A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain McDonnell Douglas Model DC-8 series airplanes was published in the Federal Register on November 4, 1999 (64 FR 60134). For certain airplanes, that action proposed to require inspection(s) to detect cracks of the doorjamb corners and follow-on actions. For certain other airplanes, that AD also proposed to require installation of a preventative modification; an inspection to detect cracks at the corners of the doorjambs of the passenger and service doors; and follow-on actions.

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

One commenter supports the proposed AD.

One commenter requests that paragraph (e) of the proposed AD be revised to include an inspection threshold that can be scheduled from the effective date of this AD. The commenter states that such a threshold would accommodate Group 4 airplanes that have unknown cycles accumulated since accomplishment of the modification.

The FAA does not concur. In developing an appropriate compliance time for this action, the FAA considered the safety implications and normal maintenance schedules for timely accomplishment of the inspection. In addition, the compliance time of “within 17,000 landings following accomplishment of the modification specified in the service bulletin” is based on a damage tolerance assessment of the affected structure. Because the reported cracking was caused by fatigue related stress (as discussed in the preamble of the proposed AD), the FAA finds that airplanes that have accumulated unknown hours on the modification must be inspected at the earliest possible time to ensure no cracks have initiated since installation of the modification, which may have been accomplished more than 17,000 flight hours ago. In consideration of these items, the FAA has determined that 17,000 landings following accomplishment of the modification specified in the service bulletin represents an appropriate interval of time allowable wherein the inspection can be accomplished during scheduled maintenance intervals for the majority of affected operators, and an acceptable level of safety can be maintained. However, under the provisions of paragraph (g) of the final rule, the FAA may approve requests for adjustments to the compliance time if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

There are approximately 294 Model DC-8 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 251 airplanes of U.S. registry will be affected by this AD.

Should an operator be required to accomplish the inspection(s), it will take 48 (Group 1 airplanes) and 74 (all other groups of airplanes) work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the inspection(s) required by this AD on U.S. operators is estimated to be $2,880 (Group 1 airplanes) and $4,440 (all other groups of airplanes) per airplane, per inspection cycle.

Should an operator be required or elect to accomplish the preventative modification, it will take approximately 1,440 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts will cost approximately $2,000 per airplane. Based on these figures, the cost impact of the preventative modification by this AD on U.S. operators is estimated to be $88,400 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 757 series airplanes was published in the Federal Register on June 7, 2000 (65 FR 36095). That action proposed to require modification of the nacelle strut and wing structure.

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

One commenter supports the proposed rule.

One commenter states that it does not operate Boeing Model 757 series airplanes powered by Pratt & Whitney engines and is not affected by the proposed rule.

One commenter states that the instructions specified in paragraph (c) of the proposal do not clearly identify who should be contacted if any damage to the airplane structure is found during accomplishment of the modification referenced in the proposal. The commenter states that, based on instructions in Boeing Service Bulletin 757-54-0034, and the fact that the manufacturer is more knowledgeable about the modifications necessary; paragraph (c) should be revised to include contacting the manufacturer for repair of any damage.

The FAA concurs with the commenter's request, however, although Boeing Service Bulletin 757-54-0034 specifies that the manufacturer may be contacted for disposition of certain damage conditions, this AD requires the repair of those conditions to be accomplished in accordance with a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA, or data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative (DER) who has been authorized by the FAA to make such findings. Paragraph (c) of this final rule has been revised to add Boeing DER approval for repairs.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the change previously described. The FAA has determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 317 airplanes of the affected design in the worldwide fleet. The FAA estimates that 278 airplanes of U.S. registry will be affected by this AD.

It will take approximately 800 work hours per airplane to accomplish the required modification of the nacelle strut and wing structure described in Boeing Service Bulletin 757-54-0034, at an average labor rate of $60 per work hour. Required parts will be provided at no cost by the airplane manufacturer. Based on these figures, the cost impact of this required modification on U.S. operators is estimated to be $13,344,000, or $48,000 per airplane.

It will take approximately 26 work hours per airplane to accomplish the actions described in Boeing Service Bulletin 757-54-0027, Revision 1, at an average labor rate of $60 per work hour. Required parts will be provided at no cost by the airplane manufacturer. Based on these figures, the cost impact of these required actions on U.S. operators is estimated to be $433,680, or $1,560 per airplane.

It will take approximately 90 work hours per airplane to accomplish the actions described in Boeing Service Bulletin 757-54-0036, at an average labor rate of $60 per work hour. Required parts will be provided at no cost by the airplane manufacturer. Based on these figures, the cost impact of these required actions on U.S. operators is estimated to be $1,501,200, or $5,400 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

What caused this AD? The FAA has received reports of six instances where the recording quality of the cockpit voice recorder (CVR) system in Raytheon Beech Models 1900, 1900C, and 1900D airplanes was so poor that the information was practically unrecoverable.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Raytheon Beech Models 1900, 1900C, and 1900D. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on June 14, 2000 (65 FR 37311). The NPRM proposed to require you to modify the cockpit voice recorder (CVR) system.

Accomplishment of the proposed action as specified in the NPRM would be required in accordance with Raytheon Recommended Service Bulletin SB 23-3094, Issued: November, 1999.

What is the potential impact if FAA took no action? This condition, if not corrected, could affect air safety if important information that the CVR provides is not available after an accident. This information helps determine the probable cause of an accident and aids in developing necessary corrective action or design changes to prevent future accidents.

Was the public invited to comment? The FAA encouraged interested persons to participate in the making of this amendment. The following presents the concerns received on the proposal and FAA's response to these concerns:

What is the commenter's concerns? The commenter requests that FAA:

• Clearly define in the AD that the CVR must be installed and not just the incorporation of a kit; and

• Identify all affected CVR's by manufacturer or model number.

The commenter operates several of the affected airplanes in a configuration of freight-only, single pilot. These airplanes incorporate supplemental type certificates that allow operation with nine or fewer passengers and freight conversions. Under section 135.151 of the Federal Aviation Regulations (14 CFR 135.151), this operator does not have to operate with a CVR. The commenter believes that FAA could eliminate confusion as to whether the AD applied if the Applicability of the AD was written to specify that the CVR must be installed. Then, if you installed the CVR in the future, you would have to comply with the AD.

The commenter believes that identifying the CVR by manufacturer or model number would also clarify the Applicability of the AD.

What is FAA's Response to the Concerns? We concur that specifying that the CVR must be installed would clarify the Applicability of the AD. We have changed the wording in the final rule accordingly.

We do not concur with including the manufacturer or model number of the CVR in the Applicability of the AD. The intent of the AD is to modify the configuration of the CVR system, which includes the wiring and audio amplifier. The AD applies regardless of the CVR unit make and model that is installed.

What is FAA's final determination on this issue? We carefully reviewed all available information related to the subject presented above and determined that air safety and the public interest require the adoption of the rule as proposed except for the change discussed above and minor editorial changes. These changes provide the intent that was proposed in the NPRM for correcting the unsafe condition and do not impose any additional burden than what was intended in the NPRM.

What is the compliance time of this AD? The compliance time of this AD is “within 12 months after the effective date of this AD.”

Why is the compliance in calendar time instead of hours time-in-service (TIS)? The unsafe condition defined in this document is not a result of the number of times the airplane is operated, rather is a result of the present configuration of the CVR system. The chance of this situation occurring is the same for an airplane with 100 hours time-in-service (TIS) as it is for an airplane with 1,000 hours TIS. For this reason, FAA has determined that a compliance based on calendar time should be utilized in this AD in order to assure that the unsafe condition is addressed on all airplanes in a reasonable time period.

What is the cost impact of this AD on owners/operators of the affected airplanes? The following chart provides estimates of the cost this AD would impose upon the public:

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

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

On August 3, 2000, the Federal Aviation Administration (FAA) issued AD 2000-16-01, amendment 39-11855 (65 FR 49728, August 15, 2000), which applies to certain McDonnell Douglas Model MD-90-30 series airplanes. That AD requires replacement of certain ground block screws with new screws; and retermination of the circuit ground wires of the electrical power control unit (EPCU) to separate grounding points. That AD was prompted by reports of complete loss of the primary electrical power on an airplane during flight. The actions required by that AD are intended to prevent a loose electrical ground block of the circuit ground wires of the EPCU, which could result in complete loss of the primary electrical power of an airplane during flight.

In the preamble of AD 2000-16-01, the FAA indicated that a supplemental notice of proposed rulemaking (NPRM) was published in the Federal Register on June 12, 2000 (65 FR 36799). After careful review of the available data, including the comments received from the public, the FAA determined that air safety and the public interest required the adoption of the rule as proposed in the supplemental NPRM. However, the FAA inadvertently included the requirements from the original NPRM (64 FR 68302, December 7, 1999) in the final rule, rather than the requirements specified in paragraphs (a) and (b) of the supplemental NPRM. The effect of this error is that operators of certain airplanes are not required to accomplish actions that apply to those airplanes, and that certain actions are to be accomplished in accordance with a method approved by the FAA, rather than a specific service bulletin. Therefore, consistent with the FAA's intent in the supplemental NPRM, this correction is necessary to require operators of specific airplanes to replace certain ground block screws with new screws and to reterminate the circuit ground wires of the EPCU to separate grounding points.

These actions shall be done in accordance with McDonnell Douglas Alert Service Bulletin MD90-24A060, Revision 01, dated September 2, 1999; and McDonnell Douglas Service Bulletin MD90-24-062, dated February 3, 2000; as applicable. The FAA inadventently omitted McDonnell Douglas Service Bulletin MD90-24-062 from the incorporation by reference paragraph and is incorporating by reference that service bulletin in this final rule.

Action is taken herein to correct these inadvertent errors in AD 2000-16-01 and to correctly add this AD as an amendment to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13). The AD is reprinted in its entirety for the convenience of affected operators.

Since this action only corrects current requirements, it has no adverse economic impact and imposes no additional burden on any person. Therefore, the FAA has determined that notice and public procedures are unnecessary.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain EMBRAER Model EMB-120 series airplanes was published in the Federal Register on April 17, 2000 (65 FR 20388). That action proposed to require revising the Airplane Flight Manual (AFM), and either installing hydraulic tube assemblies incorporating a check valve, or visually inspecting the check valve if already installed and corrective action, if necessary.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

Since the issuance of the proposed AD, the FAA has determined that the installation required by paragraph (c) must be accomplished only in accordance with EMBRAER Service Bulletin 120-32-0077, Change 02, dated December 23, 1997, after the effective date of this AD. (EMBRAER Service Bulletin 120-32-0077, Change 01, dated September 25, 1997; and EMBRAER Service Bulletin 120-32-0077, Change 02, dated December 23, 1997, were cited as the appropriate sources of service information in the proposed AD.) The final rule has been changed accordingly, and a new Note 2 has been added to give credit for accomplishment of the installation in paragraph (c) prior to the effective date of this AD in accordance with EMBRAER Service Bulletin 120-32-0077, Change 01, dated September 25, 1997.

After careful review of the available data, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes described previously. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

The FAA estimates that 213 airplanes of U.S. registry will be affected by this AD.

It will take approximately 1 work hour per airplane to incorporate the applicable AFM revision, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AFM revision required by this Ad on U.S. operators is estimated to be $12,780, or $60 per airplane.

It will take approximately 1 work hour per airplane to perform the visual inspection of the check valve, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the inspection required by this AD on U.S. operators is estimated to be $60 per airplane.

It will take approximately 2 work hours per airplane to install the hydraulic tube assemblies incorporating a check valve, and that the average labor rate is $60 per work hour. Required parts will cost approximately $2,021 per airplane. Based on these figures, the cost impact of the installation required by this AD on U.S. operators is estimated to be $2,141 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

(g) This amendment becomes effective on November 13, 2000.

Airworthiness Directive (AD) 2000-19-01, amendment 39-11902, applicable to certain Bombardier Model CL-600-1A11 (CL-600) and CL-600-2A12 (CL-601) series airplanes, was published in the Federal Register on September 20, 2000 (65 FR 56780). That AD requires modification of the main landing gear (MLG) brake units and inboard MLG wheels; and a revision to the Airplane Flight Manual (AFM) to include the increased cooling times for the modified brakes. That AD allows, for certain cases, removal of the inboard and/or outboard wheel discs by installation of a placard to limit airplane operation on the ground and a revision to the AFM to include information for operating the airplane with the wheel discs removed. Additionally, that AD provides for an acceptable method of compliance that involves installation of a new revision to the AFM.

As published, paragraph (d) of the existing AD specifies that installation of a specific AFM revision is acceptable for compliance with the requirements of paragraphs (a) and (b) of that AD. The FAA inadvertently did not specify that installation of a specific AFM revision is also acceptable for compliance with the requirements of paragraph (c) of that AD.

Since no other part of the regulatory information has been changed, the final rule is not being republished.

The effective date of this AD remains October 25, 2000.

On August 18, 2000, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by amending Class E airspace at Picayune, MS, (65 FR 50470) to contain the RNAV RWY 18 and 39 SIAPs developed for the Picayune Municipal Airport. Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.9H, dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 15 CFR 71.1, dated September 1, 1999. The Class E airspace designations listed in this document will be published subsequently in the Order.

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.

This amendment to Part 71 of the Federal Aviation Regulations (14 CFR part 71) amends Class E airspace at Picayune, MS. This action also changes the name of the airport in the airspace description from Picayune—Pearl River County to Picayune Municipal Airport.

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. It, therefore, (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 E airspace at Harbor Springs, MI (65 FR 25457). 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. The City of Harbor Springs, MI, requested additional information on the impact of the proposal on the local community. Subsequent communication between the city manager of Harbor Springs, MI, and the Chicago Flight Procedures Office, AVN-140B, satisfactorily provided that information. 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 7400.9H dated September 1, 2000, and effective September 16, 2000, 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 72 modifies Class E airspace at Harbor Springs, MI, to accommodate aircraft executing instrument flight procedures into and out of Harbor Springs 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.

Interested persons are invited to comment on the interim rule submitting such written data, views, or arguments as they may desire. Comments relating to the environmental, energy, federalism, or economic impact that might result from adopting the interim rule are also invited. Substantive comments should be accompanied by cost estimates. Comments must identify the regulatory docket or notice number and be submitted in duplicate to the Rules Docket address specified above.

All comments received, as well as a report summarizing each substantive public contact with FAA personnel on this interim rule will be filed in the docket. The docket is available for public inspection before and after the comment closing date.

The Administrator will consider all comments received on or before the closing date. Late-filed comments will be considered to the extent practicable. The Interim Final Rule, as well as the Final Rule, may be changed in light of the comments received.

Commenters wishing the FAA to acknowledge receipt of their comments must include a pre-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-00-7018.” The postcard will be date-stamped and mailed to the commenter.

You can get an electronic copy using the Internet by taking the following steps:

(1) Go to the search function of the Department of Transportation's electronic Docket Management System (DMS) web page (http://dms.dot.gov/search).

(2) On the search page type in the last four digits of the Docket number shown at the beginning of this notice. Click on “search.”

(3) On the next page, which contains the Docket summary information for the Docket you selected, click on the document number for the item you wish to view.

You can also get an electronic copy using the Internet through FAA's web page at http://www.faa.gov/avr/arm/nprm/nprm.htm or the Federal Register's web page at http://www.access.gpo.gov/su_docs/aces/aces140.html.

You can also get a copy by submitting a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the docket number of this rulemaking.

On June 6, 2000, the FAA published Amendment No. 187-11, Fees for FAA Services for Certain Flights (65 FR 36002). The FAA requested that comments to that document be submitted on or before October 4, 2000. The FAA has received and reviewed approximately 70 comments. In response to the extreme significance and international implications of this IFR, as expressed in the comments, FAA is extending the comment period to give affected entities (mostly foreign) additional time to comment on the contents of the docket. Also, the first billing under this rule has recently occurred and entities that may not have commented to date may desire to comment. This action provides the opportunity.

The FAA determines that extending the comment period is in the public interest and that good cause exists for taking this action. Accordingly, the comment period for Amendment No. 187-11 is extended until October 27, 2000. If possible, any comments received after this date will be considered by the FAA prior to any further action in this rulemaking.

Through the Census Act, which is codified in title 13 of the United States Code, Congress has delegated to the Secretary of Commerce its broad constitutional authority over the decennial census (see U.S. Constitution Art. I, Sec. 2, Cl.3). On June 13, the Commerce Department issued a proposed rule that would set forth how the Bureau of the Census will carry out its responsibilities to report tabulations of population to States and localities pursuant to the Census Act. See 65 FR 38370 (June 20, 2000). The proposed rule would establish a process for the release of data to the States and codify the process by which a committee of senior career officials of the Census Bureau would advise the Director of the Census. In addition, the proposed rule contained a delegation of authority from the Secretary to the Director of the Census to make a determination regarding the methodology to be used in calculating the tabulations of population to be reported to States and localities pursuant to 13 U.S.C. 141(c). While the background and basis for the entire proposal were included in the June 20 publication and are not repeated here, this delegation of authority to the Director, in particular, was included in the proposed rule because the decision turns entirely on operational and methodological implementation within the scientific expertise of the Bureau of the Census, and it is important to avoid even the appearance that considerations other than those relating to statistical science are being taken into account.

The Department received 17 letters in support of the proposed rule. There were a total of 243 signatories to these letters. Comments included one letter signed by four former Directors of the Census Bureau; five letters with six signatories from statistical, social science, and survey research organizations; three letters with six signatories from universities or university-based research institutions; two letters signed by 69 Members of Congress; three letters with 15 signatories from national associations and organizations; two letters with two signatories from state or local government officials; and one letter with 141 signatories from a public interest organization.

Common to the letters in support of the proposed rule were the following two comments: (1) The decision on the use of statistically corrected redistricting and other non-apportionment data from Census 2000 is a technical/scientific decision that should be made by the Director of the Census upon the recommendation of his or her professional staff, and (2) the rule ensures that other, irrelevant considerations, especially those that are political in nature, do not affect the decision-making process. A number of comments stated agreement with the intent to ensure that politics do not dictate what should be a scientific decision. Others said the proposed rule sets forth a fair and unbiased procedure for making a vital decision on the release of statistically corrected redistricting and other non-apportionment data. Others viewed the release of the recommendation of the Executive Steering Committee for Accuracy and Coverage Evaluation (A.C.E.) Policy (ESCAP) to the public at the same time that it is delivered to the Director as helpful in ensuring that the proposed decision-making process is an open and transparent one.

The Department notes the support for the proposal stated in these comments.

The Department received seven letters in opposition to the proposed rule. There were a total of 12 signatories to these letters. Two of these letters were signed by university officials; one letter was signed by six Members of Congress; two letters with two signatories from state government officials; one letter with one signatory from a non-profit legal organization; and one letter from a private individual.

Several of those commenting viewed the contents of the “Accuracy and Coverage Evaluation—Statement on the Feasibility of Using Statistical Methods to Improve the Accuracy of Census 2000,” 65 FR 38373-38398 (hereinafter, the Feasibility Statement), as evidence that the Census Bureau pre-judged the superior accuracy of the sampling-based counts.

We regret this concern. To date, no decision has been reached. The Census Bureau has stated that it expects the statistically corrected data to be more accurate for non-apportionment uses of the data, including redistricting and for this reason it is implementing the Accuracy and Coverage Evaluation (A.C.E.) (see the Feasibility Statement). However, the Census Bureau will not determine whether it is appropriate to release statistically corrected redistricting data until it has brought its technical judgment to bear in assessing the available data to verify that its expectations have been met. The Census Bureau will consider operational data to validate the successful conduct of the A.C.E., assess whether the A.C.E. measurements of undercount are consistent with historical patterns of undercount and independent Demographic Analysis benchmarks, and review measures of quality. If the Census Bureau determines that incorporating the results of the survey would not improve the accuracy of the initial census counts, then the data without statistical correction would be released to meet the requirements of Pub.L. 94-171.

Several letters raised technical concerns regarding the use of statistical methods to correct the census and challenged the arguments set forth in the Feasibility Statement.

These concerns or issues are beyond the scope of the rulemaking and will not be addressed specifically. However, as part of the evaluation process described in the proposed rule, these and other technical issues will be considered. Also, this fall, at a public meeting with outside statistical experts and other interested parties, the Census Bureau will provide additional information regarding the detailed analyses it plans to conduct as part of its decision-making process.

Two letters questioned the expertise of the National Academy of Sciences (NAS) panels that have been convened over this decade to review the planning and conduct of Census 2000. One questioned the expertise of the Secretary of Commerce's and the Census Bureau's advisory committees in their work relating to Census 2000.

The NAS panels and the various advisory committees are composed of professionals with excellent credentials to review and provide advice on the planning and conduct of the decennial census. In particular, the NAS panel members are carefully selected from among the country's leading experts in a wide variety of research fields, including statistical and survey methodology. The NAS has a long and distinguished history of advising the federal government on scientific and technical matters. With regard to the selection of advisory committee members, both the Secretary of Commerce and the Census Bureau went to great lengths to ensure that the committees possess well-documented expertise in a wide range of areas relating to the conduct of the decennial census, including, but not limited to, statistical and survey methodology.

Several letters indicated that the Census Bureau professional staff have a vested interest in the acceptance and use of the statistically derived counts. One stated that past Census Bureau judgments on adjustment issues lead one to question the agency's ability to reach the correct decision. In addition, one letter stated that the lack of review or input from independent scientific experts biases the decision making process.

The senior professional officials who serve on the Executive Steering Committee for A.C.E. Policy (ESCAP) are distinguished, objective, career civil servants whose only interest is in producing the most reliable and accurate census data possible. Many of these individuals have been recognized by leading statistical organizations for their significant contributions in the areas of survey methodology and statistics in general. Based on their years of experience and expertise, these officials are best suited to bring their professional judgment and integrity to bear in reviewing all the available data and directing a comprehensive, scientifically-defensible analysis in making a recommendation on their findings to the Director regarding the use of the statistically corrected census data. The ESCAP's recommendation will be released publicly, at the same time that it is delivered to the Director, to demonstrate the thoroughness and integrity of the process for all interested parties.

One comment acknowledged that the Census Bureau committed itself to achieving an open and transparent planning and decision process, however, the writer considered Census Bureau reports and documentation, including the A.C.E. documentation, on statistical adjustment to be difficult to access because they were not catalogued to facilitate external access.

The Census 2000 A.C.E. methodology has been pre-specified and documentation regarding the methodology has been disseminated through a variety of forums including the Census Bureau's website, public meetings, two public workshops sponsored by the National Academy of Sciences (October 6, 1999, and February 2-3, 2000), and at a May 19, 2000, hearing before the House Subcommittee on the Census. The Census Bureau will continue to make documentation relating to Census 2000 publicly available and available upon request.

One comment questioned whether the Secretary's proposed delegation of authority to the Director of the Census for making certain determinations concerning the census amounted to a divestiture of obligations vested in the Secretary by the Congress. The comment expressed three key concerns: (1) That the delegation of authority is, in fact, a “divestiture” of authority because the Secretary is seeking to escape responsibility for the decision of the Census Director by stating that the Secretary will not review or reverse that decision, (2) that by issuing a regulation that allegedly divests the Secretary of his statutory responsibility, the Secretary is attempting to supersede the statutory scheme passed by the Congress, and (3) that if “the Commerce Secretary believes he cannot, or should not, be responsible for the final release of adjusted numbers, then he should ask that Congress remove the Census Bureau entirely from the Commerce Department and make it a separate agency.”

The Department of Commerce considers Section 4 of Title 13, United States Code to clearly provide the Secretary authority to issue the proposed rule and to include in that proposal the delegation of authority at issue. That section provides that:

This statutory language provides the Secretary with broad authority to take the steps he deems appropriate to carry out his responsibilities under the law, and that language does not establish limitations on the Secretary's ability to delegate the performance of his functions and duties under the Census Act. As such, the Secretary may delegate the authority to determine the methodology to be used in calculating the tabulations of population reported to States and localities pursuant to 13 U.S.C. 141(c).

The delegation of authority contained in the Department's proposed rule is not an unlawful divestiture of the Secretary's statutory responsibility or authority because the delegation, if adopted in a final rule, would not be irrevocable. Thus, the current or any future Secretary of Commerce could revoke that delegation by issuing another final rule doing so. It is unassailable that a rule revoking the delegation would be effective, if it satisfied the requirements of the Administrative Procedure Act and other applicable legal standards. Further, the fact that the rule seeks to authorize the Director of the Census to make a determination under the Census Act, and states that the Director's decision would not be subject to review or reconsideration by the Secretary, does not mean the Secretary would escape responsibility for that determination. By establishing this delegation of authority by regulation, the Secretary is merely creating a transparent process for allowing a scientific determination to be made by scientists. However, the decision is being made on behalf of the Secretary. Inherent in the delegation of authority is the notion that the Secretary is responsible for the determination made by the head of the scientific bureau in which the particular knowledge and experience for making that determination lies. Nevertheless, in order to erase any doubt that the delegation of authority is not a divestiture of obligations or responsibility by the Secretary, text has been added to 15 CFR 101.1(a) that explicitly states that nothing in the rule diminishes the authority of the Secretary of Commerce to revoke this delegation of authority or relieves the Secretary of Commerce of responsibility for any decision made by the Director of the Census pursuant to this delegation, and that this rule shall remain in effect unless or until amended or revoked by the Secretary of Commerce.

One letter provided the Memorandum of Law in a case currently proceeding in the U.S. District Court for the District of Columbia ( Commonwealth of Virginia v. United States of America, Case No. 1:00CV00751) stating that the memorandum demonstrates the rulemaking provides no real opportunity to provide meaningful comments.

The Department considers the notice and comment associated with this rulemaking to be an appropriate venue for meaningful comment. With respect to the Memorandum of Law, the Department is not party to the case and, therefore, does not believe it appropriate to make any statement on the arguments presented.

This final rule has been determined to be not significant under section 3(f) of Executive Order 12866.

This final rule contains no new information collection requests subject to the Paperwork Reduction Act.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. No comments were received regarding this certification. Thus, the factual basis for the certification has not changed. As such, a final regulatory flexibility analysis is not required, and none has been prepared.

This rule contains no Federal mandates, as that term is defined in the Unfunded Mandates Reform Act, on State, local and tribal governments or the private sector.

This rule does not contain policies that have takings implications.

In the Federal Register of August 8, 2000 (65 FR 48375), FDA amended the color additive regulations to add § 73.2995 Luminescent zinc sulfide (21 CFR 73.2995) to provide for the safe use of luminescent zinc sulfide as a color additive in certain externally applied cosmetics.

FDA gave interested persons until September 7, 2000, to file objections or requests for a hearing. The agency received no objections or requests for a hearing on the final rule. Therefore, FDA finds that the effective date of the final rule that published in the Federal Register of August 8, 2000, should be confirmed.

Therefore, under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321, 341, 342, 343, 348, 351, 352, 355, 361, 362, 371, 379e) and under authority delegated to the Commissioner of Food and Drugs (21 CFR 5.10), notice is given that no objections or requests for a hearing were filed in response to the August 8, 2000, final rule. Accordingly, the amendments issued thereby became effective September 8, 2000.

In the Federal Register of July 6, 2000 (65 FR 41584), FDA amended the color additive regulations to add new § 73.355 Phaffia yeast (21 CFR 73.355) to provide for the safe use of phaffia yeast as a color additive in the feed of salmonid fish to enhance the color of their flesh.

FDA gave interested persons until August 7, 2000, to file objections or requests for a hearing. The agency received no objections or requests for a hearing on the final rule. Therefore, FDA finds that the effective date of the final rule that published in the Federal Register of July 6, 2000, should be confirmed.

Therefore, under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321, 341, 342, 343, 348, 351, 352, 355, 361, 362, 371, 379e) and under authority delegated to the Commissioner of Food and Drugs (21 CFR 5.10), notice is given that no objections or requests for a hearing were filed in response to the July 6, 2000, final rule. Accordingly, the amendments issued thereby became effective August 8, 2000.

In the Federal Register of July 6, 2000 (65 FR 41581), FDA amended the color additive regulations to add § 73.185 Haematococcus algae meal (21 CFR 73.185) to provide for the safe use of haematococcus algae meal as a color additive in the feed of salmonid fish to enhance the color of their flesh.

FDA gave interested persons until August 7, 2000, to file objections or requests for a hearing. The agency received no objections or requests for a hearing on the final rule. Therefore, FDA finds that the effective date of the final rule that published in the Federal Register of July 6, 2000, should be confirmed.

Therefore, under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321, 341, 342, 343, 348, 351, 352, 355, 361, 362, 371, 379e) and under authority delegated to the Commissioner of Food and Drugs (21 CFR 5.10), notice is given that no objections or requests for a hearing were filed in response to the July 6, 2000, final rule. Accordingly, the amendments issued thereby became effective August 8, 2000.

FDA has discovered that an error has caused an omission in the agency's codified regulations for part 601 (21 CFR part 601). In the Federal Register of May 17, 1999 (64 FR 26657), FDA published a final rule that inadvertently omitted § 601.37 when subpart D was revised. Accordingly, § 601.37, which was added in the Federal Register of December 2, 1998 (63 FR 66672), is being reincorporated into the regulations and redesignated as § 601.28. In addition, FDA is removing subpart B and reorganizing subpart C in part 601. Accordingly, current § 601.28 is redesignated as § 601.15. This document corrects those errors. Publication of this document constitutes final action under the Administrative Procedure Act (5 U.S.C. 553). FDA has determined that notice and public comment are unnecessary because this amendment is nonsubstantive.

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), vests broad authority in the Director of ATF, as the delegate of the Secretary of the Treasury, to prescribe regulations with respect to the bottling, packaging, and labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations shall prevent deception of the consumer and provide the consumer with adequate information as to the identity and quality of the product. Regulations that implement the provisions of section 105(e), as they relate to wine, are set forth in title 27, Code of Federal Regulations (CFR), part 4.

The regulations require that all wines sold, shipped, or otherwise introduced into interstate commerce bear labels that contain certain mandatory information. Section 4.32(a)(2) provides that, among other things, wine labels must contain a statement relating to the class, type, or other designation of the wine. If the class of wine is not defined by the regulations, section 4.34(a) requires that a truthful and adequate statement of composition appear on the brand label in lieu of the class designation.

Subpart C of part 4 sets forth the standards of identity for the several classes and types of wine. Section 4.21(a) defines “grape wine” as wine produced by the normal alcoholic fermentation of the juice of sound, ripe grapes. Pure condensed grape must and wine spirits may be added to grape wine. Section 4.21(a) also provides limitations on the amelioration of grape wine. Over-ameliorated grape wine may not be designated as “grape wine.” Rather, section 4.21(h) requires that such wine be designated as “substandard wine” or “other than standard wine.”

In the case of still grape wine there may appear, in lieu of the class designation, any varietal (grape type) designation ( e.g., Chardonnay), type designation of varietal significance ( e.g., Muscatel), semi-generic geographic type designation (e.g., Chablis), or geographic distinctive designation ( e.g., Bordeaux). In general, section 4.23 provides that the name of a grape variety may be used as the type designation of a grape wine only if the wine is also labeled with an appellation of origin ( e.g., “California Chardonnay”) and if not less than 75 percent of the finished wine is derived from grapes of the named variety.

In the case of still grape wine there may also appear, in lieu of the class designation, a type designation of varietal significance. This applies to American wines only. Section 4.28 provides several examples of type designations of varietal significance, such as Muscatel and Scuppernong.

As specified in section 4.24(b), a semi-generic designation is a name of geographic significance that is also the designation of a class or type of wine determined by the Director to be semi-generic. Semi-generic designations are also established by the Internal Revenue Code of 1986 (IRC), 26 U.S.C. 5388(c). Examples of semi-generic names that are also type designations for grape wines are Burgundy, Chablis, and Champagne. A semi-generic name of geographic significance may be used to designate wines of an origin other than that indicated by such name only if there appears in direct conjunction therewith an appropriate appellation of origin disclosing the true place of origin of the wine ( e.g., “California Burgundy”), and if the wine so designated conforms to the standard of identity for the product or, if there is no such standard, to the trade understanding of such class or type.

Under section 4.24(b), a geographic distinctive designation is a name of geographic significance that has not been found by the Director to be generic or semi-generic and may be used only to designate wines of the origin indicated by such name. Examples of such nongeneric names which are also distinctive designations of specific grape wines are Bordeaux and Graves.

In addition, grape wine may be vintage dated if it is made in accordance with the standards prescribed in section 4.27(a). Vintage wine is wine labeled with the year of harvest of the grapes, and made in accordance with classes 1, 2, or 3 of section 4.21.

Section 4.21 does not allow for the addition of flavoring material(s) to wines with a standard of identity under subpart C of part 4. For example, a class 1, grape wine containing added flavoring material(s) is not entitled to a standard grape wine designation, appellation of origin, or vintage date since these statements only apply to a “standard” grape wine. Likewise, “substandard wine” or “other than standard wine” under section 4.21(h)(2) does not specifically include wine to which flavoring material(s) have been added. Substandard wine or other than standard wine includes any wine to which has been added sugar and water solution in an amount that is in excess of the limitations prescribed in the standards of identity for these products.

It has been ATF's long-standing policy that wines to which flavoring material(s) are added do not fall within any of the current standards of identity set forth in the wine regulations. As such, a truthful and adequate statement of composition is required on the brand label for such flavored wine products, pursuant to section 4.34(a).

Flavored wine products are composed differently from wines made in accordance with the standards of identity in subpart C. Flavored wines may be derived from grape wine or other wines, including citrus wine (e.g., orange wine, grapefruit wine), fruit wine (e.g., apple wine, berry wine, pear wine) or other agricultural products (e.g., carrot wine, dandelion wine, honey wine). Such flavored wine products contain the addition of flavoring material(s) and may contain coloring material(s). Flavored wine products may also contain sugar and water in excess of that allowed in standard wine.

As stated above, wines to which flavoring materials are added do not fall within any of the current standards of identity set forth in the wine regulations. As such, a truthful and adequate statement of composition is required on the brand label for such flavored products. The labels on these products have traditionally displayed statements of composition such as “Grape Wine With Natural Flavors” to describe to consumers the composition of these products.

Recently, some domestic wineries have begun using varietal and semi-generic names in the statement of composition on their product labels to describe the base wine portion of their flavored wine products. These flavored wine products most often have an appellation of origin such as California” in conjunction with the grape varietal or semi-generic name in the statement of composition (e.g., “California Chardonnay (or Chablis) With Natural Flavors”). We are aware that the recent appearance of these grape varietal and semi-generic names on flavored wine products has caused a great deal of discussion within the wine industry. On February 26, 1998, we wrote to the Wine Institute, a national trade association representing over 500 California winery and associate members, to respond to their concerns about this matter. Soon after the letter was sent to the Wine Institute, it was placed on our internet website as public information.

In view of our concerns about the labeling of flavored wine products, we commissioned a consumer survey in July of 1998 to determine consumer interpretations of varietal and semi-generic claims on labels of flavored wine products. Among other things, the survey was designed to assess whether wine consumers distinguish between grape wine and flavored wine products based on information provided on product labels. The survey involved obtaining consumer reactions to examples of two flavored wine products: one product was portrayed as containing a grape wine base that qualified as a varietal wine and another was portrayed as a product containing a grape wine base that qualified as a semi-generic wine. Both products chosen for the survey were depicted in “bag-in-box” containers. Consumers were shown labels bearing only varietal or semi-generic designations and labels bearing a varietal or semi-generic type designation as part of a statement of composition including the term “With Natural Flavors.” Consumers were shown boxes bearing the statement of composition on the side panel only, and other boxes with the statement of composition prominently displayed on the front label. None of the labels was identical to the labels of wines currently marketed. The brand names, package designs, and label information were selected by the contractor, U.S. Research Company, in order to best measure consumer perceptions about the overall label presentations and were chosen in order to ensure that the results were not specific to any one particular product or brand of wine.

The survey revealed that even when the “With Natural Flavors” disclosure was prominently displayed on the front panel of the product, a large majority (80%) of the respondents failed to distinguish between grape wine and flavored wine products. The survey also revealed that placing the term “With Natural Flavors” on the label had no impact on consumer understanding of the amount of varietal or semi-generic wine in the product. This is important because over fifty-five percent of the consumers surveyed believed that all or almost the entire product was composed of the varietal or semi-generic wine. Moreover, when asked to interpret the “With Natural Flavors” disclosure, more than one-third of the consumers surveyed perceived it to convey a positive “no chemicals or additives” message. Seventeen percent indicated that they thought the “With Natural Flavors” disclosure meant that the product was “natural,” and only fourteen percent suggested that it indicated that flavors had been added to the product.

ATF received a petition, dated September 15, 1999, filed on behalf of the California Association of Winegrape Growers (CAWG), requesting an amendment of the regulations to prohibit the use of any varietal, semi-generic, or geographic name as part of a statement of composition on wine specialty products. Specifically, CAWG requested an amendment of section 4.34(a). This section states that if the class of wine is not defined in the standards of identity in subpart C of part 4, “a truthful and adequate statement of composition shall appear upon the brand label of the product in lieu of a class designation.” The petitioner requested that the regulation be amended to add the following wording:

The petitioner contended that the manner in which flavored wine products are labeled, packaged, and marketed deceives consumers into thinking they are consuming varietal wine rather than flavored wine. As stated in the petition,

The petitioner asserted that over the last 20 years, American wine producers and grape growers have developed an important consumer market for still grape wines with varietal designations and appellations of origin. According to the petitioner, these wines represent a large volume of the domestic wine sold in the United States (64 percent for the 52 week period ending July 18, 1999). As stated in the petition, “[v]arietal designations and appellations of origin have earned an important place in the wine consumer marketplace as indications of quality wines with certain distinctive tastes and styles.”

In support of its petition, CAWG commissioned a survey to study consumers' understanding of the current labeling of flavored wine products that include a varietal name with an appellation of origin in the statement of composition. A total of 800 telephone interviews were conducted. According to CAWG, the results of the survey showed that most respondents believe that wine labels accurately reflect what is in the container and that label information is important to their buying decisions. A little more than 48 percent of the respondents stated that they expected products containing labels with such statements as “California Cabernet Sauvignon with natural flavors” and “California Chardonnay with natural flavors” to be standard grape wines that contain 75 percent wine made from grapes of that variety. The petitioner noted that flavored wine products that include a varietal name in the statement of composition have no minimum varietal content requirement.

CAWG stated that the results of its survey clearly show that the labeling of flavored wine products that include a variety name along with an appellation of origin in the statement of composition is misleading to consumers. The petitioner believes that its proposed amendment “is targeted directly at the misleading nature of current statements of composition on varietal-based specialty products.” By prohibiting varietal and semi-generic designations and appellations of origin in the statement of composition, the petitioner contends that consumers will not be misled as to the actual identity of the product. Flavored wine products that have a varietal wine base would have statements of composition in the form “grape wine with natural flavors” or “white wine with natural flavors.”

ATF did not propose the amendment requested by CAWG. However, we did solicit comments on the petition. This will be addressed further in the section titled “Notice No. 890.”

ATF believes that consumers have learned to attach significance to varietal/semi-generic designations, appellations of origin, and vintage dates on grape wines. This belief is based on the fact that for many years the grape wine industry has heavily utilized varietal/semi-generic designations, appellations of origin, and vintage dating in the marketing of grape wines. Additionally, we have conducted rulemaking projects spanning nearly 14 years identifying American grape variety names (See Treasury Decision ATF-370, 61 FR 522, January 8, 1996). Similarly, Congress has recently amended the IRC to recognize semi-generic names as being distinctive grape wine designations. 26 U.S.C. 5388(c), as added by Public Law 105-34, section 910(a). These efforts illustrate the importance of varietal and semi-generic grape wine designations to both the wine industry and to wine consumers. This was also addressed in the CAWG petition.

ATF believes that consumers are confused about the distinction between an existing standard of identity wine and flavored wine products, especially when grape varietal or semi-generic terms appear on the labels of flavored wine products. Flavored wine products are often located next to varietal wines or semi-generic wines on the shelves of grocery and liquor stores. Also, the promotional and advertising materials accompanying these flavored wine products frequently feature or highlight the varietal or semi-generic component of the finished wine product, even though the finished flavored wine product is not entitled to the varietal or semi-generic designation. We concluded that current statements of composition that include varietal or semi-generic names do not provide consumers with adequate information about the identity and quality of the flavored wine product and are likely to mislead consumers to believe that flavored wine products are the same as wines that meet the requirements for a varietal or semi-generic designation. We also believe that the consumer survey we commissioned and the CAWG consumer survey support that conclusion.

Furthermore, examination of this issue caused us to review our policy relating to statements of composition for all flavored wine products, including those that do not include varietal or semi-generic names, such as those that state “Grape Wine With Natural Flavors,” since the finished products are no longer “Grape Wine” but are “Flavored Wine Products” because of the presence of flavors.

On December 28, 1999, we published a notice of proposed rulemaking in the Federal Register concerning the labeling of flavored wine products (Notice No. 890, 64 FR 72612). We proposed to establish a new class designation, “Flavored Wine Product.” Under this designation, a flavored wine product would be a wine-based alcohol beverage that does not qualify for any of the class or type designations listed in the existing wine regulations because of the addition of flavoring material(s).

As stated in Notice No. 890, we believe that all flavored wine products need to be labeled to indicate to consumers that such products are composed differently from wines entitled to be labeled with a standard of identity under subpart C. We, therefore, proposed to add a Class 10 to the standards of identity for wine to be called “Flavored Wine Product.” As proposed, such product would be required to be designated on labels as “flavored wine product,” together with a truthful and adequate statement of composition, all of which would be required to appear in the same size, style, and color typeface on the brand label.

At a minimum, we proposed that the statement of composition for flavored wine products must meet the following requirements:

We proposed to require that the class and/or type of each wine used in the flavored wine product ( e.g., “grape wine,” “table wine,” “peach wine,” “honey wine”) be identified. A single grape variety, type designation of varietal significance, or semi-generic name could be used if such named grape variety, type designation of varietal significance, or semi-generic name appeared together with an appellation of origin no smaller than a country and the named grape variety, type designation of varietal significance, or sem-generic wine constituted not less than 75 percent by volume of the finished flavored wine product. For Vitis labrusca varieties, we proposed that the named grape variety must constitute not less than 51 percent by volume of the finished flavored wine product. Under our proposal, an appellation of origin would not otherwise appear on the label of a product of this class. Similar provisions were proposed for specialty products that do not contain any flavor(s) (§ 4.34(c)).

We proposed to require that if one flavoring material is used in the production of the flavored wine product, the flavoring material must be specifically identified ( e.g. , “strawberry flavor”). If two or more flavoring materials are used in the production of the flavored wine product, we proposed that each flavoring material may be specifically identified ( e.g. , peach flavor,” “kiwi flavor,” or “peach and kiwi flavors”) or the characterizing flavor must be specifically identified and the remaining flavoring material(s) must be generally referenced as “other flavor(s).”

With regard to the term “natural” as used on alcohol beverage labels to describe a flavor, e.g. , “With Natural Flavors,” we stated in the notice that it is our belief that there is no consensus among consumers as to a meaning for the term “natural.” This belief is based upon our experience in regulating the wine industry and on the consumer survey noted above. An example indicated in the survey reflects that fully one-third of respondents considered the term “natural” to indicate that no additives or chemicals are present in the product. This conclusion is clearly erroneous. Therefore, to avoid consumer deception concerning the identity of flavored wine products, we proposed that the term “natural” may not be used anywhere on the flavored wine product labels to describe flavoring materials. When artificial flavoring material(s) are used, they would be so described ( e.g. , “artificial raspberry flavor”).

We proposed to require that coloring materials(s) be disclosed in the statement of composition, whether added directly or through flavoring material(s). The coloring materials would be identified specifically ( e.g., “caramel,” “certified color,” “annato,” etc.) or as a general statement, such as “artificially colored,” to indicate the presence of any one or a combination of coloring material(s). However, FD&C Yellow No. 5 requires specific disclosure in accordance with 27 CFR 4.32(c).

We proposed to require that sugar be listed in the statement of composition if sugar is used in the production of the flavored wine product (not including its use in the production of the base wine within the range authorized by the regulations).

We proposed to require that water be listed in the statement of composition, if the water addition, whether added directly to the flavored wine product or by the addition of flavoring material(s), exceeds 5 percent by volume of the finished flavored wine product.

We proposed to require, except for flavored wine products made from a base of a class 6 wine and imported flavored wine products, a reference to the addition of wine spirits in the statement of composition, whether such wine spirits are added in the production of the wine component of the flavored wine product or added in the production of the finished flavored wine product, if the wine spirits are not derived from the same kind of fruit from which the wine component was fermented. Section 4.39(a)(7) prohibits the appearance on a wine label of any statement that the wine contains distilled spirits with one exception. Accordingly, we proposed to amend the exception to cover the reference to distilled spirits in the statements of composition for flavored wine products.

Although in Notice No. 890 we solicited comments on the CAWG petition, we did not propose the amendment requested by the petitioner. We believed that the regulation change proposed by CAWG was more restrictive than ATF's proposals and did not provide the industry with flexibility in labeling their flavored wine products.

In Notice No. 890, we also proposed to revise the definition of the term “brand label.” As defined in section 4.10, the “brand label” is the label carrying, in the usual distinctive design, the brand name of the wine. Pursuant to section 4.32, certain mandatory information is required to appear on the brand label, including the brand name, the class, type, or other designation of the product, and the alcohol content.

We believe that the existing definition of the term “brand label” allows certain of the mandatory information to be placed on the container in such a way that it is not readily visible to consumers. We also believe consumers are having difficulty locating important mandatory product label information necessary to be adequately informed as to the identity and quality of wine products, including bag-in-boxes and other new wine containers. In addition, the popularity of flavored wine products and the potential for consumer confusion between such products and other wines that fit specific class designations necessitates a more specific definition of “brand label.”

Accordingly, in Notice No. 890 we proposed to amend the definition of “brand label” to mean the principal display panel that is most likely to be displayed, presented, shown, or examined under normal and customary conditions of display for retail sale, and any other label appearing on the same side of the container as the principal display panel. The brand label appearing on a cylindrical surface is that 40 percent of the circumference which is most likely to be displayed, presented, shown or examined under normal and customary conditions of display for retail sale.

The proposed definition is based on the definition of “brand label” that is currently in the distilled spirits regulations and is consistent with the principal display panel approach of the Fair Packaging and Labeling Act.

The comment period for Notice No. 890, initially scheduled to close on March 29, 2000, was extended until May 5, 2000, pursuant to Notice No. 895 (65 FR 17839, April 5, 2000).

In response to Notice No. 890, ATF received 152 comments, representing 186 signatures. Comments were submitted by members of Congress, consumers, representatives of State government, members of the industry (representing both domestic and foreign interests), and various organizations ( e.g. , California Association of Winegrape Growers, the Presidents' Forum, the Wine Institute, the National Association of Beverage Importers, Inc., the Flavor and Extract Manufacturers' Association of the U.S., the American Vintners Association, and the French Wine and Spirits Exporters Federation).

One commenter requested an amendment of the regulations (section 4.39(a)(7)) to allow references to distilled spirits on labels of standard wine if such references are true. The amendment requested by the commenter is beyond the scope of this rulemaking. However, it may be included as part of a future rulemaking proceeding.

Six commenters either supported the proposed regulations or expressed support for specific proposals. For example, two commenters supported ATF's proposal to prohibit the term “natural” from appearing on labels of flavored wine products when describing flavoring materials. One of the commenters also supported our proposal to establish a new standard of identity for flavored wine products ( i.e. , “flavored wine product”). Two commenters supported ATF's proposal to allow a single grape variety, type designation of varietal significance, or semi-generic name in the statement of composition for a wine specialty product, provided the named grape variety, type designation of varietal significance, or semi-generic wine constitutes not less than 75 percent (51 percent for Vitis labrusca varieties) by volume of the finished wine specialty product.

Of the 141 comments that addressed the labeling of flavored wine products, 136 (97 percent) opposed ATF's proposed regulations. Most commenters agreed with ATF's finding that current statements of composition on flavored wines that include a varietal or semi-generic name are likely to mislead the consumer and do not provide the consumer with adequate information as to the identity and quality of the product. Examples were provided in the comments that support this conclusion. However, the commenters believe that it is not necessary to establish a new standard of identity for flavored wine products in order to resolve the problem. Rather, they support the CAWG petition or a similar proposal that would prohibit the use of varietal and semi-generic names in statements of composition for wine specialty products. Approximately 75 commenters contend that ATF's proposed regulations are too broad, too complex, and would affect the labeling of all wine specialty products. They argue that there is no documented evidence of consumer confusion for many of these products. As one commenter stated:

In addition, many commenters object to ATF's proposal that would allow the use of varietal and semi-generic names as part of the statement of composition on both the new class of flavored wine products and other wine specialty products that are not 100 percent standard grape wine. They maintain that varietal and semi-generic names and related appellations of origin should only be used on products that are 100 percent standard grape wine. With respect to the use of varietal names on wine labels, many commenters stated the following:

Three comments objected to the proposed designation of the new standard of identity. They argue that the term “flavored wine product” implies that the product is “lesser than, or subordinate to grape wine,” and “both degrades and cheapens everything that we put in to them.”

Several commenters contend that ATF's proposed regulations are not cost effective and would impose an undue burden on the industry. According to one commenter, the massive relabeling of products required by the proposed regulations will result in substantial costs for the domestic and international wine trade without improving consumers' understanding of wine labeling. Another commenter provided specific information—

Several commenters objected to ATF's proposals concerning the statement of composition for flavored wine products. One commenter stated that the proposed regulations are excessive and burdensome and “turn a truthful and adequate statement of composition into a version of ingredient labeling without providing adequate justification for the change.” Other commenters shared this view.

Many commenters objected specifically to ATF's proposal to prohibit the use of the term “natural” in the statement of composition for flavored wines and other wine specialty products. They maintain that ATF has had a long-standing policy of allowing wine producers to identify a flavor as being “natural” or “artificial,” provided it was a truthful characterization of the flavoring. According to one commenter, adopting the proposed regulation “would reverse that long standing policy, cause thousands of labels to change, and would be totally inconsistent with all other food labeling without justification.” Another commenter stated that prohibiting the term “natural” to describe a flavor is significantly different from ATF's policy regarding statements of composition as discussed in its publication “Compliance Matters 97-1.” In addition, one commenter indicated that if ATF believes there is confusion among consumers as to a meaning for the term “natural,” the term should also be prohibited from appearing in statements of composition for flavored malt beverages and distilled spirits specialty products.

One commenter who expressed opposition to the proposed regulations questioned the methodology used with respect to ATF's consumer survey and the validity of the results of the survey. Based, in part, on the consumer survey, ATF concluded that current statements of composition on labels of flavored wines that include varietal or semi-generic names do not provide consumers with adequate information as to the identity and quality of the product and are likely to mislead consumers to believe that flavored wine products are the same as wines that meet the requirements for a varietal or semi-generic designation. In contrast, the commenter refers to the results of its own consumer survey that “clearly shows that consumers are neither confused nor deceived by Flavored Wines labeled in accordance with BATF's current regulations.” ATF maintains that statements of composition on flavored wines that include a varietal or semi-generic name are likely to mislead consumers and do not provide consumers with adequate information as to the identity and quality of the product. ATF further believes that its consumer survey, the consumer survey conducted by the petitioner, and the comments received in response to the notice of proposed rulemaking support this conclusion.

Thirty comments addressed our proposal to amend the definition of “brand label” for wine. The commenters expressed several concerns with respect to the proposed definition that we believe warrant further study and analysis. However, we do not wish to delay a final decision concerning the labeling of flavored wine products. Therefore, we will address the “brand label” issue separately in the near future.

Based on the comments received in response to Notice No. 890, we have re-examined the proposed regulations concerning the labeling of flavored wines and other wine specialty products. It is clear that most commenters agree with our conclusion that current statements of composition on flavored wines that include a varietal or semi-generic name are likely to mislead consumers and do not provide consumers with adequate information as to the identity and quality of the product. It is equally clear that most commenters do not believe ATF's proposal to create a new class designation is the best solution to the problem.

ATF is particularly concerned about the financial burden that would be placed on the industry, both domestic and foreign, if the proposed regulations were to be adopted as final. As pointed out in the comments, the proposed regulations would affect all wine specialty products, including those that have been in the marketplace for a long time and do not use a varietal or semi-generic name in the statement of composition. In addition, under the proposed regulations, flavored wines and other wine specialty products would still be able to use varietal and semi-generic names in the statements of composition, provided minimum percentage requirements are met. Based on the comments, we are concerned that consumers seeing these designations on such products may perceive these products to be standard grape wines even if the products were labeled as we proposed.

The purpose of the labeling provisions of the FAA Act is to prevent deception of the consumer and to provide the consumer with adequate information as to the identity and quality of the product. In prescribing regulations, ATF has the responsibility to ensure that the statutory goals are met. However, ATF does not believe that the regulations should be more restrictive than is necessary to meet the statutory goal. On the contrary, ATF believes that we should regulate only where necessary and to the extent required to avoid consumer deception or provide the consumer with adequate information about the product.

Accordingly, ATF is not adopting the regulations as proposed in Notice No. 890. We are, however, amending the regulations in section 4.34(a) to prohibit the use of any varietal designation, type designation of varietal significance, semi-generic geographic type designation, or geographic distinctive designation in statements of composition for flavored wines and other wine specialty products. This amendment is similar to that proposed in the CAWG petition.

In Notice No. 890, we proposed that in addition to the statement of composition portion of the mandatory designation for a flavored wine product, additional statements regarding the components of such a product could appear on a back or side label, but not the brand label. Such statements would have to reference all components listed in the mandatory statement of composition and must include the percentage of each component totaling 100 percent. Furthermore, such additional statements must be truthful, accurate and specific, within the meaning of section 4.38(f). Many commenters disagreed with our proposal, maintaining that varietal and semi-generic names should only be used on products that are 100 percent standard grape wine. For example, one commenter stated the following:

Another commenter stated that “[v]arietal, semi-generic names and appellations of origin should only be used on Class I, Class II and Class III wines. They should not be used on any other class of wine, nor on any ‘wine specialty products.’ ” Another comment, representing three Washington State wine organizations, maintained that “[p]ermitting the use of varietal or semi-generic names on products that are not in fact 100% [standard grape] wine will simply add to consumer confusion.”

Accordingly, we are amending the regulations to provide that wine labels may not contain any varietal name, type designation of varietal significance, semi-generic name, or geographic distinctive designation in the brand name, product name, or distinctive or fanciful name, unless the wine is made in accordance with the standards prescribed in classes 1, 2, or 3 (i.e., grape wine, sparkling grape wine, or carbonated grape wine). Any other use of such a designation on other than a class 1, 2, or 3 wine is presumed misleading. This amendment is similar to one proposed by the Wine Institute in its comment on the proposed regulations. The Wine Institute represents over 500 California winery and associate members. We believe this amendment is necessary to ensure that consumers are adequately informed as to the identity and quality of the wine, and to prevent consumer deception.

Upon the effective date of this Treasury decision, i.e., January 1, 2001, applications for certificates of label approval must be in compliance with the regulations. In accordance with the provisions of 27 CFR 13.51 and 13.72(a)(2), upon the effective date of this Treasury decision, certificates of label approval that are not in compliance with the regulations will be revoked by operation of regulation. Certificate holders must voluntarily surrender all certificates that are no longer in compliance and submit applications for new certificates that are in compliance with the new requirements.

We have determined that this final rule is not a significant regulatory action as defined in E.O. 12866. Therefore, a regulatory assessment is not required.

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 government jurisdictions. We hereby certify that this final rule will not have a significant economic impact on a substantial number of small entities. Since producers routinely make changes to their labels, we do not believe that the final regulation will result in any additional burdens on the industry. Accordingly, a regulatory flexibility analysis is not required.

The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this final rule because no requirement to collect information is imposed.

Copies of the notice of proposed rulemaking, all written comments, and this final rule will be available for public inspection during normal business hours at: ATF Public Reading Room, Room 6480, 650 Massachusetts Avenue, NW., Washington, DC.

The author of this document is James P. Ficaretta, Regulations Division, Bureau of Alcohol, Tobacco and Firearms.

The Bureau of Prisons (Bureau) finalizes this amendment to its regulations in 28 CFR part 541, subpart B on inmate discipline regarding misuse of the telephone and smoking where prohibited. We published the proposed rule in the Federal Register on February 25, 1999 (64 FR 9432). We received comments from five respondents, all current federal inmates.

One commenter believes the current severity level for smoking where prohibited is adequate and does not believe elevating the severity level is necessary. The commenter believes the Bureau did not provide an adequate explanation supporting an increase in the severity level for smoking where prohibited. This commenter also states that nicotine addiction should be recognized as a serious medical condition requiring treatment and therapy and that smoking cessation programs and nicotine patches should be offered to assist those inmates who wish to quit smoking instead of elevating the severity level of the offense.

In a separate rulemaking, we proposed revisions to its policy on smoking which limits smoking in Bureau facilities to visibly designated outdoor locations, unless an indoor area has been designated as a smoking area to be used exclusively for authorized religious activity. The proposed revisions also permit the Warden, with the concurrence of the Regional Director, not to designate smoking areas for general use. We believe that elevating the severity level for smoking where prohibited will assist in emphasizing the importance of limiting exposure to tobacco smoke to the designated areas. To assist those who wish to quit smoking, we plan to expand smoking cessation programs available to inmates and to make nicotine patches available at inmate expense through commissary purchase.

Two commenters state the Bureau currently has the ability to detect improper use of the telephone, with one commenter stating that any criminal activity taking place on the telephone should be punished in the court system. The purpose of the amendment is to address the seriousness of inmate use of the telephone to further criminal activity and other serious abuses of the telephone privilege which could threaten the security of the institution or public. Upgrading administrative sanctions for various forms of telephone abuse does not preclude subsequent criminal prosecution.

Two commenters believe that the current severity level for misuse of the telephone is sufficient in that an inmate may be charged in terms of greater severity according to the nature of the unauthorized use. The existing low moderate severity level prohibited act concerning unauthorized use of the telephone does not adequately address the more serious problem of inmates engaging in or continuing criminal activity and other serious abuses of their telephone privileges. Since the current policy was implemented, there have been significant technological advances in telephone communication capability which afford inmates with the opportunity to circumvent telephone regulations without staff knowledge. Also, the sanctions available under the existing low severity prohibited act are simply too low to deter inmates from abusing their telephone privileges. Establishing a greatest severity category and high severity category for criminal use of the telephone and other serious abuses of telephone privileges offers staff more significant sanctions which the Bureau believes will act as a deterrent. The Bureau's goal is to ensure that inmates, once incarcerated, do not use telephones to continue criminal activity. As noted below, the Bureau has chosen to add a moderate category prohibited act covering some of the abuses listed in the high category prohibited act in order to give staff flexibility in assessing the seriousness of the violations.

Four commenters challenge the raising in severity level for three-way calls, call forwarding, and emergency telephone calls via another inmate's PIN number. One commenter states that because there is no “criminal intent” these types of calls should only be classified as minor offenses. Third-party calling, conference calling, possession and/or use of another inmate's PIN number are methods used by inmates to attempt to avoid the Bureau's telephone monitoring detection devices and can be a means to engage in further criminal activity and other more serious abuses of the telephone. Current telephone regulations prohibit an inmate from possessing another inmate's telephone access code number. Third party billing and electronic transfer of a call to a third party are also prohibited. We acknowledge that there may be differences in the seriousness of these violations. Accordingly, in this final rule, we add a moderate category prohibited act for such abuses in order to give staff flexibility in assessing the seriousness of the violations.

Two of these commenters suggest that inmates resort to conference calls and third-party calls in order to reach family members who have been taken to a hospital or in order to reach attorneys or court officials. The telephone regulations provide that the Warden may allow a call to be made under compelling circumstances such as when an inmate has lost contact with his family or has a family emergency. Unit staff are available to assist an inmate in making a telephone call during an emergency. Inmates may also communicate with family and friends through normal correspondence procedures. Requests for unmonitored telephone calls to attorneys are always handled separately through staff in order to confirm the legal nature of the telephone call.

The current low moderate severity level prohibited act remains for minor telephone infractions such as talking beyond the 15-minute time period and using the telephone in an unauthorized area. For administrative management reasons, the Bureau is separating unauthorized use of mail from unauthorized use of the telephone in its low moderate severity level. Unauthorized use of mail remains in Code 406 while unauthorized use of the telephone is now in new Code 497.

We also received a tort claim from one inmate alleging the regulations are vague. While this claim is being processed under the procedures for tort claims, we are also treating it as a comment on the proposed regulation. This commenter claims, among other things, that the prohibited act of “Killing” (Code 100) is “unconstitutionally vague, ambiguous and imprecise, because the rule provides no definition of what behavior and conduct constitutes “Killing.” A person could be charged with a violation of the rule arbitrarily for simply killing time.” The commenter, however, does not specifically address the proposed changes to the telephone and smoking prohibited acts. We are concerned with the clarity of our regulations and believe the wording of the prohibited acts is sufficiently clear. Even so, in keeping with plain language initiatives, we intend to issue a complete “Plain Language” revision of the discipline policy for public comment.

This rule falls within a category of actions that the Office of Management and Budget (OMB) has determined not to constitute “significant regulatory actions” under section 3(f) of Executive Order 12866 and, accordingly, it was not reviewed by OMB.

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

The Director of the Bureau of Prisons, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact upon a substantial number of small entities for the following reasons: This rule pertains to the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds.

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by § 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

We try to write clearly. If you can suggest how to improve the clarity of these regulations, call or write Sarah Qureshi, Rules Unit, Office of General Counsel, Bureau of Prisons, HOLC Room 754, 320 First Street, NW., Washington, DC 20534, 202-514-6655.

Members of the public may submit comments concerning this rule by writing to the previously cited address. These comments will be considered but will receive no response in the Federal Register .

On April 14, 1998, the Virginia Department of the Environmental Quality (DEQ) submitted a revision to its SIP for the Washington area. The revision consists of an amended plan to achieve a 15% reduction from 1990 base year levels in volatile organic compound (VOC) emissions. On June 24, 1997 (62 FR 33999), EPA granted conditional interim approval of Virginia's original 15% plan for the Northern Virginia portion of the Washington area. Virginia's revisions to its 15% plan were made to satisfy the conditions imposed by EPA in the June 24, 1997 conditional interim approval. The interim part of the June 24, 1997 (62 FR 33999) conditional interim approval was related to the implementation of Virginia's Enhanced I/M program. On September 1, 1999 (64 FR 47670), EPA published a direct final rule converting its May 15, 1997 (62 FR 26745) final conditional interim approval of the Virginia Enhanced I/M program to a full approval, thus removing the interim status. This was done because EPA determined that all of the conditions of its May 15, 1997 conditional interim approval of the Enhanced I/M SIP had been satisfied by the Commonwealth.

The Metropolitan Washington D.C. ozone nonattainment area consists of the District of Columbia, five counties in Maryland, and in Northern Virginia, the counties of Arlington, Fairfax, Loudoun, Prince William and Stafford and the cities of Alexandria, Falls Church, Manassas, Manassas Park and Fairfax.

The Commonwealth of Virginia, State of Maryland and the District of Columbia in conjunction with municipal planning organizations collaborated on a coordinated 15% plan for the entire Washington area (regional 15% plan). This was done under the auspices of the regional air quality planning committee, the Metropolitan Washington Air Quality Committee (MWAQC), and with the assistance of the local municipal planning organization, the Metropolitan Washington Council of Governments (MWCOG), to ensure coordination of air quality and transportation planning. Although the plan was developed by a regional approach, each jurisdiction is required to submit the 15% plan to EPA for approval as a revision to its SIP. Because the reasonable further progress requirements such as the 15% plan affect transportation improvement plans, municipal planning organizations have historically been heavily involved in air quality planning in the Washington area.

As explained in further detail below, the regional 15% plan determined the regional target level, regional projections of growth and finally the total amount of creditable reductions required to meet the 15% reasonable further progress requirement for the entire Washington area. Maryland, Virginia and the District agreed to apportion this total amount of required creditable reductions among the three jurisdictions. EPA is taking action today only on Virginia's revised 15% plan submittal for the Washington area, having already granted full approvals of both the District's and Maryland's 15% plans for their portions of the Washington area on August 5, 1999 (64 FR 42600) and July 19, 2000 (65 FR 44686), respectively. This rulemaking is being taken to convert the June 24, 1997 conditional interim approval of Virginia's 15% plan for the Washington area to a full approval based upon EPA's determination that the Commonwealth has fulfilled the conditions imposed in that conditional interim approval.

The baseline from which states must determine the required reductions for 15% planning is the 1990 base year emission inventory. The inventory is broken down into several emissions source categories: stationary point, area, on-road mobile sources, and off-road mobile sources. The base year inventory includes emissions of all sources within the nonattainment area and certain large point sources within twenty-five miles of the boundary. A subset of the 1990 base year inventory is the 1990 rate-of-progress (ROP) inventory which includes only anthropogenic (man-made) emissions actually within the nonattainment area boundaries. EPA approved this base year inventory SIP revision for the entire Washington area on July 8, 1998 (63 FR 36854).

EPA has interpreted the Act to require that reasonable further progress towards attainment of the ozone standard must be obtained after offsetting any growth expected to occur over that period. Therefore, to meet the 15% reasonable further progress requirement, a state must enact measures achieving sufficient emissions reductions to offset projected growth in VOC emissions, in addition to a 15% reduction of VOC emissions. A detailed description of the growth methodologies used by the Commonwealth is provided in EPA's conditional interim approval of Virginia's 15% plan (62 FR 33999, June 24, 1997) and in the Technical Support Document (TSD) prepared for that action.

The one area of concern relating to growth projections in the original 15% plan was related to the point source inventory. Condition 1 of the June 24, 1997 (62 FR 33999) conditional interim approval required that Virginia revise its plan to properly account for growth in point sources between 1990 and 1996. EPA's analysis of the revised 15% plan supports removal of this condition, since Virginia used the appropriate methodology in reappraising its point source inventory growth between 1990 and 1996. EPA here notes that the revised 15% plan has a point source inventory number that differs from Virginia's SIP approved inventory—8.1 tons per day (tpd) in the revised 15% plan submittal versus 8.3 tpd in the approved inventory. EPA is not revising the SIP approved inventory by this action. The 8.1 tpd number is acceptable for use in the revised 15% plan, as the discrepancy serves to lower the 15% plan's target level, thus making the plan's VOC reductions more restrictive than required if one were to use the approved inventory numbers. EPA is approving the Commonwealth of Virginia's 1990-1996 emissions growth projections in its revised 15% plan.

Condition 2 of EPA's conditional interim approval of the original 15% plan required the Commonwealth to meet the conditions EPA imposed in its May 15, 1997 conditional interim approval of Virginia's enhanced motor vehicle inspection and maintenance (I/M) program. Virginia was also required to remodel the I/M benefits claimed in the 15% plan using the following two EPA guidance memoranda: Date by which States Need to Achieve all the Reductions Needed for the 15 Percent Plan from I/M and Guidance for Recalculation, from John Seitz and Margo Oge dated August 13, 1996, and Modeling 15% VOC Reductions from I/M in 1999—Supplemental Guidance, from Gay MacGregor and Sally Shaver dated December 23, 1996.

The Commonwealth has remedied condition 2 imposed in the conditional interim approval of its original 15% plan. On September 1, 1999 (64 FR 47670), EPA published a direct final rule converting its May 15, 1997 (62 FR 26745) final conditional interim approval of the Virginia enhanced I/M SIP revision to a full approval. This was done because EPA determined that all of the conditions of the May 15, 1997 conditional interim approval of the enhanced I/M SIP had been satisfied by the Commonwealth. Further, EPA has determined that Virginia appropriately remodeled the I/M benefits of the program, and that there are no adverse affects on the 15% plan due to this remodeling.

As part of the conditional interim approval of its original 15% plan, Virginia was also required to remodel to determine affirmatively the creditable reductions from reformulated gasoline (RFG) and the Tier 1 Federal Motor Vehicle Control Program (FMVCP) in accordance with EPA guidance. Virginia was required to remodel the benefits of enhanced I/M, RFG and Tier 1 under the revised plan to compare the mobile source target level in 1999 versus the target level for mobile sources which was determined for the original plan.

EPA concurs with the remodeling demonstration submitted as part of the revised 15% plan, and with the revised mobile source target level calculation. Virginia's portion of the corrected target level is 163.8 tpd.

The regional 15% plan calculates a target level of emissions to meet the 15% reasonable further progress requirement over the entire nonattainment area. The regional 15% plan contains a projection of emissions growth from 1990 to 1996 and, in effect, apportions among Virginia, Maryland and the District of Columbia (the three jurisdictions) the amount of creditable emission reductions that each jurisdiction must achieve in order for the entire nonattainment area to achieve a 15% reduction in VOC emissions net of growth. Each jurisdiction then adopted the regional plan, which identified the amount of creditable emission reductions which that jurisdiction must achieve for the regional plan to get a 15% reduction accounting for any growth. The regional plan calculated the “target level” of 1996 VOC emissions, in accordance with applicable EPA guidance.

EPA has interpreted section 182(b) of the Act to require that the base year VOC emission inventory be adjusted to account for reductions in VOC emissions that would have occurred from the pre-1990 FMVCP and Reed Vapor Pressure (RVP) programs. To meet EPA's applicable guidance on this requirement, the regional plan contains a calculation of the reductions occurring between 1990 and 1996 from the pre-1990 Tier 0 FMVCP and RVP programs and the result of subtracting these reductions from the 1990 ROP inventory. The net result of this calculation yielded the “1990 base year inventory adjusted to 1996”.

Virginia's 15% plan relies upon reductions from its revised enhanced I/M program to achieve the required 15% level as soon after November 15, 1996 as practicable, but not later than 1999. Under EPA's applicable guidance for 15% plans that rely upon reductions from enhanced I/M after 1996, the target level must also take into account the effects of the pre-1990 Tier 0 FMVCP on 1990 emissions due to turnover in vehicles between 1996 and 1999. Therefore, to meet EPA's applicable guidance for this requirement, Virginia's 15% plan contains a calculation of the non-creditable reductions from the pre-1990 Tier 0 FMVCP and RVP programs between 1990 and 1999 and the result of subtracting these reductions from the 1990 ROP inventory. The result of this calculation yielded the “1990 base year inventory adjusted to 1999.” Virginia's 15% plan clearly identifies the difference between the “1990 base year inventory adjusted to 1996” and “1990 base year inventory adjusted to 1999” as the “fleet turnover correction” (FTC) necessary to meet EPA's guidance.

In its plan, Virginia calculates a “base” 1996 VOC target level as 85% of the “1990 adjusted base year inventory for 1996.” In accordance with EPA's guidance, as discussed above, Virginia subtracts the FTC from the “base” 1996 VOC target level to yield a “final” 1996 VOC target level for the 15% plan. In Table 1 below, we have provided a summary of the calculations for the 1996 VOC target level for the entire Washington area.

The emission reductions required to meet the 15% reasonable further progress requirement equals the difference between the projected 1996 emissions under the current control strategy (the 1996 uncontrolled emissions) and the target level. This amount of emission reductions reflects a 15% reduction from the adjusted base year inventory and any reductions necessary to offset emissions growth projected to occur between 1990 and 1996. The Washington area's regional VOC target level is 384.6 tpd. EPA has determined that this regional target level and the emission reduction needed for the Washington area have been properly calculated in accordance with EPA guidance.

The three Washington area jurisdictions agreed to apportion the amount of emission reductions needed for the entire area to achieve the 15% reduction among themselves. This apportionment is also shown in Table 1 above. Virginia's share is 51.8 tpd.

The final condition for full approval of the 15% plan was for Virginia to demonstrate, using appropriate documentation methodologies and credit calculations, that it had satisfied the 15% plan requirement for the Washington area. As part of the revised 15% plan, recalculations to the inventory, target level and 15% reduction amounts were adjusted. Under the new plan, Virginia's portion of the 15% plan requirement decreased from 54.5 tpd to 51.8 tpd.

EPA agrees with the credit calculation methodology used in the revised plan to justify this number. As demonstrated in Chapter 5 of the revised plan SIP submittal, appropriate assumptions and calculation methodologies were employed, as per EPA guidance, in calculating the new figures. EPA therefore concurs that Virginia must achieve at least 51.8 tpd in creditable emission reductions to demonstrate that Virginia has met its 15% VOC reduction requirement for the Washington, DC area.

EPA believes that in its revised 15% plan the Commonwealth has made all the necessary corrections to establish the creditability of sufficient control measures to met the 15% VOC reduction requirement. Virginia has demonstrated there are sufficient creditable measures in the revised 15% plan to achieve at least 54.85 tpd of reductions. This 54.85 tpd reduction results from either rules promulgated by EPA or measures contained in the approved Virginia SIP. Table 2 below summarizes the creditable measures from Virginia's 15% plan for the Washington area.

As is the case with any ROP plan, Virginia's 15% plan for the Washington, DC area contains a mobile budget for VOC emissions. By approving Virginia's 15% plan, EPA is granting a de facto approval of the budget in this plan. However, EPA wishes to clarify that the budget in Virginia's 15% plan will not be the applicable budget for any future conformity determinations because there are mobile budgets for both VOC and nitrogen oxides (NO X ) that have been found adequate for the Washington, DC area that apply in 1999 and all subsequent years. To verify which budgets apply in the Washington, DC area, please contact the EPA Regional office listed in the ADDRESSES section or consult EPA's “Adequacy Review of SIP Submissions for Conformity” web page at http://www.epa.gov/oms/transp/conform/adequacy.htm.

EPA's review of this material indicates that Virginia's revised 15% plan SIP revision meets the requirements of the Act and applicable EPA guidance. EPA is therefore converting its conditional interim approval of Virginia's 15% plan to a full approval.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege”' for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations.

Virginia's Voluntary Environmental Assessment Privilege law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The privilege does not extend to documents or information that are: (1) Generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1997, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. * * * ” Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty.

The Attorney General's January 12, 1997 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.” Thus, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the federal requirements.

EPA is converting its conditional interim approval of Virginia's 15% plan to a full approval by this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to convert the conditional interim approval to a full approval should adverse or critical comments be filed. This rule will be effective November 20, 2000 without further notice unless the Agency receives adverse comments by November 6, 2000. If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on the proposed rule. Parties interested in commenting on this action converting the conditional approval of the Commonwealth's 15% plan to a full approval should do so at this time. If no such comments are received, the public is advised that this rule will be effective on November 20, 2000 and no further action will be taken on the proposed rule.

EPA is converting its conditional interim approval of Virginia's 15% plan for its portion of the Metropolitan Washington, DC ozone nonattainment area to a full approval based upon the evaluation of the SIP revision submittal made by Virginia on April 14, 1998 consisting of the revised 15% plan for its portion of the Metropolitan Washington, DC ozone nonattainment area.

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 November 20, 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 converting EPA's conditional interim approval of Virginia's 15% plan for Metropolitan Washington, D.C. ozone nonattainment area to a full approval may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Entities potentially affected by today's action are those discharging pollutants to waters of the United States in the Great Lakes System in the State of New York. Potentially affected categories and entities include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding regulated entities likely to be affected by these final actions. This table lists the types of regulated entities that EPA believes could be affected by this action. Other types of entities not listed in the table could also be affected. To determine whether your facility may be affected by this final action, you should examine the definition of “Great Lakes System” in 40 CFR 132.2 and examine 40 CFR 132.2 which describes the part 132 regulations. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

On March 23, 1995, EPA published the Guidance. See 60 FR 15366; 40 CFR part 132. The Guidance establishes minimum water quality standards, antidegradation policies, and implementation procedures for the waters of the Great Lakes System in the States of Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania and Wisconsin. Specifically, the Guidance specifies numeric criteria for selected pollutants to protect aquatic life, wildlife and human health within the Great Lakes System and provides methodologies to derive numeric criteria for additional pollutants discharged to these waters. The Guidance also contains minimum implementation procedures and an antidegradation policy.

Soon after being published, the Guidance was challenged in the U.S. Court of Appeals for the District of Columbia Circuit. On June 6, 1997, the Court issued a decision upholding virtually all of the provisions contained in the 1995 Guidance. American Iron and Steel Institute, et al. v. EPA (AISI), 115 F.3d 979 (D.C. Cir. 1997). The Court vacated the human health criterion for polychlorinated biphenyls (PCBs) and the acute aquatic life criterion for selenium, and the provisions of the Guidance “insofar as it would eliminate mixing zones for (bioaccumulative chemicals of concern (BCCs)) and impose (water quality-based effluent limitations (WQBELs)) upon internal facility waste streams.” 115 F.3d at 985. On October 9, 1997, EPA published a document revoking the PCB human health criteria pursuant to the Court's decision. 62 FR 52922. On April 23, 1998, EPA published a second notice amending the 1995 Guidance to remove the BCC mixing zone provisions from 40 CFR part 132 (found in procedure 3.C. of appendix F) and to remove language in the Pollutant Minimization Program provisions (procedure 8.D. of appendix F) that might imply that permitting authorities are required to impose WQBELs on internal waste streams or to specify control measures to meet WQBELs. 63 FR 20107. On June 2, 2000, EPA published a third document withdrawing the acute criteria for selenium. 65 FR 35283.

40 CFR 132.4 requires the Great Lakes States to adopt water quality standards, antidegradation policies, and implementation procedures for waters within the Great Lakes System consistent with the Guidance or be subject to EPA promulgation. 40 CFR 132.5(d) provides that, where a State makes no submission to EPA, the Guidance shall apply to discharges to waters in that State upon EPA's publication of a final rule indicating the effective date of the part 132 requirements in that jurisdiction.

On July 1, 1997, the National Wildlife Federation filed suit alleging that EPA had a non-discretionary duty to promulgate the Guidance for any State that failed to adopt standards, policies and procedures consistent with the Guidance. National Wildlife Federation v. Browner, Civ. No. 97-1504-HHK (D.D.C.). EPA negotiated a consent decree providing that the EPA Administrator must sign, by February 27, 1998, a Federal Register document making part 132 effective in any State in the Great Lakes Basin that failed to make a submission to EPA by that date under 40 CFR part 132. However, all of the Great Lakes States made complete submissions to EPA on or before the February deadline. On March 2, April 14, April 20 and April 28, 1998, EPA published in the Federal Register documents of its receipt of each of the States' Great Lakes Guidance submissions and a solicitation of public comment on the National Pollutant Discharge Elimination System (NPDES) portions of those submissions. 63 FR 10221; 63 FR 18195; 63 FR 19490; 63 FR 23285.

40 CFR 132.5(f) provides that, once EPA completes its review of a State's submission, it must either publish notice of approval of the State's submission in the Federal Register or issue a letter notifying the State that EPA has determined that all or part of its submission is inconsistent with the CWA or the Guidance, and identify any changes needed to obtain EPA approval. If EPA issues a letter to the State making findings of inconsistencies, the State then has 90 days to make the necessary changes. If the State fails to make the necessary changes, EPA must publish a document in the Federal Register identifying the approved and disapproved elements of the submission and a final rule identifying the provisions of the Guidance that will apply to discharges within the State.

On November 15, 1999, the National Wildlife Federation and the Lake Michigan Federation filed suit alleging that EPA had a non-discretionary duty to take action on the Great Lakes States' Guidance submissions. National Wildlife Federation v. Browner, Civ. No. 99-3025-HHK (D.D.C.). EPA negotiated a consent decree providing that EPA must sign a Federal Register Notice by July 31, 2000, taking the action required by 40 CFR 132.5 on the Guidance submissions of the States of Illinois, Indiana, Michigan, Minnesota, Ohio and Pennsylvania; and Federal Register Notices by September 29, and October 31, 2000, taking the action required by 40 CFR 132.5 on the Guidance submissions of the States of New York and Wisconsin, respectively. Today's Federal Register Notice fulfills EPA's obligations under that Consent Decree with respect to the State of New York. EPA has completed its final actions with respect to the States of Michigan, Ohio, Indiana, Illinois, Minnesota, and Pennsylvania, and will separately take final action with respect to Wisconsin. EPA notes that the States' Guidance submissions may contain provisions that revise its NPDES program or water quality standards in areas or with respect to regulated entities not covered by the Guidance. EPA is not taking action at this time to either approve or disapprove any such provisions.

EPA has conducted its review of the State of New York's submission in accordance with the requirements of section 118(c)(2) of the CWA and 40 CFR part 132. Section 118 requires that States adopt policies, standards and procedures that are “consistent with” the Guidance. EPA has interpreted the statutory term “consistent with” to mean “as protective as” the corresponding requirements of the Guidance. Thus, the Guidance gives States the flexibility to adopt requirements that are not the same as the Guidance, provided that the State's provisions afford at least as stringent a level of environmental protection as that provided by the corresponding provision of the Guidance. In making its evaluation, EPA has considered the language of each State's standards, policies and procedures, as well as any additional information provided by the State clarifying how it interprets or will implement its provisions.

Where EPA has promulgated a final rule that identifies a provision of the Guidance that shall apply in New York, EPA explains below its reasons for concluding that New York failed to adopt requirements that are consistent with the Guidance. Additional explanation of EPA's conclusions are contained in EPA's correspondence with New York State (identified in relevant sections below) where EPA initially identified inconsistencies in the State's submission. Notice of the availability of this letter was published in the Federal Register and EPA has considered all public comments received regarding any conclusions as to whether New York State had adopted provisions consistent with the Guidance.

In this proceeding, EPA has reviewed the State's submission to determine its consistency with 40 CFR part 132. EPA has not reopened part 132 in any respect, and today's action does not affect, alter or amend in any way the substantive provisions of part 132. To the extent any members of the public commented during this proceeding that any provision of part 132 is unjustified as a matter of law, science or policy, those comments are outside the scope of this proceeding.

With regard to those elements of the State submission being approved by EPA, EPA is approving those provisions as amendments to New York State's NPDES permitting program under section 402 of the CWA and as revisions to New York State's water quality standards under section 303 of the CWA. Today's notice identifies those approved elements. Additional explanations of EPA's review of and conclusions regarding New York State's submission, including the specific State provisions that EPA is approving, are contained in the administrative record for today's actions in documents prepared for New York State entitled, “New York State Provisions Being Approved as Being Consistent With the Guidance,” “Analysis of Whether New York State Has Adopted Requirements Consistent With the Guidance” and “Analysis of Steps Taken By New York State in Response to EPA's 90-Day Letter.”

On April 11, 2000, EPA issued a letter notifying the New York State Department of Environmental Conservation (NYSDEC) that, while the State of New York had generally adopted requirements consistent with the Guidance, EPA concluded that portions of the standards, policies and procedures adopted by the State were not consistent with corresponding provisions of the Guidance. On April 28, 2000, EPA published in the Federal Register a notice of and solicitation of public comment on its April 11, 2000 letter. 65 FR 24957. EPA has completed its review of all public comments on the April 11, 2000, letter and has determined that, with two exceptions described below, New York State has adopted requirements consistent with all aspects of the Guidance. Specifically, New York State has adopted requirements consistent with, and EPA is therefore approving those elements of the State's submissions which correspond to: The definitions in 40 CFR 132.2; the water quality criteria for the protection of aquatic life, human health and wildlife in tables 1-4 of part 132, with two exceptions as described below; the methodologies for development of aquatic life criteria and values, bioaccumulation factors, human health criteria and values and wildlife criteria in appendices B-D; the antidegradation policy in Appendix E; and the implementation procedures in appendix F. As explained more fully below, New York State has not adopted requirements consistent with (1) the chronic numeric aquatic life criteria in Table 2 of part 132 for Class D waters in the Great Lakes Basin, and (2) the wildlife criterion for mercury in Table 4 of part 132.

EPA's April 11, 2000, letter concluded that some of the provisions that EPA is now approving authorized the State to act consistent with the Guidance, but provided inadequate assurance that the State would exercise its discretion consistent with the Guidance. To provide this assurance, EPA and NYSDEC have worked together to develop an amendment to the National Pollutant Discharge Elimination System (NPDES) Memorandum of Agreement (MOA) between EPA Region II and NYSDEC. By this amendment NYSDEC has committed to always exercise its discretion under the MOA provisions in a manner consistent with the Guidance. Pursuant to 40 CFR 123.44(c)(3) and 123.63(a)(4), the State is required to comply with commitments made in its MOA or risk EPA objection to permits and even program withdrawal. This MOA has demonstrated to EPA that the State will implement the approved provisions consistent with the Guidance. The specific provisions that EPA is approving, and EPA's full rationale for approving these provisions, are set forth in the documents entitled “New York State Provisions Approved as Being Consistent With the Guidance,” “Analysis of Whether New York State Has Adopted Requirements Consistent With the Guidance” and “Analysis of Steps Taken By New York State in Response to EPA's 90-Day Letter” included in the record for this action.

EPA has determined that the failure of New York State to apply the chronic aquatic life criteria in section 703.5 of Title 6 of the New York State Codes, Rules and Regulations (NYCRR) to waters in the Great Lakes Basin classified as “Class D” surface waters under 6NYCRR 701.9 is inconsistent with 40 CFR 132.3(b) and 132.4(d)(2). These provisions of the Guidance require States to adopt and apply both acute and chronic numeric aquatic life criteria to all waters in the Great Lakes System. In the past, NYSDEC's classification system for the 3,312 waterbody segments contained in the New York State portion of the Great Lakes System has been based on the use of a single aquatic life-based criterion for all classified waters in the State: (1) Classes A-C, waters designated for fish propagation, were assigned chronic criteria only; and, (2) Class D, waters designated for fish survival, were assigned acute criteria only.

NYSDEC has added acute criteria to all Class A-C waters in the State. However, the State has not included chronic criteria for Class D waters. Rather, New York is in the process of completing a statewide reclassification effort which will result in the upgrade of the vast majority of segments in the Great Lakes System to classifications which include both acute and chronic aquatic life criteria. For the remaining Class D waters, use attainability analyses (UAAs) will be completed, consistent with the site-specific modification procedure described in the Guidance, to justify a decision to impose no chronic criteria at a site where it is shown that there is no reason to apply such criteria—that no organisms “occur at the site” for time periods long enough to suffer chronic effects.

While the State is currently in the process of completing its reclassification effort, there are 940 waterbody segments in the New York State portion of the Great Lakes System which have not yet been addressed through the State's process and currently lack chronic water quality criteria to protect aquatic life. Consequently, EPA finds that New York State's failure to apply chronic aquatic life criteria to these waters is not consistent with 40 CFR 132.3(b) and 132.4(d)(2). EPA, therefore, disapproves 6NYCRR 703.5 and 701.9 insofar as these provisions fail to apply chronic water quality criteria for the protection of aquatic life to “Class D” waters and has determined that 40 CFR 132.4(d)(2) shall apply to waters which are currently classified as “Class D” in the Great Lakes System in the State of New York.

40 CFR 132.4(d) states: “The water quality criteria and values adopted or developed pursuant to [the Guidance criteria methodologies] shall apply as follows: * * * (2) The chronic water quality criteria and values for the protection of aquatic life or site-specific modifications thereof shall apply to all waters of the Great Lakes System.” By making this section applicable to “Class D” waters in the Great Lakes System in New York, today's rule has the effect of making the chronic aquatic life criteria or values adopted or developed by New York contained in 6NYCRR 703.5, or site-specific modifications of the criteria, applicable to such waters. As explained in the record for today's action, EPA has concluded that the chronic aquatic life criteria adopted by New York, the State's methodologies for developing aquatic life criteria and values, and the State's procedure for site-specific modifications to such criteria, are all consistent with the Guidance. Under today's rule, those criteria, as well as any new criteria, values and site-specific criteria adopted or developed by the State pursuant to its approved methodologies and procedures, and approved by EPA, will also apply to Class D waters.

EPA understands that New York State is in the process of completing the necessary rulemaking to revise its regulations to upgrade the vast majority of segments in the Great Lakes System to classifications which include both acute and chronic aquatic life criteria, or to perform the necessary UAAs (consistent with the State's approved site-specific criteria methodology) to show that chronic aquatic life criteria for certain Class D waters are not needed. EPA will work closely with NYSDEC to insure that its revised regulations will be consistent with the Guidance. NYSDEC will then submit its UAAs and revised regulations to EPA for review pursuant to section 303(c) of the Clean Water Act as a revision to its water quality standards regulations. Because today's rule only applies to Class D waters in the Great Lakes System in the State, a water segment that is upgraded to a higher classification (to which the State's chronic criteria apply under the State's standards) will remove the water segment from the coverage of today's rule. Also, under today's rule, if the State submits, and EPA approves, an analysis that demonstrates, consistent with the State's procedure for site-specific modifications to criteria, that application of the chronic criteria is not needed, such a site-specific modification to the criteria will apply to that water segment.

EPA has also determined that New York State's mercury criterion for the protection of wildlife in the waters of the Great Lakes System at 6NYCRR 703.5 is inconsistent with 40 CFR 132.3(d), and Table 4 of 40 CFR part 132. States are required to adopt criteria for the protection of wildlife which are as protective as the numeric criteria included in Table 4 of 40 CFR part 132. NYSDEC has adopted a wildlife criterion for mercury, which is expressed as the dissolved form of the metal. This criterion has been calculated based upon the use of an alternative percent of methyl mercury using New York State-specific data. The State's wildlife criterion is 2.6 ng/L (dissolved); EPA's criterion is 1.3 ng/L (total recoverable). New York State used EPA's conversion factor of 0.85 in its derivation of the dissolved-based wildlife criterion. Based on the application of EPA's conversion factor of 0.85, New York State's dissolved-based wildlife criterion for mercury equates to 3.06 ng/L total recoverable for wildlife (compared to the Guidance wildlife criterion of 1.3 ng/L). Based upon the comparison of State's wildlife criterion to the wildlife criterion in the Guidance on a total recoverable basis, EPA has determined that the New York State wildlife criterion for mercury is not as protective as the wildlife criterion in the Guidance.

Based upon the above, EPA finds that New York State has failed to adopt a wildlife criterion for mercury that is consistent with Table 4 of part 132, as required by 40 CFR 132.3(c). EPA, therefore, disapproves the State's wildlife criterion for mercury in the waters of the Great Lakes System at 6NYCRR 703.5, and has determined that the wildlife criterion for mercury contained in Table 4 to 40 CFR part 132 shall apply to the waters of the Great Lakes System in the State of New York. As discussed above, NYSDEC has adopted human health and aquatic life criteria for mercury that are as protective as the mercury criteria in Tables 2 and 3 of part 132. EPA notes that under certain conditions New York State's human health criterion as implemented may be as protective of wildlife as the mercury wildlife criterion in the Guidance in Table 4, however, this is not always the case.

EPA understands that New York State is in the process of completing the necessary rulemaking to adopt the Guidance wildlife criterion of 1.3 ng/L (total recoverable) for mercury, which will be applicable to the waters of the Great Lakes System in the State of New York. EPA will work closely with NYSDEC to insure that this criterion will be consistent with the Guidance. NYSDEC will then submit its criterion to EPA for review pursuant to section 303(c) of the Clean Water Act, and, if EPA approves those revisions, EPA will revise its regulations so that the mercury wildlife criterion in Table 4 of 40 CFR part 132 will no longer apply to the waters within the Great Lakes System in the State of New York.

EPA received two comments in response to its Federal Register document of its receipt of the substantial NPDES program modification component of the State's Guidance submission. These commenters stated general support for approval of the State's submission. EPA received one comment on the Federal Register notice of the availability of EPA's April 11, 2000 letter to the State of New York. EPA has responded to that commenter in a document entitled “Response to Comments Received on EPA's April 11, 2000 Letter to the New York State Department of Environmental Conservation (NYSDEC) on New York State's Great Lakes Initiative Submission” that has been included as part of the record in this matter. The following is a summary of EPA's responses to the significant points of these comments.

Comment: The commenter asserted that EPA's regulatory determinations are being made without affected parties having any chance to review the Agency's reasoning or to raise issues as to the validity of that reasoning, in violation of the Administrative Procedure Act and EPA's public participation regulations at 40 CFR part 25.

Response: The final rule being promulgated today makes certain provisions of 40 CFR part 132 applicable to discharges in New York State within the Great Lakes System. Those provisions were adopted after publication of a proposed rule for public comment. See 58 FR 20802 (April 16, 1993). EPA is not modifying those provisions, but merely making them effective in accordance with 40 CFR 132.5(f)(2). Therefore, the public had a full opportunity to comment on the contents of today's rule. Moreover, public comment was also received regarding EPA's review of the New York State submission. EPA provided public notice of the availability of, and solicited comment on, the NPDES portions of the New York State Guidance submission in a Federal Register document (63 FR 19490) dated April 20, 1998. In a Federal Register document (65 FR 24957) dated April 28, 2000, EPA subsequently provided notice of the availability of a letter to the State of New York in which EPA provided (a) detailed explanations of the bases for its findings that the State had not adopted provisions consistent with certain provisions of the Great Lakes Guidance and (b) its preliminary conclusions that, with the exception of those findings, the State had adopted provisions consistent with the Guidance. EPA also solicited comment on all aspects of this letter, and has considered and responded to all comments received before taking today's final action. Consequently, EPA has complied with all applicable public participation requirements.

Comment: The commenter has indicated that both EPA and New York State must commit to holding public comment periods on the draft of the addendum to the NPDES Memorandum of Agreement (MOA) that the agencies intend to enter into for the purpose of implementing certain Great Lakes Initiative (GLI) requirements in New York.

Response: Under 40 CFR 123.62(b)(2) and 132.5(e), whenever EPA determines that a proposed revision to a State NPDES program is substantial, EPA must provide notice and allow public comment on the proposed revisions. On April 20, 1998, EPA published notice in the Federal Register (63 FR 19490) “Notice of Proposed Revisions to the Approved Program to Administer the National Pollutant Discharge Elimination System Permitting Program in New York Resulting In Part From Adoption of the Water Quality Guidance for the Great Lakes System.” In that document EPA sought public comment concerning whether EPA should approve the GLI-related revisions to New York's NPDES program because, as stated in the document, EPA believes that it is appropriate to consider the NPDES component of New York's submission to be a substantial program modification. The only comments received in response to the notice were two recommendations in support of the EPA approving these revisions.

On April 28, 2000, the public was provided with a second opportunity to comment on EPA's review of the GLI-related provisions of New York's NPDES program when EPA published a Federal Register document (65 FR 24957) soliciting public comment on its April 11, 2000, letter (i.e., 90-day letter) to NYSDEC commenting on New York's GLI submission. The 90-day letter provided a detailed explanation of EPA's views regarding New York's revisions to its NPDES program. The commenter seems to imply that, not only is EPA required to solicit public comment on the substantial program modification submitted by New York, but that EPA must also solicit public comment because the revisions to the NPDES MOA itself constitutes a substantial program modification. EPA disagrees. The revisions to the MOA do not substantially modify New York's NPDES program for they do not enact any new authorities, or substantially modify the State's program submitted by the State to EPA in February 1998 and made available for public comment at that time. Rather, the revisions to the MOA simply clarify the manner in which New York intends to implement its existing authorities to address the concerns raised in EPA's 90-day letter, which itself was also subject to notice and comment. The revisions to the MOA ensure that New York will administer its existing NPDES program consistent with the requirements of the Guidance and simply set forth how New York's existing authorities for administering the NPDES program will be implemented in the context of the Guidance. Therefore, the MOA is not itself a substantial program modification requiring public comment.

Comment: The commenter states that EPA's analysis regarding many of these provisions focuses on whether New York's GLI rules are written in a substantially similar way as the Federal GLI guidance. However, the proper focus on whether New York's GLI rules are consistent with (as protective as) the Federal GLI rules should be on environmental results. As such, EPA's evaluation should be based on whether the State rules achieve or exceed the level of protection provided in the Federal guidance, and should not involve a strict accounting of whether the language of the Federal GLI rules was incorporated into the State rules.

Response: EPA agrees with the commenter's characterization of the nature of EPA's evaluation. The Guidance gives States the flexibility to adopt requirements that are not the same as the Guidance provided that the State's provisions afford at least as stringent a level of environmental protection as that provided by the corresponding provision of the Guidance. In making these evaluations, EPA is also mindful that a major goal of the Guidance and section 118(c) of the CWA was to achieve more consistency in the level of protection across the entire Great Lakes Basin. To achieve this goal requires not only a comparable level of protection as defined by the water quality standards, but also implementation procedures that are as protective as each corresponding procedure in the Guidance. EPA has carefully reviewed New York State's water quality standards, antidegradation policies and implementation procedures for consistency with the Guidance, taking into account this flexibility, and has not required the State to incorporate the Guidance as written, provided the State's procedures can be expected to achieve the same level of protection as the Guidance. With two exceptions, EPA has found New York State's submission to be consistent with 40 CFR part 132. EPA's review was not based upon a verbatim comparison of New York's submission with the Guidance. In most instances EPA has concluded that New York State's water quality standards, antidegradation policies and implementation procedures are as protective as the Guidance's requirements. In addition, where appropriate EPA and New York State have agreed to facilitate the approval process by entering into an Amendment to their Memorandum of Agreement regarding the State's approved NPDES program by which New York commits to exercise its discretion consistent with the Guidance.

Comment: The commenter states that in explaining its disapproval of New York's wildlife water quality criterion for mercury, EPA stated that 40 CFR 132.4(d) requires that States adopt aquatic life, human health, and wildlife criteria, and that each type of criteria must be as protective as the corresponding Federal criteria. The commenter states that he believes that EPA's interpretation of this provision of the Federal GLI rule is incorrect. 40 CFR 132.4(d) requires States to apply criteria adopted pursuant to the methodologies or site-specific modification procedures for aquatic life, human health, and wildlife, to all waters of the Great Lakes System. The commenter argues that New York State has complied with this requirement, as its wildlife criterion for mercury does apply to all State waters within the Great Lakes System. The commenter further states that this provision does not require States to adopt all types of criteria, of which each type must be at least as stringent as the criteria in Tables 1 through 4 of 40 CFR part 132.

The commenter also states that because New York's human health criterion for mercury is more protective than EPA's wildlife criterion for mercury, EPA should not require New York to adopt EPA's wildlife criterion for mercury.

Response: EPA disagrees with the commenter's position regarding the requirements in the Guidance, which address State adoption of aquatic life, human health, and wildlife criteria. While, as the commenter states, 40 CFR 132.4(d) requires States to apply criteria adopted pursuant to the methodologies or site-specific modification procedures for aquatic life, human health, and wildlife, to all waters of the Great Lakes System, 40 CFR 132.5(g)(1) requires that for pollutants in Tables 1, 2, 3 and 4 of this part, States must adopt numeric criteria which are as protective as “ each ” of the numeric criteria in Tables 1, 2, 3 and 4 of this part taking into account any site-specific modifications in accordance with Procedure 1 of Appendix F of the Guidance. New York State's wildlife criterion for mercury of 2.6 ng/L (dissolved) is less stringent than the criterion of 1.3 ng/L (total recoverable) found in Table 4 of the Guidance. Using EPA's conversion factor of 0.85 to convert New York State's dissolved-based wildlife criterion for mercury to a total recoverable criterion results in total recoverable-based wildlife criterion for mercury of 3.06 ng/L compared to the Guidance wildlife criterion of 1.3 ng/L. Based upon the above comparison of the State's wildlife criterion to the wildlife criterion in the Guidance on a total recoverable basis, EPA has determined that the New York State wildlife criterion for mercury is not as protective as the wildlife criterion in Table 4 of the Guidance. Therefore, EPA found that New York State's wildlife criterion for mercury was not consistent with the requirements of 40 CFR 132.5(g)(1). As such, EPA disapproves of New York State's wildlife criterion for mercury at 6NYCRR 703.5, and has determined that the wildlife criterion for mercury contained in Table 4 to 40 CFR part 132 shall apply for discharges into the Great Lakes System in the State of New York.

EPA disagrees that the State's adoption of a human health criterion for mercury obviates the requirement for the State to adopt a wildlife criterion as protective as the Guidance. While, under some circumstances, the State's human health criterion for mercury may result in controls on permitted discharges that are as stringent as would be developed using EPA's wildlife criterion, EPA has concluded that this would not necessarily be true in all cases, depending on site-specific conditions, in particular the amount of total suspended solids in the receiving water. Moreover, to approve the State's mercury human health criteria as consistent with EPA's wildlife criterion, EPA would have to assume that the State would always implement its human health criteria in such a way as to ensure protection of wildlife as well. Because exposure scenarios for human health and wildlife differ, however, States have flexibility to adopt differing approaches in implementing these two types of criteria. See, e.g., 40 CFR part 132, appendix F, procedure 3.E.1 (describing different stream design assumptions for different kinds of criteria). Moreover, while New York's human health criteria currently apply to all waters, the State has flexibility under the Guidance to apply less stringent criteria to specific waters where justified by local rates of fish-consumption and bioaccumulation factors (see 40 CFR part 132, appendix F, procedure 1.A.4.b.). EPA believes that applying the Federal mercury wildlife criterion to waters in the Great Lakes System will ensure the protection of wildlife without inappropriately limiting the State's discretion as to how it implements its human health criteria or burdening EPA with overseeing the State's application of its human health criteria to ensure that wildlife will be protected as well.

Comment: In the case of several State implementation procedures for which EPA had identified concerns in the April 11, 2000 letter, the commenter stated that EPA should approve these State implementation procedures as being as protective as the Federal procedures.

Response: The State of New York has entered into an amendment to the MOA with EPA regarding the State's National Pollutant Discharge Elimination System program. This MOA addresses each of EPA's concerns regarding the State's implementation procedures. Therefore, EPA is approving the State's implementation procedures.

EPA has responded to the specific comments on each of the individual State implementation procedures in a document entitled “Response to Comments Received on EPA's April 11, 2000 Letter to the New York State Department of Environmental Conservation (NYSDEC) on New York State's Great Lakes Initiative Submission” that has been included as part of the record in this matter.

As a result of today's action, the Guidance provisions specified in today's rule apply in the Great Lakes System in New York State until such time as the State adopts requirements consistent with the specific Guidance provisions at issue, and EPA approves those State requirements and revises the rule so that the provisions no longer apply in New York State.

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553 (b)(3)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because EPA finds it unnecessary and contrary to the public interest. Today's rule does not promulgate any new regulatory provisions. Rather, in accordance with the procedures in 40 CFR 132.5(f), today's rule identifies the provisions of part 132 promulgated previously by EPA that shall apply to discharges in New York State within the Great Lakes System. Those provisions have already been subject to a notice of proposed rulemaking, and publication of a new proposed rule is therefore unnecessary. See 58 FR 20802 (April 16, 1993). In addition, while EPA's approval/disapproval decisions described in this notice do not constitute rulemaking, EPA has nonetheless received substantial public comment on these decisions. See 63 FR 19490 (April 20, 1998) (notice of receipt of State Guidance submission and request for comment); 65 FR 24957 (April 28, 2000) (notice of letter identifying inconsistencies and request for comment). EPA also believes the public interest is best served by fulfilling the CWA's requirements without further delay and publication of a notice of proposed rulemaking therefore would be contrary to the public interest. Thus, notice and public procedure are unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute, as described in section II, above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). In addition, because this action does not promulgate any new requirements, but only makes certain existing provisions of 40 CFR part 132 effective in New York State, it does not impose any new costs. The costs of part 132 were considered by EPA when it promulgated that regulation. Therefore, today's rule does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA, or 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 State, on the relationship between the national government and the State, 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). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

This action does not involve technical standards; 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. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). 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, as required by Section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). 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 . 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). This rule will be effective November 6, 2000.

On May 8, 2000, the Environmental Protection Agency proposed a site-specific rule (65 FR 26550) that set forth the mechanism through which the Sponsors will attempt to reach discharge reduction goals for chromium, copper, nickel, and zinc; reach water use reduction goals; and commit to arrange and participate in training for the development of an Environmental Management System (EMS), as outlined in the Steele County Project XLC FPA (the document that embodies the parties' intent to implement this project). Today's final rule promulgates regulations that are identical to the proposed rule and that include the final group of Participating Industrial Users among those named in the May 8, 2000 proposal. Today's rule will facilitate implementation of the FPA that has been developed by the Steele County Project Sponsors, EPA, the Steele County Community Advisory Committee (CAC), the Minnesota Pollution Control Agency (MPCA), the Owatonna Waste Water Treatment Facility (OWWTF), the Blooming Prairie Waste Water Treatment Facility (BPWWTF), and other stakeholders. The FPA is available in the docket for today's action and on the world wide web at http://www.epa.gov/projectxl/. The FPA addresses the nine Project XLC criteria, and the expectation of EPA that this XLC project will meet those criteria. Those criteria are: (1) Environmental results superior to what would be achieved through compliance with current and reasonably anticipated future regulations; (2) economic opportunity; (3) stakeholder involvement, support and capacity for community participation; (4) test of innovative, multi-media, pollution prevention strategies for achieving environmental results; (5) approaches that could be evaluated for future broader application (transferability); (6) technical and administrative feasibility; (7) mechanisms for monitoring, reporting, and evaluation; (8) consistency with Executive Order 12898 on Environmental Justice (avoidance of shifting of risk burden); and (9) community planning. The FPA specifically addresses the manner in which the project is expected to produce superior environmental benefits.

Today's rule will implement the provisions of this Project XLC initiative that require regulatory changes. However, Minnesota has had an approved State National Pollutant Discharge Elimination System (NPDES) program since June 30, 1974, and an approved State pretreatment program since July 16, 1979. Therefore, the requirements outlined in today's rule will not take effect until Minnesota revises the Owatonna pretreatment program as incorporated in the Owatonna NPDES permit. EPA will not be the primary regulatory agency responsible for implementing the requirements of this rule. In addition, for the sake of simplicity, the remainder of this preamble refers to the effects of this rule, although it will be the corresponding State and local law and corresponding NPDES and Industrial User permits by which the remaining implementation of this XL project will be achieved.

The information presented in this preamble is organized as follows:

EPA is promulgating this regulation under the authority of sections 307, 308, and 501 of the CWA, 33 U.S.C. 1317, 1318, 1361.

Each Project XL pilot— “eXcellence and Leadership” is described in a Final Project Agreement (FPA). For this Project XL for Communities (XLC), the FPA sets forth the intentions of EPA, the Minnesota Pollution Control Agency (MPCA) and the Steele County Community with regard to a project developed under Project XLC, an EPA initiative to allow regulated entities to achieve better environmental results using common sense, cost effective strategies. This regulation will enable implementation of the project. Project XL was announced on March 16, 1995, as a central part of the National Performance Review and the EPA's effort to reinvent environmental protection. See 60 FR 27282 (May 23, 1995). Project XL provides a limited number of private and public regulated entities an opportunity to develop their own pilot projects to provide regulatory flexibility that will result in environmental protection that is superior to that which would be achieved through compliance with current and future regulations. These efforts are crucial to EPA's ability to test new strategies that reduce the regulatory burden and promote economic growth while achieving better environmental and public health protection. EPA intends to evaluate the results of this and other XL projects to determine which specific elements of the project(s), if any, should be more broadly applied to other regulated entities for the benefit of both the economy and the environment.

Under Project XL, participants in four categories—facilities, industry sectors, governmental agencies and communities—are offered the flexibility to develop common sense, cost-effective strategies that will replace or modify specific regulatory requirements on the condition that they produce and demonstrate superior environmental performance. Project XLC, excellence and leadership for communities, was developed to focus on communities and local governments or regional organizations that are interested in creating an XL project. See 60 FR 55569 (November 1, 1995). Project XLC encourages potential sponsors to come forward with new approaches to demonstrate community-designed and directed strategies for achieving greater environmental quality consistent with community economic goals. To participate in Project XLC, applicants must develop alternative pollution reduction strategies pursuant to nine criteria: superior environmental results; stakeholder involvement, support, and capacity for community participation; economic opportunity; test of an innovative multi-media strategy; transferability; feasibility; community planning; identification of monitoring, reporting and evaluation methods; and equitable distribution of environmental risks. Projects must have the full support of affected federal, state and tribal agencies to be selected.

For more information about the XL and XLC criteria, readers should refer to the three descriptive documents published in the Federal Register (60 FR 27282, May 23, 1995; 60 FR 55569, November 1, 1995; and 62 FR 19872, April 23, 1997). For further discussion as to how the Steele County XL Communities project addresses the XLC criteria, readers should refer to the Final Project Agreement and fact sheet that are available from the docket for this action (see ADDRESSES section of today's preamble).

Project XL is intended to allow the EPA to experiment with untried, potentially promising regulatory approaches, both to assess whether they provide benefits at the specific facility affected, and whether they should be considered for wider application. Such pilot projects allow the EPA to proceed more quickly than would be possible when undertaking changes on a nationwide basis. EPA may modify rules, on a site- or State-specific basis, that represent one of several possible policy approaches within a more general statutory directive, so long as the alternative being used is permissible under the statute. Adoption of such alternative approaches or interpretations in the context of a given XL project does not, however, signal EPA's willingness to adopt that interpretation as a general matter, or even in the context of other XL projects. It would be inconsistent with the forward-looking nature of these pilot projects to adopt such innovative approaches prematurely on a widespread basis without first determining whether or not they are viable in practice and successful for the particular projects that embody them. Depending on the results in these projects, EPA may or may not be willing to consider adopting the alternative approach or interpretation again, either generally or for other specific facilities.

EPA believes that adopting alternative policy approaches and/or interpretations, on a limited, site- or State-specific basis and in connection with a carefully selected pilot project, is consistent with the expectations of Congress about EPA's role in implementing the environmental statutes (so long as EPA acts within the discretion allowed by the statute). Congress' recognition that there is a need for experimentation and research, as well as ongoing reevaluation of environmental programs, is reflected in a variety of statutory provisions, e.g., section 104 of the CWA (33 U.S.C. 1254).

The Steele County XLC pilot project will test the effectiveness of a community-based approach to industrial regulated wastewater effluent reductions and water use reduction controls designed to: (1) Result in pollution prevention; (2) meet the objectives of the CWA regulatory program; and (3) be at least as protective of human health and the environment as the current system. This project will pilot a community-based approach to environmental regulation with the goal of achieving a reduction in the discharge of certain metals to the OWWTF, and Biological Oxygen Demand (BOD), Total Suspended Solids (TSS) and Total Kjeldahl Nitrogen (TKN) to the BPWWTF. Other aspects of the pilot program will include water usage reduction, the development and implementation of a storm water and sewer water separation and education plan, and the development of a training and assessment program of an Environmental Management System. If this first phase of the project is considered by the parties to be successful, a Phase II, consisting in general outline of a multi-media approach to environmental permitting based on overall community performance in the areas of air emissions, solid waste, hazardous waste, chemical storage, and community sustainability may be considered. Today's rule does not cover or commit to a second phase of this project.

For the purposes of today's rule the group of Owatonna Sponsors who are Participating Industrial Users, includes the following Industrial Users (IUs) in the City of Owatonna: Crown Cork and Seal Company, Inc.; Cybex International Inc.; Josten's Inc.-Southtown Facility; SPx Corporation, Service Solutions Division; Truth Hardware Corporation; and Uber Tanning Company. Two facilities included in the Owatonna Sponsor group, Viracon-Marcon, Inc. and the Wenger Corporation and one Sponsor located in Blooming Prairie, Minnesota, ATOFINA Chemicals, Inc. (formerly Elf Atochem), are not receiving regulatory flexibility under today's rule and are therefore not included as Participating Industrial Users.

To achieve the objectives of Phase 1 of the Project, part of this project will pilot an incentive-based approach to reduced monitoring requirements. As the Owatonna Sponsors who are Participating Industrial Users, as a group meet certain discharge reduction goals, the City may reduce the required frequency of monitoring for any of the Participating Industrial Users. Other aspects of this pilot program include: (1) Pollutant monitoring may be eliminated where a pollutant is not discharged; (2) in order to encourage water use reduction compliance with a concentration-based Pretreatment Standard may be demonstrated by compliance with an equivalent mass-based limit (as discussed in section III. A.1. of this preamble); and (3) an alternative publication process for Significant Noncompliance (SNC) may be put in place. Finally, Sponsors may seek “No Exposure Certification for Exclusion from NPDES Storm Water Permitting”, which is available under existing regulations (40 CFR 122.26(g), pursuant to a change in the regulations found at 64 FR 68722 (December 8, 1999)), and does not require flexibility under today's rule. Each of the elements of the pilot program that require regulatory flexibility are explained in the following sections of this preamble.

To achieve the objectives of this project the Participating Industrial Users have committed to utilize their best efforts to reach certain discharge reduction goals. Only if these goals are met will regulatory flexibility regarding lesser monitoring requirements than currently required under 40 CFR 403.12(e)(1) be granted. Specifically, the Participating Industrial Users located in Owatonna (or the “City”) commit to a 20% reduction goal in the amount of nickel, chromium, copper, and zinc (by mass) they discharge to the OWWTF. These reduction goals are for each individual pollutant. If the first 20% reduction goal is met, a further 20% reduction goal may be set for the remaining project term. If the initial 20% reduction goal is met for all pollutants, the City may, at its discretion, reduce the self-monitoring frequency of Owatonna Sponsors who are Participating Industrial Users to once per year. If a second metal reduction goal is set, it need not be achieved in order for the minimum monitoring frequency to remain at once per year and no additional regulatory relief is available upon meeting this second goal; accordingly, today's rule does not address this second goal. In exercising the discretion provided in today's rule, the OWWTF will be required to consider the Participating Industrial User's previous three years of compliance data, and may not reduce monitoring for pollutants where there is a reasonable potential of violating Pretreatment Standards.

This project focuses on the four metals slated for 20% release reductions because they are the metals determined to be discharged at the highest levels to the Owatonna wastewater treatment system relative to applicable water quality and biosolids criteria. In addition, the participants are regulated for these pollutants under categorical Pretreatment Standards and influence the loading of these pollutants to the Owatonna wastewater treatment system. Specific reductions of other categorically-regulated metals are not being pursued under this project because they are released in small quantities relative to applicable environmental criteria. Because certain of these other metals may be present at some of the participant facilities, these metals may not qualify for the elimination of monitoring due to no releases. In such cases, the Publically-Owned Treatment Works (POTW) will need to require continued monitoring of these metals. Through this rule the POTW will be given the discretion to reduce monitoring frequencies for the other categorically-regulated metals to the same extent it is being authorized to consider reduced monitoring for the four metals subject to the 20% reduction goals.

This project will also authorize the City to allow a Sponsor Participating Industrial User subject to categorical Pretreatment Standards to not sample for a pollutant, if it is not expected to be present in its wastestream at levels greater than background levels in its water supply. For such pollutants, the OWWTF will only be required to conduct sampling and analysis once during the term of the Participating Industrial User's permit. The Participating Industrial User will still be subject to the categorical Pretreatment Standards for pollutants determined not to be present, and will need to resume monitoring if sampling indicates that a pollutant is present at above-background levels, or at any time at the discretion of the OWWTF.

If the POTW determines that one or more pollutants are not expected to be present at a Participating Industrial User, it may modify the IU's permit to reduce or eliminate the monitoring requirements for the pollutant(s). The Participating Industrial User permit will also require the User to submit, as part of its regular semi-annual monitoring reports, certification that there has been no increase of the pollutant in its wastewater due to its activities. The POTW will sample the Participating Industrial User's effluent for all pollutants in the applicable categorical Pretreatment Standard at least once during the term of the IU's permit.

One of the goals of this pilot project will be to facilitate water conservation measures at the Sponsors' facilities. The total flow to the OWWTF from the six Owatonna Sponsors who are Participating Industrial Users is 415,000 gallons per day. The Owatonna Sponsors commit to a goal in the FPA of reducing this flow by 10%. To facilitate meeting this goal this rule allows the OWWTF to set equivalent mass limits as an alternative to concentration limits to meet concentration-based categorical Pretreatment Standards. Under the proposed rule entitled “Streamlining the General Pretreatment Regulations for Existing and New Sources of Pollution” (Pretreatment Streamlining Proposal), which was published on July 22, 1999 (64 FR 39564), Control Authorities would be allowed to establish alternative mass limits if an Industrial User has installed Best Available Technology Economically Achievable (BAT), or equivalent to BAT treatment, and the Industrial User is employing water conservation methods and technologies that substantially reduce water use (Control Authority is defined at 40 CFR 403.12 (a) and is a broad term that can mean a POTW with an approved pretreatment program or the Approval Authority (defined at 40 CFR 403.3 (c)) where the POTW does not have an approved pretreatment program. The City of Owatonna has an approved pretreatment program.). While all of the conditions for receiving mass limits laid out in EPA's Streamlining Proposal are not being required for this site-specific rule (see discussion regarding Today's Rule in Equivalent Mass Limits for Concentration Limits section of III.A), EPA is interested in determining whether providing mass limits prior to full adoption of water conservation practices will encourage more widespread adoption of such practices. To ensure the continued appropriateness of the specific mass limits, Sponsor industries who are Participating Industrial Users will also be required to notify the City in the event production rates are expected to vary by more than 20 percent from a baseline production rate determined by Owatonna when it establishes a Participating Industrial User's initial mass limits. The Participating Industrial Users will be required to continue operation of at least the same level of treatment as at the outset of the project. Upon notification of a revised production rate, the City will reassess the appropriateness of the mass limit. Sponsor ATOFINA Chemicals discharges 16,900 gallons per day to the BPWWTF and commits in the FPA to a reduction goal of 10% of this amount. Because ATOFINA Chemicals is currently required to comply with mass-based limits, no change to its limits are required to facilitate water conservation measures.

EPA is today promulgating a site-specific alternative procedure for publishing Significant Noncompliance for Participating Industrial Users. SNC is defined in 40 CFR 403.8(f)(2)(vii) as including violations by an Industrial User which meet one or more of eight specific criteria. Currently, POTWs are required to publish in the largest daily newspaper in the municipality in which the POTW is located a list of Industrial Users who have been in SNC at any time during the previous twelve months. The SNC publication requirement serves at least two important functions: (1) A deterrent effect on Industrial Users to avoid noncompliance generally, and SNC specifically, and (2) notice to the public of Significant Noncompliance. One result of this approach is that, if the POTW publishes the notice for a particular SNC violation after the end of the twelve month period, the publication may not occur close in time to the violation, resulting in a delay between the violation and the notice to the public.

The intent of the alternative procedure promulgated today is to require website notice of all SNC violations, and reserve additional newspaper publication for cases where this format is needed for its potentially greater effect. The Sponsors also intend to promote prompt and appropriate assistance for identifying and correcting violations through a unique community-based approach. Pursuant to the Steele County FPA, an Owatonna Peer Review Committee will be established. This Committee will consist of at least two Owatonna Sponsors not connected to the noncompliance event being reviewed and any stakeholders that wish to participate. The Peer Review Committee will investigate all instances of noncompliance by an Owatonna Sponsor who is a Participating Industrial User and provide recommendations and assistance to expedite a return to compliance. The Peer Review Committee will make recommendations to the City regarding whether or not publication in a newspaper should occur, in addition to the website publication described below. All recommendations by the Peer Review Committee will be non-binding on the City, and the City must continue to implement its State-approved Enforcement Response Plan. Under the Steele County FPA, the Sponsors will take steps to conduct public outreach on the information available regarding Significant and other noncompliance by the Sponsors, including a description of the Peer Review Committee and its functions, a Committee contact person and telephone number, and notice of Peer Review Committee meetings. Such outreach will include, but not be limited to, periodic (at least annual) mailings to the identified Steele County XL community stakeholders, and notice in the public library.

Any violation which is not corrected within thirty (30) calendar days or which results in pass through (as defined at 40 CFR 403.3(n)) or interference (as defined at 40 CFR 403.3(i)) will continue to be published in a newspaper as currently required in Part 403. All SNC violations, whether published in a newspaper or not, will be published as soon as is practicable on the MPCA web site. The website must contain an explanation of how SNC is determined. A contact name and phone number for information regarding all other violations must also be listed on the MPCA website.

This XLC project is expected to achieve superior environmental performance beyond that which is achieved under the current CWA regulatory system by encouraging the Sponsors to work together in a coordinated manner to efficiently reduce their discharges to the OWWTF. As has been described, the Owatonna Sponsors who are Participating Industrial Users have committed to 20% discharge reduction goals for nickel, chromium, copper, and zinc. Although not receiving regulatory flexibility under today's proposal, ATOFINA Chemicals has committed to analogous discharge reduction goals for BOD, TSS, and TKN to the BPWWTF. The Participating Industrial Users and the Blooming Prairie Sponsor have additionally committed to a goal of at least a 10% reduction in water usage. Besides the direct environmental benefits of these reductions, the Sponsors have agreed to conduct an Environmental Management System (EMS) assessment within eighteen months of the effective date of the project. In the first year of the project, the Sponsors commit to arrange and participate in training for the development of the EMS. The Sponsors will utilize the information from the EMS assessment to reach the discharge reduction goals as well as to examine their facilities for other possible environmental improvements. The Sponsors have agreed to report to EPA and the MPCA the results of the assessment and the suggestions which have been adopted by each facility. Additionally, the City has identified storm water infiltration into the collection system during wet weather events as a major problem. The Owatonna Sponsors have agreed to work with the City to help alleviate this problem through the development of educational materials which will be distributed to Sponsor employees as well as to the community at large. The Owatonna Sponsors have also committed in the FPA to develop a plan to minimize storm water infiltration into the sewer system at each participating facility.

One unique aspect of this pilot project is the desire of the Sponsor facilities to work together to reach common goals. It is hoped that this cooperation will go beyond the specific goals of this project and result in presently unforseen environmental benefits.

This XLC Project will encourage the Sponsors to reduce water consumption at their facilities. This may result in reduced water costs for the facilities, without diminishing the level of environmental protection. Assuming the Sponsors discharge lower levels of pollutants to the OWWTF and the BPWWTF, these POTWs may benefit from lower treatment costs. To the extent monitoring and reporting frequencies are reduced under this project, reduced expenditures may result. The EMS assessments may identify further environmental and economic benefits.

Stakeholder involvement and participation is vital to the success of the Steele County XLC project. The participants have worked through a Community Advisory Committee, established by the Steele County Project Sponsors, to ensure that the general public has had an opportunity to be involved throughout the development of this project. The participants will continue to work to foster full and open communication between the general public and the project Sponsors.

In addition, the Peer Review Committee will continue to provide opportunities for input from the community on important compliance issues. For example, if a Sponsor is in noncompliance, the Peer Review Committee will provide input to bring the Sponsor back into compliance. Sponsors will continue outreach work with all stakeholders using the strategies and tactics contained in their Proposed Stakeholder Involvement Plan (June 1999). MPCA, the Steele County Sponsors, Owatonna, Blooming Prairie, and EPA have been involved in the development of this project, and support it. From the beginning of the Steele County XLC process, there has been a high priority on providing opportunity for diverse stakeholder input and review. Public meetings were held in the city of Owatonna on June 9, July 27, and September 23, 1999.

As with all XL projects testing alternative environmental protection strategies, the term of the Steele County Community XL project is one of limited duration. The duration of the regulatory relief provided by this rule is anticipated to be five (5) years from October 6, 2000 or until October 6, 2005. However, the project may be terminated or suspended at any time for failure to comply with any of the requirements of the rule. If the parties renew the Steele County Community XL Final Project Agreement beyond its initial five year period, then it may be necessary to extend this site-specific rule for an additional period of time.

If EPA determines that it is appropriate to terminate Project participation of one or more Sponsors who are Participating Industrial Users, so that they will no longer be eligible to receive the regulatory flexibility provided in today's rule, EPA will coordinate with the POTW and State to make the necessary changes to the Participating Industrial User's permit. EPA retains its enforcement authority under the CWA to enforce Pretreatment Standards whether or not the POTW or State make such changes to the Participating Industrial User's permit.

When the State modifies Owatonna's NPDES permit to incorporate the flexibility in today's rule, it has agreed to include a reopener provision enabling the State to eliminate this flexibility. The State has agreed to use this reopener provision if the Project is terminated. In the event of early Project termination, EPA will also eliminate the provisions of proposed section 403.19 in advance of its October 6, 2005 expiration date.

1. Existing Requirements (40 CFR 403.6(c)). National categorical Pretreatment Standards establish limits on pollutants discharged to POTWs by facilities in specific industrial categories. The Pretreatment Standards establish pollutant limitations in different ways for different categories. EPA has established categorical Pretreatment Standards that are: (1) Concentration-based standards that are implemented directly as concentration limits; (2) mass limits based on production rates; (3) both concentration-based and production-based limits; and (4) mass limits based on a concentration standard multiplied by a facility's process wastewater flow. The current regulations do not allow a mass limit to substitute for a concentration limit when the applicable standard is expressed in terms of concentration. While 40 CFR 403.6(d) allows the Control Authority to develop equivalent mass limits for concentration-based standards in order to prevent dilution, the equivalent limit applies in addition to the concentration limit. Today's rule allows a Participating Industrial User who qualifies for flexibility under the rule to demonstrate compliance with the categorical Pretreatment Standard by demonstrating compliance with an equivalent mass-based limit alone.

2. The Pretreatment Streamlining Proposal. In its proposed rule entitled Streamlining the General Pretreatment Regulations for Existing and New Sources of Pollution (64 FR 39564, July 22, 1999) (Pretreatment Streamlining Proposal), EPA proposed to allow Control Authorities to set equivalent mass limits as an alternative to concentration limits to meet concentration-based categorical Pretreatment Standards in cases where an Industrial User has installed model treatment technology or a treatment technology that yields optimum removal efficiencies, and the Industrial User is employing water conservation methods and technologies that substantially reduce water use. The Agency, however, solicited comments on whether mass limits would be appropriate in other situations. EPA proposed that 40 CFR 403.6(c) be revised to clarify that equivalent mass limits may be authorized by the Control Authority in lieu of concentration-based limits for Industrial Users. The Control Authority would be required to document how the mass limits were derived and make this information publicly available.

The July 22, 1999, proposed rule also specifically referenced the Steele County XL Community Project and indicated that, if this project were ready to proceed before EPA finalized the complete Pretreatment Streamlining proposal, EPA may promulgate, based on that proposal and comments received, a separate site-specific rule to allow the industries involved in the Steele County XLC project to use, at the discretion of the Control Authority, the change proposed for 40 CFR 403.6(c).

3. Today's Rule. To facilitate water use reduction by industries involved in the Steele County XLC Project, EPA is allowing the City of Owatonna, which is the Control Authority for the Owatonna Sponsor industries, the Participating Industrial Users, to set equivalent mass limits as an alternative to concentration limits to meet concentration-based categorical Pretreatment Standards. For this site-specific rule, EPA will not require Approval Authority review of equivalent mass-based limits in addition to POTW approval because EPA believes that existing Approval Authority oversight is sufficient to ensure that equivalent mass-limits are properly calculated and applied. EPA expects that the experience with Steele County on this element of today's rule may well inform whether Approval Authority review should be required in the Pretreatment Streamlining Proposal. Mass limits must be established by multiplying the five year, long term average process flows of the Participating Industrial Users (or a shorter period if production has significantly increased or decreased during the five year period) by the concentration-based categorical Pretreatment Standards. In general, flows used to establish mass-based limits must be appropriate in relation to current production or known future production, and will be determined based on consultation between the industry and the City of Owatonna. EPA's “Guidance Manual for the Use of Production-Based Pretreatment Standards and the Combined Wastestream Formula”, EPA 833-B-85-201, September 1985 provides additional guidance on establishing appropriate long-term average flows.

Importantly, today's rule will not affect the applicability of categorical Pretreatment Standards. Section 307(d) of the Clean Water Act prohibits the owner or operator of any source from operating in violation of any Pretreatment Standard. See 33 U.S.C. 1317(d). Today's rule will simply allow a Participating Industrial User to demonstrate compliance with a concentration-based Pretreatment Standard by meeting a properly-calculated, mass-based equivalent. Today's rule does not affect the underlying categorical Pretreatment Standard and, therefore, does not improperly transfer standard-setting authority to the City of Owatonna. Compliance with a mass-based limit may be used to demonstrate compliance with a categorical Pretreatment Standard only to the extent that the mass-based equivalent is properly calculated. In any event, EPA retains its authority to oversee POTW implementation of categorical Pretreatment Standards, including the authority to ensure that equivalent mass-based limits correctly interpret and apply concentration-based Pretreatment Standards. EPA notes that these provisions are similar to the existing authority to allocate equivalent mass limits or concentration limits for production-based standards. See 40 CFR 403.6(c)(2).

In return for this flexibility, the Sponsor industries, the Participating Industrial Users, are committing as a group to reduce water usage by 10 percent over the initial five-year project period. In this site-specific rule EPA is not conditioning the availability of mass-based limits on the use of water conservation methods and technologies (as it would in the Pretreatment Streamlining Rule) because EPA wishes to determine whether the structure of today's rule would result in the desired reduction in water use without imposing preconditions that may limit more widespread participation. For the same reason, EPA is not requiring that Participating Industrial Users generate complex technical studies to demonstrate the necessity of equivalent mass-based limits. In addition, this rule will not require that Participating Industrial Users utilize model treatment technologies that serve as the basis for the applicable Pretreatment Standards. Instead, EPA is interested in determining whether or not it would be sufficient to prevent facilities from complying with the applicable Standards, in the event of production decreases, by requiring that the facility maintain at least the same level of treatment as at the time an equivalent mass limit is established. To ensure the continued appropriateness of the specific mass limits, the Participating Industrial Users will also be required to notify the City in the event production rates are expected to vary by more than 20 percent from the previous year's average. Upon notification, the City will reassess the appropriateness of the mass limit.

In addition to EPA's rulemaking action, MPCA will need to issue a revised NPDES permit to the OWWTF, and the City will need to revise IU permits issued to Participating Industrial Users to enable it to establish alternative mass limits. The City will also need to evaluate its sewer use ordinance to determine if revisions are necessary to implement the changes promulgated today.

1. Existing Requirements (40 CFR 403.12(e), 403.8(f)(2)(v)). Currently, 40 CFR 403.12(e)(1) requires Industrial Users subject to categorical Pretreatment Standards to submit reports to the Control Authority at least twice a year, indicating the nature and concentration of all pollutants in their effluent that are limited by the Standards. 40 CFR 403.8(f)(2)(v) requires Control Authorities to sample these Industrial Users at least annually. Sampling is currently required for all pollutants limited by a categorical Pretreatment Standard, even if certain pollutants regulated by the Standard are not reasonably expected to be present.

2. The Pretreatment Streamlining Proposal. The July 22, 1999 Pretreatment Streamlining proposal would authorize a Control Authority to allow an Industrial User subject to categorical Pretreatment Standards to not sample for a pollutant if the pollutant is not expected to be present in its wastestream in a quantity greater than the background level present in its water supply, with no increase in the pollutant due to the regulated process. The Agency also proposed a reduced sampling requirement for the POTW, to once per permit term, once it had determined that a pollutant was not expected to be present.

The Pretreatment Streamlining proposal would require the Control Authority's decision to waive sampling to be based upon both sampling and other technical data, such as the raw materials, industrial processes, and potential by-products. EPA did not propose that a specific amount of sampling data be required but solicited comment on that issue.

3. Today's Rule. For purposes of this project, and as specified in Attachment C of the FPA, the City will be authorized to allow a Sponsor Participating Industrial User subject to categorical Pretreatment Standards to reduce the required sampling to less than twice per year, or to not sample for a pollutant, if it is not expected to be present in its wastestream at levels greater than background levels in its water supply, with no increase in the pollutant due to the regulated process. For such pollutants, the POTW will only be required to conduct sampling and analysis once during the term of the Participating Industrial User's permit. The Participating Industrial User will still be subject to the categorical Pretreatment Standards for pollutants determined not to be present, and will be in violation of the limit and will need to resume the required sampling if existing sampling indicates the User has violated the limit.

Consistent with the Pretreatment Streamlining Proposal, for purposes of this project, determinations by the City of Owatonna to either waive or reduce Participating Industrial User sampling to less than twice per year will be based on both sampling and other technical data, such as raw material usage, industrial processes, and potential by-products. Existing data on pollutant concentrations of the local public water supply will be used to characterize background concentrations; where a Participating Industrial User uses an alternative water supply, representative influent sampling will need to be provided. At least three years of Participating Industrial User effluent data will then be compared to the background data in making the determination that a given pollutant is not expected to be present. In addition, the city will need to make its determination based on its knowledge of the raw materials used and the facility's processes and potential by-products, but will not consider capability and efficiency of the User's pretreatment system. Where it believes it is necessary to make a determination, the City may require a Participating Industrial User to provide representative data on its untreated effluent.

Once the POTW determines that one or more pollutants are not expected to be present at a Participating Industrial User, it may modify the Participating Industrial User's permit to reduce or eliminate the monitoring requirements for the pollutant(s). The IU permit must also require the Participating Industrial User to submit, as part of its regular semi-annual monitoring reports, certification that there has been no increase in the pollutant in its wastewater due to its activities. The POTW must sample the Participating Industrial User's effluent for all pollutants in the applicable categorical Pretreatment Standard at least once during the term of the Participating Industrial User's permit.

In addition to EPA's rulemaking action, MPCA will need to issue a revised NPDES permit to the OWWTF, and the City will need to revise Participating Industrial User permits issued to Sponsor facilities to enable it to eliminate monitoring for pollutants not present. The City will also need to evaluate its sewer use ordinance to determine if revisions are necessary to implement the changes promulgated today.

1. Existing Requirements (40 CFR 403.12(e)). As discussed above, 40 CFR 403.12(e)(1) currently requires Industrial Users subject to categorical Pretreatment Standards to submit reports to the Control Authority twice a year, or more frequently if required by the Pretreatment Standard or the POTW, indicating the nature and concentration of all pollutants in their effluent that are limited by the Pretreatment Standards. The City of Owatonna generally requires its significant IUs to monitor and report on a quarterly basis.

2. Today's Rule. Upon initiation of this project, the City will evaluate the recent performance of Sponsor Participating Industrial Users, and may reduce monitoring requirements to twice per year for facilities with satisfactory compliance records. After the first metal reduction goal of 20% is met, the City will be authorized, at its discretion, to reduce the self-monitoring frequency of Participating Industrial Users for any regulated pollutant to once per year. EPA believes that this mechanism will provide an incentive for Participating Industrial Users to reduce their contribution of the specified metals. In exercising this discretion, the OWWTF will be required to consider the Participating Industrial User's previous three years of compliance data, and cannot reduce monitoring for pollutants where there is a reasonable potential of violating Pretreatment Standards.

The loading values that were specified in the proposed rule have been adjusted in today's rule based on a 20 percent reduction from the baseline loadings from the final group of Owatonna Participating Industrial Users.

In addition to EPA's rulemaking action, MPCA will need to issue a revised NPDES permit to the OWWTF, and the City will need to revise Participating Industrial User permits issued to Sponsor facilities to reduce monitoring frequencies for regulated pollutants. The City will also need to evaluate its sewer use ordinance to determine if revisions are necessary to implement the changes promulgated today.

1. Existing Requirements (40 CFR 403.8(f)(2)(vii)). “Significant Noncompliance” (SNC) is defined in 40 CFR 403.8(f)(2)(vii) to include violations that meet one or more of eight criteria. The criteria are: (1) Chronic violations of discharge limits (where 66 percent of all measurements taken during a six-month period exceed the daily maximum limit or the average limit for the same pollutant parameter); (2) technical review criteria (TRC) violations (where 33 percent or more of all measurements for each pollutant parameter taken during a six-month period equal or exceed the product of the daily maximum limit or the average limit multiplied by the applicable TRC (TRC equals 1.4 for BOD, TSS, fats, oil and grease and 1.2 for all other pollutants except pH)); (3) any other violation of a pretreatment effluent limit that the Control Authority determines has caused, alone or in combination with other discharges, interference or pass through; (4) any discharge of a pollutant that has caused imminent endangerment to human health, welfare or to the environment or has resulted in the Control Authority's exercise of its emergency authority to halt or prevent such a discharge; (5) failure to meet, within 90 days after the schedule date, a compliance schedule milestone contained in a local control mechanism or enforcement order for certain activities; (6) failure to provide required reports within 30 days after the due date; (7) failure to accurately report Noncompliance; and (8) any other violation or group of violations which the Control Authority determines will adversely affect the operation or implementation of the local Pretreatment Program.

On July 24, 1990, EPA modified 40 CFR 403.8(f)(2)(vii) to include the existing definition of SNC (55 FR 30082). The purpose of this modification was to provide some certainty and consistency among Control Authorities for publishing their lists of Industrial Users in Noncompliance. Under this provision, Control Authorities are required to annually publish a list of Industrial Users in SNC at any time during the previous twelve months. The Control Authority must publish this list in the largest daily newspaper published in the municipality in which the POTW is located. Independent of this publication requirement, Control Authorities are required to develop and implement Enforcement Response Plans, which describe the range of enforcement responses they will use in addressing various types of IU Noncompliance. Where an IU is identified as being in SNC, EPA guidance recommends that the Control Authority respond with some type of formal enforcement action such as an enforceable order (“Guidance for Developing Control Authority Enforcement Response Plans,” EPA 832-B-89-102, September 1989.)

2. The Pretreatment Streamlining Proposal. EPA did not propose to amend the entire provision on SNC, or even seek comment on all of it. Instead, the Agency proposed limited changes and sought comment on a number of options for a few specific provisions. With respect to publication, the primary purposes of which are to notify the public of violations and provide a disincentive for violating, EPA proposed to amend 40 CFR 403.8(f)(2)(vii) to allow publication of the SNC list in any paper of general circulation within the jurisdiction served by the POTW that provides meaningful public notice. EPA also proposed to amend the SNC criteria so that they must only be applied to Significant Industrial Users, and to address more than just daily maximum and monthly average limits. The Agency also sought comments on whether to revise the Technical Review Criteria, whether to revise the SNC criteria for late reports, and whether to codify the rolling quarters approach to determining SNC or adopt some other approach.

3. Today's Rule. Under today's site-specific rule, the City will have the discretion to not publish certain instances of SNC by Sponsor Participating Industrial Users in a newspaper. EPA believes that this change will provide faster public notice of SNC and will reserve additional newspaper publication of SNC for cases where this format is needed for its potentially greater effect. The City will continue to be required to provide newspaper publication of any violation which is not corrected within thirty (30) calendar days, or which results in pass through or interference. All SNC violations, whether published in a newspaper or not will be published as soon as is practicable, on the MPCA web site. The web site will contain an explanation of how SNC is determined, as well as a contact name and phone number for information regarding all other violations. The Owatonna Peer Review Committee system contemplated in the Steele County FPA will not be specified expressly in the rule, but rather is a voluntary agreement on the part of the Sponsors.

In addition to EPA's rulemaking action, MPCA will need to issue a revised NPDES permit to the OWWTF. The City will also need to evaluate its sewer use ordinance to determine if revisions are necessary to implement the changes promulgated today.

EPA received no public comments on the proposed rule. EPA has made only one change to the proposed rule. The final rule includes the final list of Participating Industrial Users and adjusts the average daily loadings for chromium, copper, nickel and zinc in § 403.19(e) of the proposal to reflect participation of the final group of Participating Industrial Users.

EPA received no public comments on the proposed rule.

Pursuant to 5 U.S.C. 553(d)(1), EPA is making this rule effective immediately upon publication because it relieves a restriction in that it reduces monitoring requirements and as such has the effect of reducing regulatory requirements for the Participating Industrial Users. In addition, pursuant to 5 U.S.C. 553(d)(3), EPA finds that good cause exists to make this rule effective immediately. The Owatonna Wastewater Treatment Plant and six Participating Industrial User facilities are the only regulated entities affected by this rule. The Owatonna Wastewater Treatment Facility and the Participating Industrial Users have had full notice of this site-specific rule. Making the rule immediately effective will allow the MPCA to issue a revised NPDES permit to the Owatonna Wastewater Treatment Facility sooner.

Under Executive Order 12866 (58 FR 51735, October 4, 1993) EPA must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may: (1) 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, competition, jobs, the environment, public health or safety in State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Because the annualized cost of this rule will be significantly less than $100 million and will not meet any of the other criteria specified in the Executive Order and because this rule affects only six specific private sector facilities and a single Publically-Owned Treatment Works (POTW), it is not a rule of general applicability or a “significant regulatory action” and therefore not subject to OMB review and Executive Order 12866.

Further today's rule does not affect the POTW or the facilities unless they choose on a voluntary basis to participate in the XL project. Finally, OMB has agreed that review of site-specific rules under Project XL is not necessary.

Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.

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. Under section 605(b) of the RFA, however, if the head of an agency certifies that a rule will not have a significant economic impact on a substantial number of small entities, the statute does not require the agency to prepare a Regulatory Flexibility Analysis. Pursuant to section 605(b), the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities for the reasons explained below. Consequently, EPA has not prepared a Regulatory Flexibility Analysis.

Small entities include small businesses, small organizations and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business according to RFA default definitions for small business (based on SBA size standards); (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.

Today's rule amends EPA's General Pretreatment Regulations to modify on a site-specific basis the requirements for pretreatment programs. The rule authorizes the Owatonna, Minnesota Waste Water Treatment Facility, in its discretion, to reduce the required frequency of monitoring for Participating Industrial Users. Only one POTW is subject to this rule and grant of the relief authorized by the rule will reduce costs to the Owatonna Wastewater Treatment Facility's Participating Industrial Users, including any Industrial User that is a small business. Under these circumstances, EPA has concluded that the rule will not have a significant economic impact on a substantial number of small entities.

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 the Comptroller General of the United States. Section 804, however, exempts from section 801 the following types of rules: Rules of particular applicability, rules relating to agency management or personnel, and rules of agency organization, procedure, or practice that do not substantially effect the rights or obligations of non-agency parties. 5 U.S.C. 804 (3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability affecting just six private sector facilities and one POTW.

This action applies to six companies and a single POTW and therefore requires no information collection activities subject to the Paperwork Reduction Act, and therefore no Information Collection Request (ICR) was submitted to the Office of Management and Budget (OMB) for review in compliance with the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

E. Does This Rule Trigger the Requirements of the Unfunded Mandates Reform Act?

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 of why the 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.

As noted above, this rule is limited to the OWWTF and certain sponsoring industries. This rule will create no federal mandate because EPA is imposing no new enforceable duties. EPA has also determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA. Nevertheless, in developing this rule, EPA worked closely with MPCA and the OWWTF and received meaningful and timely input in the development of this rule.

Executive Order 13045, “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 action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866. This rule does not impose any new or amended standards for discharged wastewater resulting from treatment by a POTW. With respect to the effects on children, the collection, treatment and disposal of wastewater occurs in a restricted system ( e.g., buried sewer lines and fenced wastewater treatment plants) that children are unlikely to come in contact with on a routine basis. This rule has no identifiable direct impact upon the health and/or safety risks to children and adoption of the regulatory changes will not disproportionately affect children. This rulemaking is thus in compliance with the intent and requirements of the Executive Order.

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 rule does not have federalism implications. It 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. The requirements outlined in today's rule will not take effect unless Minnesota chooses to adopt equivalent requirements through revisions to Owatonna's NPDES permit and Owatonna chooses to take the steps to implement the rule and make revisions to any local law and Industrial User permits. Thus, the requirements of section 6 of the Executive Order do not apply to this rule. Although section 6 of Executive Order 13132 does not apply to this rule, EPA did fully coordinate and consult with State and local officials in developing this rule.

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 Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities”. Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. There are no communities of Indian tribal governments located in the vicinity of Steele County. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

Section 12(d) of NTTAA, Public Law 104-113, section 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 standards. This rulemaking sets equivalent means of expressing the same technical standards, and of determining compliance with those standards. It also uses voluntary goals to achieve pollutant reductions beyond those required by the technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

In FR Doc. 00-16586 of June 30, 2000 (65 FR 40535), there were several typographical errors. The provisions in this correction notice are effective as if they had been included in the document published in the Federal Register on June 30, 2000.

In FR Doc. 00-16586 on June 30, 2000, make the following corrections:

1. On page 40535, column three, in the DATES section, “§ 412.24” is corrected to read “§ 413.24”, and § 489.24(h) is corrected to read “§ 489.24.”

2. On page 40537, column one, the third full paragraph, line two, “§ 412.24” is corrected to read “§ 413.24”, and “§ 489.24(h)” is corrected to read “§ 489.24.”

In our final rule published June 29, 2000 (65 FR 40170), on page 40232 of the preamble, we responded to public comments that addressed our authority under § 422.156 (Compliance deemed on the basis of accreditation), paragraph (e)(1), to remove deemed status on the basis of a review of accreditation results. In the preamble, we clarified that we do not intend to overrule an accreditation organization's survey decision without conducting our own investigation. We also noted that if our own investigation reveals that a condition is not met, we reserve the right to remove the MCO's deemed status even when the accreditation organization has not removed accreditation with respect to that condition. In order to clarify the distinction between: (1) A removal of deemed status by HCFA, based on HCFA's own survey; and (2) a removal based on a determination of noncompliance by an accreditation organization as a result of its accreditation survey, we stated that we would revise § 422.156(e)(1). However, we inadvertently omitted making this change in the regulations text. This document corrects that omission by revising § 422.156(e)(1).

In addition, on pages 40233 through 40234 of the preamble, we responded to a commenter's concern regarding removal of an accreditation organization's approval, regardless of the “rate of disparity” between certification by the accreditation organization and certification by HCFA or our agent, by adding another reporting requirement in § 422.157 (Accreditation organizations), paragraph (c)(6). This change requires that accreditation organizations provide us annually with summary data relating to their accreditation activities and observed trends. These data will assist us in making a comprehensive assessment of accreditation organizations' performance, and will help ensure that our oversight decisions are well-informed and appropriate. However, this change was inadvertently omitted in the final regulations text. This document corrects that omission by adding § 422.157(c)(6).

This is a summary of the Commission's Report and Order, adopted September 13, 2000, and released September 19, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center, Room CY-A257, 445 12th St., SW, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Service, 1231 20th St., NW, Washington, DC 20036.

The Commission is required to conduct this rulemaking pursuant to the recently enacted Open-Market Reorganization for the Betterment of International Telecommunications Act (ORBIT Act). Section 641(b) of the Communications Satellite Act of 1962, as amended by the ORBIT Act, requires the Commission to determine whether “sufficient opportunity” exists for users and service providers “to access INTELSAT space segment capacity directly from INTELSAT to meet their service and capacity requirements.” If the Commission finds that “sufficient opportunity” does not exist, the Commission is required to “take appropriate action to facilitate direct access,” and otherwise “to take such steps as may be necessary to prevent circumvention of the intent” of this section. Section 641(c) states that “nothing in this section shall be construed to permit the modification or abrogation of any contract.”

In 1999, the Commission permitted users and service providers in the United States to obtain Level 3 direct access to INTELSAT space segment capacity. Direct Access to the INTELSAT System, Report and Order, 64 FR 54561 (October 7, 1999). Level 3 direct access permits non-Signatory users and service providers to enter into contractual agreements with INTELSAT for space segment capacity at the same rates that INTELSAT charges its Signatories. The subsequently enacted ORBIT Act mandates that users and providers of telecommunications services shall be permitted to obtain Level 3 direct access to INTELSAT and requires the Commission to conduct this rulemaking.

The Commission issued a Notice of Proposed Rulemaking in this proceeding. Availability of INTELSAT Space Segment Capacity to Users and Service Providers Seeking to Access INTELSAT Directly, Notice of Proposed Rulemaking, 65 FR 35312 (June 2, 2000). The Commission concludes that users and service providers currently do not have sufficient opportunity for direct access. This is because most of INTELSAT's current U.S.-accessible capacity is subject to Comsat control, or is committed to other INTELSAT Signatories. In addition, a significant portion of INTELSAT's uncommitted capacity is fragmented into small amounts of bandwidth, and therefore may not be useful for many purposes.

Although INTELSAT plans to launch new satellites and to redeploy existing satellites to make more capacity available by 2003, the Commission cannot determine whether there will be sufficient opportunity for direct access in the future. Most of the new capacity will be concentrated at three orbital locations. It is not clear from the record in this proceeding whether capacity at those locations will meet the needs of direct access users. Furthermore, Comsat can renew the contracts covering the capacity currently under its control, so that there is no way to determine how much of that capacity will become available for direct access in the future.

The Commission also concludes that the “appropriate action” the Commission should adopt is a “commercial solution.” In other words, the Commission requires the parties to attempt to negotiate mutually agreeable arrangements, and to report back by March 13, 2001 on the progress of those negotiations. Finally, the Commission concludes that the Commission may adopt a “regulatory solution” if “commercial solutions” are unavailable. The draft does not foreclose any regulatory option at this time.

This Report & Order contains new information collections subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collections contained in this proceeding.

This Report and Order contains new information collections. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public to comment on the information collections contained in this R&O as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due December 5, 2000. Comments should address: (a) Whether the new or modified collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

OMB Control Number: 3060-XXXX (new collection).

Title: Availability of INTELSAT Space Segment Capacity to Users and Service Providers Seeking to Access INTELSAT Directly.

Type of Review: New collection.

Respondents: Business or other for-profit entities.

Number of Respondents: 10.

Estimated Time per Response: Two hours.

Frequency of Response: One time only.

Total Annual Burden: 20 hours.

Total Annual Costs: $3000.

Needs and Uses: This data collection is necessary to enable the Commission to evaluate the decisions made in this Report and Order.

Regulatory Flexibility Analysis: As required by the Regulatory Flexibility Act (RFA),  1 an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice. The Commission then sought written public comment in that proceeding, including comments on the IRFA. No party filed comments in response to the IRFA. Further, this Report and Order promulgates no new rules and our action here does not affect the previous analysis in the Notice.

Accordingly, pursuant to Sections 102(c), 210(c)(2), 201(c)(11), and 641 of the Communications Satellite Act of 1962, as amended, 47 U.S.C. 721(c), 741(c)(2), 741(c)(11), 765, and Sections 1, 2, 4(c), 201, 202, 214, 301, 303, 307, 308, and 309 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(c), 201, 202, 214, 301, 303, 307, 308, and 309, that the requirements and policies are adopted.

Comsat Corporation shall file the report discussed in this Order on or before March 13, 2001.

Authority is delegated to the Chief, International Bureau, as specified herein, to effect the decisions set forth above.

The Motion for Extension of Time filed by Comsat Corporation on July 24, 2000, is granted.

In Implementation of the AM Expanded Band Allotment Plan, MM Bureau Docket No. 87-267, FCC 00-291, adopted August 3, 2000, released August 10, 2000 (“Memorandum Opinion and Order”), on remand from the U.S. Court of Appeals for the District of Columbia Circuit (the “Court”), the Federal Communications Commission concluded that a computer reanalysis performed by the FCC staff establishes that Station WGNY(AM), Newburgh, New York, would not receive an AM expanded band allotment even if the FCC were to adopt the technical change to the allotment methodology that the licensee of WGNY(AM) advocated. On June 25, 1997, Sunrise Broadcasting of New York, Inc., sought review by the Court of the FCC's March 17, 1997 Order in Implementation of the AM Expanded Band Allotment Plan, FCC 97-68, 12 FCC Rcd 3361, 62 FR 23176 (Apr. 29, 1997) (“Order”), which had denied, inter alia, Sunrise's Petition for Reconsideration of Non-Inclusion in Expanded AM Band Allotment Plan. Note: 62 FR 23176 inadvertently omitted the Final Regulatory Flexibility Analysis for the Order, FCC 97-68; that analysis is located at 62 FR 28369 (May 23, 1997). Also on March 17, 1997, the Mass Media Bureau issued a Public Notice, Mass Media Bureau Announces Revised AM Expanded Band Allotment Plan and Filing Window for Eligible Stations, 12 FCC Rcd 3185 (MM Bureau 1997) (“Third Allotment Plan”) which did not include an expanded band allotment for WGNY. Sunrise argued to the Court of Appeals that the staff's granting certain Traveler Information Service (“TIS”) stations co-primary status (thus according them some interference protection) was an unexplained change of agency policy and resulted in WGNY being precluded from obtaining an expanded band allotment. The Mass Media Bureau responded to the Court with a computer analysis that eliminated TIS Station consideration but still resulted in WGNY not having an allotment. After the Court remanded the matter to the FCC on this point, on March 31, 1998, the Mass Media Bureau supplemented the record with the computer re-analysis. On October 19, 1998, Sunrise conceded this point, but in Comments filed with the FCC it sought consideration, for the first time, of issues not previously raised in this proceeding. Specifically, Sunrise objected to the 1995 FCC decision to change the co-channel distance separation requirements for AM expanded band stations from 400 to 800 kilometers (see Reconsideration of Implementation of the AM Expanded Band Allotment Plan, 10 FCC Rcd 12143, 12149 (1995)), and to the calculation of the improvement factors for two of the 710 potential expanded band stations listed in a 1996 Mass Media Bureau Public Notice (see Public Notice, Mass Media Bureau Announces Revised Experimental AM Broadcast Band Implementation Factors and Allotment Plan, 11 FCC Rcd 11419 (MMB 1996). In the Memorandum Opinion and Order, the FCC denied as untimely Sunrise's request to reexamine any aspects of the AM expanded band proceeding other than those relating directly to the interference protection afforded TIS stations, and ordered that the Mass Media Bureau's computer re-analysis be made a part of the record in this proceeding. The full text of the Memorandum Opinion and Order issued in Implementation of the AM Expanded Band Allotment Plan, FCC 00-291, adopted August 3, 2000 and released on August 10, 2000 is available for inspection and copying during normal business hours in the FCC Dockets Branch (Room TW-A306), 445 12th Street, SW, Washington, D.C. The complete text of this MO&O may also be purchased from the FCC's copy contractor, International Transcription Services (202) 857-3800, 1231 20th Street, NW, Washington, D.C.

This is a synopsis of the Commission's Report and Order, MM Docket No. 99-75, adopted September 13, 2000, and released September 22, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036.

The following changes to current management measures were recommended by the Pacific Fishery Management Council (Council,) in consultation with the States of Washington, Oregon, and California, at its September 11-15, 2000, meeting in Sacramento, CA. Pacific coast groundfish landings will be monitored throughout the year, and further adjustments to the trip limits will be made as necessary to stay within the OYs and allocations announced in the 2000 annual specifications and management measures for the groundfish fishery (65 FR 221, January 4, 2000, as amended at 65 FR 4169, January 26, 2000; 65 FR 17805, April 5, 2000; 65 FR 25881, May 4, 2000; 65 FR 31283, May 17, 2000; 65 FR 33423, May 23, 2000; and 65 FR 45308, July 21, 2000).

During the winter months, yellowtail rockfish tend to move to rockier habitats and are not as closely associated with flatfish as they are during the summer months. To make yellowtail rockfish and flatfish management more consistent with natural catch association patterns, and to reduce discards of yellowtail rockfish taken with small footrope bottom trawl gear by vessels fishing for flatfish, per-trip limits for yellowtail rockfish taken with small footrope bottom trawl gear were introduced in July (65 FR 45308, July 21, 2000). At its September meeting, the Council recommended maintaining a per-trip limit for yellowtail rockfish taken with small footrope bottom trawl gear through the November to December period. The per-trip limit during the July to October period is equivalent to the sum of 33 percent (by weight) of all flatfish except arrowtooth flounder, plus 10 percent (by weight) of arrowtooth flounder, not to exceed 7,500 lb (3,402 kg). During the November to December cumulative trip limit period, the flatfish fishery is concentrated in depths that have less association with yellowtail rockfish; therefore, the Council recommended decreasing the per-trip limit to the sum of 33 percent (by weight) of all flatfish except arrowtooth flounder, plus 10 percent (by weight) of arrowtooth flounder, not to exceed 2,500 lb (1,134 kg).

Through August 31, 2000, only 21.1 percent of the OY for yellowtail rockfish set aside for the limited entry fishery north of Cape Mendocino (40° 10' N. lat.) had been landed. To allow fishers access to these stocks without exceeding 2000 OYs, the Council recommended increasing the yellowtail rockfish 2-month cumulative limit for the November to December period from the previously established 10,000 lb (4,536 kg) to 30,000 lb (13,608 kg). Yellowtail rockfish taken in the flatfish fisheries and subject to the 2,500 lb per-trip limit would also be subject to the 2-month cumulative limit.

The Council also recommended increasing the per-trip limit for arrowtooth flounder taken with large or small footrope bottom trawl from the prior recommended 10,000 lb (4,536 kg) to 20,000 lb (9,072 kg) per trip. Because arrowtooth flounder are not a high-value species, this limit is not expected to increase targeted effort on that species.

To allow fishers access to “other flatfish” without exceeding 2000 OYs, the Council recommended increasing the limit for other flatfish taken with large footrope bottom trawl from 400 lb (181 kg) per trip to 1,000 lb (454 kg) per trip for the November-December period. Other flatfish means all flatfish listed at 50 CFR 660.302 except those with species-specific trip limits and rex sole.

Throughout 2000, minor slope rockfish landings south of 40°10' N. lat. have been slow. The best available information at the September Council meeting indicated that limited entry fisheries south of 40°10' N. lat. had landed 11.6 percent of slope rockfish set aside for those fisheries in 2000, and that open access fisheries had landed only 4.4 percent of its minor slope rockfish allocation, through the end of August 2000. Given these low landings rates, the Council recommended increasing cumulative landings limits to levels that would allow higher landings without jeopardizing overfished and depleted stocks. The Council recommended increasing the limited entry minor slope rockfish 2-month cumulative landings limit for both trawl and fixed gear south of 40°10' N. lat. from 7,000 lb (3,175 kg) to 20,000 lb (9,072 kg) for the September to October trip limit period. For the November to December period the Council recommended setting the limited entry cumulative limit previously announced for minor slope rockfish south of 40°10' N. lat. from 1,500 lb per month (680 kg) to 10,000 per month (4,536 kg) for the trawl fishery and from 1,500 lb (680 kg) per month to 20,000 lb (9,072 kg) 2-month period for the fixed gear fleet. The open access, minor slope rockfish 2-month cumulative limit south of 40°10' N. lat. are increased from 1,000 lb (454 kg) (454 kg) to 3,000 lb (1,361 kg) for the September to October period and from 500 lb (227 kg) to 3,000 lb (1,361 kg) for the November to December period.

The best available information through August 31, 2000, indicates that the landings of sablefish in the limited entry trawl fishery were at 42.0 percent of the 2000 allocation for that fishery. To allow limited entry trawl fishers access to sablefish without exceeding 2000 OYs, the Council recommended increasing the 2-month cumulative limit from 10,000 lb (4,536 kg) (4,536 kg) to 12,000 lb (5,443 kg) for the September to October period and increasing the previously announced 1-month limit of 3,500 lb (1,588 kg) to 6,000 lb (2,722 kg) for the November to December period.

Sablefish in the southern areas tend to be smaller than those in the northern areas. To reduce the discard of small fish that are otherwise marketable, fishers requested that the Council remove the per-trip limit of 500 lb (227 kg) for sablefish smaller that 22 inches (56 cm). In response to this request, the council recommended removing the length requirement for the remainder of 2000.

Similarly, daily trip limit sablefish landings in both the 2000 limited entry fixed gear and open access fisheries have been relatively low through the spring and summer months. The best available information at the September Council meeting indicated that limited entry fixed gear fisheries through July, had landed 21.1 percent of the sablefish set aside for daily landings, and that the open access fisheries through August, had landed 14.5 percent of their sablefish allocation. The limited entry and open access daily trip limit fisheries for sablefish north of 36° N. lat. are restricted by a 300-lb (136-kg) per day limit in combination with a 2-month cumulative limit. For the limited entry fixed gear fishery, the Council recommended increasing the daily limit from 300 lb (136 kg) per day to 400 lb (181 kg) per day and adding an option which allows fishers instead to opt to make one landing per week above 400 lb (181 kg) and not to exceed 1,000 lb (454 kg). Under either option the fishery is not to exceed the 2-month cumulative limit. The 2-month cumulative limit was increased from 3,330 lb (1,497 kg) to 8,000 lb (3,629 kg) for the September to October period and increased from the prior recommended 2,400 lb 2-month limit to 8,000 lb (3,629 kg) for the November to December period. As announced in the annual specifications and management measures (65 FR 221, January 4, 2000), 1 week means 7 consecutive days, Sunday through Saturday.

For the open access fixed gear fishery, the Council recommended keeping the daily limit at 300 lb (136 kg) per day, but also included an option which allows fishers to make one weekly landing above 300 lb (136 kg), but not to exceed 1,200 lb (544 kg). To allow the open access fishery a chance to harvest their sablefish allocation without exceeding 2000 OYs, the Council recommended removing the cumulative limits for the remainder of 2000.

Minor nearshore rockfish landings in the limited entry and open access fisheries have been low throughout 2000. The best available information at the September Council meeting indicated that limited entry fisheries had landed 10.3 percent of the allocation for that fishery north of 40°10' N. lat., and 8.8 percent of the allocation for that fishery south of 40°10' N. lat., through August 31, 2000. Similarly, the best available information at that meeting indicated that open access fisheries had landed 36.9 percent of the allocation for that fishery north of 40°10' N. lat., and 16.3 percent of the allocation for that fishery south of 40°10' N. lat. To allow fishers access to these stocks without exceeding 2000 OYs, the Council recommended significant increases to the minor nearshore rockfish landings limits for both the limited entry fixed gear and open access fisheries.

North of 40°10' N. lat. and starting October 2, 2000, the Council recommended increasing the limited entry minor nearshore rockfish fixed gear limit for the September to October period from 5,000 lb (2,268 kg) to 10,000 lb (4,536 kg) per 2-month period, with the sublimit for minor nearshore rockfish other than blue or black rockfish increasing from 1,800 lb(816 kg) to 4,000 lb (1,814 kg) per 2-month period. The previously recommended 3,000 lb (1,361 kg) per 2-month period for the November to December period will also be increased to 10,000 lb (4,536 kg) with the sublimit for minor nearshore rockfish other than blue or black rockfish increasing from the previously recommended 1,400 lb(635 kg) to 4,000 lb (1,814 kg) per 2-month period.

The 2-month cumulative limit for the open access fishery of minor nearshore rockfish north of 40°10' N. lat. starting October 2, 2000, increases from 3,000 lb (1,361 kg) to 6,000 lb (2,722 kg)), with the sublimit for minor nearshore rockfish other than blue or black rockfish increasing from 900 lb (408 kg) to 2,000 lb (907 kg). For the November to December period the 2-month cumulative limit increases from the previously recommended 1,000 lb (454 kg) to 6,000 lb (2,722 kg), with the sublimit for minor nearshore rockfish other than blue or black rockfish increasing from the previously recommended 500 lb (227 kg) to 2,000 lb (907 kg).

Lingcod and rockfish are taken in the recreational fishery in waters (0-3 nm) managed by the State of California. To ensure the pre-season estimates for overfished species off California (bocaccio, lingcod, canary rockfish, cowcod) are not exceeded, the State may take actions to prohibit recreational landings in State waters. Recreational fishery closures south of Point Conception (34°27' N. lat.) are likely to occur in late 2000. The State of California Fish and Game Commission is scheduled to meet in October, during which time they will review the best available landings data and make recommendations on recreational fishery management in California waters. The Council asked NMFS to coordinate with the State of California to implement consistent changes in Federal waters (3-200 nm offshore) to prevent OYs of rockfish and lingcod from being exceeded.

Actions that may be taken by the State of California, and recommended by NMFS, to prevent excess harvest may include prohibiting further taking, retaining, possessing or landing of minor nearshore rockfish in the limited entry and open access fixed gear fisheries south of 34°27' N. lat. during the November to December period. Any such actions will be published in the Federal Register . To allow commercial harvest in the nearshore rockfish fisheries, with the least impact on overfished species, the Council recommended establishing separate cumulative trip limits for the area between 40°10' N. lat. and 34°27' N. lat., and the area south of 34°27' N. lat. Beginning, October 2, 2000, in the limited entry fixed gear fishery for minor nearshore rockfish between 40°10' N. lat. and 34°7' N. lat., the 2-month cumulative trip limit for increases from 2,000 lb (907 kg)) to 6,000 lb (2,722 kg), continuing through December replacing the previously recommend 2-month limit of 1,300 (590 kg) for the November to December period. The open access minor nearshore rockfish 2-month cumulative limit for the fishery between of 40°10' N. lat. and 34° 27' N. lat. increases from 1,600 lb (726 kg) to 4,000 lb (1,814 kg) per 2-month period beginning October 1, and continues through December. This replaces the previously recommend 2-month limit of 800 lb (363 kg) for the November to December period.

The limited entry fixed gear minor nearshore rockfish 2-month cumulative limit for the fishery south of 34°27' N. lat. will be increased from 2,000 lb (907 kg) to 9,000 lb (4,082 kg) for the September to October period, and from 1,300 lb (590 kg) to 3,000 lb (1,361 kg) for the November to December period. The open access (fixed gear) minor nearshore rockfish 2-month cumulative limit for the area south of 34°27' N. lat. will be increased from 1,600 lb (726 kg) to 6,000 lb (2,722 kg) for the September to October period, and from 800 lb (363 kg) to 2,000 lb (907 kg) for the November to December period.

NMFS also announces the last cumulative trip limit period in 2000 for the “B” platoon i.e., those limited entry trawl vessels designated (on their limited entry permit) to take their cumulative trip limits 2 weeks out of phase with the rest of the fleet. For vessels in the “B” platoon, the final cumulative trip limit period will be from November 16, 2000, through December 31, 2000. At any time during this period, each vessel in the “B” platoon is allowed to take and retain, possess, or land the equivalent of two 1-month cumulative limits (the November and December cumulative trip limits). For species for which there are 2-month cumulative limits, the vessels in the “B” platoon must take the final 2-month cumulative limit during the final period from November 16, 2000, through December 31, 2000.

For the reasons stated here, NMFS concurs with the Council’s recommendations and announces the following changes to the 2000 annual management measures (65 FR 221, January 4, 2000, as amended at 65 FR 4169, January 26, 2000; 65 FR 17805, April 5, 2000; 65 FR 25881, May 4, 2000; 65 FR 31283, May 17, 2000; 65 FR 33423, May 23, 2000; and at 65 FR 45308, July 21, 2000) as follows:

In Section IV, under B. Limited Entry Fishery, Tables 3 and 4 are revised, and under C. Trip Limits in the Open Access Fishery, Table 5 is revised to read as follows:

These actions are authorized by the regulations implementing the FMP and the annual specifications and management measures and emergency rule published at 65 FR 221 (January 4, 2000) and are based on the most recent data available. The aggregate data upon which these actions are based are available for public inspection at the office of the Administrator, Northwest Region, NMFS (see ADDRESSES ) during business hours.

The Assistant Administrator for Fisheries NOAA (AA) finds good cause to waive the requirement to provide prior notice and comment on this action pursuant to 5 U.S.C. 553(b)(B) because providing prior notice and opportunity for comment would be impracticable. It would be impracticable because the current 2-month cumulative limit period began on September 1, 2000, and affording additional advance notice and opportunity for public comment would drastically reduce the amount of time the fishers have to take the increased September to October limit. The increases to trip limits relieve burdens on the public as the trip limits provide for an increase in fishing opportunities. In addition, the affected public had the opportunity to comment on these actions at the September 11-15, 2000, Council meeting. This action should be implemented as soon as possible to provide fishers the opportunity to achieve the increased trip limits.

Since this action increases trip limits, it relieves a restriction and therefore, the AA find, under 5 U.S.C. 553(d)(1), it is unnecessary to delay for 30 days the effective date of this action.

These actions are taken under the authority of 50 CFR 660.323(b)(1), and are exempt from review under Executive Order 12866.

Regulations governing the summer flounder fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned on a percentage basis among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.100.

The initial total commercial quota for summer flounder for the 2000 calendar year was set equal to 11,109,214 lb (5,039,055 kg)(65 FR 33486, May 24, 2000). The percent allocated to vessels landing summer flounder in New Jersey is 16.72499 percent, or 1,858,346 lb (842,931 kg).

Section 648.100(e)(4) stipulates that any overages of commercial quota landed in any state be deducted from that state's annual quota for the following year. In the calendar year 1999, a total of 1,897,952 lb (860,897 kg) were landed in New Jersey, creating a 44,026 lb (19,970 kg) overage that was deducted from the amount allocated for landings in the State during 2000 (65 FR 33486, May 24, 2000). The resulting 2000 quota for New Jersey is 1,814,320 lb (822,962 kg).

Section 648.101(b) requires the Administrator, Northeast Region, NMFS (Regional Administrator) to monitor state commercial quotas and to determine when a state's commercial quota is harvested. The Regional Administrator is further required to publish a notification in the Federal Register advising a state and notifying Federal vessel and dealer permit holders that, effective upon a specific date, the state's commercial quota has been harvested and no commercial quota is available for landing summer flounder in that state. The Regional Administrator has determined, based upon dealer reports and other available information, that the State of New Jersey has attained its quota for 2000.

The regulations at § 648.4(b) provide that Federal permit holders agree as a condition of the permit not to land summer flounder in any state that the Regional Administrator has determined no longer has commercial quota available. Therefore, effective 0001 hours, October 10, 2000, further landings of summer flounder in New Jersey by vessels holding summer flounder commercial Federal fisheries permits are prohibited for the remainder of the 2000 calendar year, unless additional quota becomes available through a transfer and is announced in the Federal Register . Effective 0001 hours, October 10, 2000, federally permitted dealers are also advised that they may not purchase summer flounder from federally permitted vessels that land in New Jersey for the remainder of the calendar year, or until additional quota becomes available through a transfer.

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.