Section 15(a) of the Small Business Act, 15 U.S.C. 644(a), authorizes SBA to appeal to the head of a procuring agency certain decisions made by the agency that SBA believes adversely affects small businesses, including proposed procurements that include “goods or services currently being performed by a small business” and which are in a “quantity or estimated dollar value the magnitude of which renders small business prime contract participation unlikely.” Section 413(b)(1) of Public Law 105-135 added an appeal right to section 15(a) of the Small Business Act for “an unnecessary or unjustified bundling of contract requirements.” It left intact, however, SBA's current appeal rights. In this regard, the Joint Explanatory Statement of the bundling provisions contained in Public Law 105-135 as set forth in the Congressional Record specifically provided that “[n]othing in [the bundling amendments] is intended to amend or change in any way the existing obligations imposed on a procuring activity or the authority granted to the Small Business Administration under section 15(a) of the Small Business Act.” 143 Cong. Rec. S11522, S11526 (daily ed. Oct. 31, 1997).

On October 25, 1999, SBA published an interim rule with request for comments in the Federal Register requesting public comments on implementation of Sections 411-417 of the Small Business Reauthorization Act of 1997 (Public Law 105-135, 111 Stat. 2617). See 64 FR 57366, October 25, 1999. The statutory amendments recognize that the consolidation of contract requirements may be necessary and justified, in some cases. The rule requires that each Federal agency, to the maximum extent practicable, take steps to avoid unnecessary and unjustified bundling of contract requirements that preclude small business participation as prime contractors. The rule also requires each agency to eliminate obstacles to small business participation as prime contractors.

The comment period for the interim rule (64 FR 57366) closed on December 27, 1999. Consistent with the statutory amendments, the interim rule defined “bundling,” identified the circumstances under which such “bundling” may be necessary and justified, and permitted SBA to appeal bundling actions that it believes to be unnecessary and unjustified to the head of the procuring agency. The rule also restated SBA's current authority to appeal to the head of an agency other procurement decisions made by procuring activities that SBA believes will adversely affect small business. SBA received 19 comments in response to the interim rule. The comments are comprised of three from Government agencies, four from trade associations, ten from small businesses, and two from members of Congress.

Most of the comments, particularly those from small business, did not offer specific changes to the rule, but rather strongly endorsed the government taking action against contract bundling. Since these comments offered no specific changes, SBA responds by noting the strong opposition to contract bundling by the small business community.

The four comments from trade associations focused on the impact of bundling requirements on the architect and engineering industry. Specifically, these comments were concerned with the consolidation of architect and engineering services with requirements from other industries. The bundling statute and SBA's rule permit various contract requirements to be consolidated provided that the consolidation results in substantial benefits. The statute does not limit the scope and diversity of consolidated contracts. As long as there are measurably substantial benefits, a procuring agency is authorized to consolidate or bundle contract requirements. Thus, this rule also does not limit the scope and diversity of consolidated contracts.

When a procuring activity intends to proceed with a “bundled” requirement, it must document that the bundling is necessary and justified. If it cannot do so, the procuring activity cannot go forward with the intended consolidation. In order for bundling to be necessary and justified, the consolidation must achieve “measurably substantial benefits.” In finalizing this rule, SBA again examined the interim rule's two-tier approach to determining what constitutes measurably substantial benefits. SBA continues to believe that the two-tier approach represents a reasonable application of determining what “measurably substantial benefits” means. Pursuant to the statutory language, benefits must be “substantial.” SBA believes that benefits equivalent to 10% of the contract value (including options) is a substantial benefit relative to the amount of the contract where the contract value is $75 million or less. Similarly, SBA believes that benefits equivalent to at least $7.5 million or 5% of the contract value (including options) is a substantial benefit in absolute dollars where the contract value exceeds $75 million. SBA notes that most bundled requirements that SBA has reviewed over the past four years have had a contract value (including options) that was less than $75 million. Thus, most bundled contracts will be subject to a 10% savings test. The remainder of the contracts will be subject to a minimum absolute savings of $7.5 million.

This final rule clarifies the two-tier approach to achieve this result of a minimum savings for contracts having a value (including options) between $75 million and $150 million. The interim rule required agencies to achieve a benefit equivalent to at least 5% of the contract value (including options) for any contract having a value exceeding $75 million, but without specifying a minimum savings of $7.5 million. Under the interim rule, for contracts having a value between $75 million and $150 million, the required benefits could have ranged from $3.25 million to $7.5 million. Thus, contracts having a value between $75 million and $150 million required less of a benefit than contracts having a value between $32.5 million and $75 million. For example, an agency needed to demonstrate a $6 million benefit for a contract having a $60 million value, while it had to show only a $4 million benefit for a contract having a value of $80 million. SBA believes that this result would have been illogical. As such, SBA has amended this provision to require that an agency must show a benefit of 5% or $7.5 million, whichever is greater, for any bundled contract having a value that exceeds $75 million. Contracts awarded in reliance on the interim rule which met the 5% benefits test but would not satisfy this minimum savings test will be unaffected by this final rule.

One commenter suggested that the “critical to the agency's mission success” exemption (125.2(d)(3)(iii)(B)) could be subject to abuse. SBA does not agree. SBA believes that because these exemptions are made at the agency's highest procurement levels, abuses of this authority are unlikely.

The interim final rule included a provision addressing the application of the regulation to procurements that are awarded in accordance with a cost comparison conducted under OMB Circular A-76 (“Performance of Commercial Functions”). We did not receive any comments on this provision. The final rule retains the provision, with clarifying revisions.

Circular A-76 establishes a cost-comparison process for evaluating whether a commercial activity that is conducted by a Federal agency should be performed in-house or by contract. This process compares the estimated cost of in-house performance by the “Most Efficient Organization” (MEO) with the cost of contract performance as determined by offers that are submitted in response to an A-76 solicitation. Under the Circular, the simple fact that contract performance is found to be less costly than in-house performance by the MEO is not sufficient to justify a conversion from in-house to contract performance. Instead, an activity will not be converted to contract performance (i.e., it will be retained in-house) unless the savings will exceed 10 percent or $10 million over the performance period, whichever is less.

Under the A-76 cost-comparison process, the required MEO (which is also required by statute at 10 U.S.C. 2461 for the Department of Defense) may include a mix of Federal employees and contract support. In other words, the scope of an A-76 cost comparison, the solicitation, and the in-house MEO may consist of a workload performed by Federal employees and one or more existing contractors. Thus, it is possible under an A-76 cost comparison process that activities that have been performed by Federal employees (along with activities performed under two or more small business contracts) will be converted to performance under one contract awarded to a large business. In such cases, the methodology of the A-76 process will have ensured that the Federal Government will derive “measurably substantial benefits” from the conversion. This occurs in two ways. First, through the agency's development of a management plan and the in-house MEO (which concludes in the MEO's written “certification”), significant and measurable savings and performance enhancements can be achieved even before competing with any private offeror. Second, through the cost comparison itself, measurable savings and performance enhancements are quantified, and a decision to convert requires substantial savings (10 percent or $10 million over the performance period, whichever is less).

SBA has added clarifying language to the rule so that it is clear that a bundling analysis is not required when an agency conducts a similar analysis under an A-76 study.

The Office of Management and Budget reviewed this rule as a “significant” regulatory action under Executive Order 12866.

SBA has determined that this final rule may have a significant beneficial economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. SS 601-612. The rule can potentially apply to all small businesses that are performing or may want to perform on the prime contract opportunities of the Federal Government. While there is no precise estimate of the number of small entities or the extent of the economic impact, SBA believes that a significant number of small businesses would be affected. SBA has submitted a complete Final Regulatory Flexibility Analysis of this final rule to the Chief Counsel for Advocacy of the Small Business Administration. For a copy of this analysis, please contact Anthony Robinson at (202) 205-6465.

For the purpose of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, SBA certifies that this rule would not impose new reporting or record keeping requirements.

For purposes of Executive Order 13132, SBA certifies that this rule does not have any federalism implications warranting the preparation of a Federalism Assessment.

For purposes of Executive Order 12978, SBA certifies that this rule is drafted, to the extent practicable, in accordance with the standards set forth in section 2 of this order.

Has FAA taken any action to this point? An incident where the propeller blade suspension fork failed during flight on a Stemme Model S10-V sailplane caused FAA to issue AD 98-15-24, Amendment 39-10674. This AD was published in the Federal Register on July 23, 1998 (63 FR 39484), and required replacing the propeller blade suspension fork, distance ring, and nut with parts of improved design on Stemme Model S10-V sailplanes.

After issuing AD 98-15-24, the Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for Germany, notified FAA that the improved design propeller blade suspension fork (part number (P/N) A09-10AP-V08) on one of the affected sailplanes failed during flight. Analysis of this propeller blade revealed a fracture located at the end of the threaded fastening pin. This caused FAA to issue a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all Stemme Models S10-V and S10-VT sailplanes that incorporate a certain propeller blade suspension fork. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on July 21, 1999 (64 FR 39100).

The NPRM proposed to supersede AD 98-15-24 with a new AD that would require you to repetitively exchange (through the manufacturer) the P/N A09-10AP-V08 (or FAA-approved equivalent part number) propeller blade suspension fork for a fork that has passed X-ray crack testing requirements.

Was the public invited to comment on the NPRM? The FAA invited interested persons to participate in the making of the amendment. We received no comments on the proposed rule or the cost impact upon the public. However, the LBA has informed us that the existing propeller blade suspension forks are currently cracking more rapidly than originally projected.

Is there a propeller blade suspension fork design that is better than the current design? Stemme has worked with the LBA in designing an improved propeller blade suspension fork (P/N 10AP-V88) along with a modification to the propeller gearbox suspension.

Has the manufacturer issued service information? Stemme issued Service Bulletin No. A31-10-051, Amendment-Index 05.a, dated December 6, 1999. This service bulletin specifies procedures for accomplishing the propeller blade suspension fork replacement and propeller gearbox suspension modification, which were described previously.

What have we decided? After careful review of all available information related to the subject presented above, including the above-referenced comments, FAA has determined that:

What is our next action? Since the improved design propeller blade suspension fork replacement and propeller gearbox suspension modification requirements increase the burden on the owners/operators of the affected sailplanes over what was proposed in the NPRM, we are required to allow the public additional time to comment on the AD.

Because of the low hours TIS on the sailplanes where the cracked propeller blade suspension forks were found, FAA finds that notice and opportunity for public prior comment are impracticable. Therefore, good cause exists for making this amendment effective in less than 30 days.

What does this AD require? This AD requires you to:

Accomplishment procedures are specified in Stemme Service Bulletin No. A31-10-051, Amendment-Index 05.a, dated December 6, 1999.

Can I comment on this AD? This action is in the form of a final rule and the FAA did not precede it with notice and opportunity for public comment. FAA is issuing this final rule without prior notice because an urgent situation concerning safety of flight exists. However, FAA is still inviting comments on this rule. You may submit whatever written data, views, or arguments you choose. You need to include the rule's docket number and submit your comments in triplicate to the address specified under the caption ADDRESSES . The FAA will consider all comments received on or before the closing date. We may amend this rule in light of comments received.

How can we communicate more clearly with you? The FAA is reviewing the writing style we currently use in regulatory documents, in response to the Presidential memorandum of June 1, 1998. That memorandum requires federal agencies to communicate more clearly with the public. We are interested in your comments on the ease of understanding this document, and any other suggestions you might have to improve the clarity of FAA communications that affect you. You can get more information about the Presidential memorandum and the plain language initiative at http://www.faa.gov/language/.

The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. You may examine all comments we receive before and after the closing date of the rule in the Rules Docket. We will file a report in the Rules Docket that summarizes each FAA contact with the public that concerns the substantive parts of this AD.

How can I be sure the FAA receives my comment? If you want us to acknowledge the receipt of your comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 99-CE-25-AD.” We will date stamp and mail the postcard back to you.

How does this AD impact relations between Federal and State governments? These regulations will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. The FAA has determined that this final rule does not have federalism implications under Executive Order 13132.

How does this action involve an emergency situation? The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and is not a significant regulatory action under Executive Order 12866. We have determined that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If FAA determines that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, we will prepare a final regulatory evaluation. You may obtain a copy of the evaluation (if required) from the Rules Docket.

On Tuesday, April 25, 2000, the FAA proposed to amend 14 CFR part 71 to modify Class E airspace at Shelbyville, IN (65 FR 24138). The proposal was to modify controlled airspace extending upward from the 700 feet above the surface to contain Instrument Flight Rules (IFR) operations in controlled airspace during poritons of the terminal operation and while transiting between the route and terminal environments.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9G dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 modifies Class E airspace at Shelbyville, IN, to accommodate aircraft executing instrucment flight procedures into and out of Shelbyville Municipal Airport. The area will be depicted on appropriate aeronautical charts.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and route amendments are necessary to keep them operationally current. Therefore this regulation—(1) is not a “significant regulatory action“ under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On Tuesday, April 25, 2000, the FAA proposed to amend 14 CFR part 71 to modify Class E airspace at Ionia, MI (65 FR 24140). The proposal was to modify controlled airspace extending upward from the 700 feet above the surface to contain Instrument Flight Rules (IFR) operations in controlled airspace during portions of the terminal operation and while transiting between the enroute and terminal environments. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9G dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 modifies Class E airspace at Ionia, MI, to accommodate aircraft executing instrument flight procedures into and out of Ionia County Airport. The area will be depicted on appropriate aeronautical charts.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep operationally current. Therefore, this regulation—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On Tuesday, April 25, 2000, the FAA proposed to amend 14 CFR part 71 to establish Class E airspace at Greenwood/Wonder Lake, IL (65 FR 24139). The proposal was to add controlled airspace extending upward from 700 to 1200 feet AGL to contain Instrument Flight Rules (IFR) operations in controlled airspace during portions of the terminal operation and while transiting between the enroute and terminal environments.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received. Class E airspace designations for airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9G dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 establishes Class E airspace at Greenwood/Wonder Lake, IL, to accommodate aircraft executing the proposed RNAV-A SIAP at Galt Field Airport by creating controlled airspace. The area will be depicted on appropriate aeronautical charts.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(1) is not “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On Tuesday, May 2, 2000, the FAA proposed to amend 14 CFR part 71 to modify Class D airspace and Class E airspace at Chicago, Aurora Municipal Airport, IL (65 FR 25456). The proposal was to modify controlled airspace extending upward from the surface to contain Instrument Flight Rules (IFR) operations in controlled airspace during portions of the terminal operation and while transiting between the enroute and terminal environments.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received. Class D airspace designations are published in paragraph 5000, and Class E airspace areas designated as extensions to a Class D airspace area are published in paragraph 6004, of FAA Order 7400.9G dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designations and Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 modifies Class D airspace and Class E airspace at Chicago, Aurora Municipal Airport, IL, to accommodate aircraft executing instrument flight procedures into and out of Aurora Municipal Airport, IL. The area will be depicted on appropriate aeronautical charts.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On Tuesday, May 2, 2000, the FAA proposed to amend 14 CFR part 71 to modify Class D airspace and Class E airspace at Gary, IN, (65 FR 25457). The proposal was to modify controlled airspace extending upward from the surface to contain Instrument Flight Rules (IFR) operations in controlled airspace during portions of the terminal operation and while transiting between the enroute and terminal environments. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received. Class D airspace designations are published in paragraph 5000, and Class E airspace areas extending upward from 700 feet or more above the surface of the earth, are published in paragraph 6005, of FAA Order 7400.9G dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designations and Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 modifies Class D airspace and Class E airspace at Gary, IN, to accommodate aircraft executing instrument flight procedures into and out of Gary Regional Airport. The area will be depicted on appropriate aeronautical charts.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation on a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Federal Register Document 00-16335, Airspace Docket No. 00-AGL-10, published on June 28, 2000 (65 FR 39792), established Class E Airspace at Minneapolis, Crystal Airport, MN. An error in the legal description for the Class E airspace for Minneapolis, Crystal Airport, MN, was published. This action corrects that error.

On Friday, May 5, 2000, the FAA proposed to amend 14 CFR part 71 to modify Class E airspace at Marquette, MI (65 FR 26158). The proposal was to modify controlled airspace extending upward from the 700 feet above the surface to contain Instrument Flight Rules (IFR) operations in controlled airspace during portions of the terminal operation and while transiting between the enroute and terminal environments.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on he proposal to the FAA. No comments objecting to the proposal were received. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9G dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 modifies Class E airspace at Marquette, MI, to accommodate aircraft executing instrument flight procedures into and out of Sawyer International Airport. The area will be depicted on appropriate aeronautical charts.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal.

Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

In accordance with section 102(b) of the Arms Export Control Act, President Clinton reported to the Congress on May 13, 1998, with regard to India and May 30, 1998, with regard to Pakistan his determinations that those non-nuclear weapon states had each detonated a nuclear explosive device. The President directed in the determination reported to the Congress that the relevant agencies and instrumentalities of the United States take the necessary actions to implement the sanctions described in section 102(b)(2) of that Act. Consistent with the President's directive, the Bureau of Export Administration (BXA) implemented certain sanctions, as well as certain supplementary measures to enhance the sanctions on November 19, 1998 (63 FR 64322).

Based on a consensus decision by the Administration to more tightly focus the sanctions on those Indian entities which make direct and material contributions to weapons of mass destruction and missile programs and items that can contribute to such programs, BXA issued revisions to the list of Indian entities on March 17, 2000 (65 FR 14444). This rule makes additional revisions to the list by removing the Nuclear Science Centre located in New Delhi from the Entity List table in Supplement No. 4 to part 744. In addition, this rule removes the Uranium Recovery Plant located in Cochin from the subordinates listed under the Indian organization Department of Atomic Energy (DAE) in Appendix A to the Entity List, “Listed Subordinates of Listed Indian Organizations.” Lastly, this rule adds the Indian Space Research Organization (ISRO), Telemetry, Tracking and Command Network (ISTRAC) to subordinates listed under the Indian organization Department of Space (DOS) in Appendix A to the Entity List.

The license review policy for ISTRAC will be one of denial for items controlled for NP or MT reasons, except items intended for the preservation of safety of civil aircraft, which will be reviewed on a case-by-case basis; and computers, which will be reviewed with a presumption of denial. All other items subject to the EAR to ISTRAC will be reviewed with a presumption of denial, with the exception of items classified as EAR99, which will be reviewed with a presumption of approval.

The removal of entities from the Entity List does not relieve exporters or reexporters of their obligations under General Prohibition 5 in § 736.2(b)(5) of the EAR which provides that, “you may not, without a license, knowingly export or reexport any item subject to the EAR to an end-user or end-use that is prohibited by part 744 of the EAR.” BXA strongly urges the use of Supplement No. 3 to part 732 of the EAR, “BXA's ‘Know Your Customer’ Guidance and Red Flags” when exporting or reexporting to India and Pakistan.

Although the Export Administration Act (EAA) expired on August 20, 1994, the President invoked the International Emergency Economic Powers Act and continued in effect the EAR, and, to the extent permitted by law, the provisions of the EAA in Executive Order 12924 of August 19, 1994, as extended by the President's notices of August 15, 1995 (60 FR 42767), August 14, 1996 (61 FR 42527), August 13, 1997 (62 FR 43629), August 13, 1998 (63 FR 44121), and August 10, 1999 (64 FR 44101, August 13, 1999).

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

2. This rule contains and involves collections of information subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq. ). These collections have been approved by the Office of Management and Budget under control number 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 40 minutes to prepare and submit electronically and 45 minutes to submit manually on form BXA-748P; and 0694-0111, “India Pakistan Sanctions,” which carries a burden hour estimate of 40 minutes to prepare and submit electronically and 45 minutes to submit manually on form BXA-748P. Notwithstanding any other provision of law, no person is required to respond nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid OMB Control Number.

3. This rule does not contain policies with Federalism implications sufficient to warrant preparation of a Federalism assessment under Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (see 5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 5 U.S.C. 553 or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable.

Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted to Sharron Cook, Regulatory Policy Division, Bureau of Export Administration, Department of Commerce, PO Box 273, Washington, DC 20044.

This final rule implements the measures to control fishing mortality of bluefish contained in Amendment 1, which were approved by NMFS on behalf of the Secretary of Commerce (Secretary) on July 29, 1999. Amendment 1 also addresses the new requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), as amended by the Sustainable Fisheries Act. Two primary examples of these requirements are establishing a rebuilding plan to rebuild the bluefish stock from an overfished condition and describing and identifying essential fish habitat (EFH) for bluefish. As part of the rebuilding plan, Amendment 1 contains a new overfishing definition for the bluefish stock and a 9-year rebuilding schedule. The rebuilding plan was also approved by NMFS. The overfishing definition is not being codified in regulations. NMFS did not approve all of Amendment 1. NMFS disapproved the de minimus provision related to state allocations of the commercial quota, the portion of the essential fish habitat (EFH) section assessing the effects of fishing gear on bluefish EFH, and the description and analysis of fishing communities. All of the other measures contained in Amendment 1, as originally submitted, were approved. A proposed rule to implement these measures was published on August 23, 1999 (64 FR 45938).

The de minimus provision, which would have exempted states receiving less than 0.1 percent of the overall allocation from participating in the state allocation system, was disapproved because it is inconsistent with National Standard 1 of the Magnuson-Stevens Act, which requires that management measures prevent overfishing. This provision lacks any clear obligation on the part of the de minimus state to close its commercial bluefish fishery once its quota is harvested. This could result in a state's de minimus quota being rapidly exceeded and could result in overfishing of the bluefish stock.

A portion of the EFH provisions were disapproved because Amendment 1 failed to list and to consider adequately the potential adverse impacts of all fishing gear used in the waters described as EFH, particularly those waters under state jurisdiction. A significant portion of bluefish EFH occurs within state waters and the Council has indicated that there is some linkage between juvenile bluefish and submerged aquatic vegetation (SAV). Amendment 1 indicates that there are impacts to SAV from certain estuarine fishing gear. However, these gear are not listed in Section 2.2.3.6 (Fishing Gear Used Within the Bluefish Range), their potential impacts to bluefish EFH are not assessed in Section 2.2.3.7 (Fishing Impacts to Bluefish EFH), nor are the measures for managing potential adverse impacts considered in Section 2.2.4 (Options for Managing Adverse Effects from Fishing). These three sections of the EFH designation in the amendment were, therefore, disapproved.

The description and analysis of fishing communities was disapproved because the communities involved in the present day fishery are not sufficiently identified and the amendment does not describe or consider impacts on recreational fishing communities, such as Ocean City, Maryland, Virginia Beach, Virginia, or Oregon Inlet, North Carolina. The fishing communities section of Amendment 1 is based on the 1993 surveys of the Mid-Atlantic commercial fishing communities by McCay et al. Dependence of communities on the fishery is not assessed or considered, and the requirements of section 303(a)(9) and national standard 8 are not satisfied.

Details concerning the justification for and development of Amendment 1 and the implementing regulations were provided in the notice of availability (NOA) of Amendment 1 (64 FR 23260, April 30, 1999) and in the preamble to the proposed rule (64 FR 45938, August 23, 1999) and are not repeated here.

Amendment 1 revises the definitions of overfishing and overfished in the FMP to include an F and biomass (B) component, respectively. Overfishing is defined as occurring when F is greater than the maximum F threshold, specified as F msy = 0.4; and the bluefish stock is considered overfished when biomass is less than the minimum biomass threshold, specified as 1/2B msy = 118.5 million (mil) lb (53,750 mt). The long-term F target is 90 percent of F msy and the long-term B target is B msy . The overfishing definition contained in Amendment 1 is not codified in regulations.

In accordance with § 648.160(a), the rebuilding plan provides for the bluefish stock to be rebuilt to B msy over a 9-year period. In the first (1999) and second (2000) years of rebuilding, F remained/remains at the 1998 level, F=0.51; in years 3 through 5 (2001, 2002, and 2003), F will be reduced to F=0.41; and in years 6 through 9 (2004, 2005, 2006, and 2007), F will be reduced to F=0.31. Once rebuilding is achieved, F will be set at F=0.36, and continue to be that value as long as the stock is not overfished.

The Council's analysis of the impacts of the rebuilding program was based on the 9-year period for fishing years 1999 through 2007. Although the rebuilding plan was approved on July 29, 1999, NMFS did not implement the plan in 1999 in Federal waters because of delays in publishing this final rule. However, the states participating in the bluefish fishery took action for 1999 in accordance with the rebuilding schedule of Amendment 1 through the ASMFC and their own existing administrative programs for managing quotas in the commercial fishery for bluefish. Therefore, fishing year 2000 will be the second year of the rebuilding plan.

This final rule establishes a Bluefish Monitoring Committee that is a joint committee of the Council and the Commission made up of staff representatives of the Mid-Atlantic, New England, and South Atlantic Fishery Management Councils, NMFS Northeast Regional Office, NMFS Northeast Fisheries Science Center, and the Commission. The Committee will review annually the best available data and recommend commercial (annual quota, minimum fish size, and minimum mesh size) and recreational (possession and size limits, and seasonal closures) measures designed to ensure that the F for bluefish for that given year is not exceeded.

Specific description and identification of EFH for bluefish that is contained in Section 2.2.2.2 of Amendment 1 was approved. The Council did not identify any habitat areas of particular concern for bluefish.

This final rule establishes a procedure to specify an annual coastwide harvest level that is to be divided into two separate TAL values, one each for the recreational and commercial sectors. The relative shares of the annual coastwide harvest level for the recreational and commercial sectors are 83 and 17 percent, respectively. These values are based on the average catch composition of the two sectors during the 1981 through 1989 fisheries. The commercial TAL is further allocated to the states from Maine through Florida based on their percentage share of commercial landings for the period 1981 through 1989. However, this rule provides for an exception to the split of the annual coastwide harvest level between 83 percent of the recreational sector and 17 percent for the commercial sector. If 17 percent of the annual coastwide harvest level for a given year is less than 10.5 million lb (4.8 million kg) and the recreational fishery is not projected to land its harvest limit for the upcoming year, the commercial TAL may be allocated up to 10.5 million lb (4.8 million kg) (the average commercial landings for the period 1991 through 1996) as its quota, provided that the combination of the projected recreational landings and the commercial quota does not exceed the TAL. This strategy was adopted to ensure that commercial landings would not be unduly constrained under a low annual coastwide harvest level and a proportionally low recreational landing. The annual coastwide harvest limit will be set annually, based on the F values specified in the rebuilding schedule, and a target F=0.36, once rebuilding is achieved.

For fishing year 1999, the states implemented a TAL of 36.84 million lb (16.71 million kg), consistent with the first year of the rebuilding plan approved under Amendment 1 (see § 648.160(a)). The commercial fishery was allocated 9.583 million lb (2.69 million kg). State-by-state allocation of the commercial TAL was based on the percentages listed in § 648.160(e)(1).

In addition to the annual review and modifications to management measures associated with the Monitoring Committee process, Amendment 1 and the final rule set forth procedures allowing the Council to add or modify management measures through a streamlined public review process called a framework adjustment process. As such, management measures that have been identified in Amendment 1 could be implemented or adjusted at any time during the year following consideration of the measures and associated analyses during at least two Council meetings. The recommended management measures may then be implemented through a final rule without first publishing a proposed rule. The measure identified in Amendment 1 add gear restrictions, minimum and maximum fish size, permitting restrictions, changes in the recreational possession limit, recreational and commercial seasons, closed areas to address overfishing if it is deemed necessary in the future, description and identification of EFH and fishing gear management measures that impact EFH, and description and identification of habitat areas of particular concern.

This final rule adds permit and reporting requirements that mirror similar requirements for other Northeast fisheries. These measures include new permitting requirements for Federal commercial vessels, charter and party boats, dealers, and vessel operators, and new reporting requirements for commercial and charter/party boat vessels and dealers. In addition to logbook reporting, dealers will be required to participate in the Northeast Interactive Voice Reporting (IVR) system to assure timely reports for purposes of quota monitoring.

Implementation of a commercial vessel permitting system represents a modification of the present system where individuals, and not vessels, are issued a permit to sell bluefish. Under bluefish regulations prior to Amendment 1, any person selling a bluefish harvested from the exclusive economic zone is identified as a commercial fisherman and must have had a commercial fishing permit issued by a state or by NMFS that allows the sale of bluefish (i.e., the individual is licensed). The new management measure allows the sale of bluefish harvested in Federal waters only from vessels issued a Federal permit. The Council believes that the bulk of the bluefish that enters the market is harvested by commercial vessels. However, at Council and committee meetings, it has been noted that certain individuals, such as those who fished from a vessel they did not own or operate and then sold their catch, would be affected by the changeover to a vessel permit. These individuals would be subject to the recreational possession limit and would no longer be able to sell bluefish.

This rule also makes technical amendments to the regulations implementing the Spiny Dogfish FMP published on January 11, 2000, at 65 FR 1557 and whose effectiveness was delayed, first, to March 15, 2000 (65 FR 7461, February 15, 2000), second, to March 27, 2000 (65 FR 15110, March 21, 2000), and third, to April 3, 2000 (65 FR 16844, March 30, 2000). The final rule implementing the Spiny Dogfish FMP inadvertently removed the requirement contained in § 648.5 for surf clam and ocean quahog operators to obtain an operator permit. This final rule corrects the regulations in § 648.5(a) by adding surf clam and ocean quahog to the list of species identified.

In addition, the final rule published on December 6, 1999 (64 FR 68228), implemented measures to manage the American lobster fishery in the EEZ from Maine through North Carolina. The final regulations removed part 649 of 50 CFR Chapter VI. However, a crossreference to part 649 contained in § 648.5 was not removed at the time of implementation of the final rule. This final rule removes the crossreference to part 649.

Ten written comments on Amendment 1 were received by NMFS during the comment period established by the NOA for Amendment 1, which ended June 29, 1999. These comments were considered by NMFS before it partially approved Amendment 1 on July 29, 1999. Those comments received during the comment period on Amendment 1 are addressed here.

NMFS received one additional comment on the proposed rule during the comment period ending on October 7, 1999. Because the comment period was distinct from, and followed the comment period for the amendment, the comment received during the proposed rule period was not considered in NMFS' determination to partially approve Amendment 1. This comment is addressed here.

Comment 1 : Two commenters considered the EFH portion of the Amendment to be overly broad and to exceed the intent of Congress. The commenters specifically cited the breadth of EFH designations, noting that EFH appeared to be designated in an arbitrary manner, over the range of the species, and included coastal state and estuarine waters. One commenter notes that NMFS and the Council should clarify and elaborate on its views as to how the Amendment relates to the EFH consultation and recommendation requirements.

Response : The Magnuson-Stevens Act defines EFH as those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity. The EFH regulations explain that this definition should be interpreted to include associated physical, chemical and biological properties that make the habitat appropriate for use by the species and may include aquatic areas historically used by fish where appropriate. The geographic extent of EFH for a species should be based on the habitat necessary to support a sustainable fishery and the managed species contribution to a healthy ecosystem, and can include state and Federal waters. The Council's EFH description and identification are consistent with these requirements. The information that the Council used for EFH designation was primarily species distributions and relative abundance data, which would be classified as “Level 2” information under the EFH regulations (50 CFR 600.815). The use of this data in determining EFH is fully explained within the text of the amendment. Upon approval of the EFH designations, Federal agencies must consult with NMFS regarding any action that may adversely affect EFH, and NMFS must provide conservation recommendations regarding any Federal or state agency action that would adversely affect EFH, pursuant to section 305(b) of the Magnuson-Stevens Act.

Comment 2 : A commenter stated that the conservation and enhancement recommendations for non-fishing impacts to EFH that are provided in the Amendment are not based on the best available science, nor sufficiently supported. Two commenters contended that the recommended measures do not take into consideration current practices, are likely to be in conflict with measures being pursued under other regulatory programs, and may cause severe over-regulation. One commenter also stated that the Magnuson-Stevens Act did not empower the Fishery Management Councils to address non-fishing activities.

Response : NMFS disagrees that the conservation and enhancement recommendations for non-fishing impacts to EFH are not based on the best available science. The information presented in this section of the Amendment is well researched and substantiated. Discussions of actions with the potential to adversely affect EFH and accompanying conservation and enhancement recommendations were included to satisfy the requirements of section 303(a)(7) of the Magnuson-Stevens Act to “identify other actions to encourage the conservation and enhancement of EFH.” This information is exemplary and provided to assist non-fishing industries in avoiding impacts to EFH. The recommendations are neither posed as, nor meant to be, binding in nature. It is up to the discretion of the non-fishing industries and relevant regulatory agencies whether these or similar recommendations are needed or implemented.

Comment 3 : Two commenters stated that the Amendment contains no meaningful threshold of significance or likelihood of adverse effect on habitat for non-fishing impacts. The commenters suggested that the consultation and conservation recommendation provisions of the Act will be burdensome and unworkable. One commenter contended that the consultation procedures will be redundant with the National Environmental Policy Act (NEPA), costly, and time consuming.

Response : The Magnuson-Stevens Act requires Federal action agencies to consult with NMFS on activities that may adversely affect EFH. “Adverse effects,” as defined at 50 CFR 600.810(a), means any impact that reduces the quality and/or quantity of EFH. Adverse effects may include, for example, direct effects through contamination or physical disruption, indirect effects such as loss of prey or reduction in species fecundity, and site-specific or habitat-wide impacts, including individual, cumulative, or synergistic consequences of actions. Only actions that may have a reasonably foreseeable adverse effect require consultation. The EFH regulations provide for streamlined consultation procedures in which the level of consultation for any action is commensurate with the degree of potential impact to EFH. The EFH consultation requirements will be consolidated with other existing consultation and environmental review procedures wherever appropriate. This approach will ensure that EFH consultations do not duplicate other environmental reviews, yet still fulfill the statutory requirement for Federal actions to consider potential effects on EFH.

Comment 4 : One commenter expressed concern regarding the inclusion of two frameworkable measures: (1) “Description and identification of EFH,” and (2) “Description and identification of habitat areas of particular concern.” The commenter is concerned that the framework process would allow changes to these measures to be published as a final rule without first publishing them as a proposed rule. The commenter states that non-fishing interests lack representation at Council meetings and, therefore, will not have an opportunity to comment on actions regarding EFH. The commenter asserts that the framework adjustment process for these two measures will foster inconsistencies in treatment among the different NMFS Regions and the Councils, thereby complicating the EFH consultation process. The commenter requests that the inclusion of these measures be delayed until revision of NMFS EFH interim final regulations and guidelines.

Response : The framework adjustment process requires the Councils, when making specifically allowed adjustments to the FMP, to develop and to analyze the actions over the span of at least two Council meetings. The Councils must provide the public with advance notice of the meetings through publication of the meeting agenda in the Federal Register , the proposals and the analysis, and provide an opportunity to comment on the proposals prior to, and at, the second Council meeting. Commenters may also submit written comments to the Council before or during the second Council meeting. Upon review of the analysis and public comment, the Council may recommend to the Administrator, Northeast Region, NMFS (Regional Administrator), that the measures be published as a final rule, if certain conditions are met. NMFS may either publish the measures as a final rule, or as a proposed rule if NMFS or the Council determines that additional public comment is needed. Within the guidelines, modifications to EFH and Habitat Areas of Particular Concern can be implemented in a expedited manner while providing ample notice and opportunity for comment by all stakeholders.

Comment 5 : A commenter stated that the Amendment generally failed to address the potential for significant adverse impacts of the Amendment on non-fishing entities, specifically citing the requirements of NEPA and the Regulatory Flexibility Act.

Response : The description and identification of aquatic areas or substrate as EFH for a species or life stage does not carry with it any regulation or restriction of any activity. Following designation of EFH, NMFS, on behalf of the Secretary, is required to minimize, to the extent practicable, adverse impacts to EFH from fishing, and Federal action agencies are required to consult with NMFS on any action it authorizes, funds, or undertakes that may adversely affect EFH. NMFS' regulations of fishing in the EEZ or another action agency's regulation of non-fishing activities must comply with all applicable laws, such as the National Environmental Policy Act (NEPA) and the Regulatory Flexibility Act (RFA).

Comment 6 : One commenter asserts that the Amendment is inconsistent with the Magnuson-Stevens Act national standards 1, 2, and 7.

Response : In regard to national standard 1, the Amendment utilizes a NMFS-certified overfishing definition developed by scientists from the Universities of Rhode Island and Connecticut. The overfishing definition was also adopted by the Bluefish Technical Monitoring Committee and approved by the Science and Statistical Committee of the Council. The rebuilding schedule will allow the stock of Atlantic bluefish to rebuild to a level of maximum sustainable yield in 9 years. The overfishing definition and rebuilding strategy are consistent with national standard 1. Because the overfishing definition for bluefish contains a B threshold = 1/2B msy and B target = B msy , and the F target is less than F msy , the definition complies with national standard 1 guidelines. Also, the rebuilding schedule for bluefish is in compliance with national standard 1 because it is less than 10 years, but also takes into account the needs of fishing communities (especially in years 1 and 2 by not having a lower F value). The Amendment is consistent with national standard 2 since it relies on the best scientific information available.

The commenter does not elaborate upon the assertion that the Amendment violates national standard 7, so NMFS assumes, for the purpose of responding to their comment, that the commenter is alleging that the EFH consultation process is duplicative of other federally required consultation procedures. NMFS has determined that the Amendment is consistent with the Magnuson-Stevens Act, including national standard 7. Interagency consultations on Federal activities that may adversely affect EFH are required by the Magnuson-Stevens Act. As explained earlier, EFH consultations will be incorporated whenever practicable into existing review processes and be accomplished within existing process time frames. NMFS is committed to a consultation process that will be effective, efficient, and non-duplicative. The EFH regulations at 50 CFR 600.920 suggest that NMFS be consulted as early as possible in project planning so that appropriate conservation measures can minimize the potential for adverse effects to the EFH. The Amendment contains conservation recommendations that are appropriate for many Federal actions, and that can also serve as guidelines during project planning.

Comment 7 : One commenter believed the Council should have adopted a 5-year rebuilding strategy in lieu of a 9-year strategy explaining that a 5-year plan would end overfishing and begin recovery as soon as possible. In addition, the 5-year rebuilding schedules evaluated by the Council show that the recovery alternatives generate similar and sometimes greater cumulative commercial revenues and cumulative recreational harvest limits compared to the preferred alternative.

Response : The Council believes and NMFS agrees that the 9-year strategy could mitigate short-term potential negative economic impacts to the recreational and, under certain scenarios, to the commercial sector. The Amendment will allow a transfer of up to 10.5 million lb (4.8 million kg) to the commercial sector if the recreational sector is not projected to take their share of the quota. In the years that this entire amount can be transferred, there is no difference in revenues to the commercial sector, because under any rebuilding strategy this sector would be able to fish the 10.5 million lb (4.8 million kg) cap. However, in years when the transfers cannot take place the commercial quotas would be substantially less under the 5-year plan as opposed to the 9-year plan. Recreational revenues are usually less for the first five years under the 5-year rebuilding plans, but much greater thereafter. NMFS recognizes that overfishing may occur in 1999 and 2000 although given recent landings information this seems highly unlikely. Recreational landings have been decreasing and were roughly half of the present quota in 1997. However, NMFS believes that the Council, in adopting the 9-year strategy, is attempting to end overfishing as soon as possible while maintaining an optimum yield that will not unduly harm participants in the fishery.

Comment 8 : Two commenters were concerned about the potential economic and social impacts of a minimum recreational size limit and effects of the size limit on communities.

Response : This is a moot issue since the Amendment does not implement a size limit, only a mechanism for doing so through the framework or the annual adjustment process. The required analysis would be completed at that time. Shore based fisheries are regulated by state actions that may complement Amendment 1, but are not directly regulated by the FMP.

Comment 9 : One commenter raised concern with transferring the projected recreational surplus of up to 10.5 million pounds to the commercial quota. The commenter believes that this will increase the length of time required for the stock to rebuild.

Response : The Council adopted this strategy to ensure that commercial landings would not be unduly constrained under low allowable harvest levels and proportionally low recreational landings. Commercial and recreational bluefish industry representatives who attended Council and committee meetings on Amendment 1 support this compromise. The recreational and commercial quotas would be set annually based on the fishing mortality rates specified in the rebuilding schedule. This matter is discussed in length in the Initial Regulatory Flexibility Analysis (IRFA) summary contained in the classification section of the proposed rule.

Comment 10 : One commenter had concerns regarding National Standard 8, which requires management measures to consider affects on communities, and section 303(a)(9), which requires a fishery impact statement.

Response : The description and analysis of fishing communities was disapproved because the communities involved in the present day fishery are not sufficiently identified and Amendment 1 does not describe or consider impacts on recreational fishing communities, such as Ocean City, Maryland, Virginia Beach, Virginia, or Oregon Inlet, North Carolina. The fishing communities section of Amendment 1 is based on the 1993 surveys of the Mid-Atlantic commercial fishing communities by McCay et al. Dependence of communities on the fishery is not assessed or considered, and the requirements of Section 303(a)(9) and National Standard 8 have not been satisfied. However, NMFS informed the Council of these deficiencies of the Amendment and expects the Council to provide this type of analysis in the future.

Comment 11 : One commenter believed that charter/party vessels should not be subject to the monthly vessel trip report (VTR) requirements due to the existing Marine Recreational Fisheries Statistics Survey and the apparent lack of rationale for requiring monthly logbooks. In addition, the commenter states that hull identification numbers should be included as a required element of permits and reporting logbooks, and that Amendment 1 should not be inconsistent with the Atlantic Coastal Cooperative Statistics Program (ACCSP) system.

Response : The VTRs for charter/party vessels are currently necessary to ensure appropriate quota monitoring in fisheries. The VTR is an established system of mandatory reporting familiar to and used by the Council for quota and total allowable catch monitoring purposes. This reporting requirement will help satisfy the required provision of the Magnuson-Stevens Act to describe and to quantify trends in landings of the commercial, recreational and charter fishing sectors. Hull identification numbers, either U.S. Coast Guard (USCG) documentation number or state registration number, are required information on VTRs, and this will be clarified in the regulatory text. While the ACCSP may establish preferable monitoring systems, the program is not operational in the region. Until such time as the ACCSP establishes an appropriate monitoring system, the VTRs are necessary. The data collection aspects of Amendment 1 are subject to the framework adjustment process to allow for conversion to the ACCSP program in the future.

In § 648.4(a)(8)(ii), the phrase “to fish for bluefish” was expanded to read “to fish for, possess, or land Atlantic bluefish in or from the EEZ.”

In § 648.7, paragraph (b) was revised to add spiny dogfish to the list of species for which permit conditions apply. The final rule implementing the Spiny Dogfish FMP became effective on April 3, 2000, after the proposed rule for Amendment 1 to the Bluefish FMP was published.

Several paragraphs in § 648.7 were modified to make it easier for the public to understand which dealers are affected by the reporting requirements specified in that part. The current mandatory dealer reporting system was incorporated into each fishery management plan through plan amendments that occurred over a period of years. As amendments were implemented this section listed by species the dealers subject to this requirement. Now that the requirement has been incorporated into all of the Northeast Region fishery management plans, it is not necessary to list dealer permits by species. Therefore, § 648.7(a)(1)(i) has been modified to show it applies to “All dealers issued a dealer permit under this part, with the exception of those utilizing the surf clam or ocean quahog dealer permit;” § 648.7(a)(3)(i) has been modified to show that it applies to “All dealers issued a dealer permit under this part.”

For the same reason, a similar modification was made to § 648.7(b)(1)(i) to clarify that the vessel reporting requirement applies to “The owner or operator of any vessel issued a permit under this part.”

In § 648.14(w)(2), the phrase “Atlantic bluefish taken from a fishing vessel” was expanded to read “Atlantic bluefish taken from a fishing vessel that were harvested in or from the EEZ.” In § 648.14(w)(3), the phrase “dealer or transferee has a dealer permit issued under § 648.6(a)” was replaced by “vessel has a valid bluefish permit issued under § 648.4(a)(8)(i).” The prohibition at § 648.14(w)(7) was removed and replaced by “To purchase or otherwise receive for a commercial purpose bluefish harvested from the EEZ after the effective date of the notification published in the Federal Register stating that the commercial quota has been harvested.” A new paragraph was added at § 648.14(w)(8) that prohibits dealers from purchasing bluefish from federally-permitted vessels after publication of a notification stating that the commercial quota has been harvested.

Section 648.160(d) is revised to indicate that NMFS will only issue one proposed rule and final rule annually in the Federal Register to include both the commercial and recreational measures. The proposed rule for Amendment 1 indicated that a separate proposed and final rule would be issued annually for recreational fishing measures.

NOAA codifies its OMB control numbers for information collection at 15 CFR part 902. Part 902 collects and displays the control numbers assigned to information collection requirements of NOAA by OMB pursuant to the Paperwork Reduction Act (PRA). This final rule codifies OMB control number 0648-0202 for §§ 648.91 through 648.94, and § 648.96.

Under NOAA Administrative Order 205-11, dated December 17, 1990, the Under Secretary for Oceans and Atmosphere has delegated to the Assistant Administrator for Fisheries, NOAA, the authority to sign material for publication in the Federal Register .

NMFS determined on July 29, 1999, that Amendment 1 that this rule implements is consistent with the Magnuson-Stevens Act and other applicable laws, with the exception of the de minimus provision, the fishing communities section, and the portion of the EFH section dealing with the effect of fishing gear on bluefish EFH.

This rule has been determined to be significant for the purposes of Executive Order 12866.

The Council prepared an FEIS for this Amendment; an NOA for the FEIS was published in the Federal Register on June 25, 1999. NMFS determined upon review of Amendment 1 and its accompanying FEIS and public comments that approval and implementation of Amendment 1 is environmentally preferable to the status quo. The FEIS demonstrates that it contains management measures able to halt overfishing and to rebuild the Atlantic bluefish stock; protect marine mammals and endangered species; provide economic and social benefits to the fishing industry in the long term; and contribute to better balance in the ecosystem in terms of the Atlantic bluefish resource.

In compliance with the RFA, the Council prepared and NMFS adopted an IRFA contained in Amendment 1 that describes the economic impacts of the proposed rule, if adopted, on small entities. The final regulatory flexibility analysis (FRFA) consists of the IRFA, public comments and responses thereto, the analysis of impacts and alternatives in Amendment 1 to the Atlantic Bluefish FMP, a description of the need for, and objectives of the rule found in the preamble of the proposed rule, and a summary of the impacts on small entities as published in the classification section of the proposed rule, all of which are not repeated here. A summary of the FRFA is as follows:

NMFS is issuing this final rule to implement approved management measures contained in Amendment 1 to the Bluefish FMP. The purpose of this rule is to control fishing mortality of bluefish and begin rebuilding the stock.

There were several public comments submitted during the public comment period for the proposed rule that related to impacts on small entities, including comments 5 and 8. The public comments and responses thereto are contained in the preamble to this rule. No changes were made to the proposed rule.

In the full permit year of 1998, there were 1,126 Federal bluefish permits issued to individuals. All of these individuals readily fall within the definition of a small business. NMFS estimated that 190 Federal permits held by individuals are associated with commercial vessel ownership. The number of recreational vessels that sell their catch and could apply for a vessel permit is unknown.

This rule would add bluefish permit and reporting requirements that mirror similar requirements for other Northeast fisheries. These measures include new permitting requirements for Federal commercial bluefish vessels, bluefish charter and party boats, bluefish dealers, and bluefish vessel operators, and new reporting requirements for bluefish dealers and owners or operators of commercial bluefish vessels and bluefish charter and party boats. In addition to logbook reporting, dealers would be required to participate in the IVR system to assure timely reports for purposes of quota monitoring.

The alternatives concerning vessel and dealer permitting and reporting have no effect on revenues and represent a minute portion of the cost of doing business. The Council estimated that 249 new vessel permit applicants, 500 new charter/partyboat vessel permit applicants, and 97 dealers would each spend $7.50 to apply for a permit and $20.00 per year for reporting requirements. In addition, no special knowledge is required to fill out the permit application. No additional costs of compliance would result from the implementation of the preferred or other alternative.

This final rule minimizes economic impacts on small entities by implementing a 9-year rebuilding plan. Rebuilding may occur faster if fishing for bluefish in Federal waters were prohibited altogether. However, the Council recommended and NMFS implements through this rule a 9-year rebuilding program that takes into account the economic needs of fishery participants to continue some level of fishing for bluefish while also meeting the statutory requirement to rebuild the fishery in as short a time frame as possible but within 10 years.

The alternative rebuilding schedules were rejected, because they would not have provided the same stability in projected yields, and would have resulted in greater short-term economic losses for the commercial sector, compared to the alternative implemented by this rule.

The quota allocation between the commercial and recreational fisheries implemented by this rule was chosen because it was based on time period (1981-1989) that reflects the composition of the fishery when bluefish stock abundance was fairly high and stable. The recreational harvest limit of 10 fish was chosen in order to keep recreational harvest within its allocation over the course of the fishing year. The quota allocation periods other than 1981-1989 that were evaluated for the basis of any split between the commercial and recreational sectors were either too short (e.g., 1985-1989) or were based partly on catches attained during periods of relatively low stock abundance (e.g., 1981-1993) ; therefore they were rejected.

The commercial vessel, charter/party boat and dealer permitting and reporting requirements implemented by this rule were chosen over the status quo (individual permits) so that NMFS will be better able to monitor the quota, to close the commercial fishery when the quota is reached, and evaluate harvest capacity. The Council also considered the status quo alternative of continuing the issuance of permits to individuals. Although this would mitigate the economic impacts of the proposed vessel permitting scheme, the Council notes that under individual permitting, the monitoring of the quota system would likely be undermined, because it would be very difficult to contact individuals with timely notifications or obtain information required for quota reports. Implementation and enforcement of commercial closures and commercial minimum fish sizes that are essential to managing the fishery would be compromised by the continued permitting of individuals. Furthermore, harvesting capacity or fishing power could not be evaluated under a regime of individual permits. The ability to monitor and to enforce commercial fishing quotas is essential to meeting the agency's fishery conservation and management responsibilities under the Magnuson-Stevens Act.

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

This rule contains 8 new collection-of-information requirements subject to the Paperwork Reduction Act. These collection-of-information requirements have been approved by the OMB, and the OMB control numbers and public reporting burden are listed as follows:

Bluefish vessel permits, OMB control number 0648-0202 (30 minutes/ response).

Bluefish dealer permits, OMB control number 0648-0202 (12 minutes/ response).

Bluefish vessel identification, OMB control number 0648-0202 (45 minutes/ response).

Employment section of the Processed Products Report, OMB control number 0648-0202 (2 minutes/response).

State quota transfer applications, OMB control number 0648-0202 (60 minutes/response). Vessel trip reports, OMB control number 0648-0212 (5 minutes/response).

Dealer reports through IVR system, OMB control number 0648-0229 (4 minutes/response).

Dealer reports for NOAA Form 30-80, OMB control number 0648-0229 (2 minutes/response).

The estimated response time includes the time needed for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these reporting burden estimates or any other aspect of the collection-of-information, including suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES ).

In Order No. 2000, 1 the Commission issued regulations requiring all transmission-owning public utilities to make certain filings. 2 This notice establishes and clarifies procedures related to those filings.

The regulations establish two deadlines for the required filings. Section 35.34(c) sets forth the general rule that filings are due by October 15, 2000, and section 35.34(h) establishes January 15, 2001 as the deadline for public utilities already participating in approved transmission entities. 3 Attached as an Appendix to this Notice is a list of the public utilities that the Commission deems to be within section 35.34(h) with a January 15, 2001 filing deadline. All other transmission-owning public utilities are subject to the October 15, 2000 deadline. Of course, any public utility may file before its deadline. In addition, transmission-owning non-public utilities who wish to voluntarily establish RTOs or join other RTO proposals along with public utilities may also voluntarily make filings on or before these deadlines.

Each filing made in compliance with Order No. 2000, whether it is a proposal to participate in an RTO or an alternative filing, will receive a new docket number designation. The Commission has established the new “RT” prefix for docket numbers that will be assigned to any filing made in compliance with Order No. 2000.

Unless specified differently in this paragraph, the Commission's Rules of Practice and Procedure at 18 C.F.R. Part 385 are applicable. An original and fourteen copies of each compliance filing must be filed with the Commission. For each public utility making a compliance filing, the filing must contain the identity of the utility and a designation of person to receive service ( see 18 C.F.R. § 385.203(b)), and be signed by an appropriate person representing the utility ( see 18 C.F.R. § 385.2005(a)). The filing must be served on the State commission or commissions that have jurisdiction over the utility filer, and any other State commission in a state that might be affected by the filing. In addition, service should be made on any person or entity likely to be significantly affected by the filing ( e.g., current transmission customers of the utilities comprising the proposed RTO). A certificate of service listing those served must be included ( see 18 C.F.R. 385.2010).

In addition to filing paper copies, the Commission encourages the filing of RTO compliance filings electronically, either on computer diskette or via Internet E-Mail. Such filings may be filed in the following formats: WordPerfect 8.0 or lower version, MS Word Office 97 or lower version, or ASCII format.

For diskette filing, include the following information on the diskette label: Order No. 2000 compliance filing; the name of the filing entity; the software and version used to create the file; and the name and telephone number of a contact person.

For Internet E-Mail submittal, filings should be submitted to rto@ferc.fed.us in the following format. On the subject line, specify Order No. 2000 compliance filing. In the body of the E-Mail message, include the name of the filing entity; the software and version used to create the file, and the name and telephone number of the contact person. Attach the filing to the E-Mail in one of the formats specified above. The Commission will send an automatic acknowledgment to the sender's E-Mail address upon receipt. Questions on electronic filing should be directed to Brooks Carter at 202-501-8145, E-Mail address brooks.carter@ferc.fed.us.

Filers should take note that, until the Commission amends its rules and regulations, the paper copy of the filing remains the official copy of the document submitted. Therefore, any discrepancies between the paper filing and the electronic filing or the diskette will be resolved by reference to the paper filing.

A public notice will be issued for all compliance filings. The notice will establish a comment period of approximately 30 days for all interested persons to comment on each filing.

The Commission reminds public utilities that the regulations allow for compliance filings to be made individually or jointly with other entities. Thus, where two or more public utilities are proposing to participate in the same RTO, the Commission encourages one joint filing. In the case of joint filings, it should be made clear which entities are participating in that filing. There must be separate representatives designated and separate authorizing signatures for any public utility for which a joint filing represents its required compliance filing. For approved transmission institutions, the transmission institution ( e.g., an approved ISO) may make the filing on behalf of the member transmission owners, but each public utility transmission owning member must provide separate authorizing signatures.

In Order No. 2000, the Commission recognized that some elements of an RTO proposal may be more difficult to fully implement than others. For example, with respect to function 7 (planning and expansion) and function 8 (interregional coordination), the regulations permit an extension beyond initial operation for full implementation of these functions. In these types of instances, where the Commission has adopted a period of implementation beyond the date of initial operation, we remind filers that they must provide an explanation of their plans for compliance, including dates of anticipated implementation.

To make reviewing filings more efficient, we request that filings proposing an RTO contain an executive summary limited to no more than five pages. We also request that the filings address each of the required characteristics and functions in the order set forth in the regulations, followed by the support for any additional Federal Power Act sections 203 and 205 filings required to implement the RTO proposal. We recognize that there may be overlap in the discussions of the characteristics and functions, since proposals may have to support various elements in relation to how those elements allow the RTO to carry out others, e.g., one measure of appropriate scope and configuration is how well the RTO can perform congestion management. Thus, to the extent it is necessary to discuss more than one characteristic or function together, we request that an identifying cross-reference be used so that the reader can easily find the discussion of a particular characteristic or function of interest.

The Commission reminds public utilities that have limited transmission facilities and that have previously been granted waiver of some or all of the requirements of Order Nos. 888 or 889, that an abbreviated filing is acceptable. 4 The Commission does not wish to burden these small entities with extensive filings, but will find it useful to know the status of all transmission-owning public utilities with respect to regional participation.

The Federal Energy Regulatory Commission is amending its regulations to remove its optional certificate regulations in Subpart E of Part 157 of the Commission's regulations. 1 The policies embedded in these regulations have been overtaken by subsequent policy developments, most particularly the Commission's September 15, 1999 statement of policy on certificating new pipeline construction (Policy Statement). 2 The optional certificate regulations, promulgated in 1985, established procedures whereby an eligible applicant may obtain, for purposes of providing new service, a certificate authorizing: the transportation of natural gas; sales of natural gas; the construction and operation of natural gas facilities; the acquisition and operation of natural gas facilities; and conditional pre-granted abandonment of such activities and facilities. The Commission's September 15, 1999 Policy Statement provides the industry guidance with respect to how the Commission will evaluate new proposals for pipeline construction projects to take account of changes in the natural gas industry in recent years. The Policy Statement provides that pipelines may not rely on existing customers to subsidize new projects that will not benefit them and that construction projects will be approved only where the public benefits outweigh any adverse effects. The optional regulations do not provide for consideration and weighing of public interest factors, and are thus inconsistent with current Commission policy.

Before a pipeline may construct any natural gas facilities subject to the Commission's Natural Gas Act (NGA) jurisdiction, it must obtain a certificate of public convenience and necessity authorizing such construction under section 7 of the NGA. In conjunction with the open access transportation program that the Commission established in 1985 in Order No. 436, the Commission adopted the optional certificate regulations as an alternative to the conventional certificate process. 3 A key goal of the optional certificate program was to provide the full benefits of competition to consumers by facilitating easier pipeline entry and exit from markets. 4 The optional certificate regulations establish a rebuttable presumption that, subject to review under the National Environmental Policy Act, a project is required by the public convenience and necessity if the applicant is willing to assume all the economic risk of a new service. 5 To assure that the applicant shoulders the project risk, the optional regulations prohibit shifting costs originally allocated to the new service or facility to any other service. The optional regulations also prohibit any reduction in the certificated level of billing determinants used to design the initial rates for a project or service.

In view of continuing changes in the natural gas industry, the Commission revisited its NGA section 7 certificate policy, and on September 15, 1999, the Commission issued its Policy Statement to provide the industry with guidance regarding the process and criteria the Commission will employ in evaluating future proposals for certificating new pipeline construction. Rather than adopting new rules for filing applications, the Policy Statement provides an analytical framework for determining when a particular pipeline project is required by the public convenience and necessity. The threshold requirement of the new policy is that the pipeline must be prepared to develop the project without relying on subsidies from its existing customers. 6 The Policy Statement also encourages pipelines seeking a certificate to resolve potential issues very early in the process by submitting applications designed to avoid or minimize adverse effects on such groups as existing customers of the applicant, existing pipelines serving the market and their captive customers, and affected landowners and other community interests. After the applicant makes efforts to minimize adverse effects, the Commission will authorize construction projects that have residual unresolved issues only where it finds that the public benefits of the projects outweigh the adverse effects. The Policy Statement provides that an applicant may submit evidence of the public benefits to be achieved by the proposed project, such as contracts, precedent agreements, studies of projected demand in the market to be served, or other evidence of public benefit of the project.

On February 9, 2000, the Commission issued a Notice of Proposed Rulemaking (NOPR)  7 proposing in the instant docket to amend the Commission's regulations by removing the optional certificate regulations. The Commission stated that a uniform regulatory scheme applicable to all certificate applications will best accomplish the Commission's goals, as set out in the Policy Statement, of assuring that all relevant interests and circumstances are considered and balanced in assessing the public convenience and necessity.

The Commission explained in the NOPR that its September 1999 Policy Statement established a core set of principles and considerations for evaluating new pipeline construction projects. By precluding subsidization of new projects, both the Policy Statement and the optional certificate program place the risk of a new project on the pipeline and the customers for the new project and protect existing customers from assuming the financial risk of a project that was not designed for their benefit. The Commission noted, however, that in other respects, current policy is inconsistent with the optional certificate program. The Commission explained that because the optional certificate program operates under a rebuttable presumption that proposals under which the pipeline applicant will assume the financial risks associated with the project are in the public interest, the Commission does not weigh the public benefits against the adverse effects in considering such applications. The Commission stated that it believes that it will be better to consider all certificate applications under the broader balancing criteria articulated in the Policy Statement.

In its order clarifying the Policy Statement, 8 issued contemporaneously with the NOPR, the Commission determined that, on an interim basis until issuance of a final rule in this rulemaking proceeding, the presumption in favor of an application filed under the optional certificate regulations will continue, but that the presumption will be considered rebutted if the adverse affects of the proposed project are found to outweigh its benefits.

The Commission received only four comments in response to its NOPR, none of which disagreed with the proposal to eliminate the optional procedures. One commentor, El Paso Energy Corporation, believes that a uniform regulatory scheme employing the same standards and procedures for all certificate applications will improve the integrity and fairness of the regulatory process, and it supports the Commission's proposal to remove the optional certificate procedures. The other commentors, Sempra Energy Companies (Sempra), The Williams Companies, Inc. (Williams), and the Coastal Pipelines (ANR Pipeline Company, Colorado Interstate Gas Company, and Wyoming Interstate Company, Ltd.), express differing opinions regarding when removal of the optional certificate procedures should take effect. Williams also comments on the weight to be accorded an applicant's taking on the financial risk of a project.

Sempra supports the Commission's proposal to remove the optional certificate rules, and it urges that all new and pending applications filed under the optional procedures be converted to conventional NGA 7(c) applications and considered under the analytical framework set out in the Commission's Policy Statement. Sempra avers that, inasmuch as the Commission has determined that the optional procedures are inconsistent with the Policy Statement, the optional procedures should be eliminated as soon as possible. What it calls “the accident of an early filing date” should not result in applications filed under the optional procedures avoiding review under the interest balancing standards of the Policy Statement.

Williams and the Coastal Pipelines, on the other hand, while stating that they have no objection to the Commission's elimination of the optional certificate procedures, argue that elimination of the regulations should be prospective only. That is, they aver that the Commission should apply the optional certificate rules to applications filed under those procedures prior to the issuance of the NOPR. Williams urges, moreover, that, after the optional procedures are removed, the Commission should consider an applicant's willingness to assume the financial risk of a project as a major factor in assessing the public convenience and necessity under the Policy Statement's balancing test. It remains true today, asserts Williams, just as the Commission found when it adopted the optional certificate procedures, that an applicant's willingness to bear all the risk of a project's failure is strong evidence that there is a public need for a project inasmuch as a reasonable company would not invest in a project unless it believes that it will be able to attract sufficient business to recoup its investment.

We find that all comparable pipeline projects should be evaluated under the same criteria, and we adopt our proposal set forth in the NOPR to remove the optional certificate regulations. As the Commission stated in the NOPR, a regulatory approach that determines the public convenience and necessity on a uniform basis for all project applicants will best assist the Commission in meeting its goal, as set forth in the Policy Statement, that all interests and circumstances that are relevant to a particular pipeline project will be accorded appropriate consideration and weight.

The Commission agrees with Williams that an applicant's willingness to assume the financial risk of a project without subsidies from existing customers should be an important factor in determining the public convenience and necessity. We in fact explained in the Policy Statement that this is the threshold issue in that determination. However, analysis of the public convenience and necessity under the Policy Statement does not end with a determination that the project can proceed without subsidy from existing customers. The Policy Statement explained that the requirement that a project be able to stand on its own without subsidies “will be the predicate for the rest of the evaluation of a new project by an existing pipeline.”  9 Thus, the Commission stated, “if an applicant can show that the project is financially viable without subsidies, then it will have established the first indicator of public benefit.”  10 Once the applicant satisfies the threshold test, the Commission will proceed pursuant to the Policy Statement to evaluate and balance the public benefit from a proposed project against any residual adverse effects on existing customers, other pipelines and their captive customers, and landowners and communities affected by the route proposed for the pipeline. Because the optional certificate regulations undertake this interest balancing only if the presumption in favor of the application is challenged, they conflict with a significant goal under the Policy Statement, and we will remove them as an alternative means of certificating a project.

As noted above, in its order clarifying the Policy Statement, the Commission addressed the matter of the appropriate standard to be applied to applications filed under the optional certificate procedures pending a final determination in this rulemaking proceeding. The Commission announced that it would continue to apply the presumption in favor of financially viable proposals that did not rely on contributions from existing customers, but that it would consider the presumption successfully rebutted, pursuant to a Policy Statement analysis, if the adverse effects from the project outweigh the public benefits. We continue to believe that this is the appropriate approach to optional certificate applications filed prior to the effective date of this final rule, which will be 60 days after its date of issuance.

The optional procedures' regulatory presumption has always been one that is subject to rebuttal. The Commission has now explained that the presumption favoring an optional certificate proposal may be addressed by applying a Policy Statement analysis. While procedurally this places the burden on those parties that find themselves adversely affected by a proposal, the Commission believes that, as a practical matter, the end result will be the same. We explained in the NOPR that this is an interim solution only until the optional certificate procedures are eliminated and all proposals are evaluated directly under the Policy Statement considerations.

Commission regulations describe the circumstances where preparation of an environmental assessment or an environmental impact statement will be required. 11 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. 12 No environmental consideration is necessary for the promulgation of a rule that is clarifying, corrective, or procedural, or that does not substantially change the effect of legislation or regulations being amended. 13

This Final Rule merely eliminates optional procedures for the filing and processing of pipeline certificate applications; the Rule makes no substantive change to, or has any substantive effect on, the environmental requirements and conditions with respect to any pipeline project. Applicants for pipeline construction authority have had to satisfy the same environmental requirements under the optional or traditional procedures, as well as under the Policy Statement. Thus, issuance of this Final Rule does not represent a major federal action having a significant effect on the human environment under the Commission's regulations implementing the National Environmental Policy Act, and no environmental assessment or environmental impact statement is necessary for the action taken here.

The Regulatory Flexibility Act of 1980 (RFA)  14 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. The Commission is not required to make such analysis if a rule would not have such an effect. 15

Removal of the optional certificate rules will not have such an impact on small entities. The proposed removal of regulations would have impact only on interstate pipelines, which generally do not fall within the RFA's definition of small entity. 16 Accordingly, pursuant to section 605(a) of the RFA, the Commission certifies that the removal of regulations proposed here will not have a significant economic impact on a substantial number of small entities. Therefore, no regulatory flexibility analysis is required.

The Office of Management and Budget's (OMB) regulations require that OMB approve certain information collection requirements imposed by agency rule. 17 Upon approval of a collection of information, OMB shall assign an OMB control number and an expiration date. Respondents subject to the filing requirements of this Final Rule shall not be penalized for failure to respond to this collection of information unless the collection of information displays a valid OMB control number. The collection of information related to this Final Rule falls under FERC-537, Gas Pipeline Certificates: Construction, Acquisition, and Abandonment (OMB Control No. 1902-0060). 18

The Commission is not establishing a new information burden. Rather, under this Final Rule, the Commission is merely removing a heretofore little used alternative to the conventional NGA section 7(c) application process. All pipeline project applicants will file the same information that the overwhelming majority of applicants for construction authority already file. As a practical matter, our action should not have any appreciable effect on the collection of data from the pipeline industry.

None of the comments received in response to the NOPR specifically addressed the reporting burden or cost estimates. As required under OMB's regulations, the Commission submitted the NOPR to OMB for review. OMB took no action on the NOPR.

Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426, [Attention: Michael Miller, Office of the Chief Information Officer, Phone: (202)208-1415, fax: (202)208-2425, e-mail: mike.miller@ferc.fed.us] or the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, D.C. 20503. [Attention: Desk Officer for the Federal Energy Regulatory Commission, phone: (202)395-3087, fax: (202)395-7285]

In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page ( http://www.ferc.fed.us ) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, N.E., Room 2A, Washington, DC 20426.

From FERC's Home Page on the Internet, this information is available in both the Commission Issuance Posting System (CIPS) and the Records and Information Management System (RIMS).

During normal business hours, documents can also be viewed and/or printed in FERC's Public Reference Room, where RIMS, CIPS, and the FERC Website are available. User assistance is also available.

This Final Rule will take effect September 25, 2000. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget, that this rule is not a “major rule” within the meaning of section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996.  19 The Commission will submit the Final Rule to both houses of Congress and the General Accounting Office.  20

By the Commission.

The Federal Energy Regulatory Commission (Commission) is amending its regulations to reinstate provisions for making well category determinations under section 503 of the Natural Gas Policy Act of 1978 (NGPA). In a Notice of Proposed Rulemaking (NOPR) issued on January 27, 2000, 1 the Commission proposed to reinstate well determination procedures for certain categories of high-cost gas under NGPA section 107. An NGPA determination will enable such gas to be eligible for a tax credit under Section 29 of the Internal Revenue Code (Section 29 tax credit). The NOPR specifically proposed to limit the availability of the reinstated procedures to determinations on post-January 1, 1993 recompletions in wells drilled after December 31, 1979, but before January 1, 1993. The Commission also did not propose any regulations that would allow a jurisdictional agency to designate new tight formations. The Final Rule extends the provisions to all wells spudded before January 1, 1993, and recompletions both before and after that date that could qualify for the Section 29 tax credit, and provides for the designation of new tight formations.

Section 29 of the Internal Revenue Code, as amended by the Revenue Reconciliation Act of 1990, allows taxpayers to claim a tax credit for certain qualified fuels which (1) are produced from wells drilled after December 31, 1979, and before January 1, 1993, 2 and (2) are sold before January 1, 2003. The qualified fuels include high cost gas as defined in NGPA section 107 (c)(2)-(4) (gas produced from geopresssured brine, coal seams and Devonian shale), as well as some gas the Commission defined as tight formation gas pursuant to NGPA section 107(c)(5).

Section 29(c)(2)(A) of the Internal Revenue Code also provides that the determination whether gas falls into a category qualifying for the tax credit “shall be made in accordance with section 503 of the (NGPA).” NGPA section 503 set forth the procedures used for determining whether gas qualified for the various categories of gas entitled to the higher ceiling prices established by the NGPA as incentives for increased production. These included section 107(c) “high-cost natural gas.” Under NGPA section 503, the agency having regulatory jurisdiction with respect to the production of the natural gas in question (the jurisdictional agency)  3 made the initial determination, and submitted it to the Commission. The Commission could either affirm, reverse, remand, make a preliminary finding on, or simply take no action, regarding the agency's determination. If the Commission took no action within 45 days after receipt of the agency's determination, that determination became final. Judicial review was available under section 503 only if the Commission remanded or reversed the determination.

The Wellhead Decontrol Act of 1989 (Decontrol Act)  4 decontrolled all wellhead sales of natural gas by January 1, 1993, and repealed NGPA section 503 as of that date. After decontrol, the Commission's policy was not to accept determinations for any post-January 1, 1993 drilling activity. The Commission, however, continued to process well category determinations it received from jurisdictional agencies through April 30, 1994, for wells spudded before January 1, 1993, and pre-January 1, 1993 recompletions. The Commission explained that the reason for continuing to review those agency determinations for a transition period, was that, while NGPA section 107 well category determinations no longer had any price consequence, they were necessary to obtain the Section 29 tax credit.

As discussed above, section 29 of the Code provides that, in order to qualify for the tax credit, gas must be produced from a well drilled before January 1, 1993, the same date the last remaining NGPA ceiling prices were eliminated and NGPA section 503 was repealed. When the Commission decided not to process well determination requests for wells recompleted after December 31, 1992, it was assumed that the tax credit would not be available with respect to any drilling activity after that date, and therefore there was no need to continue the well category determination procedures to enable producers to qualify for the tax credit for such drilling activity. However, on August 16, 1993, the Internal Revenue Service (IRS), which administers the Section 29 tax credit, issued Revenue Ruling 93-54, 5 clarifying the provision of section 29 that states that gas must be produced from a well drilled before January 1, 1993. The IRS held that, while the initial drilling of a well had to have been performed before January 1, 1993, tax credits are available for non-conventional fuels produced through a post-January 1, 1993 recompletion in the well, as long as the recompletion does not involve additional drilling to deepen or extend the well.

After the IRS Revenue Ruling 93-54, the Commission received jurisdictional agency determinations for recompletions commenced after January 1, 1993. However, the Commission refused to process them since it appeared that the IRS would permit the Section 29 credit for such recompletions without any Commission action. On July 29, 1994, the Commission issued Order No. 567, 6 which deleted regulations that were no longer required due to the decontrol of wellhead sales of natural gas, including regulations which set forth eligibility requirements, filing requirements, and the procedures for making well determinations under section 503 of the NGPA.

Thus matters stood from 1994 until the True Oil decision changed the legal landscape. In 1999 the United States Court of Appeals for the Tenth Circuit held in True Oil Co. v. Commissioner of Internal Revenue   7 ( True Oil ) that, in order to obtain the section 29 tax credit, there must be a formal determination under the procedures provided by NGPA section 503 that the gas is high cost gas.

In the NOPR the Commission proposed to accept jurisdictional agency determinations for those post-January 1, 1993 recompletions which satisfy the IRS' definition under Revenue Ruling 93-54, including that the recompletion does not involve additional drilling to deepen or extend the well. For this purpose, the Commission proposed to reinstate regulations necessary to (1) Define the categories of high cost gas eligible for the tax credit and (2) provide procedures for jurisdictional agencies to file their determinations and the Commission to review those determinations.

The Commission proposed not to accept determinations from jurisdictional agencies with respect to either initial completions in wells spudded before January 1, 1993, or any pre-1993 recompletions. Thus, the well category determination procedures the Commission proposed to reinstate in § 270.201 would be limited to recompletions commenced after January 1, 1993, in wells initially drilled after December 31, 1979, but before January 1, 1993. This reflected the Commission's decision to limit the determination process to correct the situation caused by the True Oil decision, but parties were invited to comment on this matter. The Commission proposed to accept determinations for recompletions in tight formations, coal seams, and Devonian Shale. 8 The Commission also proposed only to accept jurisdictional agency determinations for qualifying recompletions in already designated tight formations, and would not allow a jurisdictional agency to designate additional tight formations. The NOPR stated that the Commission must rely upon the jurisdictional agencies to develop the full record in these proceedings, and the Commission would limit its role to reviewing initial determinations made by the jurisdictional agencies. Accordingly, the Commission requested comments from the jurisdictional agencies whether they will make initial determinations under NGPA section 503, if the proposed rule is adopted.

In summary, the Commission proposed to reinstate those portions of its prior regulations, with appropriate modifications, that are necessary to allow producers to obtain well category determinations solely for tax credit purposes. In general, the proposed regulations retain the definitions, the filing and notice requirements, and the review procedures that the Commission promulgated prior to the termination of the regulations due to the Decontrol Act. 9

The Commission received comments from over 40 parties, as set forth in the Appendix, including comments by the United States Department of Energy (DOE), fourteen state jurisdictional agencies, 10 and the United States Department of the Interior, Bureau of Land Management (BLM). All commentors, without exception, support the reinstatement of the NGPA procedures. Most of the commentors, including DOE and the jurisdictional agencies, urge the Commission to extend the determination procedures to all wells spudded before January 1, 1993, and pre-1993 recompletions so that all gas eligible for a tax credit may receive a determination. In addition, several commentors, assert that the Commission should allow jurisdictional agencies to designate new tight formation areas.

In response to the NOPR's question, the jurisdictional agencies filing comments stated they would make the initial determinations. 11 Several jurisdictional agencies that previously made NGPA section 107 determinations did not file comments. 12 In its comments, BLM stated that it does not have the staffing and budgetary resources to assume the additional workload that would result if the Commission extends the procedures to all eligible wells and permits jurisdictional agencies to designate new tight formations. Some commentors urged the Commission to adopt revised procedures to ease the burden of implementing the reinstated review process.

In this final rule, the Commission is reinstating its well determination review procedures in order to allow producers to obtain the Section 29 tax credit. This is consistent with Congress' desire to encourage, enhance, and expand the United States' natural gas supply base by allowing legitimately qualified producers to receive a tax credit associated with developing and producing gas from formations and wells that otherwise might not have been available to supply consumers. In the NOPR, the Commission explained the legal authority for reinstating the well determination review procedures to allow producers to obtain the Section 29 tax credit despite the repeal of NGPA section 503 by the Wellhead Decontrol Act. This authority has not been questioned by any commentor, and all commentors support reinstatement of the well determination review procedures. However, the extent of the review process was subject to extensive comment, which the Commission will now address.

In the NOPR the Commission proposed not to accept determinations with respect to either initial completions in wells spudded before January 1, 1993, or any pre-1993 recompletions. The Commission stated that in Order No. 539, the Commission established deadlines for filing applications involving wells that were spudded and/or recompleted prior to January 1, 1993, and the time has long passed when those applications should have been filed. Also, the NOPR stated that in a petition filed by a number of producers requesting the Commission to reinstate the NGPA section 503 well category procedures, the producers had not requested that the Commission accept determinations with regard to wells spudded or recompleted before January 1, 1993.

In their comments, parties have urged that the proposal not be so limited. The commentors maintain that the reasons stated in the NOPR do not present a valid basis for limiting the review process to post-January 1, 1993 recompletions. They assert that the fact that the deadline set by the Commission for submitting determinations for pre-January 1, 1993 drilling activity has passed should not bar producers from seeking to obtain the tax credit. Moreover, they argue that there are many reasons why the Commission's April 1994 deadline for jurisdictional agencies to file determinations with respect to pre-January 1, 1993 drilling activity may not have been met.

Commentors state that the Order No. 539 deadlines were imposed because the Commission assumed that the Section 29 tax credit would not be available for wells originally drilled before January 1, 1993, that were recompleted after that date. 13 Thus, the Commission had concluded that it needed to go out of the business of making well determinations by a time certain. Moreover, it was assumed that the fact that the Commission would not process well determinations did not mean that the Section 29 tax credit could not be obtained by the producer. Commentors assert that those reasons for the April 30, 1994 deadline are no longer valid because the IRS in Revenue Ruling 93-54 allowed certain recompletions performed after January 1, 1993, to qualify for the tax credit, and True Oil requires the NGPA section 503 procedures to be followed to obtain the tax credit.

Commentors also assert that there were a number of reasons producers did not meet the April 30, 1994 deadline established in the Order No. 539 series. They contend that there was some question at the time as to what the consequences were of not meeting the Commission's deadline. This was especially true after the IRS issued Revenue Ruling 93-54, which permitted the tax credit for post-January 1, 1993 recompletions. In addition, as DOE explained, there was a large amount of drilling activity which occurred prior to the close of the drilling window on December 31, 1992. This inevitably led to some oversights on the part of producers, or it simply made the deadline impossible to meet. In addition, subsequent purchasers of pre-1993 wells may not have been aware of the filing deadlines imposed by the Commission in Order No. 539.

We explained in the NOPR, and no one has contested, that the Commission has continuing authority to process NGPA section 503 determinations to allow producers to qualify for the Section 29 tax credit. In light of this authority, the Commission finds merit in commentors' request that the Commission reinstate the NGPA section 503 well category determination procedure for most pre-January 1, 1993 drilling activity, as well as post-January 1, 1993 recompletions, where necessary to allow a producer to qualify for the Section 29 tax credit. We will not reinstate the NGPA section 503 well category determination procedure for pre-January 1, 1980 completions because the gas produced from such completions is not eligible for the Section 29 tax credit.

The Commission did not impose any deadline on filing requests for determinations, nor a deadline for submitting the determinations by the jurisdictional agency, until the decontrol of wellhead sales. The Commission then set deadlines only as a means of implementing the complete termination of the well category determination program. Now that the Commission is reinstating that program so that producers can obtain the Section 29 tax credit, there is no basis to decline to process well category determination for pre-January 1, 1993 drilling activity while processing determinations for post-January 1, 1993 recompletion drilling activity. Section 29 allows a credit if the producer obtains the section 503 determination. The Commission has the authority to make the section 503 determination. Therefore, the Commission concludes it should process determinations for any well that could qualify for a Section 29 tax credit, regardless of when the drilling activity occurred, as long as it meets the requirements of section 29 of the Code. We will not reinstate the NGPA section 503 well category determination procedure for pre-January 1, 1980 completions because the gas produced from such completions is not eligible for the Section 29 tax credit.

Accordingly, except for gas produced from a pre-January 1, 1980 completion, the Commission will modify the proposed rule, and will apply the section 503 review process to wells drilled and spudded, and recompletions commenced prior to December 31, 1992, as well as to post-January 1, 1993 recompletions. 14

Before a specific well can obtain a tight formation determination, a portion of the formation into which the well is, or will be completed, must be designated as a tight formation by a jurisdictional agency, which determination is also subject to Commission review. After a field is designated as a tight formation, applications with respect to completions in specific wells in the designated tight formation can be filed. 15

In the NOPR, the Commission stated that the Commission was not proposing any regulations that would allow a jurisdictional agency to designate additional tight formations. The Commission explained that to permit the designation of additional tight formations would require the Commission to review extensive geologic data, which could place an undue burden on the Commission. 16 In addition, the Commission noted that it appeared likely that most producing formations that qualify as tight formations have already been designated as such.

A number of commentors, including two jurisdictional agencies, urge that the Commission should permit the designation of additional tight formation areas. They assert that the reasons stated in the NOPR for not doing so, do not justify denying the tax credit that producers would be entitled to from production in these areas.

Commentors argue that, contrary to the contention that most tight formation areas have already been designated, there are numerous additional tight formation areas that could qualify for the tax credit. Specifically, Texas makes reference to proceedings in the State of Texas that resulted in 357 additional tight formation designations covering thousands of acres.

Commentors also assert that the concern about placing an undue burden on the Commission does not justify denying producers the ability to obtain the tax credit that Congress provided for. Moreover, new and revised procedures could be adopted by the Commission to lessen the expected workload from the new filings.

For the same reasons we have concluded to allow the review process for wells drilled and spudded, and recompletions commenced prior to December 31, 1992, as well as to the post-January 1, 1993 recompletions, we will also permit the designation of new tight formations. As explained above, the Commission has been authorized to carry out the NGPA section 503 well category determination procedure so producers can obtain the section 29 tax credit for qualifying gas. Permitting the designation of new tight formations is consistent with, and furthers Congress' purpose in establishing the Section 29 tax credit to encourage domestic natural gas production.

On balance, the Commission concludes that it should permit the designation of new tight formations. Therefore, the regulations are being amended to include procedures for designating new tight formations and the information required to support such designation. In its comments, BLM stated that permitting the designation of new tight formations would result in “a substantial administrative burden” to it. The Commission will address this, and other procedural matters in the next section.

Commission staff, by letter, notified all jurisdictional agencies that previously made determinations for gas that qualified for Section 29 tax credits of the NOPR, and requested them to advise the Commission as to whether they would be willing to make determinations again. The fourteen jurisdictional agencies that filed comments, responded that they would make the determinations. Several other jurisdictional agencies that previously made Section 107 determinations did not respond to staff's letter. However, this will not preclude them from submitting determinations when this rule becomes effective.

In addition, BLM indicated it would not have appropriate staff resources to make determinations if the determination procedures were expanded to include all wells and new tight formation areas. BLM suggests that the Commission could provide resources since the Commission proposes to collect a fee, or the industry could fund a position in BLM's office. BLM, also has proposed that the section 503 procedures “be radically streamlined to minimize the technical review process and jurisdictional agency involvement,” and seems to suggest that the Commission use BLM's Automated Fluid Minerals Support System to make the determinations.

The NOPR stated that NGPA section 503 requires the jurisdictional agencies to make an initial well category determination, unless, as permitted by section 503(c)(2), the Commission enters into an agreement with a State or Federal agency under which the Commission would make the determinations that would otherwise be made by that agency. The NOPR stated that the Commission intended not to exercise its discretion to enter into any such agreement  17 because the Commission's role in the producing area has virtually been eliminated, and consequently the Commission's resources in this area have been substantially reduced.

In its comments, Equitable Production Company (Equitable) asserts that the Commission does not have the discretion to determine that it will not make determinations if the jurisdictional agencies decline to do so. The Commission disagrees, because NGPA section 503(c)(2) permits waiver of the jurisdictional agency's authority to make the initial determination only if the Commission agrees to enter into a written agreement with the jurisdictional agency wherein the Commission agrees to make the initial determination. 18 Since the NGPA makes Commission performance of initial determinations contingent on the Commission's agreement to do so, the Commission clearly has the discretion to refuse to agree. Given its limited resources in this area, the Commission cannot undertake to perform the initial review of producer applications of well category determinations, and must rely on the jurisdictional agencies to perform this function. Accordingly, the Commission concludes that it will not accept applications for determinations from producers if the applicable jurisdictional agency has not agreed to make determinations. 19 As to the BLM's concerns, BLM may wish to consider entering into an agreement with the applicable state jurisdictional agencies that would provide that the state jurisdictional agency will be responsible for determinations involving Federal lands in that state. The previous regulations provided for this, and the NOPR proposed to reinstate this provision. Further, the filing fee under the Commission's regulations does not preclude BLM from collecting a separate fee to recover its costs of processing the well determination applications.

The Commission has reviewed the coal seam, Devonian shale, and tight formation gas well certification requirements of the State of Texas Severance Tax Incentive for High Cost Gas program, as set forth under §§ 3.101(e)(3), (4), and (5) of Railroad Commission Statewide Rule 101. We find those filing requirements provide virtually the same documentation and evidentiary support for those certifications that we are requiring for a coal seam gas, Devonian shale, or tight formation gas determination under the NGPA. Accordingly, Texas may utilize the documents and information filed pursuant to Railroad Commission Rule 101 to satisfy the corresponding filing requirements for a well category determination under the NGPA. However, all applicants whose applications for determinations rely upon such documents and information must provide Texas with appropriate oath statements and Form 121 required under the NGPA regulations. Texas, in turn, must include this material with the notice of determination that Texas files with the Commission.

Texas and the Producer Coalition propose significant procedural changes in the review of new tight formations. Texas notes that it has approved 357 tight formation designations since 1993 under its “State of Texas Severance Tax Incentive for High Cost Gas program” (under RRC Statewide Rule 101). In contrast, 172 tight formation designations in Texas were approved before 1993 under the NGPA procedures. Texas asserts the Commission should accept these area designations because the requirements under RRC Statewide Rule 101 are equivalent to the Commission's requirements for tight formations. Texas also asserts the Commission should accept any determinations it makes in the future under its Rule 101. The Producer Coalition urges the Commission to allow jurisdictional agencies to designate additional tight formations without Commission review.

In order to qualify as a tight formation, a formation must meet guidelines for permeability and stabilized flow ratio. The Commission clarified these guidelines in Order No. 539. 20 The Commission understands that in designating tight formations, Texas uses the geometric mean or median values to satisfy the 0.1 millidarcy (md) in-situ permeability and maximum allowable pre-stimulation stabilized flow rate requirements under Texas' program. This conflicts with the Commission's use of the arithmetic mean to determine if formations meet the Order No. 539 guidelines for permeability and stabilized flow rates . The Commission found that using median or geometric mean averaging hides “sweet spots” which allows areas that do not meet the qualifications to be designated as tight formations. Accordingly, the Commission rejects Texas' proposal that the Commission accept Texas' designation of new tight formations under RRC Statewide Rule 101.

The Commission also rejects the Producer Coalition's suggestion that the Commission accept all tight formation designations by jurisdictional agencies without any Commission review. Therefore, the previously existing review process will be reinstated.

Vastar Resources, Inc. (Vastar) a large independent oil and natural gas company, like most commentors, requests the Commission to broaden the scope of the reinstated well determination process to include any and all wells that otherwise qualify for the section 29 tax credit, regardless of circumstances. However, its request goes beyond what other commentors have requested.

First, it requests that a post-1992 replacement well should be included within the scope of the reinstated determination process. By replacement well, Vastar refers to the situation where a qualified section 29 well stops producing for mechanical reasons and cannot be economically sidetracked, and the producer may be able to drill a replacement well. On its face, the request is contrary to the statutory requirement that the well must be drilled or spudded before December 31, 1992. The Commission is unaware of any I.R.S. ruling that such a “replacement” well could receive the Section 29 tax credit. Thus, the “replacement” well does not present the same situation as a post-December 31, 1992 recompletion since the IRS has ruled on recompletions in Revenue Ruling 93-54. Vastar also requests the Commission to include wells drilled prior to 1993 where production did not begin prior to January 1, 1993. However, since the final rule expands the eligible class to all wells that could qualify for the Section 29 tax credit there is no need to make a special provision for this type of well.

Finally, as we stated in the NOPR, since the Section 29 tax credit is now scheduled to end on December 31, 2002, the reinstatement of the well determination review procedures will remain effective until the later of June 30, 2003, or six months after the tax credit is no longer available for production from any well should Congress further extend the tax credit.

The Commission excludes certain actions not having a significant effect on the human environment from the requirement to prepare an environmental assessment or an environmental impact statement. Since the final rule reinstates regulations that were previously in effect, and does not substantially change the effect of the underlying legislation or the regulations being revised, it falls under the exclusion in ¶ 380.4 (a)(2)(ii) of the Commission's regulations. 21 In the NOPR, the Commission expressed this view, and none of the comments questioned this position. Accordingly, no environmental consideration is necessary.

The Office of Management and Budget's (OMB) regulations in 5 CFR 1320.11 require that it approve certain reporting and recordkeeping requirements (collections of information) imposed by an agency. Upon approval of a collection of information, OMB will assign an OMB control number and an expiration date. Respondents subject to the filing requirements of this Rule will not be penalized for failing to respond to these collections of information unless the collections of information display a valid OMB control number.

The collections of information related to the subject of this final rule fall under FERC Form No. 121, Applications for Maximum Lawful Price under the Natural Gas Policy Act of 1978 (OMB Control No. 1902-0038) and FERC-568 Well Category Determinations (OMB Control No. 1902-0112). Under this Final Rule, the overall burden of filing will be increased as the Commission is expanding the number of wells that will be eligible for the Section 29 tax credit. Therefore, the Commission is revising its initial burden estimates as stated in the NOPR on the number of applications it anticipates it will receive from 1800 to 2400. The Section 29 tax credit is scheduled to expire on December 31, 2002.

The burden estimates for complying with this final rule are as follows:

The Commission received forty four comments on the proposed rule, but none on its reporting burden or cost estimates. The Commission's responses to the comments are being addressed elsewhere in this rule. Further, we note that, as required under OMB's regulations, the Commission submitted the NOPR for OMB review. OMB took no action on the NOPR. However, in response, OMB stated that the Commission should resubmit its information collection request when it takes final action.

Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426 [Attention: Michael Miller, Office of the Chief Information Officer, CI-1, Phone: (202) 208-1415, fax: (202) 208-2425, e-mail mike.miller@ferc.fed.us ] or send comments to the Office of Management and Budget [Attention: Desk Officer for the Federal Energy Regulatory Commission]. The Desk Officer can be reached at (202) 395-3087, fax: 395-7285.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires rulemakings to contain either a description and analysis of the effect that the proposed rule will have on small entities or a certification that the rule will not have a significant economic impact on a substantial number of small entities.

In Mid-Tex Elec. Coop. v. FERC, 773 F.2d 327 (D.C. Cir. 1985), the court found that Congress, in passing the RFA, intended agencies to limit their consideration “to small entities that would be directly regulated” by proposed rules. Id. at 342. The court further concluded that “the relevant ‘economic impact’ was the impact of compliance with the proposed rule on regulated small entities.” Id. at 342.

The final rule reinstates regulations that were previously in effect, and would enable entities to obtain Internal Revenue Code Section 29 tax credits. The Commission certifies that this proposed rule will not have a significant adverse economic impact upon a substantial number of small entities.

These regulations become effective September 25, 2000. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this rule is a “major rule” as defined in Section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. 22 The Commission will submit the rule to both houses of Congress and the Comptroller General prior to its publication in the Federal Register .

In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page ( http://www.ferc.fed.us ) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street, NE, Room 2A, Washington, DC 20426.

From FERC's Home Page on the Internet, this information is available in both the Commission Issuance Posting System (CIPS) and the Records and Information Management System (RIMS).

User assistance is available for RIMS, CIPS, and the Website during normal business hours from our Help line at (202) 208-2222 (E-Mail to WebMaster@ferc.fed.us) or the Public Reference at (202) 208-1371 (E-Mail to public.referenceroom@ferc.fed.us).

During normal business hours, documents can also be viewed and/or printed in FERC's Public Reference Room, where RIMS, CIPS, and the FERC Website are available. User assistance is also available.

By the Commission.

Section 307 of the Tariff Act of 1930 (19 U.S.C. 1307) generally prohibits the importation of goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in any foreign country by convict labor or/and forced labor or/and indentured labor under penal sanctions. Such prohibitions are enforced by Customs under §§ 12.42-12.44 of the Customs Regulations (19 CFR 12.42-12.44).

If Customs finds, on the basis of information presented and investigated under the procedures described in § 12.42(a)-(e), that a class of merchandise is subject to the prohibition under section 307, the Commissioner of Customs, with the approval of the Secretary of the Treasury, will publish a finding to this effect in the weekly issue of the Customs Bulletin and in the Federal Register , as prescribed in § 12.42(f).

Under § 12.43, an importer is afforded the opportunity to furnish proof within 3 months after importation in order to establish the admissibility of particular imported merchandise detained by Customs under § 12.42(e) or covered by a finding under § 12.42(f), that the particular merchandise being imported is not itself produced with the use of a type of labor specified in section 307.

Section 12.44 deals with the disposition of merchandise determined to be inadmissible under section 307. Currently, § 12.44 provides in pertinent part that such merchandise may be exported at any time within the 3-month period after importation. If not so exported and if no proof of admissibility has been provided, the importer is advised in writing that the merchandise is excluded from entry and, 60 days thereafter, the merchandise is deemed abandoned and will be destroyed unless it has been exported or a protest has been filed under 19 U.S.C. 1514.

A general provision in the Fiscal Year (FY) 1998 Treasury Appropriations Act made clear what is implicit in the law: that merchandise manufactured with the use of forced or indentured child labor under penal sanctions falls within the prohibition of section 1307. This Act prohibits Customs from using any of the appropriation to permit the importation into the United States of such merchandise. In addition, in the last three State of the Union addresses, President Clinton has pledged to fight abusive child labor.

Following the enactment of the FY 1998 appropriations amendment regarding forced or indentured child labor under penal sanctions, both the Treasury Department and the National Economic Council chaired in-depth interagency discussions aimed at strengthening the capability of the Executive Branch to enforce the prohibition on imports that were produced by forced or indentured child labor under penal sanctions.

To this end, the Treasury Department, by a document published in the Federal Register (63 FR 30813) on June 5, 1998, established a Treasury Advisory Committee on International Child Labor Enforcement, whose ultimate purpose was to support a vigorous law enforcement initiative to stop illegal shipments of products of forced or indentured child labor under penal sanctions and to punish violators. By a document published in the Federal Register (65 FR 11831) on March 6, 2000, the Treasury Department determined that it was in the public interest to renew this Advisory Committee for an additional two-year term beyond its original expiration date (June 22, 2000).

As part of the foregoing initiative, by a document published in the Federal Register (64 FR 62618) on November 17, 1999, Customs proposed to amend § 12.42(a) to make expressly clear that merchandise manufactured with the use of forced or indentured child labor under penal sanctions falls within the prohibition of 19 U.S.C. 1307.

Also, Customs proposed to amend § 12.44 regarding the disposition to be accorded merchandise that is a prohibited importation under section 307. Under this proposed amendment, in the case of merchandise covered by a finding under § 12.42(f), if the Commissioner of Customs advised the port director that the proof furnished under § 12.43 did not establish the admissibility of a particular importation of such merchandise, or if no proof was timely furnished in this regard, the merchandise would then be seized and be subject to the commencement of forfeiture proceedings under subpart E of part 162 of the Customs Regulations (19 CFR part 162, subpart E). Currently, such merchandise is permitted to be exported at any time before it is deemed to have been abandoned.

In addition, Customs proposed to amend § 12.44 to state explicitly that nothing in the Customs Regulations (19 CFR Chapter I) precluded Customs from seizing for forfeiture merchandise imported in violation of applicable Federal criminal law (18 U.S.C. 1761-1762) dealing with prison-labor goods.

Counsel on behalf of a domestic trade association submitted the only comment in response to the notice of proposed rulemaking. The trade association supported the proposed amendments. However, the association asked that § 12.42 also be amended to impose a one-year time limit within which Customs would need to complete, and take appropriate action in connection with, an investigation undertaken pursuant to 19 U.S.C. 1307. In this regard, the association wanted § 12.42 further revised to require that persons presenting information of an alleged violation of section 1307 be kept informed, along with any interested domestic producers, and any other interested parties, regarding the continuing progress of an investigation. Finally, the association requested that § 12.42(e) be amended to require that the Commissioner withhold release of any merchandise undergoing investigation for a possible violation of 19 U.S.C. 1307 if there were reasonable grounds to believe that the merchandise was indeed a prohibited importation under section 1307.

Customs believes that it would be inappropriate and counterproductive to impose an inflexible time limit in § 12.42 for any investigation initiated under 19 U.S.C. 1307. The quality of the information received regarding suspected violations of section 1307 varies substantially in each case. Extensive and lengthy investigation is required in some cases, and significant barriers ( e.g., cultural, political, geographic) must be overcome, in order to obtain the evidence needed to support lawful Customs action under the statute. Also, the disclosure of information regarding ongoing Customs investigations is generally contrary to agency policy.

Lastly, § 12.42(e) already provides that if the Commissioner of Customs finds at any time that information available reasonably but not conclusively indicates that merchandise within the purview of section 1307 is being, or is likely to be, imported, the Commissioner will notify all port directors accordingly. The port directors are then to withhold the release of any such merchandise pending instructions from the Commissioner as to whether the merchandise may be released otherwise than for exportation. Customs believes that this is sufficient and that no amendment of § 12.42(e) is needed under the circumstances.

In view of the foregoing, and following careful consideration of the issues raised by the commenter and further review of the matter, Customs has concluded that the proposed amendments should be adopted.

In addition, Customs has determined that the phrase, “including forced or indentured child labor”, appearing in proposed § 12.42(a), should be revised to read, “including forced or indentured child labor under penal sanctions”, in order to conform precisely with the plain language and requirements of 19 U.S.C. 1307. Also, proposed § 12.44 is revised essentially to retain the provision contained in the current regulation (19 CFR 12.44 (1999)) regarding the disposition to be accorded merchandise that has been detained under § 12.42(e) but that is not subject to a finding under § 12.42(f).

Because the importation of goods, wares, articles, and merchandise mined, produced or manufactured wholly or in part in any foreign country by forced labor is prohibited, Customs anticipates that there will not be a substantial number of small entities that would become involved in a prohibited importation. The rule applies to products subject to a “finding” that the class of merchandise was produced with forced or indentured child labor under penal sanctions, a more formal Customs action with a higher burden of proof than simple Customs detention of merchandise based on reasonable suspicion. Also the range of countries and products which are likely to be implicated in findings of forced or indentured child labor under penal sanctions is likely to be fairly narrow. Accordingly, it is certified, in accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) that this final rule will not have a significant economic impact on a substantial number of small entities. Nor does the document meet the criteria for a “significant regulatory action” as specified in E.O. 12866.

Wellmark International, 1000 Tower Rd., suite 245, Bensenville, IL 60106, has informed FDA of a change of sponsor address to 1100 East Woodfield Rd., suite 500, Schaumburg, IL 60173. Accordingly, the agency is amending the regulations in 21 CFR 510.600(c)(1) and (c)(2) to reflect the change of sponsor address.

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

Merial Ltd., 2100 Ronson Rd., Iselin, NJ 08830-3077, filed a supplement to NADA 140-988 that provides for use of Ivomec® (ivermectin) SR bolus for cattle. The supplement provides for reducing the predicted duration of effectiveness in labeling from approximately 135 days to approximately 130 days, based on bolus stability data. The supplement is approved as of June 21, 2000, and the regulations in 21 CFR 520.1197 are amended to reflect the approval. The basis of approval is discussed in the freedom of information summary.

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

The agency has determined under 21 CFR 25.24(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

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

Merial Ltd., 2100 Ronson Rd., Iselin, NJ 08830-3077, has informed FDA that it has transferred ownership of, and all rights and interests in, the following approved NADA's to Phoenix Scientific, Inc., 3915 South 48th St. Terrace, PO Box 6457, St. Joseph, MO 64506-0457:

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

Abbott Laboratories, Chemical and Agricultural Products Division, 1401 Sheridan Rd., North Chicago, IL 60064-6316, filed ANADA 200-279 that provides for intramuscular use of Ketaflo TM (ketamine hydrochloride injection, USP) containing the equivalent of 100 milligrams of ketamine base per milliliter (mg/mL) of sterile solution. The product is for veterinary prescription use, in cats for restraint or as the sole anesthetic agent for diagnostic or minor, brief, surgical procedures that do not require skeletal muscle relaxation, and in nonhuman primates for restraint.

Approval of Abbott Laboratories' ANADA 200-279 for Ketaflo TM (ketamine hydrochloride injection, USP) is as a generic copy of Fort Dodge Laboratories' NADA 45-290 for Vetalar® (ketamine hydrochloride injection equivalent to 100 mg/mL ketamine). The ANADA is approved as of June 13, 2000, and the regulations are amended in 21 CFR 522.1222a(c) to reflect the approval. The basis of approval is discussed in the freedom of information summary.

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

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

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

Heska Corp., 1825 Sharp Point Dr., Fort Collins, CO 80525, has informed FDA that it has transferred to Pharmacia & Upjohn Co., 7000 Portage Rd., Kalamazoo, MI 49001-0199 ownership of, and all rights and interests in NADA 141-082. Accordingly, the agency is amending the regulations in 21 CFR 522.778 to reflect the transfer of ownership.

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

Hoechst Roussel Vet, Perryville Corporate Park III, PO Box 4010, Clinton, NJ 08809-4010, filed supplemental NADA 140-897 that provides for Revalor®-IS ear implants containing 80 milligrams (mg) trenbolone acetate (TBA) and 16 mg estradiol for steers fed in confinement for slaughter for increased rate of weight gain and improved feed efficiency. Hoechst Roussel Vet also filed supplemental NADA 140-992 that provides for Revalor®-IH ear implants containing 80 mg TBA and 8 mg estradiol for heifers fed in confinement for slaughter for increased rate of weight gain.

The supplemental NADA's are approved as of June 19, 2000, and the regulations are amended in 21 CFR 522.2477 to reflect the approvals. The basis of approval is discussed in the freedom of information summaries.

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

Under section 512(c)(2)(F)(iii) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(iii)), these approvals for food-producing animals qualify for 3 years of marketing exclusivity beginning June 19, 2000, because the applications contain substantial evidence of the effectiveness of the drugs involved, any studies of animal safety or, in the case of food-producing animals, human food safety studies (other than bioequivalence or residue studies) required for approval of the applications and conducted or sponsored by the applicant. The 3 years of marketing exclusivity applies only to the implants approved in these supplemental NADA's.

The agency has determined under 21 CFR 25.33(a)(2) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

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

Elanco Animal Health, A Division of Eli Lilly & Co., Lilly Corporate Center, Indianapolis, IN 46285, filed supplemental NADA 95-735 that provides for use of RUMENSIN® 80 (80 grams per pound (g/lb) of monensin as monensin sodium) Type A medicated article to make Type C medicated feed formulated as mineral granules for free-choice feeding to pasture cattle. The free-choice medicated mineral granules contain 1,620 g/ton monensin and are used for prevention and control of coccidiosis caused by Eimeria bovis and E . zuernii , and for increased rate of weight gain in pasture cattle (slaughter, stocker, feeder, and dairy and beef replacement heifers). The supplemental NADA is approved as of July 7, 2000, and the regulations are amended in § 558.355(f)(3)(x) (21 CFR 558.355(f)(3)(x)) to reflect the approval. The basis of approval is discussed in the freedom of information summary.

In addition, § 558.355(d)(6) is revised to reflect current precautionary statements regarding the ingestion of monensin-containing formulations by unapproved species.

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

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

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

Pfizer, Inc., 235 East 42d St., New York, NY 10017-5755, is sponsor of NADA 046-668 that provides for use of Penicillin 100 (100 g/lb penicillin G procaine) and Penicillin 50 (227 g/lb penicillin G procaine) Type A medicated articles to make Type C medicated feeds used for increased rate of weight gain and improved feed efficiency in poultry and swine. In its approval letter of April 10, 1998, to Pfizer, Inc., the Center for Veterinary Medicine approved the use of these products to make Type C medicated feeds, but did not codify the approval of the 227 g/lb strength of Type A medicated article for this sponsor (63 FR 36179, July 2, 1998). At this time, 21 CFR 558.460(b) is amended by adding the 227 g/lb strength of Type A medicated article to reflect the 1998 approval.

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

Pharmacia & Upjohn Co., 7000 Portage Rd., Kalamazoo, MI 49001-0199, has filed a supplemental application to NADA 140-976 that provides for use of Neomix® (neomycin sulfate) Type A medicated articles to make Type B and Type C medicated feeds for cattle, swine, sheep, and goats used for the treatment and control of colibacillosis (bacterial enteritis) caused by Escherichia coli susceptible to neomycin. The supplemental NADA requested that the approved range of concentrations for neomycin Type C medicated feeds of 400 to 1,600 grams per ton (g/ton) be broadened to 250 to 2,250 g/ton. The approved daily dose of 10 milligrams per pound of body weight remains unchanged. The supplemental NADA is approved as of June 28, 2000, and the regulations are amended in 21 CFR 558.364 to reflect the approval.

Approval of this supplemental NADA does not require additional safety and effectiveness data. Therefore, a freedom of information summary is not required.

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

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

Alpharma Inc., One Executive Dr., PO Box 1399, Fort Lee, NJ 07024, filed a supplement to approved NADA 046-699 that provides for use of CHLORMAX TM (50, 65, or 70 grams per pound (g/lb) chlortetracycline as chlortetracycline hydrochloride) Type A medicated articles to make Type C medicated feeds for use in growing and finishing swine. The Type C medicated feeds contain approximately 400 g per ton CTC (to provide 10 milligrams/lb body weight) and are used for the control of porcine proliferative enteropathies (ileitis) caused by Lawsonia intracellularis susceptible to chlortetracycline. The supplemental NADA is approved as of July 7, 2000, and the regulations are amended in 21 CFR 558.128 to reflect the approval. The basis of approval is discussed in the freedom of information summary.

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

Under section 512(c)(2)(F)(iii) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(iii)), this approval for food-producing animals qualifies for 3 years of marketing exclusivity beginning on July 7, 2000, because the application contains substantial evidence of the effectiveness of the drug involved, any studies of animal safety, or in the case of food-producing animals, human food safety studies (other than bioequivalence or residue studies) required for the approval of the application and conducted or sponsored by the applicant. The 3 years of marketing exclusivity applies only to the new claim for which the supplemental application was approved.

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

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

An electronic copy of this document may be downloaded using a modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service (202) 512-1661. Internet users may reach the Office of the Federal Register's home page at http://www.nara.gov/fedreg and the Government Printing Office's database at http://www.access.gpo.gov/nara.

Under the provisions of section 1054 of the ISTEA, Public Law 102-240, 105 Stat. 1914, at 2001 (23 U.S. Code. 120 note), a State could request an increased Federal share up to 100 percent for any qualifying title 23, U.S. Code, project beginning October 1, 1991, and ending September 30, 1993. The total amount of any such increase had to be repaid to the United States on or before March 30, 1994. If a State did not make the required repayment by March 30, 1994, the Secretary of Transportation could make deductions from funds apportioned to the States for fiscal years 1995 and 1996. Since the period of this special provision has expired, and all money has been repaid, it is no longer necessary to have this particular regulation.

This final rule makes only minor technical corrections to our existing regulation. The rule replaces outdated statutory language due to the expiration of a special provision under ISTEA granting States temporary matching fund waiver and requiring repayment by March 30, 1994. Because the Congress did not enact a similar matching fund waiver in the Transportation Equity Act for the 21st Century (TEA-21), (Pub. L. 105-178, 112 Stat. 107 (1998) or any other statute, there is no need for the provision in the current regulations. Therefore, the FHWA finds good cause to rescind the rule without prior notice or opportunity for public comment [5 U.S.C. 553(b)]. The DOT's regulatory policies and procedures also authorize rescission of the rule without prior notice because it is anticipated that such action would not result in the receipt of useful information. The FHWA is making the rule effective upon publication in the Federal Register because it imposes no new burdens and merely rescinds an existing regulation that has become obsolete.

The FHWA has considered the impact of this action and has determined that it is not a significant regulatory action within the meaning of Executive Order 12866 or a significant within the meaning of the Department of Transportation regulatory policies and procedures. Since this rulemaking action merely removes an obsolete regulation, it is anticipated that its economic impact is minimal; therefore, a full regulatory evaluation is not required.

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), the FHWA has evaluated the effects of this action on small entities. Based on the evaluation, and since this rulemaking action merely removes an outdated regulation, the FHWA hereby certifies that this action will not have a significant economic impact on a substantial number of small entities. In any event, States are not included in the definition of “small entity” set forth in 5 U.S.C. 601. Therefore, this action will not have a significant economic impact on a substantial number of small entities for purposes of the Regulatory Flexibility Act.

This action does not impose a Federal mandate resulting in the expenditure by State, local, tribal governments, in the aggregate, or by the sector, of $100 million or more in any year. (2 U.S.C. 1531 et seq. )

This action meets applicable standards in sections 3(a) and 3(b) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

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

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

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, dated August 4, 1999, and it has been determined that this action does not have a substantial direct effect or sufficient federalism implications on States that would limit policymaking discretion of the States. Nothing in this document directly preempts any State law or regulation.

Catalog of Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation of Federal programs and activities apply to this program.

This action does not create a collection of information requirement for the purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

The FHWA has analyzed this action for the purposes of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq. ) and has determined that it would not have any effect on the quality of the environment. Therefore, an environmental impact statement is not required.

A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

An electronic copy of this document may be downloaded using a modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service (202) 512-1661. Internet users may reach the Office of the Federal Register's home page at http://www.nara.gov/fedreg and the Government Printing Office's database at http://www.access.gpo.gov/nara.

Section 1212(a) of the TEA-21, Public Law 105-178, 112 Stat. 107, at 193 (1998), amended 23 U.S. Code 302. Section 302 has long been interpreted to mean that a State could not claim Federal-aid highway funds for its costs associated with administering its highway department even though a State agency's indirect costs are generally allowable in accordance with directives issued by the OMB. This new provision in the TEA-21 clarifies that 23 U.S.C. 302 does not limit reimbursement of eligible indirect costs and thereby makes the Federal-aid highway program consistent with other federal programs under OMB Circular A-87, as revised May 4, 1995, and further amended on August 29, 1997. The change reduces the administrative burden caused by requiring States to develop separate accounting systems.

The OMB Circular A-87 provides principles for determining the allowable costs of programs administered by State and local governments under grants from, and contracts with, the Federal government. These principles are designed to provide the basis for a uniform determination of costs and generally to provide that federally assisted programs bear their fare share of costs.

Those States desiring to claim administrative overhead costs for the Federal-aid highway program may do so by developing an indirect cost rate proposal in accordance with the criteria provided in OMB Circular A-87, whereby the costs may be distributed to the various departments and programs in an equitable and consistent manner.

This final rule makes technical changes to existing regulations mandated by law to provide greater uniformity of treatment of indirect costs as applied to the Federal-aid highway program and reduces the burden on State and local governments. This action eliminates outdated language by rescinding the regulation for payroll and related expenses of public employees, general administration and other overhead, and cost accumulation centers and distribution methods. Rescission of the regulation is more consistent with current statutory authority under the TEA-21 that allows for eligibility of various indirect costs, such as, administrative overhead costs of a State DOT. Therefore, the FHWA finds good cause to take this action without prior notice or opportunity for public comment [5 U.S.C. 553(b)]. The DOT's regulatory policies and procedures also authorize promulgation of the rule without prior notice because it is anticipated that such action would not result in the receipt of useful information. The FHWA is making the rule effective upon publication in the Federal Register because it imposes no new burdens and merely corrects or clarifies exiting regulations [5 U.S.C. 553(d)].

The FHWA has determined this action is not a significant regulatory action within the meaning of Executive Order 12866 or significant within the meaning of Department of Transportation regulatory policies and procedures. This rulemaking action makes only technical corrections to the current regulations by rescinding a rule to eliminate outdated language due to current statutory authority under the TEA-21. It is anticipated that the economic impact of this rulemaking will be minimal; therefore, a full regulatory evaluation is not required.

In compliance with the Regulatory Flexibility Act [5 U.S.C. 601-612], the FHWA has evaluated the effects of this action on small entities. Based on the evaluation and since this rulemaking action merely removes an outdated regulation, the FHWA hereby certifies that this action will not have a significant economic impact on a substantial number of small entities. Furthermore, States are not included in the definition of “small entity” as provided in 5 U.S.C. 601.

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, dated August 4, 1999, and it has been determined that this action does not have substantial direct effect or sufficient federalism implications on States that would limit the policymaking discretion of the States. Nothing in this document directly preempts any State law or regulation.

Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.

This action does not impose a Federal mandate resulting in the expenditure by State, local, tribal governments, in the aggregate, or by the sector, of $100 million or more in any year. (2 U.S.C. 1531 et seq. )

This action does not contain a collection of information requirement for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

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

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

The FHWA has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) and has determined that this action would not have any effect on the quality of the environment. Therefore, an environmental impact statement is not required.

A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

Under section 11231 of the National Capital Revitalization and Self-Government Improvement Act of 1997, Public Law 105-33, the U.S. Parole Commission assumed the paroling jurisdiction of the D.C. Board of Parole on August 5, 1998. Interim rules, with a request for public comment, were published at 63 FR 39172 (July 21, 1998), and were amended at 63 FR 57060 (October 26, 1998) and 64 FR 5611 (February 4, 1999). They were republished in their entirety at 65 FR 19996 (April 13, 2000) with a continued request for public comment. The Commission has determined that it is now appropriate to publish these rules as final rules.

The Revitalization Act also requires that the remaining powers and duties of the D.C. Board of Parole (concerning the supervision and revocation of parolees) be transferred to the U.S. Parole Commission by August 5, 2000. In anticipation of this transfer of authority, the Commission published proposed rules, at 65 FR 20006 (April 13, 2000) to govern the Commission's exercise of that additional authority. After careful consideration of the public comment received, the Commission has determined that these proposed rules are also ready for publication as final rules effective August 5, 2000.

Accordingly, the Commission is republishing, as a final rule, the complete Subpart C that sets forth the parole release, supervision, and revocation policies and procedures of the U.S. Parole Commission with regard to District of Columbia Code prisoners and parolees. Pursuant to D.C. Code 24-1231(a)(1), these amended and supplemented rules will replace the rules of the D.C. Board of Parole originally published at 28 D.C.M.R. section 100 et. seq. , and will constitute the parole regulations of the District of Columbia as described in D.C. Code 24-1231(c).

The Commission received public comment on both the interim and proposed rules that were published on April 13, 2000, at a public hearing held by the Commission on June 19, 2000, and through the submission of written statements and letters. The public comment is summarized below, together with the Commission's views on certain of the issues raised.

Much of the comment from law professors and law students concerned the proposed rule at § 2.103(e) that only licensed attorneys be permitted to engage in legal advocacy at parole revocation hearings. This comment made a strong case for the Commission permitting representation by law students in a clinical practice program. Such a provision therefore appears in the final rules.

Other comment focused on the problem of delays in initial hearings and in processing grants of parole (which have frequently occurred for prisoners housed in District prisons). Complaints were made about delays to obtain more information and about delays in receiving notices of action. Although the Commission was commended for its rule at 28 CFR 2.71 requiring that initial hearings be held 180 days prior to parole eligibility, the point was made that this deadline is not being met in practice. The complaint was also made that Department of Corrections case managers are not always providing parole application forms, and that all eligible prisoners should be placed on the docket for a hearing, whether or not there has been a waiver of parole. (This proposal appears to reflect a high level of distrust of prison staff.) The Commission was advised by the D.C. Public Defender Service to assume “full responsibility” for docketing eligible prisoners wherever confined. However, the USPC staff does not have the ability to monitor the current location and parole eligibility status of all inmates throughout the D.C. system (including contract facilities), and it therefore does not have the ability to organize parole dockets at the D.C. institutions it visits. In all likelihood, most of these problems will be resolved as more and more D.C. inmates are transferred to federal facilities prior to the December 31, 2001, deadline set by the Revitalization Act. However, some delays are made necessary by the need for the Commission to acquire the basic information that is often missing from inmates' files ( e.g. , presentence reports). Such delays are ordered only where a responsible release decision cannot be made on the basis of the file materials furnished to the Commission by District officials.

Another complaint was that no account is taken by the Commission of the “dead time” caused by a delayed initial parole hearing when a set-off is ordered. The Commission, however, has expressly provided for situations involving a “substantial delay in holding the initial hearing” at § 2.75(b), so that such “dead time” is in fact compensated for by the Commission.

Much comment was made concerning the prohibition on representatives at parole hearings in D.C. institutions, and concern was expressed that this would extend to private prisons. Our experience thus far, however, is that federal contract facilities are following BOP rules in permitting all types of representatives at parole hearings. (In 1998, the Department of Corrections requested the Commission to keep in place the D.C. Board of Parole's prohibition on representatives at parole hearings held in District facilities.) Moreover, if the Public Defender Service has had to acquire additional attorneys just to cover revocation hearings, it is difficult to understand how legal counsel could be provided to prisoners at ordinary parole hearings on anything like a fair basis.

Other complaints concerned cases in which the D.C. Board of Parole had ordered a rehearing with specific program recommendations, and the USPC subsequently denied parole and ordered a further continuance notwithstanding the inmate's program achievements. However, when such cases have arisen, the prisoners involved are typically serious risk cases whose favorable prison records do not justify grants of parole at the set-off date ordered by the Board. Some commenters appear to believe that the D.C. Board of Parole granted parole more frequently than the Commission does, but no evidence of this was adduced.

One complaint was made that telephone calls to Commission analysts are not being given satisfactory responses, and that Freedom of Information Act (FOIA) requests are not being answered on time. The volume of public telephone calls received by the Commission (as to both parole-related and non-parole matters) has been extraordinary. The Commission is currently seeking an appropriate solution for this problem. As to the FOIA, there appears to be a misperception that the FOIA can be used as a mechanism to guarantee prehearing disclosure. The Commission's rules provide that the reason a particular prisoner is making a FOIA request does not give that prisoner priority over other FOIA requesters. 28 CFR 2.56(g). FOIA requests will therefore continue to be processed on a “first come first served” basis by the Commission's FOI unit.

Several complaints concerned the perceived unfairness of a guideline system that requires program participation, when D.C. inmates frequently do not have programs. However, at least one commenter understood that 28 CFR 2.80(d) already allows for this by permitting points to be deducted in the Commission's discretion even where “* * * prison programs and work assignments are limited or unavailable.” Under this rule, the Commission will deduct a point or points based on any reasonable indicant of the prisoner's cooperativeness and good behavior.

Unfairness was alleged in the absence of any right to appeal a parole decision, as appears in the rules for U.S. Code prisoners. It was alleged that the D.C. Board of Parole (at least in practice) permitted appeals. This is a doubtful proposition. The rules of the D.C. Board of Parole make no mention of appeals, and the Board's occasional practice with regard to reopening cases based upon post-decisional complaints can hardly be viewed as an institutionalized appeal system. At any rate, the USPC does not have the staff resources at the present time to process a full caseload of appeals from D.C. Code inmates along the same lines as appeals from federal inmates under 18 U.S.C. 4215. In compensation, the Commission will continue to require a concurrence of at least two Commissioners for all decisions to grant and deny parole. (Appeals in the federal parole system are normally from parole decisions made by a single Commissioner.)

Inevitably, comment was directed to the lack of prehearing disclosure at D.C. facilities. However, prehearing disclosure requires the participation of case managers who are fully trained in federal procedures, which the Bureau of Prisons has but the Department of Corrections does not have. Hence, the Commission is not in a position to institute federal prehearing disclosure procedures in District facilities.

The Commission was commended for its rules on medical and geriatric parole, as well as for its rule on minimum term reduction applications under D.C. Code § 24-201c.

One complaint was that it is unfair to prisoners to allow the crime victim to appear at the parole hearing and give information, without the prisoner being able to confront the victim. The Public Defender Service also thinks that there is “disparity” in the rights given to victims to appear and oppose parole as compared with the rights given to friends and supporters of the prisoner. One commenter believes that victims should have told everything at the trial (which does not account for convictions resulting from plea bargains), and considers it unfair to let victims say anything at all. Nonetheless, District of Columbia law gives victims the right to participate in parole hearings, and the Commission has an obligation to follow D.C. law in this matter. If anything, the current opportunities for victim participation have redressed a situation in which crime victims were for too long ignored by the criminal justice system.

The same commenter also decried the possibility of a maximum five-year continuance (reserved for the most serious cases involving guideline departures). However, the D.C. Board of Parole occasionally ordered continuances even longer then five-years. In the Commission's practice, five-year continuances are limited to a small number of prisoners (under five percent) who have committed exceptionally cruel and violent crimes. Most continuances are for 36 months or less.

Other comments were received concerning the perceived discrimination of the federal system against D.C. inmates in general, with one commenter alleging that it looks like the “truth in sentencing” eighty-five percent rule is already in effect. Another commenter alleged that there is institutionalized discrimination in the federal system against D.C. Code inmates. With a current parole rate of 35 percent at initial hearings (reflecting the percentage of eligible prisoners with low grid point scores), discrimination is clearly not taking place. The Public Defender Service also complains that hearing examiners are required to withhold giving their recommended decisions to D.C. prisoners while giving them to U.S. prisoners. In the light of recent security issues at the Lorton Complex, the Commission has not considered it prudent to require the examiners to announce their decisions in District facilities (which the D.C. Board of Parole did not do).

As to warrants, one comment preferred a “probable cause” standard to the “satisfactory evidence” standard that appears in federal law and rules, and called for the adoption of specific criteria to govern the issuance of warrants. However, there is no legal or practical difference between the two standards. The “satisfactory evidence” standard requires that the Commission be presented with evidence (not just an allegation) which, if sustained, would make revocation of parole appropriate.

Moreover, the Commission has never thought it useful to adopt specific criteria for the issuance of warrants. As stated by the Supreme Court in Morrissey v. Brewer , 408 U.S. 471 (1972), a warrant may be withheld for a time despite violations, but may be issued when it becomes clear that the parolee “can no longer be counted on to refrain from anti-social behavior.” This is a sufficient standard for the exercise of the Commission's discretion. Objection was also made to the rule permitting execution of a warrant to be voided in favor of local prosecutions. Because that traditional practice often benefits the parolee by allowing him to deal with his criminal case first, the Commission cannot agree with this comment.

Finally, with respect to the Commission's revocation hearing procedures, strong opposition was made to the Commission's dual system of local versus institutional revocation hearings. (See 18 U.S.C. 4214.) Although this dual system was recognized as valid for federal parolees, it was perceived as unfair to D.C. Code parolees, who have traditionally had all revocation hearings held locally. In particular, the requirement that the parolee must request (and qualify for) a local revocation hearing was perceived as an unfair presumption against a local revocation hearing. The Public Defender Service also believes that the criteria for receiving a local revocation hearing are “more stringent” for D.C. Parolees. (They are, in fact, exactly the same as for federal parolees.)

These comments may also reflect some misunderstanding as to the Commission's ability to ensure that all arrested parolees can be jailed locally while awaiting their revocation hearings. Moreover, a parolee who has been convicted of the charged violations (or who has admitted the charged violations) is in a very different legal position from a parolee who is able to contest the charges against him, and thus has a real need for witnesses, cross-examination, and a hearing held locally. Only in the latter case does Morrissey v. Brewer, supra, require a “local” revocation hearing. For other cases, there is no prejudice in receiving an institutional revocation hearing because the fact that parole was violated is already established by the new conviction or admission.

The Public Defender Service also complained that the Commission's time deadlines are insufficient; preliminary interviews should be held within 5 days of arrest and final revocation hearings 60 days from the interview (as opposed to “promptly” and “60 days from the probable cause determination”). The Commission's time deadlines are, however, the same as in federal law (18 U.S.C. 4214). Nonetheless, this comment had a good point that the proposed rules failed to set a deadline for the Commission's decision following the revocation hearing. That omission has been rectified.

The final revocation hearing rules have also been modified to permit parolees to have voluntary witnesses appear at institutional hearings. The rule, however, makes it clear that such parolees cannot expect the Commission to compel the appearance of desired witnesses if an institutional revocation hearing cannot be held locally. It is our expectation that, for the foreseeable future, both “local revocation hearings” ( i.e. , fully contested Morrissey type hearings) and “institutional revocation hearings ( i.e. , where the parolee has admitted or been convicted of the charges) will be held locally in D.C. Department of Corrections facilities. Again, however, the Commission has no control over jail housing policies, and institutional revocation hearings may be held in facilities outside the District of Columbia without violating any fundamental right of the parolee.

The regulations set forth below will be made effective as final rules on August 5, 2000, and will apply to all prisoners and parolees (including mandatory releasees) who are serving sentences under the District of Columbia Code for felony crimes committed prior to August 5, 2000. The Commission will continue to evaluate these rules (in particular, the rules establishing procedures for the parole revocation process), and will remain open to any suggestions for improvement from judges, practitioners, other agency personnel, and the public at large.

The Commission is making these final rules effective less than 30 days from the date of this publication for good cause pursuant to 5 U.S.C. 553(d)(3). August 5, 2000 is the deadline established by the Revitalization Act for the Commission to assume full responsibility for all D.C. Code felony offenders under parole supervision. On that date, the D.C. Board of Parole will be abolished, so the Commission will have to take immediate responsibility for all pending matters, including parole revocation proceedings and requests from supervision officers for warrants and modifications of the conditions of parole. The Commission was not able to have final rules published earlier than today's date because of the many legal and operational issues that have required resolution during the transition process. Although the Court Services and Offender Supervision Agency (CSOSA), which will assume its duties as a new federal agency on August 5, 2000, has joined with the Commission in an intensive planning and training process, the problems presented by the District's current criminal justice system cannot be overstated. Finally, these final rules are published on the assumption that certification pursuant to D.C. Code 24-1232(h) will have occurred prior to August 5, 2000.

The U.S. Parole Commission has determined that these final rules do not constitute a significant rule within the meaning of Executive Order 12866. The final rules will not have a significant economic impact upon a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 605(b), and are deemed by the Commission to be rules of agency practice that do not substantially affect the rights or obligations of non-agency parties pursuant to Section 804(3)(C) of the Congressional Review Act.

This rule contains no reporting or recordkeeping requirements subject to the Paperwork Reduction Act of 1980 (Pub. L. 96-511). The existing information collection requirements contained in Regulations, 29 CFR Part 4 were previously approved by the Office of Management and Budget under OMB control number 1215-0150.

On October 1, 1995, the Federal Acquisition Regulations were amended to implement provisions of the Federal Acquisition Streamlining Act (FASA). One provision of the final regulation, 48 CFR 12.504(a)(10)), provided that the requirements of the McNamara-O'Hara Service Contract Act (SCA) are not applicable to subcontracts at any tier for the acquisition of commercial items or services.

After a subsequent review of the issue by the FAR Council, the Administrator for Federal Procurement Policy wrote to the Secretary of Labor and requested that the Department propose an exemption for a more limited group of commercial service contracts (both prime contracts and subcontracts). The Administrator stated that the FAR Council had concluded that a blanket exemption of all subcontracts for commercial items may not adequately serve the Administration's policy of supporting exemptions of the SCA only where they do not undermine the purposes for which the SCA was enacted. Therefore the FAR Council agreed that any exemption from the coverage of SCA for subcontracts for the acquisition of commercial items or components should be accomplished under the Secretary of Labor's authority in the SCA, and stated that it would withdraw the FAR provision.

The FAR Council indicated that the adoption of their recommendations will further the commitment of the Administration to be more commercial-like, encourage broader participation in government procurement by companies doing business in the commercial sector, and reinforce their commitment to reduce government-unique terms and conditions from their contracts. Furthermore, the FAR Council represented that the limited exemptions that they proposed would be in accord with the remedial purpose of the SCA to protect prevailing labor standards.

The Department of Labor on this date has issued a Notice of Proposed Rulemaking (NPRM) to amend the SCA Regulations to implement the exemptions requested by the FAR Council. The FAR Council is contemporaneously withdrawing its current rule that exempts commercial subcontracts from the application of SCA (48 CFR 12.504(a)(10)). As a result of the FAR Council's actions, a small group of commercial subcontracts that were previously exempted under the FAR rule and that also meet the requirements of DOL's proposed rule could change from exempt to nonexempt and back to exempt if the DOL proposal becomes final as it is currently proposed. The Department, pursuant to its authority under section 4(b) of the SCA, finds that a temporary, limited exemption from the SCA is necessary and proper in the public interest to avoid the serious impairment of government business. This exemption is necessary to prevent the disruption that could be caused by such changes, including the possible disruption of services if the current subcontractor does not agree to continue the subcontract services under the requirements of SCA. Furthermore, the Department finds that as a result of the criteria applied to the exempt services, this temporary, limited exemption is in accord with the remedial purpose of the Act to protect prevailing labor standards.

This exemption does not apply to all commercial subcontracts that may have been exempt under the now withdrawn FAR rule nor does it apply to any prime contracts. The exemption is limited solely to those subcontracts that (1) were or would have been exempt under the now withdrawn FAR rule and (2) would be exempt under the DOL proposed rule if that rule becomes final in its current form. The exemption will be in effect for one year or until final action is taken on the NPRM issued this date, whichever occurs first. The Department notes that it intends to proceed expeditiously with this rulemaking and anticipates that a final rule, after review of all of the comments, will be issued within six months.

The Department also finds that there is good cause to issue this temporary final rule without prior notice and comment. Prior notice and comment would be contrary to the public interest because of the disruption to contractors and to the provision of services to the Government caused by such changes from SCA-exempt, to SCA-covered, to SCA-exempt over the period of less than one year.

This rule addresses two separate but somewhat related issues. First, the current exemption for the maintenance and repair of Automated Data Processing (ADP) equipment, 29 CFR 4.123(e)(1), is modified to apply the exemption to subcontracts, and with respect to subcontracts, reflects terminology changes in law that have occurred, and applies the exemption to installation services. Second, a new exemption, similar to the current ADP exemption, is added to 4.123(e) to exempt subcontracts for a specified subset of commercial services that also meet certain criteria.

This final rule retains the current language of the ADP exemption for application to prime contracts and adds a new subparagraph (2) to § 4.123(e) for application to subcontracts. The new subparagraph first reflects changes in terminology stemming from the passage of the Clinger-Cohen Act of 1996, 40 U.S.C. 1401 et seq. , which set forth a new framework for the management and acquisition of information technology and replaced the “ADP” terminology originally in the Brooks Automatic Data Processing Act, 40 U.S.C. 759, with “information technology” to reflect the convergence of ADP and telecommunications equipment and technology.

As defined at 40 U.S.C. 1401(3) and incorporated in the FAR, 48 CFR 2.101, the term “information technology,” with respect to an executive agency, means “any equipment or interconnected system or subsystem of equipment that is used in the automatic acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information.” Under this definition, equipment is considered to be used by an executive agency if the agency uses the equipment directly or if the equipment is used by a contractor under a contract which requires the use of such equipment, or requires the use of such equipment to a significant extent in the performance of a service or the furnishing of a product. The term “information technology” does not include any equipment that is acquired by a contractor incidental to a contract; or any equipment that contains imbedded information technology that is used as an integral part of the product, but the principal function of which is not the acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information. For example, HVAC (heating, ventilation, and air conditioning) equipment such as thermostats or temperature control devices and medical equipment where information technology is integral to its operation, is not information technology.

In addition, the final rule applies to installation services (where those services are not subject to the requirements of the Davis-Bacon Act).

In certain situations, an employee's work on a government contract represents a small portion of his or her time and the balance of the time is spent on commercial work. In such cases, the FAR Council represents that the Government loses the full benefits of competition for its service contracts because some contractors decline to compete for Government work due to specific government requirements. Consistent with the recommendation of the FAR Council, this exemption is limited to those subcontracts where the services being procured are such that it would be more efficient and practical for the subcontractor to perform the services with a workforce that is not primarily assigned to the performance of government work. In addition, in order that the exemption comport with the statutory requirement that it be in accord with the remedial purposes of the Act to protect prevailing labor standards, a number of criteria must be satisfied. First, the proposed exemption would apply only when the subcontract award is not determined primarily upon the factor of cost. Therefore, the subcontractor providing the best service at a somewhat higher or lower cost would not be at a competitive disadvantage. Second, the criteria would limit the application of the exemption to circumstances where the nature of the procurement dictates that the most efficient and practical performance of the workload can be accomplished with a workforce that is not dedicated to working primarily on the Government contract. Thus, the competitive pressures upon employee wages that might exist if the services were performed by a workforce dedicated to the Government contract would not come into play on the subcontracts within the scope of the exemption. Furthermore, even if a subcontractor might be inclined to reduce wages to secure the subcontract, the criteria would forbid that practice.

Under this rule, the following criteria for exemption are applied to a short list of services. The exemption applies only if the services under the subcontract meet all of the following criteria.

(1) The services under the subcontract are commercial—i.e., they are offered and sold regularly to non-Governmental customers, and are provided by the subcontractor to the general public in substantial quantities in the course of normal business operations .

The basic underlying purpose of the exemption is to permit a prospective subcontractor to utilize its commercial compensation practices for both Government and private commercial work. If the prospective subcontractor does not currently perform the solicited services, then conforming to the SCA requirements would not cause the subcontractor to alter its commercial compensation practices.

(2) The subcontract will be awarded on a sole source basis or the subcontractor will be selected for award on the basis of other factors in addition to price. In such cases, price must be equal to or less important than the combination of other non-price or cost factors in selecting the subcontractor .

One of the basic purposes of the Service Contract Act is to counteract the negative impact that competition based on price alone may have upon wages. If a subcontract is awarded on a sole source basis, there is no competition and price is clearly not the basis for awarding the subcontract.

For the majority of other subcontracts that are competitively awarded, this criterion would attempt to largely remove wages from consideration by making quality of service and other non-cost factors equal to or more important than the bottom line price. If one assumes that the best employees (contractors) are paid (pay) higher wages, then this criterion would allow these employees (contractors) to compete on the basis of the employees' increased productivity and higher quality service. These employees/contractors should not be disadvantaged even though the employee wages and possibly the resulting subcontract price are somewhat higher than the lowest offer.

(3) The subcontract services are furnished at prices which are, or are based on, established catalog or market prices. An established price is a price included in a catalog, price list, schedule, or other form that is regularly maintained by the subcontractor, is either published or otherwise available for inspection by customers, and states prices at which sales are currently, or were last, made to a significant number of buyers constituting the general public. An established market price is a current price, established in the usual course of trade between buyers and sellers free to bargain, which can be substantiated from sources independent of the manufacturer or subcontractor. Normally, market price information is taken from independent market reports, but market price could be established by surveying the firms in a particular industry or market .

This criterion ensures that the subcontractor will provide the services to the Government on the same basis that the subcontractor services commercial accounts. Combined with the other criteria, this requirement should ensure that subcontractors do not decrease employee compensation as a part of the competitive contracting process.

(4) All of the service employees who will perform the services under the subcontract spend only a small portion of their time (a monthly average of less than 20 percent of the available hours on an annualized basis, or less than 20 percent of available hours during the contract period if the contract period is less than a month) servicing the Government subcontract .

If the employees spend only a small portion of their available work hours on the Government contract, the subcontractor would not likely be willing to alter its compensation practices simply to obtain the subcontract. (Note: Criterion 5 would also specifically preclude any such change in compensation practices.) Furthermore, the criteria for exemption will not be satisfied by rotating the workforce and having different employees work on the contract each day of the week. In the Department's experience it would be extraordinary for a contractor to staff a contract in this manner. Therefore in such a case, although each individual employee would spend less than 20% of his/her work hours on the Government contract, a prime contractor could not certify—as required by Criterion 6—that all or nearly all offerors would staff the contract with service employees who spend only a small portion of their time on the project.

(5) The subcontractor utilizes the same compensation (wage and fringe benefits) plan for all service employees performing work under the subcontract as the subcontractor uses for these employees and for equivalent employees servicing commercial customers .

This criterion ensures that the employees servicing the government contract will be compensated exactly as they would be if they were servicing a commercial account. Thus, the prevailing labor standards for private work would not be impacted in any way by the award of the subcontract. Furthermore, because subcontract award is not determined primarily on the basis of cost (Criterion 2), the subcontractor paying the lowest wages will not have a competitive advantage over other employers who pay average or above average wages. These subcontractors will compete for the subcontract work on the same basis that they compete for private work: quality of service and overall value.

(6) The prime contractor determines in advance, based on the nature of the subcontract requirements and knowledge of the practices of likely offerors, that all or nearly all offerors will meet the above requirements. If the services are currently being performed under a contract or subcontract, the prime contractor shall consider the practices of the existing contractor or subcontractor in making a determination regarding the above requirements .

This requirement is designed to ensure that all subcontractors compete on an equal basis, and eliminate the possibility that a subcontractor subject to SCA would be forced to compete against a subcontractor that would be exempt from SCA. Furthermore, as noted in the discussion of Criterion 4, this requirement, which takes into consideration not only the practices of likely offerors but also the nature of the subcontract requirements, is a necessary safeguard to prevent individual offerors from juggling staffing patterns simply in an effort to avoid SCA coverage. This criterion also serves to protect those employees (either contractor or Federal employees) who might currently be engaged in performing the solicited services on a full-time basis.

(7) The exempted subcontractor certifies in the subcontract to the provisions in paragraphs (1), and (3) through (5). The prime contractor shall review available information concerning the subcontractor and the manner in which the subcontract will be performed. If the prime contractor has reason to doubt the validity of the certification, SCA stipulations shall be included in the subcontract.

This criterion provides a mechanism for addressing and correcting situations where the exemption may have been misapplied. (It is not anticipated that the prime contractor will do a complete investigation into the application of the exemption to the subcontractor, but rather will do a review based on known information regarding the subcontractor, including information submitted in the solicitation process.) Furthermore, if the Department of Labor, in its enforcement, determines that the subcontract is not in fact exempt, it shall require that SCA stipulations be included in the subcontract. The prime contractor, who in almost all cases will have SCA stipulations included in its contract, will be ultimately responsible for compliance with the requirements of the Act. The Department may therefore require that the SCA requirements be effective as of the date of contract award. The Department notes that an exempt subcontractor is not required to keep any particular records to meet its burden of showing that the criteria are satisfied.

These criteria will be applied only to the following small group of commercial services. In order for the exemption to apply, the subcontract must meet all of the required criteria and must be for one of the specified services listed below. Subcontracts for services that are not within the scope of the services specifically listed, will not be exempt from coverage of SCA even though the subcontract meets all of the required criteria. Furthermore, subcontracts subject to section 4(c) of the SCA are not exempt.

For each of the services included on the list of services to which the exemption would apply, the type of services covered is explained. The difficulties which the FAR Council stated have been encountered in procuring the services are discussed in the NPRM.

For several years the Department of Labor regulations implementing the Service Contract Act have contained an exemption for contracts principally for the maintenance, calibration and/or repair of 1) automated data processing and office information/word processing systems; 2) scientific equipment and medical apparatus or equipment of microelectronic circuitry or other technology of at least similar sophistication; and 3) office/business machines not otherwise exempt where services are performed by the manufacturer or supplier of the equipment. In short, the current exemption applies exclusively to hardware maintenance when certain criteria are met. In addition to the expansion of the current ADP exemption to subcontracts for installation services as well as hardware maintenance, an exemption for subcontracts for software and other ADP support services is added in conjunction with the criteria listed above.

Provided the specified criteria are met, the exemption covers a broader range of automatic data processing and telecommunications services including: ADP facility operation and maintenance services provided at the contractor's facility, ADP telecommunications and transmission services, ADP teleprocessing and timesharing services, ADP systems analysis services, information and data broadcasting or data distribution services, ADP backup and security services, ADP data conversion services, computer aided design/computer aided manufacturing (CAD/CAM) services, digitizing services (including cartographic and geographic information), telecommunications network management services, automated news services, data services or other information services (e.g., buying data, the electronic equivalent of books, periodicals, newspapers, etc.) and data storage on tapes, compact disks, etc. This exemption does not apply to ADP data entry services or ADP optical scanning services.

Automobile or other vehicle (e.g., aircraft) maintenance services (other than contracts to operate a Government motor pool or similar facility).

Contractors operating automobiles or other vehicles have a need for services such as normal maintenance (e.g., changing oil and filters, rotating tires, etc.), mechanical repairs, paint and body work, glass replacement, and other repairs needed to maintain the automobile or other vehicle. Unless the contractor has its own repair shop for such work, it is subcontracted to commercial firms.

Financial services involving the issuance and servicing of cards (including credit cards, debit cards, purchase cards, smart cards, and similar card services).

Although these services are not typically required by most service contracts and therefore any subcontracts for these services would not typically be covered by the wage determination requirements of the prime contract, any subcontract for such financial services would be exempt if all the required criteria are met.

Lodging at hotels/motels and contracts with hotels/motels for conferences, including lodging and/or meals, which are part of the contract for the conference.

Prime contractors may contract with hotels/motels for meeting rooms for conferences of limited duration (e.g., one to five days). These subcontracts may be for conferences where attendance is limited to Government employees or may involve attendance by other organizations and/or the public. These subcontracts may also involve furnishing lodging and meals to those participating in the conference.

In other cases, the prime contractor establishes contractual arrangements with hotels/motels to obtain special rates for lodging when the contractor has a large number of employees that frequently travel to a particular location. The hotel/motel agrees to special reduced rates in exchange for being designated a preferred provider for the agency travelers to that city/location.

Maintenance services for all types of specialized building or facility equipment such as elevators, escalators, temperature control systems, security systems, smoke and/or heat detection equipment, etc.

Prime contractors that operate and maintain Government owned buildings often subcontract for services related to specialized equipment. Subcontracts for these services would be exempt if all of the required criteria are met.

Installation, maintenance, calibration or repair services for all types of equipment where services are obtained from the equipment manufacturer or supplier of the equipment.

Sometimes prime contractors are required to provide equipment and the prime contractors may have a need to acquire services to install, maintain, calibrate, service or repair the equipment from the manufacturer or original supplier in order to avoid compromising a warranty or because proprietary information needed to perform the work is only available from the manufacturer, an authorized representative of the manufacturer or the supplier of the equipment. These subcontracts may involve sophisticated equipment that requires access to proprietary information or requires employees involved in performing the work to have extensive training that is often only available through the manufacturer or equipment supplier. Examples of the type of equipment include automated building control systems, HVAC equipment, building security systems, and elevators or escalators.

Transportation of persons by air, motor vehicle, rail, or marine on regularly scheduled routes or via standard commercial services (not including charter services).

The General Services Administration (GSA) enters into contracts with airlines called “City Pairs” so that Federal employees and contract employees traveling on Government business can get discount airfares. Where contract employees travel on official business at reduced government fares, it is not considered an SCA-covered subcontract for transportation services.

Real estate services, including real property appraisal services, related to housing federal agencies or disposing of real property owned by the Federal Government.

To the extent that these services may be required, a subcontract for real estate services, including lease acquisition, real property appraisal, broker, space planning, lease re-negotiation, tax abatement, and real property disposal services, would be exempt if the required criteria are met.

Relocation services, including services of real estate brokers and appraisers, to assist federal employees or military personnel in buying and selling homes.

Subcontracts are not generally awarded for employee relocation services. To the extent that relocation services may be required, subcontracts for these services would be exempt if the required criteria are met.

This final rule is being treated as a “significant regulatory action” within the meaning of Executive Order 12866 because of the significant impact of this rule on other agencies. Therefore, the Office of Management and Budget has reviewed the final rule. However, the Department has determined that this rule is not “economically significant” as defined in section 3(f)(1) of E.O. 12866, and therefore it does not require a full economic impact analysis under section 6(a)(3)(C) of the Order. Under this rule, subcontracts would not be exempt unless price is equal to or less important than the combination of other non-price or cost factors in selecting the subcontractor. Therefore it is not anticipated that the changes proposed by this rule will have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.

The Department has similarly concluded that this rule is not a “major rule” requiring approval by the Congress under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq. ). It will not likely result in (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of U.S.-based enterprises to compete with foreign-based enterprises in domestic or export markets.

For purposes of the Unfunded Mandates Reform Act of 1995, this rule does not include any federal mandate that may result in excess of $100 million in expenditures by state, local and tribal governments in the aggregate, or by the private sector. Furthermore, the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1532, do not apply here because the rule does not include a “Federal mandate.” The term “Federal mandate” is defined to include either a “Federal intergovernmental mandate” or a “Federal private sector mandate.” 2 U.S.C. 658(6). Except in limited circumstances not applicable here, those terms do not include an enforceable duty which is “a duty arising from participation in a voluntary program.” 2 U.S.C. 658(7)(A). A decision by a subcontractor to bid on Federal service contracts is purely voluntary in nature, and the subcontractor's duty to meet Service Contract Act requirements arises “from participation in a voluntary Federal program.”

The Department has also reviewed this rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” The rule does 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.”

This document was prepared under the direction and control of John R. Fraser, Deputy Administrator, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. It was impracticable to attempt to publish a NPRM for this situation due to the inherent difficulties in scheduling marine dredging operations, and the temporary nature of this regulation.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register because the operational schedule for the drilling and blasting was not finalized until a June 21, 2000 meeting between the U.S. Coast Guard, Army Corps of Engineers and Contract Drilling and Blasting.

These regulations are needed to provide for the safety of life on navigable waters from hazards associated with drilling and blasting operations that will occur at the entrance to San Juan Harbor, Puerto Rico.

The drilling and blasting operations will be conducted to the west of the San Juan Harbor bar entrance channel, between buoys number 1 and number 4, in the approximate position of 18°28.3691′ N, 066°07.6889′ W. The drilling and blasting operations will occur outside of the navigation channel.

To further ensure the safety of life, the contractor conducting the drilling and blasting operations will, 15 minutes prior to any detonation, send two small boats outside the safety zone to advise mariners of the operation.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). The Coast Guard expects the economic impact of this proposal to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary as the operation will not significantly impede navigation and commercial activity due to the low frequency of occurrence and extremely short duration.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. The rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit in a portion of San Juan Harbor from July 11, 2000 to October 31, 2000. This special local regulation will not have a significant economic impact on a substantial number of small entities because this rule will be in effect sporadically, and vessel traffic can pass safely around the regulated area.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub.L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If the rule would affect your small business, organization, or government jurisdiction and you have questions concerning is provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding and participating in this rulemaking. We also have a point of contact for commenting on actions by employees of the Coast Guard. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

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

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

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

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

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

The Coast Guard has considered the environmental impact of this rule and concluded that under figure 2-1, paragraph 34(g) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation because it is establishing a temporary safety zone.

Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) was not published for this regulation. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for not publishing a NPRM and for making this regulation effective in less than 30 days after Federal Register publication. Conclusive information about this event was not provided to the Coast Guard until June 14, 2000, making it impossible to draft or publish a NPRM or a final rule 30 days in advance of its effective date. Publishing a NPRM and delaying its effective date would be contrary to the public interest since immediate action is needed to close a portion of the waterway and protect the maritime public from the hazards associated with this construction project.

This regulation establishes a safety zone on the waters of Massachusetts Bay in a five hundred (500) yard radius around the IB 909 construction barge located at position 42°23′19.57″N, 070°46′50.12″W. The safety zone is in effect from Friday, July 7, 2000 until Saturday, October 21, 2000. This safety zone prohibits entry into or movement within this portion of Massachusetts Bay and is needed to protect the maritime public from the dangers posed by this construction project.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).

Due to the limited size of the safety zone, the fact that the safety zone will not restrict navigational channels, and the advance maritime advisories that will be made, the Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in a portion of Massachusetts Bay in the vicinity of 42°23′19.57″N, 070°46′50.12″W from July 7, 2000 until October 21, 2000.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: mariners may freely navigate around the safety zone and the Coast Guard will issue marine radio advisories before the effective period widely available to users of the Bay.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

The Coast Guard analyzed this rule under Executive Order 13132 and has determined that this rule does not have implications for federalism under that Order.

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

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

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

The Coast Guard analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

The Coast Guard considered the environmental impact of this rule and concluded that, under figure 2-1, (34)(g), of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

In accordance with 5 U.S.C. 553, a notice of proposed rulemaking was not published for this regulation and good cause exists for making it effective less than 30 days after publication in the Federal Register . Publication of a notice of proposed rulemaking and delay of effective date would be contrary to the public interest because immediate action is necessary to prevent possible loss of life, injury, or damage to property or the environment.

Although this rule is being published as a temporary final rule without prior notice, an opportunity for public comment is nevertheless desirable to ensure the rule is both reasonable and workable. Accordingly, persons wishing to comment may do so by submitting comments to the office listed in ADDRESSES in the preamble. Persons submitting comments should include their names and addresses, identify this rulemaking (CGD09-00-013), the specific sections of this document to which each comment applies, and give the reason for each comment. The Coast Guard will consider all comments received.

A temporary safety zone is required to ensure safety of vessels and spectators from hazards associated with fireworks. Entry into, transit through or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port, Chicago or the designated Patrol Commander. The designated Patrol Commander on scene may be contacted on VHF Channel 16.

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

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) the Coast Guard considered whether this rule will have a significant impact on a substantial number of small businesses and not-for-profit organizations that are not dominant in their respective fields, and government jurisdictions with populations less than 50,000. For the same reasons set fourth in the above regulatory evaluations, the Coast Guard certifies under section 605 (b) of the Regulatory Flexibility Act (5 U.S.C.601 et seq.) that this temporary final rule will not have a significant economic impact on a substantial number of small entities.

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

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

The Coast Guard has analyzed this rule under the principles and criteria contained in Executive Order 13132 and has determined that this rule does not have federalism implications under that order.

The Coast Guard considered the environmental impact of this regulation and concluded that, under figure 2-1, paragraph (34)(g) of Commandant Instruction M16475.1C, it is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES .

The rules being approved into the California SIP include San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) Rule 4103, Open Burning (adopted on December 16, 1993), and South Coast Air Quality Management District (SCAQMD) Rule 444, Open Fires (adopted on October 2, 1987). These rules were submitted by the California Air Resources Board (CARB) to EPA on May 24, 1994 and March 23, 1988, respectively.

On April 12, 1999 in 64 FR 17589, EPA proposed granting limited approval and limited disapproval of the following rules into the California SIP: SJVUAPCD Rule 4103, Open Burning, and SCAQMD Rule 444, Open Fires. SJVUAPCD Rule 4103 was amended on December 16, 1993, and submitted by the CARB to EPA on May 24, 1994. SCAQMD Rule 444, was amended on October 2, 1987, and submitted by the CARB to EPA on March 23, 1988. These PM-10 rules were submitted by the State of California in response to section 110(a) and Part D of the CAA for incorporation into the California SIP. A detailed discussion of the background for the above rules and the nonattainment areas are provided in the proposed rule cited above.

EPA has evaluated the above rules for consistency with the requirements of the CAA and EPA regulations, as found in section 110 and Part D of the CAA and 40 CFR part 51 (Requirements for Preparation, Adoption, and Submittal of Implementation Plans) and EPA's interpretation of these requirements as expressed in various EPA policy guidance documents referenced in the proposed rule. EPA is finalizing the limited approval of SJVUAPCD Rule 4103 and SCAQMD Rule 444 in order to strengthen the SIP and finalizing the limited disapproval requiring the correction of the remaining deficiencies.

Submitted SJVUAPCD Rule 4103 replaces twenty-five rules in the Applicable SIP for the eight counties that now comprise the SJVUAPCD. SJVUAPCD Rule 4103 regulates open burning and reduces PM-10 emissions. Although SJVUAPCD Rule 4103 strengthens the SIP by combining and unifying the rules of eight counties and by eliminating the exemption for one-and two-family dwellings to burn residential rubbish, EPA has determined that SJVUAPCD Rule 4103 does not meet the requirements of RACM and BACM by allowing exemptions for eight burning activities that could be limited to Permissive-Burn Days. Rule 4103 also does not meet the requirements of BACM for Prescribed Burning (including Agricultural Burning, Forest Management Burning, Range Improvement Burning, and Wildland Vegetation Management Burning) to require burner training, to require emission reduction techniques, to require a smoke management plan, and to require the second level of smoke dispersion evaluation during the day (the first level is the initial evaluation at the beginning of the day).

Submitted SCAQMD Rule 444 regulates open burning and reduces PM-10 emissions. On July 6, 1982, EPA approved into the SIP a version SCAQMD Rule 444, Open Fires, that had been adopted by the District on October 2, 1981. Although the submitted SCAQMD Rule 444 will strengthen the SIP by requiring an approved implementation plan for Wildland Vegetation Management Burning, EPA has determined that SCAQMD Rule 444 does not meet the requirements of RACM for Prescribed Burning, because the rule does not base approval of a burn on an evaluation of an airshed's capacity to disperse PM-10 emissions from all types of Open Burning, including Prescribed Burning, and other PM-10 sources, to encourage burner training by offering incentives, and to encourage the use of emission reduction techniques by offering incentives.

A detailed list of rules to be replaced and a discussion of rule provisions and deficiencies can be found in the Technical Support Documents for SJVUAPCD Rule 4103 and SCAQMD Rules 444 and 208, which are available from the U.S. EPA's Region IX office.

A 30-day public comment period was provided in 64 FR 17589. EPA received one comment letter on the proposed rule from David L. Jones, SJVUAPCD. The comment has been evaluated by EPA and a summary of the comment and EPA's response is set forth below.

Comment: Mr. Jones commented that the California Air Resources Board (CARB) is planning to take action to revise the Agricultural Burning Guidelines, California Code of Regulations, Title 17, in late 1999. Changes currently being proposed to Title 17 would require that SJVUAPCD Rule 4103 be amended, which would also eliminate many of the deficiencies cited by EPA. The SJVUAPCD requests that EPA delay final rulemaking on Rule 4103 until after the CARB takes action on the proposed changes to Title 17. This would allow the SJVUAPCD time to complete the amendment of Rule 4103 in an orderly and cost saving manner.

Response: EPA delayed final rulemaking until after the California Air Resources board adopted the Smoke Management Guidelines for Agricultural and Prescribed Burning (SMGAPB) on March 23, 2000. EPA notes that the exemption for agricultural burning on a No-burn day, “ if denial would threaten imminent and substantial economic loss,” is retained in the revised SMGAPB. The exemption in the revised SMGAPB is now mitigated by limiting the amount to be burned and by allowing burning only when not likely to cause or contribute to exceedences of the NAAQS or smoke impact to smoke sensitive areas. However, EPA has determined that this exemption as now written is implemented by Director's discretion and is not enforceable nor approvable by EPA. A District planning to submit a rule containing this exemption should define clearly “an imminent and substantial economic loss” and should state clearly the guidelines for determining the amount of material to be burned, geographical location, and meteorological conditions that would allow such an exemption.

EPA is finalizing a limited approval and a limited disapproval of SJVUAPCD Rule 4103 and SCAQMD Rule 444. The limited approval of these rules is being finalized under section 110(k)(3) of the CAA in light of EPA's authority pursuant to section 301(a) of the CAA to adopt regulations necessary to further air quality by strengthening the SIP. The approval is limited in the sense that the rules strengthen the SIP. However, the rules do not meet the requirements of section 110(a)(2)(A) of the CAA because of the rule deficiencies which were discussed in the proposed rule. Thus, in order to strengthen the SIP, EPA is granting limited approval of these rules under sections 110(k)(3) and 301(a) of the CAA. This action approves SJVUAPCD Rule 4103, Open Burning, and SCAQMD Rule 444, Open Fires, into the SIP as federally enforceable rules.

At the same time, EPA is finalizing a limited disapproval of SJVUAPCD Rule 4103 and SCAQMD Rule 444, because they contain deficiencies that have not been corrected by section 110(a)(2)(A) of the CAA, and, as such, the rules do not fully meet the requirements of part D of the Act. As stated in the proposed rule, upon the effective date of this final rule, the 18 month clock for sanctions and the 24 month FIP clock will begin per sections 179(a) and 110(c) of the CAA. If the State does not submit the required corrections and EPA does not approve the submittal within 18 months of the effective date of the final rule, either the highway sanction or the offset sanction will be imposed at the 18 month mark. It should be noted that the rules covered by this final rule have been adopted by SJVUAPCD and SCAQMD and are currently in effect in SJVUAPCD and SCAQMD, respectively. EPA's limited disapproval action will not prevent SJVUAPCD, SCAQMD, or EPA from enforcing these rules.

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 OMB, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

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

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely acts on 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 act on 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.

EPA's disapproval of the state request under section 110 and subchapter I, part D of the Clean Air Act does not affect any existing requirements applicable to small entities. Any pre-existing federal requirements remain in place after this disapproval. Federal disapproval of the state submittal does not affect state enforceability. Moreover, EPA's disapproval of the submittal does not impose any new Federal requirements. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities.

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 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 costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action acts on 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.

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.

EPA believes that VCS are inapplicable to today's action because it does not require the public to perform activities conducive to the use of VCS.

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).

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 September 25, 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).)

Throughout this document whenever “we” is used, we mean EPA. This document makes a reference to 40 CFR 52.2270(c)(71). 40 CFR 52.2270(c)(71) was moved to 40 CFR 52.2299(c)(71) in a Federal Register action published July 7, 1999 (64 FR 36586).

We are approving Title 30, Chapter 118, of the Texas Administrative Code (30 TAC Chapter 118), Control of Air Pollution Episodes, adopted by TNRCC on February 9, 2000, effective March 5, 2000, as a revision to the Texas SIP.

Chapter 118 in the current Texas SIP was adopted by the former Texas Air Control Board (TACB) on July 17, 1987, and April 14, 1989, and approved by EPA on September 6, 1990 (55 FR 36632) at § 52.2270(c)(71). It is available for public inspection by selecting “Texas” and then selecting “TX Chap 118 (Reg 8)—Control of Air Pollution Episodes” at the following web site: http://www.epa.gov/earth1r6/6pd/air/sip/sip.htm (Must be all lower case.)

On February 27, 2000, the Governor of Texas submitted to EPA an amended Chapter 118 adopted by TNRCC on February 9, 2000. These amendments change references to sections 3.14 and 3.14(a) of the Texas Clean Air Act to section 5.514 of the Texas Water Code to reflect current codification of the same statutory content, replace references to the former TACB with “commission” to indicate that the commission is responsible for administering and enforcing the rules, and make acceptable editorial changes to the regulation to improve readability.

The EPA is approving 30 TAC Chapter 118, Control of Air Pollution Episodes, adopted by TNRCC on February 9, 2000, effective March 5, 2000, and submitted by the Governor on February 27, 2000. Chapter 118 replaces Chapter 118 approved by EPA September 6, 1990 (55 FR 36632) in the Texas SIP.

The EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the “Proposed Rules” section of today's Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are received. This rule will be effective on September 25, 2000 without further notice unless we receive adverse comment by August 25, 2000. If EPA receives adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

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

Executive 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) revokes and replaces Executive Order 12612, “Federalism,” and Executive Order 12875, “Enhancing the Intergovernmental Partnership.” Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in 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. The 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, 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 Federal Clean Air Act (the Act). Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

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.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This final rule is not subject to Executive Order 13045 because it approves a State program.

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

In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

The Regulatory Flexibility Act, 5 U.S.C. 600 et seq. , 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 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 Act, preparation of a flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Act forbids EPA to base its actions concerning SIPs on such grounds. See 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, 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.

The 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. The 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 can not take effect until 60 days after it is published in the Federal Register . This action is not a “major” rule as defined by 5 U.S.C. 804(2). This rule will be effective September 25, 2000.

Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 25, 2000.

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

On March 6, 2000 the Commonwealth of Pennsylvania submitted a formal revision to its State Implementation Plan (SIP). The SIP submittal consisted of revisions to certain VOC, particulate, and sulfur dioxide (SO 2 ) regulations. The revisions to certain VOC regulations are the subject of this rulemaking action. The particulate and (SO 2 ) regulation revisions will be addressed in a separate rulemaking action.

As part of the Commonwealth's Regulatory Basics Initiative (RBI), the Pennsylvania Department of Environmental Protection (PADEP) was tasked to review the Commonwealth's existing regulations and identify those that were more stringent than Federal requirements, were obsolete, redundant or no longer necessary. As a result of this initiative, several VOC regulations were found to be obsolete or needed to be revised to conform to Federal requirements. These SIP revisions address revisions resulting from the RBI.

These revisions remove 25 PA Code section 128.14, pertaining to the Minnesota Mining and Manufacturing Company, Bristol, Pennsylvania; add the term “less water” to 25 PA Code section 129.67(b)(2), Graphic Arts Systems; and add amendments to 25 PA Code section 129.56, Storage Tanks Greater than 40,000 Gallons Capacity Containing VOCs, providing a time frame for repairing or emptying of defective organic liquid storage tanks.

25 PA Code section 128.14, Minnesota Mining and Manufacturing Company (3M), Bristol, Pennsylvania, is being removed. This provision implemented alternative emission reduction limitations, also known as a “bubble,” for ten surface coating processes at the 3M facility. Eight (8) of the ten (10) coating processes under the bubble were decommissioned and removed in 1990; therefore, the alternative emission reduction limitations are no longer valid or necessary. The remaining two coating processes are subject to 25 PA Code section 129.52 Table I(5).

Regulations for graphic arts systems are being revised to add the term “less water” to 25 PA Code section 129.67(b)(2). This revision will clarify that water is not to be considered when determining the solids content of the ink. This revision complies with the EPA Control Technique Guidelines (CTG) reference document entitled, “A Guideline for Graphic Arts Calculations,” PEI Associates Inc., U.S. EPA Contract No. 68-02-3963, 1988.

Procedures for repairing defective floating roof seals on volatile organic storage tanks are being added to 25 PA Code section 129.56. The revisions allow the owners and operators of volatile organic liquid storage tanks to empty the tanks and repair the defective seals within 45 days. A 30-day extension may be requested from the Commonwealth if the failure cannot be repaired within 45 days and if the tank cannot be emptied in 45 days. These revisions comply with the federal requirements found in 40 CFR 60.113b(b)(4)(iii) relating to testing and procedures for volatile organic liquid storage vessels.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment since the revisions are administrative changes to the state regulations. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on September 25, 2000 without further notice unless EPA receives adverse comment by August 25, 2000. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

EPA is approving, as revisions to the Pennsylvania SIP, the removal of 25 PA Code section 128.14, pertaining to Minnesota Mining and Manufacturing Company, Bristol, Pennsylvania; the addition of the term “less water” to 25 PA Code section 129.67(b)(2), Graphic Arts Systems; and the addition of amendments to 25 PA Code section 129.56, Storage Tanks Greater than 40,000 Gallons Capacity Containing VOCs, which provide a time frame for the repairing or emptying of defective organic liquid storage tanks.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 25, 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 approval of revisions to Pennsylvania volatile organic compounds regulations may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

1. Electronically .You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/.

2. In person . The Agency has established an official record for this action under docket control number OPP-301021. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

EPA issued a final rule, published in the Federal Register of January 29, 1999 (64 FR 4577) (FRL-6054-3), which announced that on its own initiative under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) it established time-limited tolerances for the combined residues of fenbuconazole and its metabolites in or on grapefruit at 0.5 ppm, dried grapefruit pulp at 4.0 ppm, grapefruit oil at 35 ppm, and meat and meat by-products of cattle, goats, hogs, horses, and sheep at 0.01 ppm, with an expiration date of June 30, 2000. EPA established the tolerances because section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Such tolerances can be established without providing notice or period for public comment.

EPA received a request to extend the use of fenbuconazole on grapefruit for this year's growing season due to the situation remaining an emergency. The pathogen which causes greasy spot has developed resistance to one of the registered alternatives, and other alternatives can cause damage to the fruit, or are less efficacious. Of the citrus crops, grapefruit is particularly susceptible to this disease. Additionally, grapefruit is grown primarily for the fresh market, which has a much lower tolerance for blemished fruits. Significant economic losses are expected without this use. After having reviewed the submission, EPA concurs that emergency conditions exist. EPA has authorized under FIFRA section 18 the use of fenbuconazole on grapefruit for control of greasy spot disease in grapefruit in Florida.

EPA assessed the potential risks presented by residues of fenbuconazole in or on grapefruit. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and decided that the necessary tolerances under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. The data and other relevant material have been evaluated and discussed in the final rule of January 29, 1999 (64 FR 4577) (FRL-6054-3). Based on that data and information considered, the Agency reaffirms that extension of the time-limited tolerances will continue to meet the requirements of section 408(l)(6). Therefore, the time-limited tolerances are extended for an additional 1 1/2 year period. EPA will publish a document in the Federal Register to remove the revoked tolerances from the Code of Federal Regulations (CFR). Although these tolerances will expire and are revoked on December 31, 2001, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerances remaining in or on grapefruit and livestock commodities after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA and the application occurred prior to the revocation of the tolerances. EPA will take action to revoke these tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCA sections 408 and 409. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301000 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before September 25, 2000.

1. Filing the request . Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. C400, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.

2. Tolerance fee payment . If you file an objection or request a hearing, you must also pay the fee prescribed by 40 CFR 180.33(i) or request a waiver of that fee pursuant to 40 CFR 180.33(m). You must mail the fee to: EPA Headquarters Accounting Operations Branch, Office of Pesticide Programs, P.O. Box 360277M, Pittsburgh, PA 15251. Please identify the fee submission by labeling it “Tolerance Petition Fees.”

EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov , or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit III.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301021, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov . Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

This final rule establishes time-limited tolerances under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any prior consultation as specified by Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 19, 1998); special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or require OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a FIFRA section 18 petition under FFDCA section 408, such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on 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, entitled Federalism (64 FR 43255, August 10, 1999). 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.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4).

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 this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

1. Electronically . You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/.

2. In person . The Agency has established an official record for this action under docket control number OPP-301023. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

EPA issued a final rule, published in the Federal Register of July 9, 1997 (62 FR 36691) (FRL-5729-4), which announced that on its own initiative under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) it established time-limited tolerances for the residues of imidacloprid and its metabolites in or on the citrus fruits crop group at 1.0 part per million (ppm) and dried citrus pulp at 5.0 ppm, with an expiration date of December 31, 1998. These tolerances were extended on December 2, 1998 (63 FR 66438) (FRL-6037-2), for an additional 18-month period to June 30, 2000.

EPA issued a final rule, published in the Federal Register of January 20, 1999 (64 FR 3037) (FRL-6051-6), which announced that on its own initiative under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) it established time-limited tolerances for the residues of imidacloprid and its metabolites in or on legume vegetables (crop group 6) at 1.0 ppm and strawberries at 0.1 ppm, with an expiration date of June 30, 2000.

EPA established the tolerances because section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Such tolerances can be established without providing notice or period for public comment.

EPA received a request to extend the use of imidacloprid on citrus for this year's growing season due to an emergency concerning the spread of Pierce's Disease to wine grapes in California. By controlling the glassy-winged sharpshooter, the vector of Pierce's Disease in citrus, the state hopes to prevent the spread of the disease to grapes.

EPA received a request to extend the use of imidacloprid on succulent beans (part of the legume vegetable crop group) for this year's growing season due to an emergency with silverleaf whitefly on succulent beans in Georgia.

EPA received a request to extend the use of imidacloprid on strawberries for this year's growing season due to the continuing emergency in California. California requested a specific exemption for use of imidacloprid on strawberries to control the silverleaf whitefly. The situation in the state of California remains an emergency as there have been no adequate alternatives made available since the initial request for this use. An emergency situation is present due to this recently introduced pest, its devastating effects on many fruit and vegetable crops, and its resistance to registered alternatives.

After having reviewed the submissions, EPA concurs that emergency conditions exist for the situations in these states. EPA has authorized under FIFRA section 18 the use of imidacloprid on citrus for control of the glassy-winged sharpshooter in California, the use of imidacloprid on succulent beans for control of silverleaf whiteflies in Georgia, and the use of imidacloprid on strawberries for control of silverleaf whiteflies in California.

EPA assessed the potential risks presented by residues of imidacloprid in or on citrus, citrus pulp, legume vegetables, and strawberries. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and decided that the necessary tolerances under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. The data and other relevant material have been evaluated and discussed in the final rules of July 9, 1997 (62 FR 36691) and January 20, 1999 (64 FR 3037). Based on that data and information considered, the Agency reaffirms that extension of the time-limited tolerances will continue to meet the requirements of section 408(l)(6). Therefore, the time-limited tolerances are extended for an additional 2-year period. EPA will publish a document in the Federal Register to remove the revoked tolerances from the Code of Federal Regulations (CFR). Although these tolerances will expire and are revoked on June 30, 2002, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerances remaining in or on citrus, dried citrus pulp, legume vegetables, or strawberries after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA, and the application occurred prior to the revocation of the tolerances. EPA will take action to revoke these tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCA sections 408 and 409. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301023 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before September 25, 2000.

1. Filing the request . Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. C400, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.

2. Tolerance fee payment . If you file an objection or request a hearing, you must also pay the fee prescribed by 40 CFR 180.33(i) or request a waiver of that fee pursuant to 40 CFR 180.33(m). You must mail the fee to: EPA Headquarters Accounting Operations Branch, Office of Pesticide Programs, P.O. Box 360277M, Pittsburgh, PA 15251. Please identify the fee submission by labeling it “Tolerance Petition Fees.”

EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov, or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit III.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301023, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

This final rule establishes time-limited tolerances under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501, et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any prior consultation as specified by Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 19, 1998); special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low- Income Populations (59 FR 7629, February 16, 1994); or require OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a FIFRA section 18 petition under FFDCA section 408, such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on 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, entitled Federalism (64 FR 43255, August 10, 1999). 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.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4).

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 this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

We conclude that Indiana's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Indiana Final authorization to operate its hazardous waste program with the changes described in the authorization application. Indiana has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Indiana, including issuing permits, until the State is granted authorization to do so.

The effect of this decision is that a facility in Indiana subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent federal requirements in order to comply with RCRA. Indiana has enforcement responsibilities under its state hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

• Do inspections, and require monitoring, tests, analyses or reports;

• Enforce RCRA requirements and suspend or revoke permits; and

• Take enforcement actions regardless of whether the State has taken its own actions.

This action does not impose additional requirements on the regulated community because the regulations for which Indiana is being authorized by today's action are already effective, and are not changed by today's action.

EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's Federal Register we are publishing a separate document that proposes to authorize the state program changes.

If EPA receives appropriate comments that oppose this authorization, we will withdraw this rule by publishing a document in the Federal Register before the rule becomes effective. EPA will base any further decision on the authorization of the state program changes on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.

If we receive comments that oppose only the authorization of a particular change to the State hazardous waste program, we will withdraw that part of this rule but the authorization of the program changes that the comments do not oppose will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn.

Indiana initially received Final authorization on January 31, 1986, effective January 31, 1986 (51 FR 3955) to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on October 31, 1986, effective December 31, 1986 (51 FR 39752); January 5, 1988, effective January 19, 1988 (53 FR 128); July 13, 1989, effective September 11, 1989 (54 FR 29557); July 23, 1991, effective September 23, 1991 (56 FR 33717); July 24, 1991, effective September 23, 1991 (56 FR 33866); July 29, 1991, effective September 27, 1991 (56 FR 35831); July 30, 1991, effective September 30, 1991 (56 FR 36010); August 20, 1996, effective October 21, 1996 (61 FR 43018); and September 1, 1999, effective November 30, 1999 (64 FR 47692).

On February 24, 2000, Indiana submitted a final complete program revision application, seeking authorization of their changes in accordance with 40 CFR 271.21. We now make an immediate final decision, subject to receipt of written comments that oppose this action, that Indiana's hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. Therefore, we grant Indiana Final authorization for the following program changes:

There are no State requirements in this program revision considered to be either more stringent or broader in scope than the Federal requirements.

Indiana will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization until they expire or are terminated. We will not issue any more new permits or new portions of permits for the provisions listed in the table above after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Indiana is not yet authorized.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. The authorized Indiana RCRA program was incorporated by reference into 40 CFR part 272 on August 23, 1989, effective October 23, 1989 (54 FR 34988).

We reserve the amendment of 40 CFR part 272, subpart P for this authorization of Indiana's program changes until a later date.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year.

Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted.

Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

EPA has determined that section 202 and 205 requirements do not apply to today's action because this rule does not contain a Federal mandate that may result in annual expenditures of $100 million or more for State, local, and/or tribal governments in the aggregate, or the private sector. Costs to State, local and/or tribal governments already exist under the Indiana program, and today's action does not impose any additional obligations on regulated entities. In fact, EPA's approval of State programs generally may reduce, not increase, compliance costs for the private sector. Further, as it applies to the State, this action does not impose a Federal intergovernmental mandate because UMRA does not include duties arising from participation in a voluntary federal program.

The requirements of section 203 of UMRA also do not apply to today's action because this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Although small governments may be hazardous waste generators, transporters, or own and/or operate TSDFs, they are already subject to the regulatory requirements under the existing State laws that are being authorized by EPA, and, thus, are not subject to any additional significant or unique requirements by virtue of this program approval.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute 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 organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's action on small entities, small entity is defined as: (1) A small business as specified in the Small Business Administration regulations; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this authorization on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This action does not impose any new requirements on small entities because small entities that are hazardous waste generators, transporters, or that own and/or operate TSDFs are already subject to the regulatory requirements under the State laws which EPA is now authorizing. This action merely authorizes for the purpose of RCRA section 3006 those existing State requirements.

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. The 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 today's Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The Office of Management and Budget has exempted this rule from the requirements of Executive Order 12866 (Regulatory Planning and Review).

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), 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 section 6 of 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 authorization does not have federalism implications. It will not have a substantial direct effect on 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, because this rule affects only one State. This action simply approves Indiana's proposal to be authorized for updated requirements of the hazardous waste program that the State has voluntarily chosen to operate. Further, as a result of this action, newly authorized provisions of the State's program now apply in Indiana in lieu of the equivalent Federal program provisions implemented by EPA under HSWA. Affected parties are subject only to those authorized State program provisions, as opposed to being subject to both Federal and State regulatory requirements. Thus, the requirements of section 6 of the Executive Order do not apply.

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks,” applies to any rule that: (1) The Office of Management and Budget determines is “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.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it authorizes a State program.

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

In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

This rule is not subject to Executive Order 13084 because it does not significantly or uniquely affect the communities of Indian tribal governments. Indiana is not authorized to implement the RCRA hazardous waste program in Indian country. This action has no effect on the hazardous waste program that EPA may implement in the Indian country within the State.

Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , Federal agencies must consider the paperwork burden imposed by any information request contained in a proposed rule or a final rule. This rule will not impose any information requirements upon the regulated community.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

A summary of this order was published in the Federal Register , FR Doc. 00-17719, 65 FR 43251, July 13, 2000. This document corrects the supplementary information contained in that summary by revising paragraph 14. In the supplementary information, page 43253, in the third column, “paragraph 14” is corrected to read:

“The majority of our existing truth-in-billing rules took effect on November 12, 1999. Certain carriers who met specific conditions were allowed to delay compliance with some of these requirements until April 1, 2000. In addition, certain other existing truth-in-billing rules are scheduled to take effect on April 1, 2000. Thus, absent action on our part, carriers would be bound by the existing rules as of April 1, despite the fact that today we amend certain aspects of those rules to become effective upon OMB approval. In view of these circumstances, we stay the portions of the existing § 64.2401 detailed below for which compliance was required as of April 1, 2000 until such time as today's amendments of § 64.2401 become effective. The portions of the existing § 64.2401 that are subject to this stay are: (1) That portion of § 64.2401(a)(2) that requires that each carrier's “telephone bill must provide clear and conspicuous notification of any change in service provider, including notification to the customer that a new provider has begun providing service,” (2) § 64.2401(a)(2)(ii) and (3) § 64.2401(d). The existing provisions of §§ 64.2401(a)(1), (a)(2)(i) and the portion of (a)(2) requiring “[w]here charges for two or more carriers appear on the same telephone bill, the charges must be separated by service provider,” will continue to take effect on April 1, 2000. Nothing in this order modifies the effective dates of existing §§ 64.2401(b) and (c). Upon their effective date, the rules, as amended, will supercede the existing rules. We take this action because we find that requiring carriers to comply with the existing rules for a short time prior to the effective date of today's amendments would be unduly burdensome and that it could result in the very sort of consumer confusion that today's amendments seek to avoid.”

NMFS published an extension and revision of emergency interim rules in the Federal Register on June 23, 2000 (65 FR 39107). Emergency interim rules, published on January 5, 2000, and January 28, 2000, were extended through December 24, 2000, and January 16, 2001, respectively. These actions included collection-of-information requirements subject to the Paperwork Reduction Act (PRA); however, PRA statements were inadvertently omitted.

In the final rule Emergency Interim Rules to Implement the American Fisheries Act; Extension of Expiration Dates published in 65 FR 39107, June 23, 2000, FR Doc. 00-15857, on page 39110, add to the Classification section in column 2 following the paragraph beginning “Because prior notice and opportunity for public comment * * *” the following two paragraphs to read as follows:

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

This rule extends collection-of-information requirements subject to the PRA. These requirements have been approved by OMB under control number 0648-0393. Public reporting burden for these collections of information is estimated to average 2 hours per permit application for a mothership, inshore processor, inshore cooperative, or catcher vessel permit; and 30 minutes for a replacement vessel permit application. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates, or any other aspect of these data collections, including suggestions for reducing the burden, to NMFS (see ADDRESSES ) and to OMB at the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC, 20503 (Attention: NOAA Desk Officer).