In an interim rule effective and published in the Federal Register on November 5, 1999 (64 FR 60333-60335, Docket No. 99-078-1), we amended the imported fire ant (IFA) regulations in 7 CFR part 301 by designating as quarantined areas portions of Los Angeles and Riverside Counties in California. We also amended the treatment provisions in the appendix to the IFA regulations by lowering the dosage rate of bifenthrin wettable powder for the treatment of containerized nursery plants.

Comments on the interim rule were required to be received on or before January 4, 2000. We did not receive any comments. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule.

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

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

This action affirms an interim rule that amended the IFA regulations by designating as quarantined areas portions of Los Angeles and Riverside Counties in California. As a result of that action, the interstate movement of regulated articles from those areas is restricted. The interim rule was necessary to prevent the artificial spread of the imported fire ant to noninfested areas of the United States.

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

There are approximately 1,219 agricultural entities in the newly regulated areas with annual sales totaling almost $1.29 billion. We have identified approximately 706 affected entities in the newly regulated areas, including wholesale nurseries producing bedding plants and woody ornamentals, wholesale nurseries producing woody ornamentals and turf, retail nurseries, soil moving contracting companies, and landscaping and yard maintenance companies. The majority of these entities would be considered small businesses. In 1997, the market value of nursery crop sales for the affected entities was $243,738,000. We do not know how many of the affected entities move regulated articles interstate; however, the availability of various IFA treatments, which permit the interstate movement of regulated articles with only a small additional cost, minimizes any adverse economic effects due to the interim rule. The average cost for treating a 1 gallon container, which contains one nursery plant, is 2 cents. The average treatment cost for a standard shipment of 10,000 nursery plants, worth anywhere between $10,000 and $250,000, is $200. Entities that do not move regulated articles interstate remain unaffected by the interim rule.

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

The imported fire ant regulations (contained in 7 CFR 301.81 through 301.81-10, and referred to below as the regulations) quarantine infested States or infested areas within States and restrict the interstate movement of regulated articles to prevent the artificial spread of the imported fire ant.

The imported fire ant, Solenopsis invicta Buren and Solenopsis richteri Forel, is an aggressive, stinging insect that, in large numbers, can seriously injure and even kill livestock, pets, and humans. The imported fire ant feeds on crops and builds large, hard mounds that damage farm and field machinery. The imported fire ant is not native to the United States. The regulations are intended to prevent the imported fire ant from spreading throughout its ecological range within the country.

The regulations in § 301.81-3 provide that the Administrator of the Animal and Plant Health Inspection Service (APHIS) will list as a quarantined area each State, or each portion of a State, that is infested with the imported fire ant. The Administrator will designate less than an entire State as a quarantined area only under the following conditions: (1) The State has adopted and is enforcing restrictions on the intrastate movement of the regulated articles listed in § 301.81-2 that are equivalent to the interstate movement restrictions imposed by the regulations; and (2) designating less than the entire State will prevent the spread of the imported fire ant. The Administrator may include uninfested acreage within a quarantined area due to its proximity to an infestation or its inseparability from an infested locality for quarantine purposes.

In §§ 301.81-3, paragraph (e) lists quarantined areas. We are amending § 301.81-3(e) by adding portions of Clark and Hot Springs Counties in Arkansas; Bertie, Camden, Chatham, Chowan, Currituck, Edgecombe, Gaston, Greene, Martin, Mecklenburg, Pasquotank, Perquimans, Wake, and Wayne Counties in North Carolina; and Decatur, Fayette, Franklin, Giles, Haywood, Henderson, Lewis, Lawrence, Lincoln, Madison, Marion, Marshall, McMinn, Meigs, Monroe, Moore, Perry, Rhea, and Shelby Counties in Tennessee. We are taking this action because recent surveys conducted by APHIS and State and county agencies reveal that the imported fire ant has spread to these areas. See the rule portion of this document for specific descriptions of the new quarantined areas. Interested parties may also view a map showing the imported fire ant infested areas in the continental United States on the Internet at http://www.aphis.usda.gov/oa/antmap.html.

We are also removing the references to the Imported Fire Ant Program Manual in the appendix to Subpart—Imported Fire Ant. Currently, in the appendix, under III. A., “Instructions to Inspectors” (at the beginning of the appendix), inspectors are instructed to know and follow instructions in the Imported Fire Ant Program Manual (relevant portions of which constitute the appendix), the PPQ Treatment Manual, the pesticide label, and exemptions for the treatment or other procedures used to authorize the movement of regulated articles. There is no relevant information in the Imported Fire Ant Program Manual that is not also in these other materials.

The Administrator of the Animal and Plant Health Inspection Service has determined that an emergency exists that warrants publication of this rule without prior opportunity for public comment. Immediate action is necessary to prevent the artificial spread of the imported fire ant into noninfested areas of the United States.

Because prior notice and other public procedures with respect to this action are impracticable and contrary to the public interest under these conditions, we find good cause under 5 U.S.C. 553 to make this action effective less than 30 days after publication. We will consider comments that are received within 60 days of publication of this rule in the Federal Register . After the comment period closes, we will publish another document in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the rule as a result of the comments.

This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review process required by Executive Order 12866.

This action amends the imported fire ant regulations by designating as quarantined areas all or portions of 2 counties in Arkansas, 14 counties in North Carolina, and 19 counties in Tennessee. This action is necessary to prevent the artificial spread of the imported fire ant to noninfested areas of the United States.

This emergency situation makes timely compliance with section 604 of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) impracticable. We are currently assessing the potential economic effects of this action on small entities. Based on that assessment, we will either certify that the rule will not have a significant economic impact on a substantial number of small entities or publish a final regulatory flexibility analysis.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR Part 3015, subpart V.)

This interim rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

An environmental assessment and finding of no significant impact have been prepared for this interim rule. The assessment provides a basis for the conclusion that the methods employed to regulate the imported fire ant will not significantly affect the quality of the human environment. Based on the finding of no significant impact, the Administrator of the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared.

The environmental assessment and finding of no significant impact were prepared in accordance with: (1) The National Environmental Policy Act of 1969, as amended (NEPA) (42 U.S.C. 4321 et seq. ), (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).

Copies of the environmental assessment and finding of no significant impact are available for public inspection at USDA, room 1141, South Building, 14th Street and Independence Avenue, SW., Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, except holidays. Persons wishing to inspect copies are requested to call ahead on (202) 690-2817 to facilitate entry into the reading room. In addition, copies may be obtained by writing to the individual listed under FOR FURTHER INFORMATION CONTACT .

This interim rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

This final rule is issued under Marketing Order No. 985 (7 CFR Part 985), as amended, 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 final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. 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 spearmint oil order is a volume control program that authorizes the regulation of spearmint oil produced in the Far West through annual allotment percentages and salable quantities for Class 1 (Scotch) and Class 3 (Native) spearmint oils. The salable quantity limits the quantity of each class of spearmint oil that may be marketed from each season's crop. Each producer is allotted a share of the salable quantity by applying the allotment percentage to that producer's allotment base for the applicable class of spearmint oil. Handlers may not purchase spearmint oil in excess of a producer's annual allotment, or from producers who have not been issued an allotment base under the order.

Section 985.53(d)(1) requires the Committee to annually make additional allotment base available in an amount not greater than 1 percent of the total allotment base for each class of spearmint oil. The order specifies that 50 percent of the additional allotment base be made available for new producers and 50 percent be made available for existing producers. A new producer is any person who has never been issued allotment base for a class of oil, and an existing producer is any person who has been issued allotment base for a class of oil. Provision is made in the order for new producers to apply to the Committee for the annually available additional allotment base, which in turn is issued to applicants in each oil class by lottery. The additional allotment base being made available to existing producers is distributed equally among all existing producers who apply.

Section 985.53(d)(3) of the order provides authority for the establishment of rules governing the annual distribution of additional allotment base. Accordingly, on October 6, 1999, the Committee unanimously recommended revising § 985.153 of the order's rules and regulations to provide a more equitable distribution of allotment base to new producers. Section 985.153 provides regulations for the issuance of additional allotment base to new and existing producers. This final rule: (1) Reduces the number of regions established for issuing additional allotment base to new producers from three regions to two regions; and (2) revises the procedure used for determining the distribution of additional allotment base to new producers to take into account the reduced number of regions.

Currently, § 985.153(c) establishes the regions for issuing additional allotment base as follows:

(A) Region 1—The State of Oregon and those portions of Utah and Nevada included in the production area.

(B) Region 2—The State of Idaho.

(C) Region 3—The State of Washington.

Under the current provisions, the names of all eligible new producers were placed in separate lots per class of oil and region. Names are then drawn based on the amount of additional allotment base available and the Committee's determination of the minimum economic enterprise required to produce each class of oil. These procedures result in three new Scotch spearmint oil producers (one from each region) receiving approximately 3,100 pounds of allotment base each, and three new Native spearmint oil producers (one from each region) receiving approximately 3,400 pounds of allotment base each.

This rule replaces the three regions with the following two regions:

(A) Region A—The State of Washington.

(B) Region B—All areas of the production area outside the State of Washington.

Additionally, this rule modifies the method used to draw names by specifying that the names of all eligible new producers are placed in separate lots based on two regions rather than three regions. For each class of oil, separate drawings will be held from a list of all applicants from Region A, from a list of all applicants from Region B, and from a list of all remaining applicants from Regions A and B combined. If, in any marketing year, there are no requests in a class of oil from eligible new producers in a region, such unused allotment base will be issued to two eligible new producers whose names are selected by drawing from a lot containing the names of all remaining eligible new producers from the other region for that class of oil. Thus, depending upon the amount of additional base available and the minimum economic enterprise needed for oil production, three new producers of each class of oil will receive equal portions of the additional base made available each year.

The Committee made this recommendation after its analysis of statistics relating to current spearmint oil production and the number of requests received each year for additional allotment base from the various States included in the production area. The following tables show the number of actual applications for additional Scotch and Native spearmint oil base over the most recent ten-year period:

As shown in the above tables, there has consistently been few applications received from new producers in the States of Oregon, Utah, and Nevada, while the number of applications from new producers in Washington, followed to a lesser extent by the number of applications from new producers in Idaho, has consistently been much higher. Committee records also show that the number of producers, as well as the amount of allotment base held by those producers, is greatest in Washington followed in decreasing order by Idaho, Oregon, Utah, and Nevada. Therefore, reducing the number of regions from 3 to 2, and changing the procedures used in distributing the base will result in a more equitable distribution of allotment base to new producers. The changes will also make the additional allotment base available to new producers from the States which have historically requested the most base.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, the AMS has prepared this final 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 order, and approximately 119 producers of Class 1 (Scotch) spearmint oil and approximately 105 producers of Class 3 (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 could 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 SBA category of large businesses.

Small spearmint oil producers generally are not extensively diversified and as such are more at risk to market fluctuations. Such small producers generally need to market their entire annual crop and do not have the luxury of having other crops 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 incomes from alternate crops could support the operation for a period of time. Being reasonably assured of a stable price and market provides small producing entities with the ability to maintain proper cash flow and to meet annual expenses. Thus, the market and price stability provided by the order potentially benefit the small producer more than such provisions benefit large producers. Even though a majority of handlers and producers of spearmint oil may not be classified as small entities, the volume control feature of this order has small entity orientation. The order has contributed to the stabilization of producer prices.

Section 985.53 of the order provides that each year the Committee make available additional allotment base for each class of oil in the amount of no more than 1 percent of the total allotment base for that class of oil. This affords an orderly method for new spearmint oil producers to enter into business and existing producers the ability to expand their operations as the spearmint oil market and individual conditions warrant. One-half of the 1 percent increase is issued annually by lot to eligible new producers for each class of oil. To be eligible, a producer must never have been issued allotment base for the class of spearmint oil such producer is making application for, and have the ability to produce such spearmint oil. The ability to produce spearmint oil is generally demonstrated when a producer has experience at farming, and owns or rents the equipment and land necessary to successfully produce spearmint oil.

This rule: (1) Reduces the number of regions established for issuing additional allotment base to new producers from three regions to two regions; and (2) revises the procedure used for determining the distribution of additional allotment base to new producers to take into account the reduced number of regions. The Committee recommended this rule to provide for a more equitable distribution of allotment base to new producers.

During its deliberations, the Committee considered alternatives to their recommendation. The first option discussed would have left § 985.153(c) unchanged. This was rejected because of the need to develop a more equitable method of issuing additional base given the light application record from some of the States within the production area. The Committee also discussed eliminating the use of different regions in its additional allotment base issuance procedure and having one drawing for the calculated number of recipients per class of oil for the entire production area. This option was also rejected because it would not ensure geographic distribution of the additional base.

The Committee made its recommendation after careful consideration of available information, including the aforementioned alternative recommendations, the minimum economic enterprise required for spearmint oil production, historical statistics relating to the locations of the producers applying for the annual additional allotment base, and other factors such as number of producers by State and the amount of allotment base held by such producers. Based on its review, the Committee believes that the action recommended is the best option available to ensure that the objectives sought will be achieved.

The information collection requirements contained in the section of the order's rules and regulations being amended by this rule have been previously approved by the Office of Management and Budget (OMB) under the provisions of 44 U.S.C. chapter 35 and have been assigned OMB No. 0581-0065. This action will not impose any additional reporting or record keeping requirements on either small or large spearmint oil producers and handlers. All reports and forms associated with this program are reviewed periodically 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.

A proposed rule was published in the Federal Register on February 17, 2000 (65 FR 8069). A 60-day comment period was provided to allow interested persons the opportunity to respond to the proposal, including any regulatory and informational impacts of this action on small businesses. A copy of the proposed rule was faxed and mailed to the Committee office, which in turn notified Committee members and spearmint oil producers and handlers of the proposed action. In addition, the Committee's meeting was widely publicized throughout the spearmint oil industry and all interested persons were invited to attend and participate on all issues. A copy of the proposal was also made available on the Internet by the U.S. Government Printing Office. No comments were received. Accordingly, no changes are made to the rule as proposed.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at the following web site: 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 the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

This rule is issued in conformance with Executive Order 12866 and has been determined to be economically significant and has been reviewed by the Office of Management and Budget.

It has been determined that the Regulatory Flexibility Act is not applicable to this rule because the Farm Service Agency is not required by 5 U.S.C. 553 or any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this rule.

It has been determined by an Environmental Evaluation that this program, as a whole, will have no significant impact on the quality of the human environment. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement for the program is needed. However, because it is possible that individual projects may have limited impacts on the local environment, environmental evaluations for each project will be conducted to determine the need for environmental assessment and/or mitigation.

This rule has been reviewed in accordance with Executive Order 12988. The provisions of this rule preempt State laws to the extent such laws are inconsistent with the provisions of this rule. Before any legal action may be brought regarding determinations of this rule, the administrative appeal provisions set forth at 7 CFR part 780 must be exhausted.

This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the notice related to 7 CFR part 3014, subpart V, published at 48 FR 29115 (June 24, 1983).

This rule contains no Federal mandates under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

A Notice with request for comments on the information collection is part of this proposed rule. An emergency information collection package has been sent to OMB for review.

In accordance with the Paperwork Reduction Act of 1995, this notice announces the Commodity Credit Corporation's (CCC) request for approval of a new information collection in support of the Farm Storage Facility Loan Program.

Title: 7 CFR 1436, Farm Storage Facility Loan Program Regulations.

OMB Control Number: 0506-NEW.

Type of Request: Approval of an information collection.

Abstract: This information is needed to administer the CCC's Farm Storage Facility Loan Program. The information will be gathered from producers needing additional on-farm grain storage and handling capacity to determine whether they are eligible for loans.

Estimate of Burden: Public reporting burden for this collection of information is estimated to average 22 minutes per producer.

Respondents: Eligible producers: 200.000.

Estimated Number of Respondents: 50,000.

Estimated Number of Responses per Respondent: 2.

Estimated Total Annual Burden on Respondents: 47,250 hours.

Proposed topics for comments are: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; or (d) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical or other technological collection techniques or other forms of information technology.

Comments should be sent to the Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503 and to Chris Kyer, USDA—Farm Service Agency—Price Support Division, 1400 Independence Avenue, SW., STOP 0512, Washington, DC 20250-0512; Telephone (202) 720-7935 or e-mail chris_kyer@wdc,fsa.usda.gov. Copies of the information collection may be obtained from Chris Kyer at the above address.

All responses to this notice will be summarized. All comments will also become a matter of public record.

It has been determined that this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. The provisions contained in this rule will not have a substantial direct effect on States or their political subdivisions, or on the distribution of power and responsibilities among the various levels of government.

It has been determined that this rule should be issued as an interim rule, without prior comment, but subject to modification on the consideration of those comments that are timely received. It has been determined that to delay the implementation of the rule pending comment would be impracticable and contrary to the public interest. That finding is based on the current shortage of available storage, rapidly changing market needs that are forcing producers to consider new storage arrangement on their farms, and the lack of material adverse effect on other parties. With respect to storage availability, recent data indicates a critical shortage of storage that continues to deteriorate. The Deputy Administrator for Commodity Operations, Farm Service Agency, recently completed an analysis of on-farm and commercial grain storage utilization, which showed that the utilization of both on-farm and commercial storage had increased from 79 percent utilization in 1996 to 95 percent utilization in 1999. At the time of the review, eleven key grain producing states were utilizing over one hundred percent of available storage capacity when including temporary and emergency storage. Four other states were at ninety percent of storage capacity. The fifteen states identified with ninety percent or above utilization of grain storage capacity are: Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Ohio, South Dakota, and Wisconsin. In 1998 the requests by warehouse operators with CCC Uniform Grain Storage Agreements for emergency (on the ground) storage were at a level of 192.3 million bushels; for 1999, that level increased to 238.1 million bushels.

Also, in the meantime, changing market needs are putting pressure on producers to build new facilities since some buyers of grain seek to limit purchases to specialty grains that are not genetically modified or to segregate either specialty crops or grains that are not genetically modified. To meet those demands, while utilizing the benefits of genetically modified grains for other markets, the producer may find it necessary to grow different kinds of grain in which case they may need separate storage facilities in order to guarantee the proper identity of the grains. Many producers, however, will not be able to meet that need without the assistance provided for in this rule and will not be able to do so in a timely manner for this crop year unless this rule is made effective immediately. In addition, a delay in implementing this rule could also mean that producers, who otherwise might be helped and who are the most in need, will be unable to take full advantage of CCC's nonrecourse marketing assistance loan program for the current marketing year. For those producers who cannot store their crops, the only program option available is the loan deficiency payment available at the time of harvest, thus denying those producers the ability to delay marketings until a more favorable market situation might arise. Moreover, the lack of adequate facilities can mean that the producer also loses out on the other guarantees and assistance that a marketing loan can afford the producer such as the special benefits that can inure to a producer as a result of a marketing loan when the producer has reached the maximum limitation on the amount of payments that the producer can receive in the form of loan deficiency payments or marketing loan gains.

Storage conditions have not improved materially in the last few months so as to relieve the shortage of storage and, therefore, there is a critical need to act as quickly as possible. The public interest in this respect has been established by the Congressional direction contained in Section 4(h) of the CCC Charter Act (15 U.S.C. 714b(h)), which requires a storage program whenever it is determined that there is a shortage of a storage. Furthermore, while the need for immediate assistance is critical, the potential harm to other parties, by issuance of this rule as an interim rule, is expected to be minimal by comparison. In addition, the rule is flexible enough so that, in the event that any comments are received that would dictate a reason to suspend the program, a suspension could be imposed before the response to the comments is published. Even after the interim rule is issued, it will take some time to complete loan applications. As a result, a delay in the start-up of the program until comments could be received would put availability of the program beyond the time in which many producers in need of storage could obtain relief for the current crop year. This could be damaging not only to the producers themselves but also to the effort to increase the marketability in all markets of U.S.-produced grains.

Accordingly, for all the foregoing reasons, it has been determined that the provisions of this rule should be made effective immediately.

The finding made above, that this rule should be made effective immediately, applies for all purposes including, but not limited, to the provisions of 5 U.S.C. 808 of the Small Business regulatory Enforcement Fairness Act (SBREFA), which provides that a rule may, without regard to certain special Congressional oversight measures provided for in SBREFA, take effect at such time as the agency may determine if the agency finds for good cause that public notice is impracticable, unnecessary, or contrary to the public interest. For the reasons set out, it has been determined that delay would be contrary to the public interest and that the rule should be made effective immediately.

U.S. grain storage capacity steadily declined from 1987 to 1997. Storage capacity has increased modestly since its low in 1997, but increases have not been sufficient to keep pace with growing production. Despite persistent harvest-time storage capacity shortfalls and the advantages of on-farm storage for producers, low commodity prices and reduced farm income will limit the ability of producers to significantly expand their on-farm storage. The Farm Storage Facility Loan Program will add additional storage capacity in deficit areas and help farmers adapt to identity preserved storage and handling requirements for genetically enhanced organisms. One direct benefit to producers from the Farm Storage Facility Loan Program would be reduced financing costs on facility construction. Interest savings for a farmer on the construction of a 15,000-bushel grain bin could total as much as $3,840 under the program when compared with financing through some commercial banks. Producers would also benefit from the potential for higher market returns on their crops because on-farm storage capacity creates pricing and hedging opportunities that can significantly increase marketing returns. The Farm Storage Facility Loan Program is expected to expand on-farm storage by more than 750 million bushels over the next 5 years.

Section 5(b) of the CCC Charter Act (15 U.S.C. 714c(b)) authorizes CCC to use its general powers to make available materials and facilities required in connection with the production and marketing of agricultural commodities. Section 4(f) of the CCC Charter Act (15 U.S.C. 714b(h)) provides that the Corporation may make loans to grain producers needing storage facilities and that loans shall be made in areas in which the Secretary determines that there is a deficiency of such storage.

CCC made loans for storage facilities intermittently since 1948 and stopped making new storage facility loans in 1982 based on studies that revealed that producers had sufficient storage for their crops. Since 1995, the storage situation has changed. Storage capacity utilization rates are running extremely high and storage shortages exist in some areas. The net decrease in storage capacity from 1996 to 1998 has been about 79.5 million bushels, of nearly 1 percent of total capacity. During this same period, grain production increased by nearly 8 percent, from 14 billion bushels in 1996 to 15 billion bushels in 1998. As a result, there is insufficient capacity to allow farmers to store their grain, forcing farmers to sell at harvest when prices are usually at their lowest.

CCC's immediate intent is to use this program to address the existing shortage of grain storage. However, section 5(b) of the CCC Charter Act, gives CCC broad authority to make “available materials and facilities required in connection with the production and marketing of agricultural commodities”. Thus, CCC will explore marking available facility loans for the storage of commodities harvested as other than grain such as silage, alternative types of storage arrangements such as “condominium storage”, or storage facilities for other agricultural products. Since CCC has not identified shortages in storage facilities for other than whole grain or analyzed the feasibility of alternative storage arrangements, it would be improper to implement such provisions under an interim rule. CCC is seeking comments during the comment period on all of these aforementioned areas. Comments received will be given consideration for inclusion in the final rule.

On February 2, 2000, the Secretary announced the availability of financing for farm storage and handling facilities. Based upon this announcement, producers may have made commitments to construct on-farm storage facilities. The decision has been made to extend loan eligibility to those producers who took action on or after February 2, 2000 based on the Secretary's announcement.

Although a similar program was available in the past, this rule allows for a new farm storage facility loan program with terms and conditions that differ from the previous program. The rule calls for eligible producers to apply for farm storage facility loans at their FSA administrative county office. Producers requesting loans must provide information regarding the need for farm storage capacity and the storage facility they propose to construct. They must also establish that they are eligible for the program, and that the site proposed for a storage structure does not adversely impact the environment.

Specific eligibility requirements for applicants are a satisfactory credit rating as determined by CCC; no delinquent Federal debt as defined by the Debt Collection Improvement Act of 1996; production of facility loan commodities; proof of crop insurance from FCIC or a private company; compliance with USDA provisions for highly erodible land and wetlands; ability to repay the debt resulting from the program; compliance with any applicable local zoning, land use and building codes for the applicable farm storage facility structures; and need for new or additional farm grain storage or handling capacity. This information is needed by CCC to make loans where there is a bonafide need, and to make loans that will be repaid on time.

County offices will use existing office records to determine if the producer is in compliance with highly erodible land and wetlands provisions. The county office will utilize a government wide system to identify if the applicant is delinquent on any Federal debt. The applicant's credit history will be obtained using existing credit reporting agencies that are contracted to FSA. Proof of crop insurance must be provided by the applicant in the form of an approved crop insurance application or statement of coverage for the current crop year. Applicants must provide copies of local building permits, if applicable, to demonstrate compliance with local land use laws.

Applicants will be required to file requests for farm storage facility loans on form CCC-185, Loan Application for Farm Storage Facility and Drying Equipment Loan Program. The applicant must provide information that is generally unavailable to CCC from other sources, such as, name, address, tax identification number and phone number of the person applying for the loan; the purpose of the loan and the amount of the loan requested; and details about the type and cost of the storage structure, and related handling systems, or drying systems the applicant proposes to install. This information becomes the basis for the net cost of eligible components which determines the amount of the loan. Producers must also provide specific commodity production data that supports the determination the producer requires storage or that existing facility loan commodity storage capacity is not adequate. This will help insure that CCC is not lending funds on capacity that is not needed. The applicant must provide information regarding whether the facility equipment has been purchased, delivered, or installed.

The applicant must sign CCC-185 when it is complete and will be provided a copy. Information to support the applicant's request will also be necessary. Financial information will be obtained from the applicant to determine if the applicant has the means to provide the required down payment and to make future loan installments. The applicant will be asked to verify debts and assets in order to prepare an accurate balance sheet and cash flow statement. The applicant will be asked to sign the form authorizing financial institutions and creditors to release asset and debt information to CCC. The applicant will be required to sign a UCC-1 Financing Statement and other forms as needed to grant CCC a security interest in the proposed structure and equipment. Upon acceptance of a complete application, a CCC representative will conduct a lien search as needed.

Borrowers must maintain the collateral in good condition; pay loan installments and real estate taxes on time, and maintain all peril structural, and if applicable, flood insurance policies. FSA will conduct annual collateral checks. If installments are not paid during each due and payable period, collection activity will proceed according to standard CCC policy.

The Appliance Labeling Rule (“Rule”) was issued by the Commission in 1979, 44 FR 66466 (Nov. 19, 1979), in response to a directive in the Energy Policy and Conservation Act of 1975.  1 The Rule covers eight categories of major household appliances. Clothes washers are among those categories. The Rule also covers pool heaters, 59 FR 49556 (Sept. 28, 1994), and contains requirements that pertain to fluorescent lamp ballasts, 54 FR 28031 (July 5, 1989), certain plumbing products, 58 FR 54955 ((Oct. 25, 1993), and certain lighting products, 59 FR 25176 (May 13, 1994, eff. May 15, 1995).

The Rule requires manufacturers of all covered appliances and pool heaters to disclose specific energy consumption or efficiency information (derived from the DOE test procedures) at the point of sale in the form of an “EnergyGuide” label and in catalogs. It also requires manufacturers of furnaces, central air conditioners, and heat pumps either to provide fact sheets showing additional cost information, or to be listed in an industry directory showing the cost information for their products. The Rule requires manufacturers to include, on labels and fact sheets, an energy consumption or efficiency figure and a “range of comparability.” This range shows the highest and lowest energy consumption or efficiencies for all comparable appliance models so consumers can compare the energy consumption or efficiency of other models (perhaps competing brands) similar to the labeled model. The Rule also requires manufacturers to include, on labels for some products, a secondary energy usage disclosure in the form of an estimated annual operating cost based on a specified DOE national average cost for the fuel the appliance uses.

Section 305.8(b) of the Rule requires manufacturers, after filing an initial report, to report certain information annually to the Commission by specified dates for each product type. 2 These reports, which are to assist the Commission in preparing the ranges of comparability, contain the estimated annual energy consumption or energy efficiency ratings for the appliances derived from tests performed pursuant to the DOE test procedures. Because manufacturers regularly add new models to their lines, improve existing models, and drop others, the data base from which the ranges of comparability are calculated is constantly changing. To keep the required information consistent with these changes, under Section 305.10 of the Rule the Commission will publish new ranges if an analysis of the new information indicates that the upper or lower limits of the ranges have changed by more than 15%. Otherwise, the Commission will publish a statement that the prior ranges remain in effect for the next year.

Manufacturers of clothes washers have made the required 2000 submissions of data for this product category. In analyzing the data, the Commission has grouped the figures in accordance with the revisions to Appendix F (Clothes Washers) published on March 27, 2000, 65 FR 16132, which eliminated the top-loading and front-loading categories for clothes washers.

Accordingly, the Commission is publishing these new 2000 ranges of comparability in the format of the revised Appendix for the clothes washer category. Today's ranges of comparability supersede the ranges (which were based on 1999 submissions) that were published along with the March 27, 2000 amendment eliminating the top-loading and front-loading categories, which have an effective date of July 14, 2000; however, manufacturers are not required to use those ranges.

In consideration of the foregoing, the Commission revises Appendix F of its Appliance Labeling Rule by publishing the following ranges of comparability for use in required disclosures (including labeling) for clothes washers manufactured on or after September 18, 2000. In addition, as of September 18, 2000, manufactured must base the disclosures of estimated annual operating cost required at the bottom of the EnergyGuide for clothes washers on the 2000 Representative Average Unit Costs of Energy for electricity (8.03 cents per kilo Watt-hour) and natural gas (68.8 cents per therm) that were published by DOE on February 7, 2000 (65 FR 5860), and by the Commission on April 17, 2000, 65 FR 20352.

The provisions of the Regulatory Flexibility Act relating to a Regulatory Flexibility Act analysis (5 U.S.C. 603-604) are not applicable to this proceeding because the amendments do no impose any new obligations on entities regulated by the Appliance Labeling Rule. Thus, the amendments will not have a “significant economic impact on a substantial number of small entities” (5 U.S.C. 605). The Commission has concluded, therefore, that a regulatory flexibility analysis is not necessary, and certifies, under Section 605 of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that the amendments announced today will not have a significant economic impact on a substantial number of small entities.

The Paperwork Reduction Act (“PRA”), 44 U.S.C. 3501 et seq., requires government agencies, before promulgating rules or other regulations that require “collections of information” ( i.e., recordkeeping, reporting, or third-party disclosure requirements), to obtain approval from the Office of Management and Budget (“OMB”), 44 U.S.C. 3502. The Commission currently has OMB clearance for the Rule's information collection requirements (OMB No. 3084-0069). The amendment will not impose any new information collection requirements. Instead, it will provide manufacturers with revised ranges of comparability to use on the EnergyGuide labels already required by the Rule.

In 1958, Congress amended the act to require premarket approval of food additives (sections 201(s), 402(a)(2)(C), and 409 (21 U.S.C. 321(s), 342(a)(2)(C), and 348)). “Food additive” is defined in section 201(s) of the act as “any substance the intended use of which results or may reasonably be expected to result, directly or indirectly, in its becoming a component or otherwise affecting the characteristics of any food,” unless, among other reasons, such substance is generally recognized as safe (GRAS) by qualified experts or is prior sanctioned for its intended use. Under section 409 of the act as originally established, food additives require premarket approval by FDA and publication of a regulation authorizing their intended use. Subsequently, in 1995, FDA codified a process, the “threshold of regulation” process (21 CFR 170.39), by which certain food additives may be exempted from the requirement of a listing regulation if the substance is expected to migrate to food at only negligible levels (60 FR 36582, July 17, 1995).

More recently, FDAMA amended section 409 of the act to establish a premarket notification (PMN) process as the primary method for authorizing new uses of food additives that are FCS. FDA expects most new uses of FCS that previously would have been regulated by issuance of a listing regulation in response to a food additive petition or would have been exempted from the requirement of a regulation under the threshold of regulation process will be the subject of PMN's.

As part of the agency's process of implementing FDAMA's amendments to section 409 of the act, FDA convened a public meeting on March 12, 1999, to provide interested parties with an opportunity to comment on FDA's current thinking on administration of the PMN process. As a result of the March 12, 1999, public meeting, FDA received comments on the applicability of the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq . (1998)) to the notification process for food contact substances. FDA has considered those comments in developing this direct final rule and the companion proposed rule. FDA has filed copies of the transcript of the meeting and the comments received from interested parties with the Dockets Management Branch (address above) (Docket No. 99N-0235). The transcript and comments are available for public review at the Dockets Management Branch.

As part of implementing the FDAMA amendments on food contact substances, FDA has considered the applicability of NEPA to the PMN process. As discussed in more detail in this section, FDA has concluded that agency activities under section 409(h) of the act are subject to NEPA's procedural requirements. Furthermore, as also discussed in this section, FDA currently expects that most PMN's will be subject to a categorical exclusion. (See 40 CFR 1508.4; 21 CFR 25.30 and 25.32.)

Congress enacted NEPA in 1969 to ensure that Federal Government agencies consider the environmental effects of proposed Federal actions. NEPA's purpose is to ensure that “the Agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.” ( Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 349 (1989).) NEPA requires agencies to “include in every recommendation or report on proposals for legislation and other major federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on * * * the environmental impact of the proposed action * * *. ” (See 42 U.S.C. 4332(2)(C).) Regulations implementing NEPA define “major federal action” as:

FDA has concluded that under the NEPA implementing regulations, NEPA applies to FDA's decision not to object to a PMN. Under section 409(h) of the act, if FDA does not object to an FCS notification within 120 days of filing, the notification becomes effective and the substance may legally be marketed for the notified use. As discussed in more detail, under the relevant case law, FDA has concluded that this inaction constitutes final agency action under the Administrative Procedure Act (APA). As a final agency action, FDA's decision not to object is subject to NEPA's procedural requirements.

Under the APA, unless otherwise provided by statute, only “final Agency action” is subject to judicial review (5 U.S.C. 704). The Supreme Court recently held that to meet the finality requirement, agency action “must mark the consummation of the Agency's decision making process—it must not be of a merely tentative or interlocutory nature,” and “must be one by which rights or obligations have been determined, or from which legal consequences will flow.” ( Bennett v. Spear , 520 U.S. 154, 177 (1997).) Both conditions must be satisfied for agency action to be considered “final.” Id . Inaction under section 409(h) of the act meets both parts of this test. First, the consummation requirement is met because, by operation of law, if FDA does not object, the agency can be considered to have reached its conclusion about the safety of the substance. Second, the determination of rights and obligations requirement is met because, under section 409(h)(2)(A) of the act, the notifier may now market the FCS for the notified use in the United States. This authorization for marketing is a “direct and appreciable” legal consequence of the agency's decision not to object. Id . at 178.

FDA currently believes that a notification for a food contact substance must contain either an EA or a claim of categorical exclusion. If the environmental component of a notification is missing or deficient under 21 CFR 25.40, the agency will not accept the notification for review. In cases where the agency does not accept a notification based on deficiencies in environmental information, FDA expects to inform the notifier in writing within 30 days of receipt of the submission.

In adopting procedures to implement NEPA, Federal agencies are directed to reduce paperwork (40 CFR 1500.4 and 1500.2(b)) and to reduce delay (40 CFR 1500.5) by using several means, including the use of categorical exclusions. A categorical exclusion is a category of actions which do not individually or cumulatively have a significant effect on the human environment and for which neither an EA nor an Environmental Impact Statement (EIS) is required (40 CFR 1508.4).

FDA has identified a number of categorical exclusions in its environmental regulations in part 25 (21 CFR part 25), including some specified uses of certain food packaging materials when approval is sought through the food additive petition process or exemption through the threshold of regulation process. For example, when the substance is a component of a coating of a finished food-packaging material or is present in such material at not greater than 5 percent-by-weight, and it is expected to remain with the finished food contact material through use by the consumer, neither an EA nor EIS is required to be submitted (§ 25.32(i)).

This direct final rule amends § 25.20(i) to add allowing a notification submitted under section 409(h) of the act to become effective to the list of those actions that require an EA. In addition this document will expand the existing categorical exclusions in § 25.32(i), (j), (k), (q), and (r) to include allowing a notification submitted under section 409(h) of the act to become effective. Any existing categorical exclusions for food additive petitions or threshold of regulation exemption requests for such food contact materials could logically be extended to cover PMN's for such materials because the effects on the environment of allowing marketing of the substances—regardless of the process of authorization—are comparable in either case. Based on FDA's experience, the agency anticipates that a majority of PMN's will be subject to a categorical exclusion.

In the Federal Register of November 21, 1997 (62 FR 62466), FDA described when and how it will employ direct final rulemaking. FDA believes that this rule is appropriate for direct final rulemaking because FDA views this rule as making noncontroversial amendments to an existing regulation, and FDA anticipates no significant adverse comment. Consistent with FDA's procedures on direct final rulemaking, elsewhere in this issue of the Federal Register , FDA is publishing a companion proposed rule to amend the existing relevant regulations in part 25. The companion proposed rule is identical to the direct final rule. The companion proposed rule provides a procedural framework within which the rule may be finalized in the event that the direct final rule is withdrawn because of any significant adverse comment. The comment period for the direct final rule runs concurrently with the comment period of the companion proposed rule. Any comments received under the companion proposed rule will be considered as comments regarding the direct final rule.

FDA is providing a comment period on the direct final rule of 75 days after May 11, 2000. If the agency receives any significant adverse comments, FDA intends to withdraw this final rule by publication of a document in the Federal Register within 30 days after the comment period ends. A significant adverse comment is a comment that explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without change. In determining whether a significant adverse comment is sufficient to terminate a direct final rulemaking, FDA will consider whether the comment raises an issue serious enough to warrant a substantive response in a notice-and-comment process. Comments that are frivolous, insubstantial, or outside the scope of the rule will not be considered significant or adverse under this procedure. For example, a comment requesting an amendment of part 25 requirements for food additive petitions will not be considered a significant adverse comment because it is outside the scope of the direct final rule. On the other hand, a comment recommending an additional change to the rule may be considered a significant adverse comment if the comment explains why the rule would be ineffective without the additional change. In addition, if a significant adverse comment applies to an amendment, paragraph, or section of this rule and that provision can be severed from the remainder of the rule, FDA may adopt as final those provisions of the rule that are not the subject of a significant adverse comment.

If FDA withdraws the direct final rule, all comments received will be considered under the companion proposed rule in developing a final rule under the usual notice-and-comment procedures of the APA (5 U.S.C. 552 et seq .). If FDA receives no significant adverse comment during the specified comment period, FDA intends to publish a confirmation document in the Federal Register within 30 days after the comment period ends. Because the direct final rule grants an exemption from the requirement to file an EA, under 5 U.S.C. 553(d), the rule may be made immediately effective. Therefore, FDA intends to make the direct final rule effective on the date the confirmation document is published in the Federal Register .

FDA has examined the economic implications of this final rule under Executive Order 12866. Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select the regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). Executive Order 12866 classifies a rule as significant if it meets any one of a number of specified conditions, including: Having an annual effect on the economy of $100 million, adversely affecting a sector of the economy in a material way, adversely affecting competition, or adversely affecting jobs. A regulation is also considered significant if it raises novel legal or policy issues. FDA has determined that this final rule is not a significant regulatory action as defined by Executive Order 12866.

The Unfunded Mandates Reform Act of 1995 (Public Law 104-4), requiring cost-benefit and other analyses, in section 1531(a) defines a significant rule as “a Federal mandate that may result in the expenditure by State, local, and tribal governments in the aggregate, or by the private sector, of $100,000,000 (adjusted annually for inflation) in any 1 year.” FDA has determined that this final rule does not constitute a significant rule under the Unfunded Mandates Reform Act.

The Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121) defines a major rule for the purpose of congressional review as having caused or being likely to cause one or more of the following: An annual effect on the economy of $100 million; a major increase in costs or prices; significant effects on competition, employment, productivity, or innovation; or significant effects on the ability of U.S.-based enterprises to compete with foreign-based enterprises in domestic or export markets. In accordance with the Small Business Regulatory Enforcement Fairness Act, FDA has determined that this final rule is not a major rule for the purpose of congressional review.

The final rule allows firms using the new notification process for food contact substances to claim the same categorical exclusions from the requirement of an EA that are currently applicable for food additive petitions and threshold of regulation exemption requests for the same uses. The rule therefore imposes no additional costs on producers or consumers.

FDA has examined the economic implications of this final rule as required by the Regulatory Flexibility Act (5 U.S.C. 601-612). If a rule has a significant economic impact on a substantial number of small entities, the Regulatory Flexibility Act requires agencies to analyze regulatory options that would lessen the economic effect on the rule on small entities. The agency certifies that this final rule will not have a significant impact on a substantial number of small entities.

This final rule will permit notifiers under the new notification process for FCS to claim the same categorical exclusions from the requirement of an EA that are currently applicable for food additive petitions and threshold of regulation exemption requests for the same uses. The final rule will not result in any additional costs to any firm. Therefore, this final rule will not have a significant impact on a substantial number of small entities.

This direct final rule contains no collections of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

The agency has determined under 21 CFR 25.30(h) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

Interested persons may, on or before July 25, 2000, submit to the Dockets Management Branch (address above) written comments regarding this direct final rule. This comment period runs concurrently with the comment period for the companion proposed rule. Two copies of any comment are to be submitted, except that individuals may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this document. Received comments may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday. All comments received will be considered comments regarding the proposed rule and this direct final rule. In the event the direct final rule is withdrawn, all comments received regarding the companion proposed rule and the direct final rule will be considered comments on the proposed rule.

For purposes of congressional review requirements under 5 U.S.C. 801-808, the report to Congress for this direct final rule will be issued when FDA confirms the effective date of this rule. Thus, no report is due at this time. If, however, a significant adverse comment is received, the agency will withdraw this direct final rule and no report will be issued to Congress.

Throughout this document, “we,” “us” and “our” refer to EPA.

On March 2, 2000 (42 FR 11275), EPA proposed a limited approval and limited disapproval of the following rule that was submitted for incorporation into the California SIP.

We proposed a limited approval because we determined that this rule improves the SIP and is largely consistent with the relevant CAA requirements. We simultaneously proposed a limited disapproval because some rule provisions conflict with section 110 and part D of the Act. These provisions include the following:

1. Alternative Compliance Strategy in Section (D).

2. Exemption during start-up and shutdown in Section (G)(1)(a).

3. Referencing a rule not approved in State Implementation Plan in Section (G)(1)(c).

Our proposed action contains more information on the rule and our evaluation.

EPA's proposed action provided a 30-day public comment period. During this period, we received no comments.

No comments were submitted that change our assessment of the rule as described in our proposed action. Therefore, as authorized in sections 110(k)(3) and 301(a) of the Act, EPA is finalizing a limited approval of the submitted rule. This action incorporates the submitted rule into the California SIP, including those provisions identified as deficient. As authorized under section 110(k)(3), EPA is simultaneously finalizing a limited disapproval of the rule. As a result, sanctions will be imposed unless EPA approves subsequent SIP revisions that correct the rule deficiencies within 18 months of the effective date of this action. These sanctions will be imposed under section 179 of the Act as described in 59 FR 39832 (August 4, 1994). In addition, EPA must promulgate a federal implementation plan (FIP) under section 110(c) unless we approve subsequent SIP revisions that correct the rule deficiencies within 24 months. Note that the submitted rule has been adopted by the MDAQMD, and EPA's final limited disapproval does not prevent the local agency from enforcing it.

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 13121, 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 SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 10, 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).)

Outlined below are the contents of this document:

The states, under section 110 of the Act, must develop air pollution regulations and control strategies to ensure that state air quality meets the National Ambient Air Quality Standards (NAAQS) established by EPA. The Act, under section 109, established these NAAQS which currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state must send these regulations and control strategies to EPA for approval and incorporation into the Federally enforceable SIP, which protects air quality and contains emission control plans for NAAQS nonattainment areas. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

The states must formally adopt the regulations and control strategies consistent with state and Federal laws for incorporating the state regulations into the Federally enforceable SIP. This process generally includes a public notice, public comment period, public hearing, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state will send these provisions to EPA for inclusion in the Federally enforceable SIP. EPA must then determine the appropriate Federal action, provide public notice, and request additional public comment on the action. The possible Federal actions include: approval, disapproval, conditional approval and limited approval/disapproval. If adverse comments are received, EPA must consider and address the comments before taking final action.

EPA incorporates state regulations and supporting information (sent under section 110 of the Act) into the Federally approved SIP through the approval action. EPA maintains records of all such SIP actions in the CFR at Title 40, Part 52, entitled “Approval and Promulgation of Implementation Plans.” The EPA does not reproduce the text of the Federally approved state regulations in the CFR. They are “incorporated by reference,” which means that the specific state regulation is cited in the CFR and is considered a part of the CFR the same as if the text were fully printed in the CFR.

Conformity first appeared as a requirement in the Act's 1977 amendments (Pub. L. 95-95). Although the Act did not define conformity, it stated that no Federal department could engage in, support in any way or provide financial assistance for, license or permit, or approve any activity which did not conform to a SIP which has been approved or promulgated.

The 1990 Amendments to the Act expanded the scope and content of the conformity concept by defining conformity to a SIP. Section 176(c) of the Act defines conformity as conformity to the SIP's purpose of eliminating or reducing the severity and number of violations of the NAAQS and achieving expeditious attainment of such standards. Also, the Act states that no Federal activity will: (1) Cause or contribute to any new violation of any standard in any area, (2) increase the frequency or severity of any existing violation of any standard in any area, or (3) delay timely attainment of any standard or any required interim emission reductions or other milestones in any area. The requirements of section 176(c) of the Clean Air Act apply to all departments, agencies and instrumentalities of the Federal government. Transportation conformity refers only to the conformity of transportation plans, programs and projects that are funded or approved under title 23 U.S.C. of the Federal Transit Act.

A transportation conformity SIP is a plan which contains criteria and procedures for the Department of Transportation (DOT), Metropolitan Planning Organizations (MPOs), and other state or local agencies to assess the conformity of transportation plans, programs and projects to ensure that they do not cause or contribute to new violations of a NAAQS in the area substantially affected by the project, increase the frequency or severity of existing violations of a standard in such area or delay timely attainment. 40 CFR Part 51.390, subpart T requires states to submit a SIP that establishes criteria for conformity to EPA. 40 CFR Part 93, subpart A, provides the criteria the SIP must meet to satisfy 40 CFR Part 51.390.

EPA was required to issue criteria and procedures for determining conformity of transportation plans, programs, and projects to a SIP by section 176(c) of the Act. The Act also required the procedure to include a requirement that each state submit a revision to its SIP including conformity criteria and procedures. EPA published the first transportation conformity rule in the November 24, 1993, Federal Register (FR), and it was codified at 40 CFR Part 51, subpart T and 40 CFR Part 93, subpart A. EPA required the states to adopt and submit a transportation conformity SIP revision to the appropriate EPA Regional Office by November 25, 1994. The State of Alabama submitted a transportation conformity SIP to the EPA Region 4 on November 15, 1994. EPA did not take action on this SIP because the Agency was in the process of revising the transportation conformity requirements. EPA revised the transportation conformity rule on August 7, 1995 (60 FR 40098), November 14, 1995 (60 FR 57179), and August 15, 1997 (62 FR 43780), and codified the revisions under 40 CFR Part 51, subpart T and 40 CFR Part 93, subpart A—Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 U.S.C. of the Federal Transit Laws (62 FR 43780). EPA's action of August 15, 1997, required the states to change their rules and submit a SIP revision to EPA by August 15, 1998. States may choose to develop in place of regulations, a memorandum of agreement (MOA) which establishes the roles and procedures for transportation conformity. The MOA includes the detailed consultation procedures developed for that particular area. The MOA's are enforceable through the signature of all the transportation and air quality agencies, including the Federal Highway Administration, Federal Transit Administration and the Environmental Protection Agency.

The Federal or state transportation conformity rule applies to all NAAQS nonattainment and maintenance areas in the state. The Metropolitan Planning Organizations (MPO), the State Department of Transportation (DOT) (in absence of a MPO), and U.S. Department of Transportation (USDOT) make conformity determinations. These agencies make conformity determinations on programs and plans such as transportation improvement programs (TIP), transportation plans, and projects. The MPOs calculate the projected emissions that will result from implementation of the transportation plans and programs and compare those calculated emissions to the motor vehicle emissions ceiling established in the SIP. The calculated emissions must be smaller than the Federally approved motor vehicle emissions ceiling in order for USDOT to make a positive conformity determination with respect to the SIP.

The State of Alabama chose to address the transportation conformity SIP requirement through the development of an MOA. On April 3, 2000, the State of Alabama, through the Department of Environmental Management (ADEM), submitted the State's transportation conformity and consultation interagency MOA to EPA as a revision to the SIP. The Alabama Administrative Code Chapter 335-3-17 Conformity of Federal Actions to State Implementation Plans and Code of Alabama 1975, sections 22-28-14, 22-22A-5, 22-22A-6, 22-22A-8, and 41-22-9 effective April 27, 1995 and amended November 21, 1996 and March 27, 1998 adopted by the Alabama General Assembly in 1992, contains the necessary authority for the revision to the SIP. ADEM held a public hearing on December 21, 1999 and no comments from the general public were received. The MOA was developed with appropriate interagency consultation.

EPA is approving the Alabama transportation conformity MOA that establishes procedures for interagency consultation and adoption of Chapter 335-3-17 as amended by the state on March 27, 1998, that incorporates by reference the Environmental Protection Agency regulations in 40 CFR 93 Subpart A (July 1, 1997), and 62 FR 43780 [08/15/97; amendments] Transportation Conformity and Subpart B General Conformity, that the Director of the ADEM submitted to the Region 4 office of the EPA on April 3, 2000, except for the following sections for incorporation by reference: 40 CFR Parts 93.102(c), 93.104(d), 93.109(c)-(f), 93.118(e), 93.120(a)(2), 93.121(a)(1), and 93.124(b). The rationale for exclusion of these sections is discussed in Section II.E of this action. The ADEM Transportation Conformity MOA only contains the detailed interagency consultation procedure as required by 93.105.

EPA has evaluated this SIP revision and has determined that the State has met the requirements of Federal transportation conformity rule as described in 40 CFR Part 51, subpart T and 40 CFR Part 93, subpart A. The ADEM has satisfied the public participation and comprehensive interagency consultation requirement during development and adoption of the MOA at the local level. Therefore, EPA is approving the MOA as a revision to the Alabama SIP and Chapter 335-3-17-.01 and .02 Conformity of Federal Actions to State Implementation Plans.

EPA's rule requires the states to develop their own processes and procedures for interagency consultation among the Federal, state, and local agencies and resolution of conflicts meeting the criteria in 40 CFR 93.105. The SIP revision must include processes and procedures to be followed by the MPO, state DOT, and USDOT in consulting with the state and local air quality agencies and EPA before making conformity determinations. The transportation conformity SIP revision must also include processes and procedures for the state and local air quality agencies and EPA to coordinate the development of applicable SIPs with MPOs, state DOTs, and USDOT.

The State of Alabama developed its consultation rule based on the elements contained in 40 CFR 93.105, and included it in the MOA, Exhibit 1. As a first step, the State worked with the existing transportation planning organization's interagency committee that included representatives from the State air quality agency, State Department of Transportation, the Birmingham Regional Planning Commission (BRPC), Birmingham Metropolitan Planning Organization (MPO), Federal Highway Administration—Alabama Division, Federal Transit Administration, Jefferson County Department of Health (JCDH), Jefferson County Transit Authority (B-JCTA), and EPA. The interagency committee met regularly and drafted the consultation rules considering elements in 40 CFR Part 93.105 and 23 CFR Part 450, and integrated the local procedures and processes into the consultation MOA. The consultation process developed in this MOA is unique to the State of Alabama. The MOA is enforceable against the parties by their consent in the MOA to allow the Attorney General for the State of Alabama to sue any or all of the agencies for specific performance or other relief on behalf of the citizens of Alabama in paren. patrial. We have determined that the State adequately included all elements of 40 CFR Part 93.105 and that the MOA meets the EPA SIP requirements.

The Sierra Club challenged this section of the second set of amendments to the transportation conformity rule arguing that allowing a 120 day grace period was unlawful under the Act. On November 4, 1997, the United States Court of Appeals for the District of Columbia Circuit held in Sierra Club v. Environmental Protection Agency, No. 96-1007, determined that EPA's grace period violates the plain terms of the Act and, therefore, is unlawful. Based on this court action, the State has excluded this section from its rule. EPA agrees with the State's action as it is consistent with the United States Court of Appeals for the District of Columbia Circuit ruling. Further, the exclusion of 40 CFR 93.102(d) will not prevent EPA from approving the State transportation conformity SIP.

EPA promulgated the third set amendments to the transportation conformity rule on August 15, 1997. On March 2, 1999, the United States Court of Appeals for the District of Columbia Circuit issued its opinion in Environmental Defense Fund v. Environmental Protection Agency, No. 97-1637. The Court granted the environmental group's petition for review and ruled that sections 40 CFR 93.102(c)(1), 93.121(a)(1), and 93.124(b) are unlawful and remanded 40 CFR 93.118(e) and 93.120(a)(2) to EPA for revision to harmonize these provisions with the requirements of the Act for an affirmative determination that Federal actions will not cause or increase violations or delay attainment. The sections of the rule that were impacted by this decision were:

(a) 40 CFR 93.102(c)(1) which allowed certain projects for which the National Environmental Policy Act (NEPA) process has been completed by the DOT to proceed toward implementation without further conformity determinations during a conformity “lapse”. A lapse is a situation in which the conformity determination for the transportation plan or TIP has expired, and there is no currently conforming transportation plan and TIP. As such, there are restrictions on proceeding with federally funded and regionally significant projects.

(b) 40 CFR 93.118(e) which allowed use of motor vehicle emissions budgets (budgets) in the submitted SIPs after 45 days if EPA had not declared them inadequate;

(c) 40 CFR 93.120(a)(2) which allowed use of the budgets in a disapproved SIP for 120 days after disapproval;

(d) 40 CFR 93.121(a)(1) which allowed the nonfederally funded, regionally significant projects to proceed if included in the first three years of the most recent conforming transportation plan and transportation improvement program, even if conformity status is currently lapsed; and

(e) 40 CFR 93.124(b) which allowed areas to use a submitted SIP that allocated portions of a safety margin to transportation activities for conformity purposes before EPA approval.

States were required to submit transportation conformity SIPs to satisfy the requirements for the third set of amendments to the transportation conformity rule by August 15, 1998. Many of these SIP submittals, developed prior to the March 2, 1999 Court ruling, included provisions from the transportation conformity rule verbatim. As such, the State of Alabama's SIP revision included sections which the Court ruled unlawful or remanded for consistency with the Act. Therefore, in accordance with the Court's ruling, EPA can not approve the request to incorporate by reference those portions of the Transportation conformity rule affected by the March 2, 1999 Court ruling. All other portions of the rule are incorporated by reference are approved by this.

The State of Alabama submitted additional information which has complied with the EPA requirements for a transportation conformity SIP and has adopted the Federal rules in an MOA which were in effect at the time that the transportation conformity SIP was due to the EPA. If the Court had issued its ruling before adoption and SIP submittal by the ADEM, EPA believes the ADEM would have removed these sections from its rule which incorporates 40 CFR Part 93, subparts A and B. The ADEM has expended its resources and time to prepare this SIP and meet the statutory deadline, and EPA acknowledges the agency's good faith effort in submitting the transportation conformity SIP in a timely manner.

The ADEM will be required to submit a SIP revision in the future when EPA revises its rule to comply with the Court decision. Because the Court decision has invalidated the aforementioned affected provisions, EPA believes that it is reasonable to exclude the corresponding sections of the State rules from this SIP approval action. As a result, EPA is not taking any SIP action on the following Sections of the Alabama Chapter 335-3-17 to incorporate by reference 40 CFR 93, Subpart A and B: sections 93.102(c), 93.104(d), 93.109(c)-(f), 93.118(e), 93.120(a)(2), 93.121(a)(1), and 93.124(b). The conformity determinations affected by these sections should comply with the relevant requirements of the statutory provisions of the Act underlying the Court's decision on these issues. EPA will be issuing guidance on how to implement these provisions in the interim prior to EPA's amendment of the Federal transportation conformity rule. Once this Federal rule has been revised, conformity determinations in Alabama should comply with the requirements of the revised Federal rule until corresponding provisions of the Alabama conformity SIP have been approved by EPA.

The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve this SIP revision if adverse comments are filed. This rule will be effective on July 10, 2000, without further notice unless EPA receives adverse comment by June 12, 2000. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

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

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

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

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 July 10, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

The fisheries for coastal migratory pelagic resources are regulated under the FMP. The FMP was prepared jointly by the Gulf of Mexico and South Atlantic Fishery Management Councils and was approved by NMFS and implemented by regulations at 50 CFR part 622.

In accordance with the framework procedures of the FMP, the Gulf of Mexico Fishery Management Council (Council) recommended, and NMFS published, a proposed rule (64 FR 71388, December 21, 1999) to implement increases in the total allowable catch (TAC) and the bag limit for Gulf group Spanish mackerel and a new fishing season for the Gulf group king mackerel gillnet fishery. The proposed rule described the need and rationale for these measures, which are not repeated here.

Three individuals submitted comments; several of the points raised by the commenters were the same. The relevant points and NMFS' responses are presented here:

Comment 1: Two commenters opposed the delay in the opening date of the gillnet season from November 1 to the Tuesday after the Martin Luther King, Jr., holiday in January. One commenter believed that this action would shorten the season substantially and create an economic hardship on the fishery. The commenter suggested that a viable alternative would be to retain the November 1 opening date and close all weekends and holidays. The second commenter believed that altering the opening date for the gillnet fishery was discriminatory against the hook-and-line fishery and that the action was being taken without any evaluations of the sociological impacts on other commercial and charter king mackerel fishermen.

Response: NMFS can only approve, partially approve, or disapprove actions submitted by the Councils and cannot substitute alternative actions for those submitted by the Councils. Therefore, NMFS did not consider retaining the opening date of November 1 for the gillnet fishery, with all weekends and holidays closed. Nevertheless, the intent of the change in the fishing season is to avoid quota overruns due to the 3-day holiday. The change in the opening date of the gillnet season should have little overall impact on the fishery regarding its ability to meet the gillnet quota. The fishery normally does not begin to harvest fish until after January 1 and has the capacity to meet its quota in a week's time. Since 1995, all landings occurred in January or early February, except in 1998 when some landings were recorded in November and December. During this timeframe, the fishery has met its quota in 7 to 31 days.

Delaying the opening date for the gillnet sector of the fishery should not impact the other fishing sectors. The gillnet fishery has a dedicated quota that historically has been harvested during the month of January and February, with as much as 50 to 100 percent of that quota being harvested within only 3 to 4 days. Fishing effort is unlikely to be concentrated into a shorter timeframe under the new opening date than has been demonstrated in the past, nor would this impinge on the ability of other sectors to harvest king mackerel under their allocations or quotas. On the other hand, delaying the opening date and closing weekends to fishing should enhance NMFS' ability to close the fishery when the quota is reached without allowing overruns to occur during time periods when a closure notice cannot be published in the Federal Register .

Comment 2: One commenter requested NMFS to reconsider its decision to continue the zero-fish bag limit for Gulf group king mackerel for the captains and crews of for-hire vessels. The commenter stated that there was no evidence to substantiate that a two-fish captain and crew bag limit contributed to overruns of the recreational allocation. The commenter pointed out that, during the 1997/1998 fishing year, the recreational allocation was exceeded by only 3 percent; in 1998/1999, the recreational allocation was not met; and based on preliminary information available from the Marine Recreational Fishing Statistics Survey (MRFSS) for king mackerel catches in the Gulf of Mexico, it appeared that the recreational allocation would not be met for the 1999/2000 fishing year.

Response: In establishing a zero-fish bag limit for captains and crews of for-hire vessels (64 FR 45457, August 20, 1999) NMFS stated that the catch attributable to this segment of the fishery contributed to overruns of the recreational allocation, led to bag limit enforcement problems, and adversely impacted fishing mortality estimates when those recreationally caught fish were subsequently sold and then counted against the commercial quota. NMFS considered the Council's proposed measure for a two-fish bag limit for captains and crew to be contrary to the goals and objectives of the FMP and the requirements of the Magnuson-Stevens Act to maintain and rebuild overfished stocks. Therefore, NMFS disapproved the measure and did not propose a rule to reinstate a two-fish bag limit for captains and crew. Further rationale for this decision is contained in the proposed rule (64 FR 71388, December 21, 1999).

NMFS acknowledges that, during the 1997/1998 and 1998/1999 fishing years, the recreational catch was either under or only slightly over the allocation. Nevertheless, since 1986, recreational catch has exceeded the allocation by an average of 37 percent, and the charterboat fishery accounts for more than half of the total recreational landings of Gulf group king mackerel. NMFS estimates that a 10- to 12-percent reduction in recreational catch of Gulf group king mackerel could be achieved from the zero-fish bag limit for the captains and crews of for-hire vessels.

Catches of Gulf group king mackerel cannot be directly calculated solely from MRFSS data for the Gulf of Mexico. During the period November 1 through March 31, Gulf group king mackerel is considered to extend northward along the Atlantic coast of Florida to the Flagler/Volusia County line. Large numbers of king mackerel are caught on the Atlantic coast during this time. Thus, any estimates of recreational catch based solely on Gulf of Mexico surveys will underestimate the total catch for Gulf group king mackerel.

This final rule has been determined to be significant for purposes of E.O. 12866.

The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule would not have a significant economic impact on a substantial number of small entities. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not prepared.

This rule does not contain a collection-of-information requirement subject to the Paperwork Reduction Act.