurement Standards (MPMS), Chapter 4, Proving Systems, Section 6, Pulse Interpolation (MPMS, Chapter 4, Section 6); (4) Second Edition of the API MPMS, Chapter 4, Proving Systems, Section 7, Field Standard Test Measures (MPMS, Chapter 4, Section 7); (5) American Society for Testing and Materials (ASTM) Standard Specification for Concrete Aggregates (ASTM Standard C 33-99a); (6) ASTM Standard Specification for Ready-Mixed Concrete (ASTM Standard C 94/C 94M-99); (7) ASTM Standard Specification for Portland Cement (ASTM Standard C 150-99); (8) ASTM Standard Specification for Lightweight Aggregates for Structural Concrete (ASTM Standard C 330-99); (9) ASTM Standard Specification for Blended Hydraulic Cements (ASTM Standard C 595-98); and (10) 1999 Edition of the NACE International Sulfide Stress Cracking Resistant Metallic Materials for Oilfield Equipment (NACE Standard MR0175-99).

MMS has reviewed these documents and has determined that the new editions must be incorporated into the regulations to ensure the use of the best and safest technologies. Our review shows that the changes between the old and new editions result in safety improvements or represent new industry standard technology and will not impose undue cost on the offshore oil and gas industry. Furthermore, the old editions are not readily available to the affected parties because they are out of publication. Therefore, we are amending these documents to incorporate the updated editions according to the authority in 30 CFR 250.198(a)(2). We are updating the appropriate sections of other subparts to reflect these document revisions.

The regulations for cranes and other material-handling equipment on fixed platforms were recently revised under § 250.108 for all operations on the OCS, including those for sulphur. However, crane operations for sulphur leases are also regulated under § 250.1605(g). For consistency, this technical amendment simply revises § 250.1605(g) to specify that sulphur operations follow the requirements in § 250.108 with respect to crane operations.

The rules being approved into the California SIP include: VCAPCD Rule 74.2, Architectural Coatings; MBUAPCD Rule 426, Architectural Coatings; and SBCAPCD Rule 323, Architectural Coatings. VCAPCD Rule 74.2 was submitted by the California Air Pollution Control District (CARB) to EPA on November 12, 1992. MBUAPCD Rule 426 and SBCAPCD Rule 323 were both submitted by CARB to EPA on March 3, 1997.

On March 3, 1978, EPA promulgated a list of ozone nonattainment areas under the provisions of the Clean Air Act, as amended in 1977 (1977 Act or pre-amended Act), that included the Ventura County, Monterey Bay, and Santa Barbara-Santa Maria-Lompoc Areas. 43 FR 8964, 40 CFR 81.305. On May 26, 1988, EPA notified the Governor of California, pursuant to section 110(a)(2)(H) of the 1977 Act, that the above districts' portions of the California SIP were inadequate to attain and maintain the ozone standard and requested that deficiencies in the existing SIP be corrected (EPA's SIP-Call).

On November 15, 1990, the Clean Air Act Amendments of 1990 were enacted. Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q. Section 110(a)(2)(A) of the Act requires that plans which are submitted to the EPA in order to achieve or maintain the National Ambient Air Quality Standards (NAAQS) contain enforceable emission limitations. The Ventura County Area is classified as severe and the Monterey Bay and Santa Barbara-Santa Maria-Lompoc Areas are classified as serious. 1

The State of California submitted many rules for incorporation into its SIP on November 12, 1992 and March 3, 1997, including the rules being acted on in this document. This document addresses EPA's direct-final action for VCAPCD Rule 74.2, Architectural Coatings; MBUAPCD Rule 426, Architectural Coatings; and SBCAPCD Rule 323, Architectural Coatings. These rules were adopted by the VCAPCD, MBUAPCD, and SBCAPCD on August 11, 1992, December 18, 1996, and July 18, 1996, respectively. VCAPCD Rule 74.2 was found to be complete on March 26, 1993. MBUAPCD Rule 426 and SBCAPCD Rule 323 were found to be complete on August 12, 1997. Findings of completeness are made pursuant to EPA's completeness criteria that are set forth in 40 CFR part 51 Appendix V. 2 These submitted rules are being finalized for approval into the SIP.

These rules control VOC emissions from architectural coatings. VOCs contribute to the production of ground level ozone and smog. These rules were originally adopted as part of the districts' efforts to achieve the NAAQS for ozone and in response to EPA's SIP-Call and the section 110(a)(2)(A) CAA requirement. The following is EPA's evaluation and final action for these rules.

In determining the approvability of VOC rules, EPA must evaluate the rules for consistency with the requirements of the CAA and EPA regulations, as found in section 110 and part D of the CAA and 40 CFR part 51 (Requirements for Preparation, Adoption, and Submittal of Implementation Plans).

In addition, these rules were evaluated against the general requirements of the CAA (section 110 and part D) 40 CFR part 52 and “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations—Clarification to Appendix D of November 24, 1987 Federal Register ” (EPA's “Blue Book”). In general, these guidance documents have been set forth to ensure that VOC rules are fully enforceable and strengthen or maintain the SIP.

On January 24, 1985, EPA approved into the SIP a version of Rule 74.2, Architectural Coatings, that had been adopted by the VCAPCD on November 22, 1983. VCAPCD submitted Rule 74.2, Architectural Coatings includes the following significant changes from the current SIP:

• Deletion of Section A1b in the SIP version to allow the sale of bituminous pavement sealers;

• Addition of 19 VOC limits and deletion of three VOC limits from the Table of Standards;

• A provision that the lowest VOC limit shall apply when a coating may fall under two or more categories;

• A requirement that all VOC-containing materials be stored in closed containers;

• A requirement that the maximum VOC content be displayed on coating containers;

• Deletion of Section B1 in the SIP version to remove the small business exemption;

• Exemptions for aerosol containers and emulsion-type bituminous pavement sealers;

• Removal of exemptions for 11 categories of coatings;

• Addition of test methods for determining the VOC, acid, and metal content of coatings; and

• Addition of 15, deletion of eight, and revision of 12 definitions.

On February 9, 1996, EPA approved into the SIP a version of Rule 426, Architectural Coatings, that had been adopted by the MBUAPCD on August 25, 1993. MBUAPCD submitted Rule 426, Architectural Coatings includes the following significant changes from the current SIP:

• Addition of a VOC limit to the Table of Standards;

• References to other MBUAPCD rules;

• Addition of three and revision of five definitions; and

• Addition of a test method for determining the gloss of non-flat coatings.

On July 14, 1995, EPA approved into the SIP a version of Rule 323, Architectural Coatings, that had been adopted by the SBCAPCD on March 16, 1995. SBCAPCD submitted Rule 323, Architectural Coatings includes the following significant change from the current SIP:

• Deletion of the definition of reactive organic compound found in Section C27 of the SIP to maintain consistency with the definition in SBCAPCD Rule 102, Definitions.

EPA has evaluated the submitted rules and has determined that they strengthen the applicable SIP and are consistent with the CAA and EPA policy. Therefore, VCAPCD Rule 74.2, Architectural Coatings; MBUAPCD Rule 426, Architectural Coatings; and SBCAPCD Rule 323, Architectural Coatings are being approved under section 110(k)(3) of the CAA.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve these SIP revisions should adverse comments be filed. This rule will be effective May 23, 2000 without further notice unless the Agency receives adverse comments by April 24, 2000.

If the EPA receives such comments, then EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Any parties interested in commenting on this rule should do so at this time. If no such comments are received, the public is advised that this rule is effective on May 23, 2000 and no further action will be taken on the proposed rule.

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

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

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

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

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

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

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

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

This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under sections 110 and 301, and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 23, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On the dates listed in Table 1, EPA proposed to approve requirements into the OCS Air Regulations pertaining to Santa Barbara County APCD, San Luis Obispo County APCD, South Coast AQMD, Ventura County APCD, and State of California. These requirements are being promulgated in response to the submittal of rules from local air pollution control agencies and the State of California. EPA has evaluated the proposed requirements to ensure that they are rationally related to the attainment or maintenance of federal or state ambient air quality standards or Part C of title I of the Act, that they are not designed expressly to prevent exploration and development of the OCS and that they are applicable to OCS sources. 40 CFR 55.1. EPA has also evaluated the rules to ensure that they are not arbitrary or capricious. 40 CFR 55.12(e). In addition, EPA has excluded administrative or procedural rules.

A 30-day public comment period was provided in each Proposed Rule, and no comments were received.

In this document, EPA takes final action to incorporate the proposed changes into 40 CFR part 55. No changes were made to the Proposed Rules listed in table 1. EPA is approving the proposed actions as modified under section 328(a)(1) of the Act, 42 U.S.C. 7627. Section 328(a) of the Act requires that EPA establish requirements to control air pollution from OCS sources located within 25 miles of states' seaward boundaries that are the same as onshore requirements. To comply with this statutory mandate, EPA must incorporate applicable onshore rules into Part 55 as they exist onshore.

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

Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

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

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

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

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

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

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

This final rule will not have a significant impact on a substantial number of small entities because consistency updates under section 328(a) of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the consistency update approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action.

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 23, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Analysis of reported landings for the directed North Atlantic swordfish fishery, the North Atlantic incidental swordfish fishery, and the South Atlantic directed swordfish fishery indicate that the quotas for those fisheries were not exceeded during the 1998 fishing year (June 1, 1998, through May 31, 1999). Under 50 CFR 635.27(c)(3)(ii), if total landings are above or below the specific North Atlantic swordfish annual quotas, they must be subtracted from, or added to, the following year's quota for that management area, provided quota modifications are consistent with applicable International Commission for the Conservation of Atlantic Tunas (ICCAT) recommendations. Further, any carryover adjustments to the 12-month directed catch quota for the North Atlantic swordfish fishery must to be apportioned equally between the two semiannual periods. Under 50 CFR 635.27(c)(2)(ii), incidental catch for North Atlantic swordfish may be reallocated to the directed catch quota if not expected to be taken in the incidental fishery before the end of the fishing year.

There is no ICCAT recommendation to modify the South Atlantic swordfish quota based on over or under harvests in prior years. Therefore, the annual quota for South Atlantic swordfish remains at the current quota level of 289 mt dw. There is no incidental catch quota in the South Atlantic swordfish fishery.

The adjusted annual directed fishery quota for North Atlantic swordfish for the 1998 fishing year was 2,392.3 mt dw. The adjusted quota for incidental harvests of North Atlantic swordfish for the 1998 fishing year was 314.6 mt dw (64 FR 4059, January 27, 1999).

The initial annual directed fishery quota for North Atlantic swordfish for the 1999 fishing year (June 1, 1999, through May 31, 2000) was previously established at 2033.2 mt dw and is divided into two equal semiannual quotas of 1016.6 mt dw, one for June 1 through November 30, 1999, and the other for December 1, 1999, through May 31 of 2000 (63 FR 31710, June 10, 1998). The initial catch quota for incidental harvests of North Atlantic swordfish for the 1999 fishing year is 300 mt dw.

The harvest of North Atlantic swordfish in the directed catch category for the 1998 fishing year is estimated to be 2,308.3 mt dw, or 84.0 mt dw below the directed catch quota of 2,392.3 mt dw. Additionally, the harvest of North Atlantic swordfish in the incidental catch category for the 1998 fishing year was 4.4 mt dw, or 310.2 mt dw below the incidental catch quota of 314.6 mt dw.

The 84.0 mt dw underage from the directed catch quota and the 310.2 mt dw underage from the incidental catch quota for the 1998 fishing year are added to the directed catch quota for the 1999 fishing year, for a revised North Atlantic swordfish directed catch quota of 2,427.4 mt dw. This adjusted annual quota is divided into 2 equal semiannual catch quotas of 1,213.7 mt dw, one for June 1, 1999, through November 30, 1999, and the other for December 1, 1999, through May 31, 2000. NMFS is currently examining landings reports from the first semi- annual period to determine if adjustments to the second period are required. Projections based on preliminary data from June 1, 1999, through January 31, 2000, suggest that a closure of the directed swordfish fishery prior to May 31, 2000, given the adjusted annual directed swordfish quota, will not be needed.

The incidental catch quota remains at 300 mt dw for the 1999 fishing year.

Under the swordfish limited access program established under the 1999 HMS FMP and implemented at 50 CFR 635.16, NMFS has issued incidental catch permits, and all catch by vessels so permitted will now be applied to the incidental catch quota. Thus, it is premature to consider reallocation of the incidental catch quota until NMFS examines logbooks of vessels with incidental catch permits.

This action is taken under 50 CFR 635.27(c). This action is exempt from review under E.O. 12866.