Citrus canker is a plant disease that affects plants and plant parts, including fresh fruit, of citrus and citrus relatives (Family Rutaceae). Citrus canker can cause defoliation and other serious damage to the leaves and twigs of susceptible plants. It can also cause lesions on the fruit of infected plants, which renders the fruit unmarketable, and cause infected fruit to drop from the trees before reaching maturity. The aggressive A (Asiatic) strain of citrus canker can infect susceptible plants rapidly and lead to extensive economic losses in commercial citrus-producing areas.

The regulations to prevent the interstate spread of citrus canker are contained in 7 CFR 301.75-1 through 301.75-14 (referred to below as the regulations). The regulations restrict the interstate movement of regulated articles from and through areas quarantined because of citrus canker and provide conditions under which regulated fruit may be moved into, through, and from quarantined areas for packing. The regulations currently list parts of Broward, Collier, Dade, Hendry, Hillsborough, and Manatee Counties, FL, as quarantined areas for citrus canker.

In this document, we are amending the regulations to provide for the payment of tree replacement funds to eligible owners of commercial citrus groves who have had citrus trees destroyed because of citrus canker. The provisions for the commercial citrus tree replacement program are contained in a new section, § 301.75-15, which is explained in detail below.

We are amending § 301.75-1, which provides definitions for the terms used in Subpart—Citrus Canker, by adding definitions for commercial citrus grove and public order, two terms that are used in new § 301.75-15.

We have defined commercial citrus grove as “An establishment maintained for the primary purpose of producing citrus fruit for commercial sale.” This definition is intended to distinguish commercial citrus groves from “dooryard” or residential citrus trees. This distinction between commercial and dooryard citrus is necessitated by the language contained in the two acts cited above that provide the funding for the tree replacement payments provided for by this rule. Specifically, the Consolidated Appropriations Act for FY 2000 provides for the use of funds “to replace commercial citrus trees” and the Agricultural Risk Protection Act directs the use of funds to compensate “commercial producers.” Although the Florida Department of Food and Consumer Services' Division of Plant Industry (DPI) defines a commercial citrus grove as “a solid set planting of 40 or more citrus trees,” our definition of the term in this interim rule omits the 40-tree threshold in recognition of the possibility that there may be some small groves of fewer than 40 trees that were, prior to being destroyed because of citrus canker, maintained by their owners for the purpose of producing citrus fruit for commercial sale. If, during the processing of an application for tree replacement funds, a question arises as to whether or not a small grove was maintained for commercial purposes, we will ask the grove owner to produce documentation to support his or her claim that the grove was maintained for commercial purposes. The supporting documents that we expect a person engaged in the commercial production of citrus could provide are records of production expenses incurred, records of income derived from direct sales to consumers or from the consignment of harvested fruit to a packer or juicing operation, and tax records showing losses or gains in income resulting from the production and sale of the fruit.

We have defined public order as “either an 'Agreement to Destroy and Covenant Not to Sue' signed by the grove owner and the Florida Department of Food and Consumer Services' Division of Plant Industry (DPI) or an 'Immediate Final Order' issued by DPI, both of which identify citrus trees infected with or exposed to citrus canker and order their destruction.” This State-issued order serves as the official means by which the owner of a commercial citrus grove is notified of the need to destroy citrus trees because of citrus canker.

The introductory text of § 301.75-15 provides that the payment of tree replacement funds is contingent upon the availability of funds appropriated for that purpose. The funding for the tree replacement payments provided for by this rule currently comes from two sources. The Consolidated Appropriations Act for FY 2000 (Pub. L. 106-113) directs the Secretary of Agriculture to use not more than $9 million of Commodity Credit Corporation funds for a cooperative program with the State of Florida to replace commercial citrus trees removed to control citrus canker until the earlier of December 31, 1999, or the date crop insurance coverage is made available with respect to citrus canker. We will draw from that $9 million to pay claims for the majority of the trees destroyed before December 31, 1999. Claims resulting from the destruction of any trees for which crop insurance was available, as well as for any trees destroyed after December 31, 1999, will be paid with a portion of the funds made available by the Agricultural Risk Protection Act of 2000 (Pub. L. 106-224), which provides that $25 million shall be used by the Secretary to compensate commercial growers for losses due to plum pox, Pierce's disease, and citrus canker.

Under paragraph (a) of new § 301.75-15, the owner of a commercial citrus grove may be eligible to receive funds to replace commercial citrus trees removed to control citrus canker if the trees were removed pursuant to a public order after September 28, 1995, which is the date that the current citrus canker infestation was detected in Florida. This interim rule also provides for the payment of tree replacement funds for trees destroyed between 1986 and 1990 because the State of Florida has identified five commercial citrus groves in Manatee and Highlands Counties that were destroyed to control citrus canker during a limited outbreak of the disease during that period. Prior to the effective date of this interim rule, no provision had been made for the payment of tree replacement funds or other compensation to the owners of those five groves.

We consider that trees infected with or exposed to citrus canker, because of the destructive nature of the disease, have no value. Thus, the tree replacement payments provided for by this interim rule are intended to provide eligible growers with the funds necessary to establish new plantings, rather than to pay for the trees destroyed because of citrus canker. In calculating the replacement costs for commercial citrus trees, we considered the costs of land preparation, the replacement tree, labor for planting, and maintenance until the tree becomes productive. In developing the Florida Fruit Tree Pilot Crop Insurance Program, which includes coverage for the loss of commercial citrus trees due to citrus canker, the U.S. Department of Agriculture's (USDA's) Risk Management Agency (RMA) calculated the cost of replacing commercial citrus trees to be $26 per tree. This amount is applicable for all varieties of citrus trees for which coverage is offered, i.e., grapefruit, lemon, lime, orange, and “all other citrus” (tangerine, tangelo, temple orange, and murcott), and considers the costs of land preparation, tree planting, and grove care expenses. Information gathered from industry sources confirms the cost of replanting commercial citrus trees. The cost of tree replacement as calculated by RMA is consistent with APHIS' estimate of costs for the first 6 years of production, or until trees become productive and earn an income. For all categories of citrus, these costs are estimated to be $25.51 per tree. Therefore, § 301.75-15(b) provides that the owner of a commercial citrus grove who is eligible to receive funds to replace commercial citrus trees will, upon approval of his or her application, receive a payment of $26 per tree up to a maximum of between $2,704 and $4,004 per acre, depending on the variety of the trees removed. Specifically, the per-acre caps, which were calculated by multiplying $26 by the varietal average number of trees per acre reported by the Florida citrus industry to the USDA's National Agricultural Statistics Service through the Florida Agriculture Statistics Service, are as follows:

We anticipate that additional funds will be made available for USDA to provide payments to the owners of commercial citrus groves for losses in production income resulting from the destruction of trees due to citrus canker. Because output per acre is approximately the same, regardless of the number of trees per acre, capping the tree replacement payments provided for by this rule based on the average number of trees per acre for each variety will ensure that no grower receives combined payments (i.e., tree replacement and lost production) that exceed the total estimated per-acre loss.

Paragraph (c) of § 301.75-15 provides information on how to apply for commercial citrus tree replacement funds. This paragraph states that the form necessary to apply for tree replacement funds may be obtained from any local citrus canker program office or from the USDA Citrus Canker Eradication Project office in Miami, FL. Completed claim forms must be sent to the USDA Citrus Canker Eradication Project office in Winter Haven, FL, which is where the DPI records necessary to validate claims are located. When the completed application is submitted, it should be accompanied by a copy of the public order that directed the destruction of the trees, the order's accompanying inventory that describes the number and variety of trees removed, and documentation verifying that the destruction of trees has been completed and the date of that destruction. Claims for trees destroyed on or before the effective date of this rule must be received within 60 days after the effective date of this rule, and claims for trees destroyed after the effective date of this rule must be received within 60 days after the destruction of the trees.

Immediate action is necessary to reduce the economic effect of the citrus canker eradication program on affected commercial citrus growers, thus ensuring the continued cooperation of commercial growers with the survey and eradication activities being conducted by the State of Florida and APHIS. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register .

We will consider comments that are received within 60 days of publication of this rule in the Federal Register . After the comment period closes, we will publish another document in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the rule as a result of the comments.

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

The following economic analysis provides a cost-benefit analysis as required by Executive Order 12866 and an analysis of the potential economic effects on small entities as required by the Regulatory Flexibility Act.

This rule amends the citrus canker regulations to establish provisions under which eligible owners of commercial citrus groves may receive payments to replace commercial citrus trees removed because of citrus canker. The payment of these tree replacement funds is necessary as a first step toward reducing the economic effect of the citrus canker quarantine on affected commercial citrus growers. As for the second step, we anticipate that additional funds will be made available for USDA to provide payments to growers for losses in production income resulting from the destruction of trees due to citrus canker. In order to make those funds available, we expect to publish a proposed rule that details our estimates of per-acre losses and discusses the information and methodology upon which those estimates are based.

The value of citrus produced in the United States in 1998 was $2.6 billion, and Florida produced a substantial share of the total. In 1997-1998, Florida accounted for 43.67 percent of U.S. orange production, 76.2 percent of grapefruit production, 72.72 percent of lime production, 63.41 percent of tangerine production, and 100 percent of both temple and K-Early citrus production (USDA, National Agricultural Statistics Service, Agricultural Statistics, 1999). Removing the infected and exposed trees protects a substantial investment in other citrus groves. While the entire value of citrus produced is not at risk immediately from citrus canker, the disease would, if left unchecked, continue to spread. In time, the entire industry would be at risk.

According to the data provided to APHIS by the State of Florida, during the current citrus canker outbreak, approximately 484,900 commercial citrus trees were removed to control citrus canker by July 19, 2000, and another 238,900 commercial citrus trees are expected to be destroyed by September 30, 2000. Paid at the rate of $26 per tree, the costs of replacing those 723,800 trees would be approximately $18.8 million. However, we expect that the actual amount paid out will be lower due to the per-acre cap on tree replacement payments provided for by this interim rule; as noted previously, we have placed this cap on tree replacement payments in order to ensure that no grower receives combined tree replacement and lost production payments that exceed the total estimated per-acre loss. The State of Florida has also identified another 87,731 trees from 5 groves in Manatee and Highlands Counties that were destroyed because of citrus canker between 1986 and 1990 (i.e., before the start of the current outbreak); the costs of replacing those trees at $26 per tree would be approximately $2.28 million. Again, we expect that the per-acre cap on tree replacement payments provided for by this interim rule will result in the actual amount paid out being lower.

This rule establishes provisions under which eligible owners of commercial citrus groves could, subject to the availability of appropriated funds, receive payments to replace commercial citrus trees removed because of citrus canker. Therefore, the entities who will be affected by this rule are commercial citrus growers. The Regulatory Flexibility Act requires that the Agency specifically consider the economic effects of its rules on small entities. The Small Business Administration (SBA) defines a firm engaged in agriculture as “small” if it has less than $500,000 in annual receipts. While the majority of citrus growers in Florida would be considered small entities under those SBA guidelines, those growers who would not be classified as small entities account for the majority of the citrus-growing acreage in the State. Based on available information, it appears that most of the citrus-canker-related losses in Florida have been incurred by those larger citrus producers. Regardless of the size of the entities affected, we expect that this rule will benefit those commercial citrus growers who are eligible for tree replacement payments by helping to defray some of the losses and expenses that they have incurred as a result of the ongoing State and Federal efforts to eradicate citrus canker in Florida.

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

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

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

In accordance with section 3507(j) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection and recordkeeping requirements included in this interim rule have been submitted for emergency approval to the Office of Management and Budget (OMB). OMB has assigned control number 0579-0163 to the information collection and recordkeeping requirements.

We plan to request continuation of that approval for 3 years. Please send written comments on the 3-year approval request to the following addresses: (1) Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503, and (2) Docket No. 00-037-1, Regulatory Analysis and Development, PPD, APHIS, suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comments refer to Docket No. 00-037-1 and send your comments within 60 days of publication of this rule.

This rule amends the citrus canker regulations to establish provisions under which eligible owners of commercial citrus groves may receive payments to replace commercial citrus trees removed because of citrus canker. Implementing this program would necessitate the use of an information collection activity in the form of an application for funds.

We are soliciting comments from the public concerning our information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).

Estimate of burden: Public reporting burden for this collection of information is estimated to average 0.21 hours per response.

Respondents: Eligible commercial citrus grove owners in Florida.

Estimated annual number of respondents: 65.

Estimated annual number of responses per respondent: 1.08.

Estimated annual number of responses: 70.

Estimated total annual burden on respondents: 15 hours.

(Due to rounding, the total annual burden hours may not equal the product of the annual number of responses multiplied by the average reporting burden per response.)

Copies of this information collection can be obtained by calling Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

This rule is issued under Marketing Agreement and Order No. 956, as amended (7 CFR part 956), regulating the handling of sweet onions grown in the Walla Walla Valley of Southeast Washington and Northeast Oregon, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule provides dates by which handlers must pay assessments and furnish reports to the Committee that reflect new cultural and storage practices for sweet onions handled during the period September 1 through May 31 of each fiscal period. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

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

Section 956.41 of the order provides the Committee with the authority to establish an annual budget of expenditures and § 956.42 provides authority for the Committee to levy assessments upon handlers of Walla Walla sweet onions to provide adequate funds to defray such expenditures. Section 956.202 establishes the current assessment rate of $0.21 per 50-pound bag of Walla Walla sweet onions handled. Section 956.42 also provides the Committee with the authority to impose an interest charge on any handler who fails to pay any assessment in a timely manner, and § 956.142 of the order's administrative rules and regulations establishes rate of interest and the date such interest charge begins to accrue. Section 956.80 establishes the authority for the Committee to require handler reports, while § 956.180 provides the rules and regulations necessary for the Committee to implement and administer such reporting requirements.

For sweet onions handled on or after September 1, this rule modifies the date handlers must pay assessments and furnish reports to the Committee. These changes recognize new cultural and storage practices that have extended the traditional mid-summer marketing season. The changes provide dates by which handlers must pay assessments and submit reports on shipments made in September or later. This rule was unanimously recommended by the Committee on August 15, 2000.

Sections 956.142 (interest charges) and 956.180 (reports) were established in August 1996 to foster prompt assessment payments and to ensure that adequate funds would be available to cover budgeted expenses incurred by the Committee under the order. Section 956.180 established reporting requirements for providing the Committee with statistical information regarding total industry shipments and is used as a basis for assessment collection. This information also is useful for the development of a budget and in making marketing and promotion plans for the upcoming season. Section 956.142 establishes an assessment due date and an interest charge on any handler who fails to pay his or her assessments within thirty days of the due date. The assessment due date is September 1, and the monthly interest charge on delinquent assessments is 1.5 percent.

Historically, Walla Walla sweet onions have been planted in the fall, then harvested and marketed from late June to early August. Due to the short shelf life of this traditionally non-storage, summer onion, the marketing season has closely followed the annual harvest. However, recent changes in cultural and storage practices within the Walla Walla sweet onion industry are lengthening the marketing season for some of the sweet onions produced in the Walla Walla Valley. A few producers have been planting sweet onions in the spring, thereby extending the traditional mid-summer harvest into late summer or early fall. In addition, Controlled Atmosphere (CA) storage has been introduced this season, and the potential now exists for extending the marketing season further into the fall and early winter season.

By extending the due dates for assessments and reports on sweet onions handled on or after September 1, this action provides Walla Walla sweet onion handlers more time to comply with these requirements. This will enable them to take advantage of the expanding marketing season. The Committee will continue to require that assessments be paid and reports submitted by September 1 for onions handled in June, July, and August.

For assessments due on sweet onions handled prior to September 1, the monthly interest charge of 1.5 percent will continue to accrue after September 30. For assessments due on sweet onions handled during the period September 1 through May 31 of each fiscal period, interest charges will begin accruing 30 days after the handler's report of shipments is due.

Handlers marketing their sweet onions prior to September 1 will continue to submit reports (Committee Form No. 1's) showing weekly and seasonal totals by September 1, and assessments for their shipments to the Committee no later than September 30 to avoid late payment interest charges. For shipments during the period September 1 through May 31 of each fiscal period, handlers will submit a separate report, along with the appropriate assessment payment, for each monthly period that they continue to make shipments. Such report will be due at the office of the Committee no later than 30 days following the end of the month in which shipments were made. Assessments will be due within thirty (30) days of the last day of the month in which the shipments are made. For example, a handler shipping Walla Walla sweet onions anytime during the month of September would furnish the shipment report to the Committee no later than October 30. In this example, the report would contain the number of 50-pound equivalents of Walla Walla sweet onions shipped by such handler during each week in September, along with the monthly total of shipments and a check for the appropriate assessment amount. This reporting and payment schedule continues for each monthly period Walla Walla sweet onions are handled after September 1.

With the introduction of spring planting and CA storage for Walla Walla sweet onions and the associated extension of the traditional marketing season, this action is necessary to ensure that adequate Committee operating funds are obtained in a timely manner, that producers and handlers are treated equitably and have the needed flexibility to produce and market their crop as they desire, and that consumers have an extended season in which to purchase Walla Walla sweet onions.

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

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

There are approximately 30 handlers of Walla Walla sweet onions who are subject to regulation under the order and approximately 60 sweet onion producers in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $500,000.

The Committee estimates that all of the handlers of Walla Walla sweet onions ship under $5,000,000 worth of sweet onions on an annual basis. In addition, based on acreage, production, and producer prices reported by the National Agricultural Statistics Service, and the total number of onion producers in the regulated production area, the average gross annual producer revenue from sweet onions was about $117,000 in 1999, the most recent year statistics are available. Based on this information, it can be concluded that the majority of Walla Walla sweet onion handlers and producers may be classified as small entities, excluding receipts from other sources.

Based on authority in §§ 956.42 and 956.80, the Committee unanimously recommended this action at a public meeting on August 15, 2000. Specifically, for sweet onions handled on or after September 1, this rule modifies the date handlers must pay assessments (§ 956.142) and furnish reports (§ 956.180) to the Committee. These changes are being made to recognize new cultural and storage practices that will extend the traditional mid-summer marketing season to mid-winter, and would provide handlers more time to pay assessments and file reports on these later shipments.

Regarding the impact of this action on affected entities, sweet onion handlers will not be forced into noncompliance because they will be able to pay assessments and submit shipment reports later than currently provided. When the current deadlines were established, the Committee did not envision shipments being made in September or later. Walla Walla sweet onions have a relatively high market value, but generally must be harvested and sold within a short time period between late June and early August. By extending the marketing season, producers and handlers hope to increase their returns while providing consumers with unique, highly demanded sweet onions during a period of time such onions are usually not available.

The Committee estimates that during the current marketing season only a limited amount of sweet onions may be handled on or after September 1 and into early winter. The Committee has been informed, however, that an additional 1,300 acres of sweet onions may be planted for the 2001 marketing season with many of the onions possibly going into CA storage. Approximately 800 acres of Walla Walla sweet onions were planted for the 2000 season.

The Committee discussed alternatives to the recommendation, including leaving the regulations unmodified. However, the Committee decided that it did not have the option of leaving the regulations unmodified because some handler assessment obligations are expected to accrue during the period September 1 through May 31 of each fiscal period. Another alternative discussed would have changed the regulations to require the submission of reports and assessments for the entire crop, regardless of when marketed, within 30 to 60 days of the date of shipment. The Committee rejected this option because it felt that the bulk of the Walla Walla sweet onion crop will continue to be marketed during the traditional mid-summer season, and it wants to ensure that an adequate income is received early in the fiscal period to offset expenditures. The fiscal period begins June 1 and ends May 31.

The Committee uses Form No. 1, Handler's Statement of Walla Walla Sweet Onion Shipments, for collecting assessments and statistical data. This form has traditionally been mailed to handlers in mid-August with the requirement that it be returned by September 1. Handler assessments are due within 30 days of September 1 to avoid imposition of the 1.5 percent per month interest charge for overdue assessments. The Committee has revised Form No. 1 to reflect the changes made herein.

The Committee estimates that only two of the currently regulated handlers in the Walla Walla sweet onion production area may initially ship sweet onions on or after September 1. The Committee also estimates that the revised Form No. 1 will continue to take approximately 25 minutes to complete. With only two handlers submitting reports on October 31 and possibly again on November 30, for example, the total additional burden on the industry for the information reporting requirements for sweet onions shipped on or after September 1 would approximate 100 minutes per year. Thus, while this rule will impose some additional reporting requirements, the burden is currently approved under OMB No. 0581-0078 by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The Agricultural Marketing Service has notified the Office of Management and Budget of this change in burden.

As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, the Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

The Committee's meeting was widely publicized throughout the Walla Walla sweet onion industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the August 15, 2000, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Further, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

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

After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that this interim final rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

This rule invites comments on providing handlers more time to meet assessment and reporting requirements for Walla Walla sweet onions handled during the period September 1 through May 31 of each fiscal period. Any comments received will be considered prior to finalization of this rule.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) This rule provides relaxed assessment and reporting requirements for Walla Walla sweet onions handled during the period September 1 through May 31 of each fiscal period; (2) this rule needs to be effective promptly so handlers will be able to market their sweet onions on or after September 1, 2000, and be in compliance with order requirements; (3) the Committee unanimously recommended this change at a public meeting, and interested parties had an opportunity to provide input; and (4) this rule provides a 60-day comment period, and any comments received will be considered prior to finalization of this rule.

On September 22, 2000, the FAA issued AD 2000-20-03, amendment 39-11914 (65 FR 57944, September 27, 2000), applicable to certain Bombardier Model CL-600-2B19 series airplanes, to require installation of shields for the aileron quadrants and control cable pulleys in the wheel bay of the main landing gear (MLG). The actions required by that AD are intended to prevent accumulation of water, ice, or slush on the aileron quadrants and control cable pulleys in the wheel bay of the MLG, which could freeze and result in reduced controllability of the airplane.

Since the issuance of that AD, the FAA has determined that an incorrect compliance time for the installation of the shields was inadvertently specified in AD 2000-20-03. Instead of “within 30 days after the effective date of this AD,” the compliance time should read “within 45 days after the effective date of this AD.”

This airplane model is manufactured in Canada and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, Transport Canada Civil Aviation (TCAA) has kept the FAA informed of the situation described above. The FAA has examined the findings of the TCAA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD revises AD 2000-20-03 to require installation of shields for the aileron quadrants in the wheel bay of the MLG within 45 days after October 2, 2000 (the effective date of AD 2000-20-03).

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

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

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification (e.g., reasons or data) for each request.

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-312-AD.” The postcard will be date stamped and returned to the commenter.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 86-15-10 R2, Amendment 39-11681 (65 FR 20721), which applies to Eurocopter France Model AS-350B, BA, B1, B2, B3, C, D, and D1, and AS-355E, F, F1, F2 and N helicopters was published in the Federal Register on July 20, 2000 (65 FR 44995). That action proposed to require an initial inspection within 10 hours time-in-service (TIS) and thereafter, repetitive inspections of the main rotor head components, the MGB suspension bars, and the ground resonance prevention system components at intervals not to exceed 500 hours TIS.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that 586 helicopters of U.S. registry will be affected by this AD, that it will take approximately 8 work hours per helicopter to accomplish the required actions, and that the average labor rate is $60 per work hour. Based on these figures, the total cost impact of the AD on U.S. operators is estimated to be $480 per helicopter, or $281,280 for the entire fleet.

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

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

The FAA published this direct final rule with a request for comments in the Federal Register on July 25, 2000 (65 FR 45707). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on November 30, 2000. No adverse comments were received, and thus this document confirms that this direct final rule will become effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on July 14, 2000 (65 FR 43686). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on November 30, 2000. No adverse comments were received, and thus this document confirms that this direct final rule will become effective on that date.

As a result of a recent airspace review, the FAA has determined that airways in the vicinity of Dallas/Fort Worth, TX, should be amended to improve management of the aircraft operations. On June 12, 2000, the FAA published in the Federal Register (65 FR 36805) a proposal to amend fourteen Federal airways. However, after considering aircraft routing through the Shreveport, LA, Approach Control terminal airspace and retention of transition fixes for the Shreveport Regional Airport and Barksdale AFB, the FAA decided not to make the proposed modification of V-566.

Interested parties were invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. No comments were received. Except for editorial changes, and the decision not to amend V-566, this amendment is the same as that proposed in the NPRM.

The FAA is amending part 71 of Title 14 Code of Federal Regulations to revise thirteen Federal airways in the vicinity of Dallas/Fort Worth, TX. The rule amends the following Federal airways: V-15, V-16, and V-17 by modifying the route descriptions; V-63, V-69, V-131, V-305, V-507, V-573 by amending the start points; and V-66, V-163, V-358, and V-407 by modifying the end points. The FAA is taking this action to simplify the airway structure, thereby, enhancing the management of aircraft operations in the area.

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 Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Federal airways are published in paragraph 6010(a) 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 Federal airways listed in this document will be published subsequently in the Order.

The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21) among other things amended the statutory provisions proscribing discriminatory practices in air transportation and the civil penalties for violations of those provisions. Section 706 of AIR 21 creates a new section 40127 of Title 49 which specifically prohibits discrimination by air carriers or foreign air carriers on the basis of race, color, national origin, religion, sex or ancestry. In addition, section 707(a) of AIR 21 extended the anti-discrimination provisions of 49 U.S.C. 41705, the Air Carrier Access Act, which formerly applied only to air carriers, to foreign air carriers, as well.

With respect to the civil penalties the Department may impose, section 707(b) of AIR 21 amended the provisions of 49 U.S.C. 46301(a)(3) to apply a $10,000 maximum civil penalty to each violation of section 41705. In addition, section 222 of AIR 21 established $2,500 as the maximum civil penalty amount for each violation of section 40127 or 41712 (the latter of which prohibits unfair and deceptive trade practices and unfair methods of competition).

The recent legislation does not affect the civil penalty provisions applicable to violations of all other aviation economic requirements, or Department rules or orders not proscribed or issued under section 40127, 41705 or 41712. For example, penalties for violations of reporting requirements, cases involving certain unauthorized operations, or cases involving violations of other Department orders or rules not issued pursuant to the authority of 49 U.S.C. 40127, 41705, or 41712, remain at the current level of $1,100 per violation under AIR 21.

The Debt Collection Improvement Act of 1996 (Pub. L. 104-134, sec. 31001) requires each agency to adjust each civil monetary penalty within its jurisdiction by the inflation adjustment described in section 5 of the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410). Section 5 requires the adjustment to be rounded to the nearest multiple of $1,000 for penalties greater than $1,000 and less than or equal to $10,000. The adjustment is to be the percentage increase in the Consumer Price Index (CPI) from June of the calendar year in which the penalty was last adjusted to June of the year preceding the year in which the revision is proposed. Under the 1996 act, agencies are to review civil penalties which they administer at least once every four years. The civil penalties to which the adjustment would apply here are those civil penalty provisions not affected by AIR 21, that is, penalties for all violations other than cases involving 49 U.S.C. 40127, 41705, or 41712 or regulations or orders issued thereunder.

Since the total inflation as measured by the CPI between June 1997 and June 2000 was approximately 7 percent, an appropriate increase in the civil penalty amount would be $77. In view of the rounding provision of the statute, therefore, no adjustment of the civil penalty amount is warranted at this time.

In developing this final rule, we are waiving the usual notice of proposed rulemaking and public comment procedures set forth in the Administrative Procedure Act (APA) (5 U.S.C. 553). The APA provides an exception to the notice and comment procedures when an agency finds there is good cause for dispensing with such procedures on the basis that they are impracticable, unnecessary or contrary to the public interest. We have determined that under 5 U.S.C. 553(b)(3)(B) good cause exists for dispensing with the notice of proposed rulemaking and public comment procedures for this rule. Specifically, this rulemaking is required by the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, the Federal Civil Penalties Inflation Adjustment Act of 1990, and the Debt Collection Improvement Act of 1996, with no issues of policy discretion. Accordingly, we believe that opportunity for prior comment is unnecessary and contrary to the public interest, and are issuing these revised regulations as a final rule.

This final rule has been evaluated in accordance with the existing policies and procedures and is considered to be not significant under both Executive Order 12866 and DOT Regulatory Policies and Procedures. The final rule is exempt from review by the Office of Management and Budget (OMB) in accordance with the provisions of Executive Order 12866, because it is limited to the adoption of statutory language, without interpretation. This final rule amends the regulations implementing the civil penalty provisions to comply with AIR-21 and reviews the civil penalties unaffected by the recent statutory amendments to determine if inflation adjustments are necessary in accordance with Federal Civil Penalties Inflation Adjustment Act and the Debt Collection Improvement Act. This rule simply adjusts or sets penalties for those who violate the regulations. As a result, we have determined that there are no economic consequences flowing from this rule. Indeed, to avoid any costs, regulated entities need only comply with the law.

The Regulatory Flexibility Act of 1980 requires an assessment of the impacts of proposed and final rule on small entities. An agency must prepare a regulatory flexibility analysis that is consistent with the Regulatory Flexibility Act (5 U.S.C. 601-612), unless the agency can certify that a regulation will not have a significant economic impact on a substantial number of small entities. This rule imposes no substantive burden and merely amends the existing penalties for those who engage in prohibited conduct to reflect statutory changes. The civil penalties will affect only those who engage in conduct prohibited by statute or related regulations. Those who comply with the law will not be affected by the civil penalties. Accordingly, the Office of the Secretary certifies that this action will not have a significant economic impact on a substantial number of small entities.

This final rule imposes no new reporting or record keeping requirements necessitating clearance by OMB.

Agri Laboratories, Ltd., P.O. Box 3103, St. Joseph, MO 64503, filed ANADA 200-271 for LEVAMISOLE PHOSPHATE Injectable Solution, 13.65%. The ANADA provides for use of levamisole phosphate solution by subcutaneous injection for the treatment of various species of gastrointestinal parasites in cattle. The ANADA is approved as a generic copy of Schering-Plough Animal Health's NADA 126-742 for LEVASOLE® Injection. ANADA 200-271 is approved as of September 7, 2000, and the regulations are amended in 21 CFR 522.1244 to reflect the approval. The basis of approval is discussed in the freedom of information summary.

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

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

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

Pharmacia and Upjohn Co., 7000 Portage Rd., Kalamazoo, MI 49001-0199, filed a supplemental application to NADA 141-036 that provides for use of PIRSUE® (pirlimycin hydrochloride) Sterile Solution for intramammary treatment of clinical and subclinical mastitis in lactating dairy cattle caused by Staphylococcus species, such as Staphylococcus aureus ; and Streptococcus species, such as Streptococcus agalactiae, Streptococcus dysgalactiae, and Streptococcus uberis; for reduction in the preslaughter withdrawal period from 28 days to 9 days; and for revision of the milk discard statement in labeling to state the 36-hour milk discard time only (i.e., to remove reference to the number of milkings). The supplemental NADA is approved as of September 7, 2000, and the regulations are amended in 21 CFR 526.1810 to reflect the approval.

In addition, the regulations are amended in (21 CFR 556.515) to add the previously established acceptable daily intake for total residues of pirlimycin, to add a tolerance for residues of pirlimycin in cattle muscle and, editorially, to reflect current format.

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

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

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

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

As published, the final regulations (TD 8897) contain errors that may prove to be misleading and are in need of clarification.

Pursuant to the authority granted in 33 U.S.C. 1605, the Department of the Navy amends 32 CFR Part 706. This amendment provides notice that the Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS Zephyr (PC 8) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Rule 21(c) pertaining to the placement of the stern light as nearly as practicable at the stern. The Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law) has also certified that the light involved is located in closest possible compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR Parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

Pursuant to the authority granted in 33 U.S.C. 1605, the Department of the Navy amends 32 CFR Part 706. This amendment provides notice that the Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS Bonhomme Richard (LHD 6) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Annex I paragraph 2(f)(i) pertaining to the placement of the masthead lights above and clear of all obstructions. The Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR Parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

Pursuant to the authority granted in 33 U.S.C. 1605, the Department of the Navy amends 32 CFR Part 706. This amendment provides notice that the Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS Shamal (PC 13) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Rule 21(c) pertaining to the placement of the stern light as nearly as practicable at the stern. The Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law) has also certified that the light involved is located in closest possible compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR Parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

Pursuant to the authority granted in 33 U.S.C. 1605, the Department of the Navy amends 32 CFR part 706. This amendment provides notice that the Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS Stethem (DDG 63) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Annex I paragraph 3(a) pertaining to the horizontal distance between the forward and after masthead lights. The Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

Pursuant to the authority granted in 33 U.S.C. 1605, the Department of the Navy amends 32 CFR part 706. This amendment provides notice that the Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS Enterprise (CVN 65) is a vessel of the Navy which, due to its special construction and purpose, could not fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Rule 30(a)(i) and (ii), and Rule 21(e), concerning placement of the anchor lights. The particular deviations have been corrected and The Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law) has also certified that the specific lights mentioned are now located in compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on achieved compliance.

Pursuant to the authority granted in 33 U.S.C. 1605, the Department of the Navy amends 32 CFR part 706. This amendment provides notice that the Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS Roosevelt (DDG 80) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Annex I, paragraph 2(f)(i) pertaining to placement of the masthead light or lights above and clear of all other lights and obstructions, Annex I paragraph 2(f)(ii) pertaining to the vertical placement of the task lights, Annex I paragraph 3(a) pertaining to the location of the forward masthead light in the forward quarter of the vessel, and the horizontal distance between the forward and after masthead lights, and Annex I paragraph 3(c) pertaining to the horizontal placement of the task lights. The Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

Pursuant to the authority granted in 33 U.S.C. 1605, the Department of the Navy amends 32 CFR part 706. This amendment provides notice that the Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS Tornado (PC 14) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Rule 23(a)(ii) pertaining to vessels more than 50 meters in length exhibiting a second masthead light; Annex I paragraph 2(k) pertaining to placement of the forward anchor light not less than six meters above the hull and not less than 4.5 meters above the after anchor light; and, Rule 21(c) pertaining to the placement of the stern light as nearly as practicable at the stern. The Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

Pursuant to the authority granted in 33 U.S.C. 1605, the Department of the Navy amends 32 CFR part 706. This amendment provides notice that the Deputy Assistant Judge Advocate General (Admiralty and Maritime Law) of the Navy, under authority delegated by the Secretary of the Navy, has certified that USS Benfold (DDG 65) is a vessel of the Navy which, due to its special construction and purpose, cannot comply fully with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Annex I, paragraph 3(a) pertaining to the horizontal distance between the forward and after masthead lights. The Deputy Assistant Judge Advocate General (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest because it is based on technical findings that the placement of lights on this vessel in a manner different from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

Pursuant to the authority granted in 33 U.S.C. 1605, the Department of the Navy amends 32 CFR part 706. This amendment provides notice that the Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS Winston S. Churchill (DDG 81) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Annex I, paragraph 2(f)(i) pertaining to placement of the masthead light or lights above and clear of all other lights and obstructions, Annex I paragraph 2(f)(ii) pertaining to the vertical placement of the task lights, Annex I paragraph 3(a) pertaining to the location of the forward masthead light in the forward quarter of the vessel, and the horizontal distance between the forward and after masthead lights, and Annex I paragraph 3(c) pertaining to the horizontal placement of the task lights. The Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

Marine safety, Navigation (water), and Vessels.

In a document published in the Federal Register on March 31, 1998 (63 FR 15341), VA, the Department of Defense (DOD), and the Department of Transportation (Coast Guard) proposed withholding monthly payments of educational assistance under the MGIB-SR until VA receives the reservist's monthly certification of enrollment in and satisfactory pursuit of a program of education. In addition, in keeping with statutory provisions, VA, DOD, and the Coast Guard proposed that when a reservist withdraws from one or more courses with mitigating circumstances, VA would reduce or discontinue his or her educational assistance on the effective date of the reduction in training. Furthermore, we proposed that an educational institution had to report changes and interruptions in a reservist's training to VA without delay. We sought comments under the Paperwork Reduction Act concerning the collections of information in proposed §§ 21.7654 and 21.7656.

We gave interested persons 60 days to submit comments. We received no comments.

As proposed, the rule would have authorized the Secretary to permit submission of the monthly certification in writing or by telephone. Although we received no formal comments, we have concluded that there is no reason that the rule should not also authorize VA to allow the reservist to submit the monthly verification electronically. Accordingly, the final rule makes a change to proposed § 21.7654 by adding the words “or electronically.” Based on the rationale set forth in the proposed rule and in this document, we are adopting the provisions of the proposed rule as a final rule, with this change; with nonsubstantive changes for the purpose of clarification; and with a change to display the currently valid Office of Management and Budget control numbers assigned to approved collections of information in §§ 21.7654 and 21.7656.

DOD, the Coast Guard, and VA are jointly issuing this final rule since it pertains to the MGIB-SR. DOD and the Coast Guard fund this program, and VA administers it.

The Office of Management and Budget (OMB) has approved the information collection requirements in this final rule concerning §§ 21.7654 and 21.7654(a) under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and has assigned OMB control number 2900-0597. The provisions of §§ 21.7654 and 21.7656(a) require a reservist to certify monthly his or her continued enrollment in and satisfactory pursuit of a program of education. This is permitted by 10 U.S.C. 16136(b) and 38 U.S.C. 3684.

OMB has also approved the information collection requirements in this final rule concerning § 21.7656(b) under the provisions of the Paperwork Reduction Act of 1995 and has assigned OMB control number 2900-0612. The provisions of § 21.7656(b) require an educational institution to report changes, including interruptions and terminations, in a reservist's training to VA without delay. This is required by 10 U.S.C. 16136(b) and 38 U.S.C. 3684.

OMB assigns a control number for each collection of information it approves. VA may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The valid OMB control number assigned to each collection of information in this final rule is displayed at the end of each of the affected sections of the regulations.

The signers of this document hereby certify that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule may affect some educational institutions that are small entities. However, educational institutions are paid a reporting fee for making required reports to VA. Furthermore, VA does not believe that a burden of less than two hours annually would result in a significant economic impact. Pursuant to 5 U.S.C. 605(b), this final rule, therefore, is exempt from both the initial and final regulatory flexibility analyses requirements of sections 603 and 604.

There is no Catalog of Federal Domestic Assistance number for the program affected by this final rule.

Since most Periodicals, Standard Mail (A), and Standard Mail (B) mail for delivery in Alaska is transported by air due to prevailing operating conditions, mail must be prepared to facilitate air transportation. Pallets that are between 72 and 77 inches high do not satisfy this requirement, although heights within this range are currently permitted under Domestic Mail Manual (DMM) standards.

The problem is that pallets between 72 and 77 inches high do not fit through aircraft doors, forcing Alaskan air carriers to re-stack the pallets. To remedy this situation, the Postal Service is lowering the maximum height from 77 inches to 72 inches for mail on pallets (mail and pallet combined) that is entered at Anchorage and Fairbanks, Alaska. The change will allow mail on pallets to be shipped as originally prepared, which will eliminate the risk of mail damage or delay caused by additional handling to load and unload aircraft.

Because the operational circumstances dictating a lower pallet height are not within the control of the Postal Service, the Postal Service finds no need to solicit comments or to delay implementation of the new pallet height specification.

For the reasons discussed above, the Postal Service hereby adopts the following amendments to the Domestic Mail Manual (DMM), which is incorporated by reference in the Code of Federal Regulations (see 39 CFR part 111).

Throughout this document “we,” “us,” or “our” means EPA.

We are finalizing our approval of Regulation 19 of ADEQ, except for Chapter 8—Designated Facilities. Regulation 19 revises and recodifies the Arkansas SIP. The submitted regulation includes provisions which address the requirements of the Act and ensures the attainment and maintenance of the National Ambient Air Quality Standards (NAAQS) that we promulgated under section 109 of the Act. The ADEQ adopted and submitted Regulation 19 under section 110 of the Act. The regulation includes:

• Enforceable emission limitations and other control measures and techniques,

• A program for enforcement of such measures,

• Provisions for the regulation of the modification and construction of stationary sources, and;

• Other measures required under section 110 of the Act.

We are also finalizing the approval of the SIP portions of Arkansas Regulation 26—Regulation of the Arkansas Operating Permit Program, adopted July 23, 1993, and submitted to EPA on October 29, 1993. This action approves the provisions of Regulation 26 that are incorporated by reference by Regulation 19, Chapter 11. The provisions of Regulation 26 so incorporated are the provisions of Regulation 26 that meet the Federal requirements applicable to new and modified major sources that are permitted under Regulation 26.

We have reviewed the submittal and determined that Regulation 19 and the incorporated provisions of Regulation 26 meet the requirements of the Act.

Furthermore, we approve revisions to Arkansas' program for PSD to replace the increments for TSP with increments for PM-10. In conjunction with this action, we are removing the TSP area designation tables in 40 CFR part 81 for Arkansas.

We are taking no action on Chapter 8 of Regulation 19 which pertains to designated facilities. We will act on Chapter 8 in a separate action.

We have also prepared a TSD which contains a detailed analysis of our evaluation and proposed approval of Regulation 19. The TSD is included as part of the public docket and is available at the addresses listed above.

On May 9, 2000, we published a notice of proposed rulemaking (NPR) proposing approval of Regulation 19 and the incorporated provisions of Regulation 26. In the NPR, we determined that Regulation 19 and the incorporated portions of Regulation 26 meet the requirements of the Act. The NPR provided opportunity for the public to comment on the proposed action. The public comment period for our proposed action ended June 8, 2000. We received no comments on the NPR. As a result, we are finalizing our proposed approval without changes. For more details on these submittals, please refer to the proposed rulemaking and the TSD.

We are taking no action on Chapter 8—Designated Facilities. Designated facilities are regulated under section 111(d) of the Act. Under section 111(d), emission standards are to be adopted by the States and submitted to EPA for approval. These standards limit the emissions of designated pollutants from existing facilities which, if new, would be subject to the New Source Performance Standards promulgated by EPA under section 111 of the Act and in 40 CFR part 60. The procedures under which States submit these plans to control existing sources are defined in 40 CFR part 60, subpart B. The submittal and review process of these State Plans is carried out separately from other SIP activities. We are thus taking no action on Chapter 8 in today's action.

Arkansas recodified its PSD program into Regulation 19, Chapter 9. Chapter 9 recodifies the PSD regulations without substantive change except as discussed below. Arkansas revised Chapter 9 to incorporate the PSD increments for PM-10 promulgated by EPA on July 3, 1993. Arkansas changed the date of which the Federal regulations are incorporated by reference from June 28, 1989, to June 3, 1994 (the effective date of the PM-10 increments).

We have reviewed this revision and found that it addresses all of the required regulatory revisions for PM-10 increments. In today's action, we approve the recodification of Arkansas' PSD program and the revisions to incorporate the PM-10 increments into the SIP. Consistent with Arkansas' revisions, we are also removing the TSP area designation tables in 40 CFR part 81 for Arkansas. The NPR and the TSD contain a more detailed analysis of the changes that Arkansas made to its PSD regulations.

Chapter 11 of Regulation 19 addresses the permitting procedures for major sources which are also subject to Regulation 26—Regulations of the Arkansas Operating Permit Program. Regulation 26 is Arkansas' regulation for its Operating Permit Program under title V of the Act. 1 Chapter 9 of Regulation 19 contains the process, already approved by EPA  2 for issuance of a new major source or a major modification of an existing source which is major for purposes of PSD by virtue of incorporation by reference of the provisions of 40 CFR 52.21(b)-(r). 3 Chapter 11 requires major sources which are subject to Regulation 26 to also have their permit applications processed in accordance with the procedures contained in Regulation 26, which are incorporated by reference. Thus, Chapter 11 creates the connection between the PSD and title V programs to allow Arkansas to issue one permit to its sources which are defined as major under both programs.

For minor sources, the permitting process is contained in Chapter 4 of Regulation 19 which complies with 40 CFR 51.160-51.164. Chapters 4 and 9 of Regulation 19 do not, however, fully cover all sources defined as major sources under section 302(j) of the Act. Chapter 11 is necessary to provide a process for permitting the following:

• Sources which are major for purposes of PSD but undergo a physical change or change in the method of operation which does not result in a significant net emission increase, i.e., minor modifications. Such change therefore is not subject to PSD review. 4 Subpart I, however, applies to the construction and modification of all sources, including major and minor sources. Such change, therefore, must meet the applicable requirements of subpart I, sections 51.160-51.164. Regulation 26 contains the provisions which satisfy these provisions of subpart I. 5 These provisions are incorporated into Regulation 19 by Chapter 11.

• A source which is major for title V but not major for PSD.

This would include a source whose potential to emit is 100 tons per year (TPY) or more but less than 250 TPY and is not one of the source types listed in 40 CFR 52.21(b)(1). 6 Although a new or modified source which is not a PSD major source is not subject to PSD, the applicable requirements of subpart I, sections 51.160-51.164 nonetheless continue to apply as explained above. Regulation 26 contains the provisions which satisfy these provisions of subpart I. 7 These provisions are incorporated into Regulation 19 by Chapter 11.

Chapter 11 incorporates the applicable requirements of 40 CFR part 51, subpart I  8 (subpart I) that are in Regulation 26 into Regulation 19, which we are approving into the SIP. By approving Chapter 11, we are approving the subpart I provisions of Regulation 26 which are incorporated by reference.

Through Chapter 11, Arkansas will ensure that the construction and modification of sources subject to the preconstruction review requirements of the Act will meet the applicable requirements of subpart I. The NPR and TSD include our analysis of the provisions of Regulation 26 which ADEQ incorporates by reference into Regulation 19. The TSD describes how Regulation 26 meets the requirements of subpart I. It further demonstrates that the procedures in Regulation 26 will ensure that modifications which occur at title V sources will satisfy the requirements of the Act and subpart I.

Our analysis of these provisions of Regulation 26 are from the version of Regulation 26 which Arkansas adopted July 23, 1993, and submitted to us on October 29, 1993. We approved this version of Regulation 26 at 60 FR 46171 (September 8, 1995) as satisfying the requirements for interim approval under 40 CFR part 70. We will need to reexamine our analysis if Arkansas adopts Regulation 26 with significant changes, and Arkansas may need to make further revisions to its SIP.

The NPR included references to provisions of Regulation 19 which require a source to meet the applicable requirements of section 111 of the Act (Standards of Performance for New Stationary Sources) and section 112 of the Act (National Emission Standards for Hazardous Air Pollutants). We regulate the requirements of section 111 of the Act under 40 CFR part 60 and the provisions of section 112 of the Act under 40 CFR parts 61 and 63. As worded in the NPR, a reader may mistakenly conclude that we were approving the requirements of 40 CFR parts 60, 61, and 63 into the SIP. This is not the case. We were stating that Regulation 19 identifies these requirements as the Federal programs that ADEQ implements and that sources subject to the requirements of sections 111 and 112 of the Act must continue to meet these requirements in the context of permitting under Regulation 19.

In today's action, we are promulgating final approval of Regulations 19 and 26 as described in Table 1 below.

We are taking no action on Chapter 8—Designated Facilities—in today's proposal. As discussed in section III, we review and approve the State plans for designated facilities under subpart B of 40 CFR part 60. We will review and process Chapter 8 of Regulation 19 in a separate action.

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

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

This final rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

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

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

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the OMB, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

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

The Regulatory Flexibility Act, 5 U.S.C. 600 et seq. , generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Act, preparation of a flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Act forbids EPA to base its actions concerning SIPs on such grounds. See Union Electric Co. v. U.S. EPA , 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule can not take effect until 60 days after it is published in the Federal Register . This action is not a “major” rule as defined by 5 U.S.C. 804(2). This rule will be effective November 15, 2000.

Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 15, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

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

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

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

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

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

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

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

Utah initially received Final Authorization on October 10, 1984, effective October 24, 1984 (49 FR 39683) to implement its base hazardous waste management program. Utah received authorization for revisions to its program on February 21, 1989, effective March 7, 1989 ( 54 FR 7417); May 23, 1991 (56 FR 23648) and August 6, 1991 (56 FR 37291, both effective July 22, 1991; May 15, 1992, effective July 14, 1992 (57 FR 20770); February 12, 1993 (58 FR 8232) and May 5, 1993 (58 FR 26689), both effective April 13, 1993; October 14, 1994, effective December 13, 1994 (59 FR 52084); May 20, 1997 (62 FR 27501), effective July 21, 1997; and January 13, 1999, effective March 15, 1999 (64 FR 02144).

On April 4, 2000, Utah submitted a final complete program revision application, seeking authorization of their changes in accordance with 40 CFR 271.21. We now make an immediate final decision, subject to receipt of written comments that oppose this action, that Utah's hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. Therefore, we grant Utah Final authorization for the following program changes:

We consider the following State requirements to be more stringent than the Federal requirements: R315-8-2.3(a)(2), R315-4-4(e), R315-7-9.3(a)(2), and R315-7-12.2(d) because the State requires that notification also be given to the Utah Division of Solid and Hazardous Waste, as well as, the Federal entities.

These requirements are part of Utah's authorized program and are Federally enforceable.

Utah's rules, promulgated pursuant to this application, contain several errors which may create confusion within the regulated community. EPA has determined that the errors associated with the issues do not pose implementation or enforcement problems. Therefore, EPA will proceed to approve this application with the understanding that the State will correct these items during its next rulemaking. These errors are at the following citation within the Utah Administrative Code, revised December 15, 1999: R315-3-20(d).

Utah will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization until Utah has equivalent instruments in place. We will not issue any new permits or new portions of permits for the provisions listed in the Table above after the effective date of this authorization. EPA has previously suspended issuance of permits for other provisions on October 24, 1984, the effective date of Utah's Final Authorization for the RCRA base program. EPA will continue to implement and issue permits for HSWA requirements for which Utah is not yet authorized.

This program revision does not extend to “Indian Country” as defined in 18 U.S.C. 1151. Indian Country includes lands within the exterior boundaries of the following Indian reservations located within or abutting the State of Utah:

With respect to the Uintah & Ouray Indian Reservation, Federal courts have determined that certain lands within the exterior boundaries of the Reservation do not constitute Indian Country. This State program revision approval will extend to those lands which the courts have determined are not Indian Country.

In excluding Indian Country from the scope of this program revision, EPA is not making a determination that the State either has adequate jurisdiction or lacks jurisdiction over sources in Indian Country. Should the State of Utah choose to seek program authorization within Indian Country, it may do so without prejudice. Before EPA would approve the State's program for any portion of Indian Country, EPA would have to be satisfied that the State has authority, either pursuant to explicit Congressional authorization or applicable principles of Federal Indian law, to enforce its laws against existing and potential pollution sources within any geographical area for which it seeks program approval and that such approval would constitute sound administrative practice.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart TT for the codification of Utah's program until a later date.

The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action 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 action authorizes 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 action 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 action 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 authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks.

Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. 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 document 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 in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action will be effective January 16, 2001.

Repositories have been established to provide detailed information concerning this decision at the following addresses: Warwick Town Hall, 132 Kings Highway, Warwick, New York 10990, (914) 986-1120 and the Greenwood Lake Village Hall, Church Street, Greenwood Lake, New York 10925, (914) 477-9215.

On April 7, 2000, we published in the Federal Register (65 FR 18434), a final rule with comment period entitled “Prospective Payment System for Hospital Outpatient Services”. Among the regulatory provisions included were new §§ 413.24(d)(6) and 413.65 and revisions to §§ 489.24, 498.2, and 498.3. These regulations established requirements for facilities or organizations that seek provider-based status. The effective date of the provider-based regulations, as stated in the April 2000 rule, was October 10, 2000. On October 3, 2000, we published a notice in the Federal Register (65 FR 58919) that delayed the effective date of these provider-based regulations from October 10, 2000 to the first day of each provider's first cost reporting period beginning on or after January 10, 2001. In addition, we made a conforming change in new § 413.65(i)(2). In the October 3, 2000 notice, we explained that a major purpose of the delay was to allow time for clarification of administrative, procedural, and technical issues relating to implementation of the regulations.

We also stated our intent to host a town hall meeting to discuss specific aspects of the provider-based regulations. The subjects to be discussed will be the ways that a facility or organization can demonstrate that it serves the same patient population as the main provider (§ 413.65(d)(7)(i)), and the applicability of provisions on management contracts to certain on-campus hospital departments (§ 413.65(f)). We will also provide clarification of the administrative procedures that we will follow in making provider-based determinations. The purpose of the meeting is to solicit suggestions that will lead to more effective implementation of these regulations in their current form.

Following introductory remarks, we will begin the meeting with a brief overview of the application process that we are developing and plan to have in place before January 10, 2001. This overview will describe the procedures we will follow in making provider-based determinations, and identify those types of facilities or organizations for which no determinations are needed, as described on page 18506 of the April 7, 2000 regulations. We will then hold two separate, consecutive sessions. The first session will concern the ways that a facility or organization can demonstrate that it serves the same patient population as the main provider (§ 413.65(d)(7)(i)). The second session will focus on the applicability of provisions on management contracts to certain on-campus hospital departments (§ 413.65(f)). Each session will include a specified amount of time for a limited number of public presentations by participants.

Individuals may register to attend the meeting by contacting Ms. Sue Panchit, JW Associates, LLC, either by telephone at 301-495-9471, by mail, at 850 Sligo Avenue, Silver Spring, Maryland 20910, by fax, at 301-495-5989, or electronically at www.hcfa.gov, which includes a link to www.hcfa.gov/medlearn/event.htm. Please provide, as applicable, your name, title, firm name, address, telephone number, fax number, and electronic mailing address.

Requests to attend the meeting should be submitted as soon as possible, but must be received by Ms. Sue Panchit no later than October 24, 2000. We will notify persons who have been selected to attend. Participants who wish to make a presentation at the meeting are asked to contact Ms. Beverly Parker at 410-786-5320 or via E-mail at BParker@hcfa.gov as soon as possible. Requests to make a presentation must be received by Ms. Parker no later than October 17, 2000. Please identify the topic(s) for your presentation.

Due to time constraints, we may need to limit the number of individuals who make presentations and the time allowed for each presentation. We will notify participants who have been selected to make a presentation. We will assign presentation times before the meeting. While the meeting is open to the public, attendance is limited to the space available. On a general note, JW Associates, LLC, will confirm receipt of registrations and notify individuals as to whether their registration has been accepted.

We will accept written questions, comments, or other materials, before and during the meeting, or up to 3 days after the meeting. Address comments to: DHHS, HCFA, ATTN: Beverly Parker, Room C4-07-07, 7500 Security Boulevard, Baltimore, Maryland 21244-1850, Telephone Number: (410) 786-5320, Fax Number: (410) 786-0169, E-mail: BParker@hcfa.gov. Although there is no special format for the materials, we request that commenters be clear about the issue or aspect of the proposed process on which they have a question, comment, or suggestion.

This is a summary of the Commission's Report and Order, MM Docket No. 00-37, adopted September 20, 2000, and released September 29, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Services, Inc., 1231 20th Street, NW., Washington, DC. 20036, (202) 857-3800, facsimile (202) 857-3805.

The fisheries for snapper-grouper species in the EEZ off the southern Atlantic states are regulated pursuant to the FMP. The South Atlantic Fishery Management Council (Council) prepared, and NMFS approved, the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations implementing the FMP appear at 50 CFR part 622.

In accordance with the framework procedure of the FMP, the Council recommended, and NMFS published, a proposed rule (65 FR 41041, July 3, 2000) to establish 12 new SMZs at the sites of ARs in the EEZ off Georgia; to revise the boundaries of the 7 existing SMZs that are in the EEZ off Georgia; to restrict fishing gear in the new and revised SMZs to handline, rod-and-reel, and spearfishing gear, including powerheads; and within these SMZs, to limit the harvest and possession of South Atlantic snapper-grouper taken by powerheads to the applicable bag limits. The proposed rule described the need and rationale for these measures.

NMFS received two public comments on the proposed rule.

Comment 1 : One commenter supported all of the proposed measures.

Response : NMFS agrees.

Comment 2 : One commenter supported the proposed measures but wanted to exclude the use of powerheads on SMZs. He wanted divers to have powerheads for protection while on SMZs, but he did not want them to be able to fish with powerheads because he believed that they would take too many fish.

Response : Pursuant to the Magnuson-Stevens Act, NMFS can only approve, partially approve, or disapprove a management measure proposed by a Fishery Management Council; NMFS cannot substitute different management measures. In this case, the Council recommended, and NMFS approved, imposing the bag limit on the use of powerhead gear in the SMZs to ensure that divers with powerhead gear would not obtain a disproportionate share of the catch.

In § 622.35(e)(1)(xiv), the northern boundary coordinate for Artificial Reef—G has been corrected to read 31°00.0' N. lat..

In the proposed rule (65 FR 41041, July 3, 2000), the preamble stated that fishing in the 12 new SMZs and the 7 revised SMZs off Georgia would be restricted to rod and reel and spearfishing gear, including powerheads. The codified text of the proposed rule did not establish this gear restriction for the 12 new SMZs. Further, the Council did not intend to exclude the use of handline gear in the 12 new SMZs or in the 7 revised SMZs. Therefore, this final rule revises § 622.35(e)(2) to restrict allowable fishing gear in the 12 new SMZs and in the 7 revised SMZs to handline, rod and reel, and spearfishing gear, including powerheads. In addition, to make the varying fishing restrictions within different SMZs more understandable to the reader, § 622.35(e)(2) has been revised to present the applicable information in a table.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

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

This final rule makes minor revisions to an existing collection-of-information requirement subject to review and approval by OMB under Control Number 0648-0205. This requirement has been approved by OMB under Control Number 0648-0205. Public reporting burden for submitting permit applications is estimated to average 20 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES ).

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

The President has directed Federal agencies to use plain language in their communications with the public, including regulations. To comply with this directive, we seek public comment on any ambiguity or unnecessary complexity arising from the language used in this rule. Such comments should be sent to the Southeast Regional Office (see ADDRESSES ).

(h) Renewal . Although a permit, license, or endorsement required by this section is issued on an annual basis, an application for its renewal is required only every 2 years. In the interim years, renewal is automatic (without application) for a vessel owner or dealer who has met the specific requirements for the requested permit, license, or endorsement; who has submitted all reports required under the Magnuson-Stevens Act; and who is not subject to a sanction or denial under paragraph (j) of this section. An owner or dealer whose permit, license, or endorsement is expiring will be mailed a notification by the RA approximately 2 months prior to its expiration. That notification will advise the status of the renewal. That is, the notification will advise that the renewal will be issued without further action by the owner or dealer (automatic renewal); that the permit, license, or endorsement is ineligible for automatic renewal; or that a new application is required.

(1) If eligible for automatic renewal . If the RA's notification indicates that the owner's or dealer's permit, license, or endorsement is eligible for automatic renewal, the RA will mail the automatically renewed permit, license, or endorsement approximately 1 month prior to expiration of the old permit, license, or endorsement.

(2) If ineligible for automatic renewal . If the RA's notification indicates that the owner's or dealer's permit, license, or endorsement is ineligible for automatic renewal, the notification will specify the reasons and will provide an opportunity for correction of any deficiencies. If the owner or dealer does not correct such deficiencies within 60 days after the date of the RA's notification, the renewal will be considered abandoned. A permit, license, or endorsement that is not renewed within the applicable deadline will not be reissued.

(3) If new application is required . If the RA's notification indicates that a new application is required, the notification will include a preprinted renewal application. If the RA receives an incomplete application, the RA will notify the applicant of the deficiency. If the applicant fails to correct the deficiency within 30 days of the date of the RA's letter of notification, the application will be considered abandoned. A permit, license, or endorsement that is not renewed within the applicable deadline will not be reissued.

(4) If notification is not received . A vessel owner or dealer who does not receive a notification from the RA regarding status of renewal of a permit, license, or endorsement by 45 days prior to expiration of the current permit must contact the RA.

The Atlantic Coastal Fisheries Cooperative Management Act, as amended in 1996 (Act), 16 U.S.C. 5101 et seq. , was enacted to support and encourage the development, implementation, and enforcement of the Commission's ISFMPs to conserve and manage Atlantic coastal fishery resources. Section 806 of the Act specifies that, after notification by the Commission that an Atlantic coastal state is not in compliance with an ISFMP of the Commission, the Secretary of Commerce (Secretary) shall make a finding, no later than 30 days after receipt of the Commission's notification, on: (1) Whether the state has failed to carry out its responsibilities to implement and enforce the Commission's ISFMP; and (2) whether the measures that the state has failed to implement and enforce are necessary for the conservation of the fishery in question. In making such a finding, the Act requires the Secretary to give careful consideration to the comments of the Commission, the Atlantic coastal state found out of compliance by the Commission, and the appropriate Regional Fishery Management Councils. If the Secretary finds that the state is not in compliance with the Commission's ISFMP, and that the measures the state has failed to implement are necessary for the conservation of the fishery, the Secretary must declare a moratorium on fishing in that fishery within the waters of the noncomplying state. The Secretary must specify the moratorium's effective date, which may be any date within 6 months after the declaration of the moratorium, and may issue regulations necessary to implement the moratorium. The Secretary has delegated this decision-making authority to NMFS.

Because of concern that the horseshoe crab population may be in the process of being depleted and the need to collect comprehensive information on the horseshoe crab fishery, the Commission adopted an ISFMP to improve data collection programs for horseshoe crabs in 1999. In February 2000, after extensive review of historical information on the fishery, the Commission adopted Addendum 1 to the ISFMP. Addendum 1 to the ISFMP for horseshoe crab is viewed by the Commission as a risk-averse, cooperative State/Federal means of controlling fishing effort on horseshoe crabs. The Commission used average landings over a base period of years to reduce each state’s landings for horseshoe crab commercial bait fisheries by 25 percent for the 2000 fishing year. Addendum 1 caps the Atlantic coast state landings in the year 2000 at 2,275,296 horseshoe crabs; the Commonwealth of Virginia is allowed a landings quota of 152,495 horseshoe crabs - a 25-percent reduction from the average calculated using 1995-1997 as the base period.

Rather than implementing the 152,495 horseshoe crab quota by May 1, 2000, Virginia maintained an annual quota of 710,000 horseshoe crabs until July 28, 2000. The Commission found that the Commonwealth of Virginia has not implemented and is not enforcing the Commission’s ISFMP for horseshoe crab because it has failed to establish a quota on commercial horseshoe crab landings of 152,495 horseshoe crabs as specified in Addendum 1. The Commission notified the Secretary of its finding in a letter on June 9, 2000. Since that time, Virginia implemented through emergency regulations on July 28, 2000, an annual quota of 355,000 horseshoe crabs and a requirement for fishermen to use only one-half of a female horseshoe crab or two-halves of a male horseshoe crab in a bait bag if they use horseshoe crabs as bait.

On July 7, 2000, based on a careful analysis of all relevant information, and taking into account comments presented by the Commission and the Commonwealth of Virginia, NMFS found that the Commonwealth of Virginia is not in compliance with the Commission’s ISFMP for horseshoe crab based on Virginia’s failure to implement and enforce the commercial quota specified in Addendum 1, and that the measure Virginia failed to implement and enforce is necessary for the conservation of the horseshoe crab fishery.

Addendum 1 requires Virginia to implement a quota of 152,495 horseshoe crab by May 1, 2000. Instead, Virginia maintained its 710,000 horseshoe crab annual quota until July 28, 2000, when it reduced its quota to 355,000 horseshoe crabs by emergency regulations. Therefore, Virginia has failed to carry out its responsibility under 16 U.S.C. 5104 to implement and enforce Addendum 1 of the ISFMP for horseshoe crabs.

“Conservation” is defined in the Act as “the restoring, rebuilding, and maintaining of any coastal fishery resource and the marine environment, in order to assure the availability of coastal fishery resources on a long-term basis.” The best available scientific information suggests that the horseshoe crab population is at risk of decline. If the population is in decline, the ability to restore, rebuild, and maintain the population to assure the availability of horseshoe crabs on a long-term basis is compromised, especially in light of the fact that horseshoe crabs are extremely vulnerable to overexploitation. They are easily harvested and breed only once a year after reaching maturity at 10 years of age. Furthermore, all states in the Delaware Bay area - New Jersey, Maryland, Pennsylvania, and Delaware - have reduced horseshoe crab landings in line with Addendum 1, yet Virginia has not. As a result, the fishery has merely shifted landings to Virginia, thereby negating any conservation benefits of the other states’ reductions in allowable landings. For these reasons, Virginia’s implementation of the quota specified in Addendum 1 is necessary to support the interstate fishery management system designed to promote conservation of coastal fishery resources in a cooperative manner and to allow the Commission to assure the availability of horseshoe crabs on a long-term basis through further study and management measures, rather than risk depletion.

An Environmental Assessment and Regulatory Impact Review (EA/RIR) were completed to analyze the impacts caused by various alternatives for the implementation of a moratorium and necessary regulations. After a thorough review of the EA/RIR, NMFS is hereby declaring, pursuant to subsection 806(c) of the Act, a Federal moratorium on fishing for horseshoe crabs in Virginia waters and issuing, pursuant to subsection 806(d) of the Act, regulations that contain measures necessary to implement section 806, both to be effective October 23, 2000, unless Virginia is found in compliance with the Commission’s ISFMP for horseshoe crabs by that time. The moratorium on fishing for horseshoe crabs includes the statutory prohibitions listed in subsection 806(e) of the Act (16 U.S.C. 5106(e)). Subsection 806(e) states: “During the time in which a moratorium under this section is in effect, it is unlawful for any person to - (1) violate the terms of the moratorium or of any implementing regulation issued under subsection 806(d) of this section; (2) engage in fishing for any species of fish to which the moratorium applies within the waters of the State subject to the moratorium; (3) land, attempt to land, or possess fish that are caught, taken, or harvested in violation of the moratorium or of any implementing regulation issued under subsection (d) of this section; (4) fail to return to the water immediately, with a minimum of injury, any fish to which the moratorium applies that are taken incidental to fishing for species other than those to which the moratorium applies, except as provided by regulations issued under subsection (d) of this section; (5) refuse to permit any officer authorized to enforce the provisions of this chapter to board a fishing vessel subject to such person’s control for purposes of conducting any search or inspection in connection with the enforcement of this chapter; (6) forcibly assault, resist, oppose, impede, intimidate, or interfere with any such authorized officer in the conduct of any search or inspection under this chapter; (7) resist a lawful arrest for any act prohibited by this section; (8) ship, transport, offer for sale, sell, purchase, import, or have custody, control or possession of, any fish taken or retained in violation of this chapter; or (9) interfere with, delay, or prevent, by any means, the apprehension or arrest of another person, knowing that such person has committed any act prohibited by this section.”

The measures in this rule, which are necessary to implement section 806, are: (1) a prohibition on the possession of horseshoe crabs in Virginia waters regardless of where they are caught, and (2) a prohibition on landing horseshoe crabs in Virginia regardless of where they are caught. These measures are necessary to implement section 806, because they enable the effective enforcement of the statutory prohibitions on fishing for horseshoe crabs within Virginia waters and on landing and possessing horseshoe crabs caught in violation of the moratorium. Because enforcement agents enforcing the moratorium in Virginia waters would be unable to determine whether a horseshoe crab was caught in Virginia waters or in the EEZ and brought into Virginia waters, it is necessary to prohibit the possession of any horseshoe crabs in Virginia waters and the landing of horseshoe crabs in Virginia, regardless of where they were caught.

If the Commonwealth of Virginia implements and enforces measures bringing them into compliance, the Secretary will publish an appropriate announcement in the Federal Register rescinding the moratorium and this rule with respect to the Commonwealth of Virginia.

The agency is implementing the moratorium immediately because Virginia most likely has already exceeded its quota. Landings data from 1999 show that 152,495 horseshoe crabs - the equivalent of Virginia’s quota for year 2000 under Addendum 1 - were landed by the first week in May 1999. Assuming the same rate of landings applies in 2000 as in 1999, Virginia has most likely landed more horseshoe crabs than its allocation under Addendum 1 by this time. Further, in anticipation of the declaration of a moratorium on fishing for horseshoe crabs in Virginia waters, fishermen may have increased horseshoe crab landings in Virginia over the past couple months since the Commission voted to find Virginia out of compliance. As a result, there is reason to believe that the horseshoe crab landings rate in 2000 is higher than it was in 1999.

This declaration of a moratorium and rule are consistent with section 806 of the Atlantic Coastal Fisheries Cooperative Management Act.

The Assistant Administrator for Fisheries, NOAA (AA), finds that providing prior public notice and opportunity for comment is contrary to the public interest. Providing prior notice and opportunity for comment would be contrary to the public interest, because Virginia most likely has already exceeded its quota. Landings data from 1999 show that 152,495 horseshoe crabs - the equivalent of Virginia’s quota for year 2000 under Addendum 1 - were landed by the first week in May 1999. Assuming the same rate of landings applies in 2000 as in 1999, Virginia has most likely landed more horseshoe crabs than its allocation under Addendum 1 by this time. Further, in anticipation of the declaration of a moratorium on fishing for horseshoe crabs in Virginia waters, fishermen may have increased horseshoe crab landings in Virginia over the past couple months since the Commission voted to find Virginia out of compliance. As a result, there is reason to believe that the horseshoe crab landings rate in 2000 is higher than it was in 1999. Given the fact that Virginia most likely has landed its horseshoe crab quota already, providing prior notice and opportunity for comment would be contrary to the public interest because it would allow Virginia to continue to land more horseshoe crabs than what should be its quota under Addendum 1, thereby frustrating achievement of conservation goals in Addendum 1. Therefore, the AA, under 5 U.S.C. 553(b)(B), finds that good cause exists to waive the requirement for prior notice and opportunity for comment.

Because Virginia most likely has already landed the equivalent number of horseshoe crabs as its quota under Addendum 1, given last year’s landing rate, the AA finds that it is contrary to the public interest to delay for 30 days the effectiveness of this moratorium and this rule. Therefore, the AA, under 5 U.S.C. 553(d)(3), finds that good cause exists not to delay for 30 days the effective date of this rule. However, because fishermen need time to return to port or leave Virginia waters if they have horseshoe crabs on board, the AA is delaying the effectiveness of the moratorium and this rule until October 23, 2000.

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , are inapplicable.

The Act does not explicitly preempt state law. Rather, section 806 of the Act provides clear evidence that Congress intended the Secretary to have the authority to preempt state law. That authority has been delegated from the Secretary to the NMFS. NMFS has met the special requirements for preemption under section 4 of Executive Order 13132. The agency, in declaring a moratorium on fishing for horseshoe crabs and issuing this interim final rule, has restricted the preemption of state law to the minimum level necessary to achieve the objectives of the statute. As described in the following text, NMFS notified the Commonwealth of Virginia of the possibility of a moratorium and met with state officials to discuss the issues involved.

The AA wrote to the Governor of Virginia notifying him of the Commission’s non-compliance determination, and the possibility that a moratorium may be declared, and offering him an opportunity to meet and present comments on these issues. In response, the Virginia Secretary of Natural Resources requested a meeting with the Secretary. On July 3, 2000 Virginia’s representatives met with Deputy Secretary Robert Mallett and NOAA personnel.

Virginia representatives stated that the Commonwealth is managing the horseshoe crab fishery responsibly and noted that Virginia has implemented a number of strong conservation regulations on horseshoe crabs within its waters. They stated that the quota reduction required by Addendum 1 to the Commission’s ISFMP for horseshoe crabs could not be implemented by the Virginia Marine Resources Commission (VMRC), because it did not meet Virginia’s standards on preventing overfishing, achieving optimum yield, using the best scientific and biological information, managing interrelated stocks, and allocating fishing privileges among user groups with which VMRC’s fisheries regulations must be consistent. They submitted a memorandum from VMRC stating that it could not ignore the mandates of Virginia law and implement a quota that may negatively affect their whelk/conch (whelk) fishery.

Virginia’s representatives further stated that the state legislature could act to implement the quota, but it is out of session until January 2001. They also noted that VMRC is in the process of requiring that bait bags be used in the Virginia whelk fishery and that the bait bag requirement should cut Virginia’s need for horseshoe crabs in half. They also suggested that once the bait bag regulation goes in place, and if the Commission allowed unused horseshoe crab quota from other states to be transferred to Virginia, these actions should meet Virginia’s bait needs without Virginia taking more than its Commission-allotted quota.

The Virginia representatives further said that under the ISFMP, Virginia is the only state to experience what it believes to be severe economic impact. Virginia has the market for horseshoe crab, which is used as bait in the Virginia eel and whelk/conch fisheries. Bait for these fisheries was shipped into Virginia, but since other states have restricted landings, Virginia’s horseshoe crab landings have gone up. Virginia representatives felt that the state should not be found out of compliance. But if it is found out of compliance, it should be allowed time for the state legislature to act. Alternatively, Virginia believes that the moratorium should not go into effective until the entire coastwide quota for the ISFMP is exceeded.

On July 11, the AA informed Virginia that NMFS agrees with the Commission that Virginia is not in compliance with the ISFMP, and found that the measures Virginia has failed to implement for horseshoe crab management are necessary for conservation. In order to come back into compliance, Virginia must take action to reduce its commercial horseshoe crab fishery in line with the ISFMP. In response to Virginia’s comments about the timing of a moratorium and the pending implementation of further horseshoe regulations by Virginia, and in light of the amount of horseshoe crabs most likely already landed in Virginia over its Addendum 1 quota, NMFS believes it is inadvisable to wait for the state legislature to address the issue in 2001 in a regular session. Also, any difficulties Virginia faces in light of Virginia State law and legislative scheduling do not override the Federal government’s responsibility to implement Federal law. If Virginia is found in compliance by October 23, 2000, the moratorium and this rule will be rescinded. If Virginia is found in compliance after that date, the moratorium will be lifted and the rule repealed.

The CZMA requires that “[e]ach Federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs.” (16 U.S.C. 1456(c)(1)(A)). NMFS reviewed the list of policies contained in Executive Order 23 (1998) on the Virginia Coastal Resources Management Program, the United States Department of Commerce Final Environmental Impact Statement and the Virginia Coastal Resources Management Program (reprinted in 1994), a summary of the regulatory programs that comprise Virginia’s coastal program, which included the Virginia Code citations for the legal authorities.

According to Chapter III of the United States Department of Commerce Final Environmental Impact Statement and the Virginia Coastal Resources Management Program, dated July 1985 and reprinted in 1994, the Fisheries Management Regulatory Program, which is part of Virginia’s coastal management program, contains the following applicable policy and citation:

United States Department of Commerce Final Environmental Impact Statement and the Virginia Coastal Resources Management Program, Chapter III, July 1985, reprinted in 1994, at III-2. This policy was certified by the Attorney General’s Office of Virginia as being enforceable. However, this policy appeared at Virginia Code §28.1-23.1, which was repealed in 1992.

Nevertheless, NMFS finds that the Federal moratorium action is consistent to the maximum extent practicable with the enforceable policies of Virginia’s approved coastal zone program. The Act states that upon finding that (1) a State has failed to implement and enforce a coastal fishery management plan and (2) the measures the State has failed to implement and enforce are necessary for the conservation of the fishery in question, the Secretary must declare a moratorium on fishing in the fishery in question. (16 U.S.C. 1506(c).) Once the factual findings are made, the Secretary does not have the discretion to decline to declare a moratorium. Nor does he have the discretion to modify the acts listed in §5106(e) that are prohibited during a moratorium. The Secretary does have the discretion to issue regulations necessary to implement the moratorium, and in this case, he has chosen to exercise that discretion. However, these two regulations make the moratorium enforceable; without them the declaration of a moratorium effectively would be meaningless, given that most horseshoe crabs landed in Virginia are caught outside of Virginia waters. According to the CZMA regulations, “consistent to the maximum extent practicable” describes the requirement for Federal activities affecting the coastal zone of States with approved management programs to be “fully consistent with such programs unless compliance is prohibited based on the requirements of existing law applicable to the Federal agency’s operations.” (15 CFR §930.32(a).) Because the Secretary lacks discretion under the Act in declaring a moratorium and identifying the main prohibited acts during the moratorium, the Secretary’s action is consistent to the maximum extent practicable with Virginia’s approved coastal management program. To the extent the Secretary’s action is inconsistent with the enforceable policies of Virginia’s approved coastal zone program, full consistency is prohibited by the requirements of the Act.

Even if the requirements of the Act did not prohibit consistency with the enforceable policies of Virginia’s approved coastal management program, and assuming the policy formerly at Virginia Code §28.1-23.1 is an enforceable policy of Virginia’s approved coastal management program, while also noting the standards for fishery management in Virginia Code §28.2-203, NMFS determines that this action is consistent to the maximum extent practicable. The goal of this action is to support Addendum 1 to the Commission’s ISFMP for horseshoe crab, which addresses concerns about localized depletion of horseshoe crabs by conserving and enhancing the horseshoe crab resource through a state by state quota system. Virginia is a participating member of the Commission, which acts under the authority of the Act, and has full knowledge of the moratorium provision in that statute. Therefore, this moratorium action is consistent with Virginia’s desire to preserve the Commonwealth’s exclusive right to manage fisheries within its jurisdiction to the same extent to which Virginia has retained such a right in light of its voluntary participation in the Commission.

While horseshoe crabs are neither finfish nor shellfish, but arthropods closely related to arachnids, they are a marine organism for which there is a fishery. NMFS’ support of Addendum 1 through this non-allocative moratorium action is designed to prevent overfishing and assure achievement of optimum yield for a variety of user groups, which include the medical industry and commercial fishermen. The best available scientific information suggests that the horseshoe crab population is at risk of decline. If the population is in decline, the Commission’s ability to restore, rebuild, and maintain the population to assure the availability of horseshoe crabs on a long-term basis is compromised, especially in light of the fact that horseshoe crabs are extremely vulnerable to overexploitation. They are easily harvested and breed only once a year after reaching maturity at 10 years of age. Furthermore, all states in the Delaware Bay area - New Jersey, Maryland, Pennsylvania, and Delaware - have reduced horseshoe crab landings in line with Addendum 1, yet Virginia has not. As a result, the fishery has merely shifted landings to Virginia, thereby negating any conservation benefits of the other states’ reductions in allowable landings.

Landings data from 1999 show that 152,495 horseshoe crabs the equivalent of Virginia’s quota for year 2000 under Addendum 1 - were landed by the first week in May 1999. Assuming the same rate of landings applies in 2000 as in 1999, Virginia has most likely landed more horseshoe crabs than its allocation under Addendum 1 by this time. Therefore, this moratorium action, designed to support and encourage implementation of Addendum 1, is necessary to allow the Commission to assure the availability of horseshoe crabs for present and future generations, including commercial fishermen, through further study and management, rather than risk depletion by overfishing.

A recreational fishery for horseshoe crabs does not exist. Yet, by issuing regulations regarding possession and landing of horseshoe crabs regardless of where they are harvested, NMFS has taken into account the variation in Virginia’s horseshoe crab fishery as it is prosecuted in both Virginia waters and the exclusive economic zone (EEZ). The acts prohibited during the moratorium are defined by the Act; therefore, NMFS cannot reduce the burden on fishermen. The regulations NMFS is issuing pursuant to 16 U.S.C. 5106(d) are the minimum necessary to implement the moratorium, and still allow horseshoe crabs to be harvested and used by Virginia’s whelk fishermen in the EEZ. Therefore, NMFS has minimized the regulatory burden on fishermen where practicable.

For the following legal and factual reasons, NMFS is proceeding with the declaration of the moratorium and issuance of regulations necessary to implement the moratorium prior to the end of the 90-day CZMA time period. First, the Act states in section 804 that “the [Atlantic States Marine Fisheries] Commission shall prepare and adopt coastal fishery management plans to provide for the conservation of coastal fishery resources,” and mandates in section 806 that the Secretary enforce such conservation efforts by declaring a moratorium on a fishery upon finding that a state has failed to implement and enforce measures in the applicable coastal fishery management plan that are necessary for conservation. “Conservation” is defined in the Act as “the restoring, rebuilding, and maintaining of any coastal fishery resource and the marine environment, in order to assure the availability of coastal fishery resources on a long-term basis.” (Section 802(4).) The best available scientific information suggests that the horseshoe crab population is at risk of decline. If the population is in decline, the Commission’s ability to restore, rebuild, and maintain the population to assure the availability of horseshoe crabs on a long-term basis is compromised, especially in light of the fact that horseshoe crabs are extremely vulnerable to overexploitation. They are easily harvested and breed only once a year after reaching maturity at 10 years of age. Furthermore, all states in the Delaware Bay area - New Jersey, Maryland, Pennsylvania, and Delaware - have reduced horseshoe crab landings in line with Addendum 1 to the Horseshoe Crab Plan, yet Virginia has not. As a result, the fishery has merely shifted landings to Virginia, thereby negating any conservation benefits of the other states’ reductions in allowable landings.

In Section 802(a) of the Act, Congress found:

The purpose of the Act as stated in Section 802(b) “is to support and encourage the development, implementation, and enforcement of effective interstate conservation and management Atlantic coastal fishery resources.”

Given these findings and purposes, Congress clearly intended to address the type of situation presented by Virginia’s refusal to implement and enforce Addendum 1 to the Commission’s ISFMP for horseshoe crab. In the Act, Congress established procedures for quick action regarding the declaration of a Federal moratorium to support and encourage the development, implementation, and enforcement of effective interstate conservation and management of Atlantic coastal fishery resources. This interpretation is supported by the plain language of section 805, which allows the Commission only 10 working days to notify the Secretary that a state is not in compliance with a coastal fishery management plan; and by section 806, which allows the Secretary only 30 days to solicit and consider comments by the state and fishery management councils, make an independent determination of whether the State is in compliance and, if not, determine whether the measures the state has failed to implement and enforce are necessary for conservation. Furthermore, section 806 also states that the Secretary must implement the moratorium within 6 months after its declaration. While the Act does not explicitly state a limit on the length of time that may elapse between the Secretary’s finding and his declaration of the moratorium, NMFS believes, based on the language of sections 805 and 806, that that time period must be as short as possible.

Furthermore, landings data from 1999 show that 152,495 horseshoe crabs - the equivalent of Virginia’s quota for year 2000 under Addendum 1 - were landed by the first week in May 1999. Assuming the same rate of landings applies in 2000 as in 1999, Virginia has most likely landed more horseshoe crabs than its allocation under Addendum 1 by this time, further supporting implementation of a moratorium without further delay.

Because of these legal and factual reasons, and the need to promote the conservation of the resource, NMFS' action is consistent to the maximum extent practicable with the Virginia Coastal Management Program under 15 CFR 930.32(a). Moreover, NMFS is authorized to act prior to the end of the CZMA statutory and regulatory time periods pursuant to 15 CFR 930.32(b), otherwise NMFS would fail to meet its statutory responsibilities.

The interim final rule has been determined to be significant for purposes of Executive Order 12866.

Fisheries, Fishing, Intergovernmental relations.