On August 29, 2000, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by establishing Class D and Class E4 airspace at New Bern, NC (65 FR 52375). Class D and Class E4 airspace designations are published in Paragraphs 5000 and 6004 respectively of FAA Order 7400.9H, dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR part 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received.

This amendment to Part 71 of the Federal Aviation Regulations (14 CFR part 71) establishes Class D and Class E4 airspace at New Bern, NC, Craven County Airport.

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

On August 31, 2000, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by establishing Class E airspace at Oak Grove, NC, (65 FR 52960) to contain instrument approaches at the MCOLF Airport. Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.9H, dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1, dated September 1, 2000. The Class E airspace designations listed in this document will be published subsequently in the Order.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received.

This amendment to Part 71 of the Federal Aviation Regulations (14 CFR part 71) establishes Class E airspace at Oak Grove, NC.

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

The FAA has developed RNAV RWY 31 ORIGINAL, SIAP to serve the Albia Municipal Airport, Albia, IA. The amendment to Class E airspace at Albia, IA, will provide additional controlled airspace at and above 700 feet AGL in order to contain the new SIAP within controlled airspace, and thereby facilitate separation of aircraft operating under Instrument Flight Rules (IFR). The amendment at Albia Municipal Airport, IA, will provide additional controlled airspace for aircraft operating under IFR procedures. The area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9H, dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. The amendment will enhance safety for all flight operations by designating an area where VFR pilots may anticipate the presence of IFR aircraft at lower altitudes, especially during inclement weather conditions. A greater degree of safety is achieved by depicting the area on aeronautical charts. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register, and a notice of proposed rulemaking may be published with a new comment period.

Although this action is in the form of a final rule and was not preceded by a notice of proposed rulemaking, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the 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 or withdrawn in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of this action and determining whether additional rulemaking action would be needed.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy-related 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 action will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 00-ACE-33.” 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 had determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (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) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On August 11, 2000, the FAA published in the Federal Register a direct final rule; request for comments which revises the Class E airspace at Washington, MO (65 FR 49192, Airspace Docket No. 00-ACE-24). An error in longitude for the Washington Memorial Airport, MO was corrected in (65 FR 52811, Airspace Docket No. 00-ACE-24). After careful review of all available information related to the subject presented above, the FAA has determined that air safety and the public interest require adoption of the rule.

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 pubic 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 notice confirms that this direct final rule will become effective on that date.

The FAA has developed RNAV RWY 36, SIAP to serve the Bloomfield Municipal Airport, Bloomfield, IA. The amendment to Class E airspace at Bloomfield, IA, will provide additional controlled airspace at and above 700 feet AGL in order to contain the new SIAP within controlled airspace, and thereby facilitate separation of aircraft operating under Instrument Flight Rules (IFR). The amendment at Bloomfield Municipal Airport, IA, will provide additional controlled airspace for aircraft operating under IFR procedures. The area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9H, dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. The amendment will enhance safety for all flight operations by designating an area where VFR pilots may anticipate the presence of IFR aircraft at lower altitudes, especially during inclement weather conditions. A greater degree of safety is achieved by depicting the area on aeronautical charts. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

Although this action is in the form of a final rule and was not preceded by a notice of proposed rulemaking, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the 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 or withdrawn in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of this action and determining whether additional rulemaking action would be needed.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy-related 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 action will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 00-ACE-32.” 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 noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (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) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The Northbrook VOR/DME (formerly a VORTAC) is essential in supporting aircraft operations into, out of and above the Chicago O'Hare, IL, Class B airspace area. In the interest of aviation safety, the FAA decommissioned the VORTAC and commissioned the new VOR/DME facility. On April 4, 2000, the FAA published in the National Flight Data Digest (Issue 070-2) information pertaining to the Northbrook facility. The action was charted effective June 15, 2000, however, as a result of this relocation the legal descriptions of five Federal airways requires amendment.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR Part 71) amends the legal descriptions of five Federal airways, V-24, V-97, V-100, V-217, and V-228. These airways align with the Northbrook VOR/DME and have intersections contained in the legal descriptions. These intersections are defined by the Northbrook VOR/DME and are published on the appropriate aeronautical charts. These changes are due to the decommissioning of the Northbrook VORTAC and commissioning of the Northbrook VOR/DME facility located approximately 851 feet south of the VORTAC's prior location.

In addition, this action updates V-217 by amending the spelling of “Winnepeg” to “Winnipeg.” The FAA is taking this action to manage the navigable airspace and support navigational requirements in the vicinity north of Chicago O'Hare International Airport.

Domestic VOR Federal airways are published in Section 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 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, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Authority to respond to requests for materials made pursuant to agreements under the International Antitrust Enforcement Assistance Act. The International Antitrust Enforcement Assistance Act (IAEAA), 15 U.S.C. 6201 et seq. , authorizes the Commission and the Justice Department to assist foreign antitrust agencies, and anticipates that foreign agencies will assist them in return, pursuant to IAEAA agreements. After making a public interest determination and other determinations set forth in the Act, 15 U.S.C. 6207(a), the agencies can share information already in their files, including, for example, information made confidential by the Federal Trade Commission Act. 15 U.S.C. 6201, 6205. 1 They can also conduct investigations to help an IAEAA requester, during which they can use compulsory process if needed. 15 U.S.C. 6202. The first IAEAA agreement, an agreement with Australia, was signed on April 27, 1999. The Commission has delegated to the Director of the Bureau of Competition the authority to respond to certain requests under this and future IAEAA agreements, in accordance with the IAEAA.

Requests for records (including information within records). Rule 4.11(i), a new provision, delegates to the Director of the Bureau of Competition the authority to respond to requests under IAEAA agreements seeking access to existing Commission records. This includes requests that seek, through discussion or otherwise, information contained in such records. The authority cannot be redelegated, and the delegation is subject to negative option review; before responding to a request, the Bureau Director must give the Commission three days' notice of the intended response and, during that time, any Commissioner may bring the matter to the full Commission.

The Commission has also amended sections 4.10(d) and (e) of its Rules of Practice, which describe materials that the Commission generally cannot make public at all or can make public only after finding the material is not confidential and giving ten days' notice to the submitter. These provisions also describe situations where their general restrictions on disclosure do not apply, including disclosure to IAEAA requesters. 2 The Commission is replacing language in both provisions that simply references the IAEAA with cross-references to new Rule 4.11(i), which both references the IAEAA and delegates to the Bureau Director substantial authority to implement it.

Requests for investigations. The Commission has also amended Rule 2.1, which describes delegations to Commission staff to open investigations. This delegation, as well, is subject to a three-day negative option review by the Commission. Because a Commission resolution is required for process, see 15 U.S.C. 57b-1(i), this delegation does not extend to requests that seek such process.

Liaison officers for state access requests. The Commission is also amending Rule 4.11(c), which governs access requests for law enforcement purposes from domestic agencies. The rule formerly provided that requests from federal agencies could be processed by the General Counsel or a designated liaison officer, while requests from state agencies could be processed only by the General Counsel. The rule now provides that appropriate liaison officers can respond to state as well as federal access requests. 3

Procedural Matters. These amendments are exempt from the notice and comment requirements of the Administrative Procedure Act as “rules of agency organization, procedure, or practice.” 5 U.S.C. 553(b)(A). They do not entail information collection for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , and are not subject to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 605(b). Nor are they subject to the Small Business Regulatory Enforcement Fairness Act, because that law does not apply to procedural rules that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 803(3)(C).

On October 5, 2000, Customs published in the Federal Register (65 FR 59668) T.D. 00-67 to set forth interim amendments to the Customs Regulations primarily to implement the trade benefit provisions for sub-Saharan Africa contained in Title I of the Trade and Development Act of 2000. The trade benefits under Title I, also referred to as the African Growth and Opportunity Act (the AGOA), apply to sub-Saharan African countries designated by the President and involve: the extension of duty-free treatment under the Generalized System of Preferences (GSP) to non-textile articles normally excluded from GSP duty-free treatment that are not import-sensitive; and the entry of specific textile and apparel articles free of duty and free of any quantitative limits. Those interim regulatory amendments took effect on October 1, 2000, to coincide with the effective date of the relevant statutory provisions.

This document makes the following corrections to the regulatory texts published in T.D. 00-67:

1. The definition of “assembled in one or more beneficiary countries” under § 10.212 includes a parenthetical specification of items (that is, thread, decorative embellishments, buttons, zippers, or similar components) that are not considered to be components for purposes of assembly under the text. However, Customs has reconsidered this matter and now believes that inclusion of this parenthetical limiting language, which is not mandated by the statute, was in error because in some contexts it may be inconsistent with applicable judicial precedent as regards what may be considered a component for assembly purposes. Accordingly, this parenthetical reference should be removed from the text of the definition.

2. The definition of “beneficiary country” under § 10.212 refers to a finding “by the President” that the country has satisfied the requirements of section 113 of the AGOA. However, that text does not reflect the fact that in Presidential Proclamation 7350 of October 2, 2000 (published in the Federal Register at 65 FR 59321 on October 4, 2000), which implemented the AGOA, the authority to make the finding regarding the requirements of section 113 was delegated to the United States Trade Representative. To ensure consistency with this delegation, the text of the definition should include a reference to a “designee” of the President.

3. Within § 10.213, paragraph (a)(9) requires some wording changes to conform more closely to the terms of corresponding subheading 9819.11.24 which was added to the HTSUS by the Annex to Presidential Proclamation 7350.

4. Finally, within § 10.213, in paragraph (a)(10), the words “or his designee” should be added after “the President” to cover any future delegation of authority by the President in this context.

On October 5, 2000, Customs published in the Federal Register (65 FR 59650) T.D. 00-68 to set forth interim amendments to the Customs Regulations primarily to implement the trade benefit provisions for Caribbean Basin countries contained in Title II of the Trade and Development Act of 2000. The trade benefits under Title II, also referred to as the United States-Caribbean Basin Trade Partnership Act (the CBTPA), apply to Caribbean Basin countries designated by the President and involve the entry of specific textile and apparel articles free of duty and free of any quantitative restrictions, limitations, or consultation levels and the extension of NAFTA duty treatment standards to non-textile articles that are excluded from duty-free treatment under the Caribbean Basin Initiative (CBI) program. Those interim regulatory amendments took effect on October 1, 2000, to coincide with the effective date of the relevant statutory provisions.

This document rectifies some omissions and corrects some other errors published in T.D. 00-68. Two errors were in the preamble portion of the document and involved a misplacement of two numbers regarding the estimated information collection burden under the Paperwork Reduction Act. The remaining corrections set forth in this document involve the following aspects of the interim regulations:

1. The amendatory instruction for the authority citation to Part 10 should have stated that the general authority citation “is revised” (rather than “continues”) to read as follows, because that general authority citation as set forth in T.D. 00-68 includes a change to reflect that General Note 20 of the Harmonized Tariff Schedule of the United States (HTSUS) was redesignated as General Note 22 in the Annex to Presidential Proclamation 7351 of October 2, 2000 (published in the Federal Register at 65 FR 59329 on October 4, 2000) which implemented the CBTPA.

2. In the first sentence of § 10.221, the word “Basin” was inadvertently omitted from the title of the CBTPA.

3. The definition of “assembled in one or more CBTPA beneficiary countries” under § 10.222 includes a parenthetical specification of items (that is, thread, decorative embellishments, buttons, zippers, or similar components) that are not considered to be components for purposes of assembly under the text. However, Customs has reconsidered this matter and now believes that inclusion of this parenthetical limiting language, which is not mandated by the statute, was in error because in some contexts it may be inconsistent with applicable judicial precedent as regards what may be considered a component for assembly purposes. Accordingly, this parenthetical reference should be removed from the text of the definition.

4. The definition of “CBTPA beneficiary country” under § 10.222 refers to a beneficiary country designated by the President but does not refer to the additional statutory requirement that the President determine whether a designated beneficiary country has satisfied the requirements of 19 U.S.C. 2703(b)(4)(A)(ii) (the authority for making that determination was delegated to the United States Trade Representative (USTR) in Presidential Proclamation 7351). Since the determination regarding the requirements of 19 U.S.C. 2703(b)(4)(A)(ii) is a necessary condition of eligibility for the CBTPA trade benefits for each beneficiary country and thus operates as a condition precedent to application of the implementing regulations, the definition must be corrected to reflect this additional statutory requirement.

5. Within § 10.223, paragraph (a)(4) requires some wording changes to conform more closely to the terms of corresponding subheading 9820.11.09 which was added to the HTSUS by the Annex to Presidential Proclamation 7351.

6. Within § 10.223, paragraph (a)(8) requires some wording changes to conform more closely to the terms of corresponding subheading 9820.11.27 which was added to the HTSUS by the Annex to Presidential Proclamation 7351.

7. Within § 10.223, in paragraph (a)(9), the words “or his designee” should be added after “the President” to cover any future delegation of authority by the President in this context.

8. Within § 10.223, the words “in a CBTPA beneficiary country” need to be added after the word “assembled” in paragraph (a)(11) to reflect the wording of corresponding subheading 9820.11.21 which was added to the HTSUS by the Annex to Presidential Proclamation 7351.

9. Within § 10.223, paragraph (a)(12) describes certain knitted or crocheted apparel articles and was included to reflect the terms of subheading 9820.11.18 which was added to the HTSUS by the Annex to Presidential Proclamation 7351. The word “wholly” appears in the regulatory text before the word “assembled” but is not included in the text of the HTSUS subheading. In addition, the regulatory text includes, after the words “assembled in one or more CBTPA beneficiary countries,” the words “or the United States” which do not appear in the HTSUS subheading text. Accordingly, the words “wholly” and “or the United States” must be removed from the regulatory text to ensure conformity with the HTSUS subheading text.

10. Also with regard to paragraph (a)(12) of § 10.223, appropriate and necessary references to that provision were inadvertently omitted from the following regulatory provisions:

a. In paragraph (b)(1)(i)(A) of § 10.223, which concerns the special rule for foreign findings and trimmings, the sewing thread exception at the end must include a reference to paragraph (a)(12) in addition to the reference to paragraph (a)(3) because both provisions refer to “thread formed in the United States.”

b. In paragraph (b)(1)(i)(D) of § 10.223, which concerns the de minimis rule for fibers and yarns not wholly formed in the United States or in one or more CBTPA beneficiary countries, the exception for elastomeric yarns (which must be wholly formed in the United States) must include a reference to paragraph (a)(12) in addition to the reference to paragraphs (a)(1) through (a)(5) because all of those provisions refer to “yarns wholly formed in the United States.”

c. In paragraph (b)(2) of § 10.223, which concerns the special rule for nylon filament yarn, reference is made to an article otherwise described under “paragraph (a)(1), (a)(2) or (a)(3) of this section,” because those three regulatory provisions correspond to the two statutory provisions (that is, “clause (i) or (ii)” of 19 U.S.C. 2703(b)(2)(A)) referred to in the statutory nylon filament yarn provision (that is, 19 U.S.C. 2703(b)(2)(A)(vii)(IV)). It is noted that the nylon filament yarn rule is also reflected in U.S. Note 3(d) to new Subchapter XX of Chapter 98 of the HTSUS as added by the Annex to Presidential Proclamation 7351. Since that U.S. Note 3(d) also includes a reference to HTSUS subheading 9820.11.18, a reference to paragraph (a)(12) should be added to paragraph (b)(2) of § 10.223.

d. Finally, the second sentence of paragraph (a) of § 10.225, which concerns the filing of claims for preferential treatment, refers to articles described in paragraphs (a)(1) through (a)(11) and thus requires the addition of a reference to paragraph (a)(12) to be complete.

11. In the Textile Certificate of Origin set forth under paragraph (b) of § 10.224, the reference to Caribbean yarn must be removed from block 7 because the statutory and regulatory texts do not mention Caribbean yarn, and the description of preference group D must be corrected to conform more closely to the wording of paragraph (a)(4) of § 10.223 as corrected in this document. The complete Certificate incorporating these corrections is set forth in this document.

12. As in the case of § 10.221 mentioned above, the word “Basin” was inadvertently omitted from the title of the CBTPA in the first sentence of § 10.231.

13. Finally, for the same reasons stated above in the case of § 10.222, the definition of “CBTPA beneficiary country” under § 10.232 must be corrected to reflect the additional statutory requirement under 19 U.S.C. 2703(b)(4)(A)(ii).

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing a NPRM is impracticable as we were only recently informed of the change in parade route, and these regulations are needed to provide for the safety of life on navigable waters during the event.

Each year a Christmas boat parade is held in Charleston Harbor, South Carolina. We previously issued a permanent special local regulation for this event, at 33 CFR 100.721. Under this regulation the parade route started near the Wando River Terminal, and proceeded south past the Cooper River Bridge, and then around the peninsula and up the Ashley River and ending at City Marina. The parade route is changing this year in order to provide improved viewing for the spectators, to reduce the impact on commercial traffic in Charleston Harbor and to provide for the safety of life on the navigable waters during the event. This year the parade starts in the Middle Ground, a more open area, proceeds generally north west towards Town Creek, and then southerly around the peninsula as in previous years.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). The Coast Guard expects the economic impact of this proposal to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. This rule is only effective for 4 hours on the day of the parade, and will expire thereafter.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in a portion of Charleston Harbor from 4:30 p.m. to 8:30 p.m. on December 9, 2000.

This special local regulation will not have a significant economic impact on a substantial number of small entities for the following reasons. This regulation will only be in effect a total of four hours on the day of the event. Further, the parade route is configured to minimize the impact on commercial traffic and vessel traffic can pass around the parade route.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding this rule.

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

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

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

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

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

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

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

The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, paragraph 34(h), of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation.

This document makes changes to correctly restate statutory provisions as discussed below.

• Section 21.7020 is corrected to show that VA will consider an initial period of active duty of not more than 12 months that results in a hardship discharge to be continuous with a subsequent period of active duty.

• Section 21.7042 is revised to correct the eligibility criteria an individual must meet if that individual is attempting to establish eligibility for MGIB by serving two years on active duty followed by four years in the Selected Reserve. Such an individual is exempt from serving those four years if he or she was discharged from the Selected Reserve for a condition that interfered with the performance of duty and which was not the result of his or her own willful misconduct. That individual does not have to meet the otherwise applicable deadline for obtaining a high school diploma if he or she was on active duty on August 2, 1990, and completed the requirements for the diploma or the equivalent before October 29, 1994.

• Section 21.7044 is revised to correct the eligibility criteria an individual must meet if he or she was formerly eligible for educational assistance under the Vietnam Era GI Bill. That individual does not have to meet the otherwise applicable deadline for obtaining a high school diploma if he or she was on active duty on August 2, 1990, and completed the requirements for the diploma or the equivalent before October 29, 1994.

• Section 21.7073 is revised to expand the categories of individuals to whom the provisions of the section for deciding on the amount of an individual's entitlement apply. The provisions apply to individuals who between December 1, 1988, and June 30, 1989, withdrew an election not to enroll in MGIB and were discharged from the period of service they were obligated to serve on December 1, 1988, for a condition that interfered with the performance of duty and which was not the result of his or her own willful misconduct.

Nonsubstantive changes also are made for the purpose of clarity.

Changes made by this final rule merely restate statutory language. Accordingly, there is a basis for dispensing with prior notice and comment and delayed effective date provisions of 5 U.S.C. 552 and 553.

The Secretary of Veterans Affairs hereby certifies 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 directly affects only individuals and does not directly affect small entities. Pursuant to 5 U.S.C. 605(b), this final rule, therefore, is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance number for the program affected by this final rule is 64.124.

The EPA is amending the table of currently approved information collection request (ICR) control numbers issued by OMB for various regulations. The amendment updates the table to list those information collection requirements promulgated under the “Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone,” which appeared in the Federal Register on October 27, 1998 (63 FR 57356). The affected regulations are codified at 40 CFR 51.121 and 51.122. The EPA will continue to present OMB control numbers in a consolidated table format to be codified in 40 CFR part 9 of the Agency's regulations, and in each CFR volume containing EPA regulations. The table lists CFR citations with reporting, recordkeeping, or other information collection requirements, and the current OMB control numbers. This listing of the OMB control numbers and their subsequent codification in the CFR satisfies the requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ) and OMB's implementing regulations at 5 CFR part 1320.

This ICR was previously subject to public notice and comment prior to OMB approval. Due to the technical nature of the table, EPA finds that further notice and comment is unnecessary. As a result, EPA finds that there is “good cause” under section 553(b)(B) of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), to amend this table without prior notice and comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. In addition, this action does not impose any enforceable duty, contain any unfunded mandate, or impose any significant or unique impact on small governments as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not require prior consultation with State, local, and tribal government officials as specified by Executive Order 13132 (64 FR 43255, August 10, 1999) or Executive Order 13084 (63 FR 27655, May 10, 1998), or involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). Because this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. EPA's compliance with these statutes and Executive Orders for the underlying rule is discussed in the October 27, 1998 Federal Register document.

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. Section 808 allows the issuing agency to make a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefor, and established an effective date of November 9, 2000. 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 . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

EPA promulgated emission standards for hazardous waste-burning incinerators, lightweight aggregate kilns and cement kilns on September 30, 1999. 64 FR 52828. These standards implement section 112(d) of the Clean Air Act and reflect the performance of the Maximum Available Control Technology (or MACT). The standards themselves are normally called National Emission Standards for Hazardous Air Pollutants (NESHAP).

The Hazardous Waste Combustor (HWC) NESHAP contains two sets of emission standards: One set for existing sources and a second, generally more stringent, set for new sources. Several incinerators subject to this NESHAP have requested clarification as to the applicability of new versus existing source standards in situations when existing incinerators are modified to comply with the emission standards. Specifically, these incinerators have requested clarification on two issues that affect the applicability of new versus existing source standards. First, incinerator commenters want to know if an incinerator's air pollution control device is considered to be part of the “affected source” for purposes of this rule. Second, these commenters want to know if the costs of replacement or retrofitting of air pollution control equipment, installed to comply with the HWC NESHAP (incurred between the proposal and source's compliance date), are to be considered as “reconstruction” costs in determining if new source standards apply.

After receiving these comments, we further studied the regulatory text and determined that the definitions are either ambiguous or contain (unintended) gaps on several points. In this rule, therefore, we set out our interpretation of these provisions and add clarifying language to the rules to remove ambiguity or gaps and to better express our original intent. We note further, that these interpretations apply to this NESHAP alone and so have no precedential value for interpreting any other NESHAP or any other Clean Air Act regulation.

The HWC MACT standards apply to, among other sources, “hazardous waste incinerators.” These are defined at 40 CFR 260.10, as (for purposes relevant here) “any enclosed device that [u]ses controlled flame combustion and neither meets the criteria for classification as a boiler, sludge dryer, or carbon regeneration unit, nor is listed as an industrial furnace.” This definition does not explicitly address whether air pollution control equipment and other hazardous waste burning equipment, e.g., the waste firing system, is considered to be part of the incinerator.

The relationship of this definition to the question of new source standard applicability is that, as provided in § 63.1206(a)(3), “if you commenced construction or reconstruction of your hazardous waste combustor after April 19, 1996”, the source is subject to the new source standards. If pollution control equipment is part of the incinerator, then an incinerator that began retrofitting pollution control equipment before April 19, 1996 ordinarily would not be subject to the new source standards. Conversely, if only the combustion chamber is considered to be the source, then only changes to the combustion chamber begun before April 19, 1996 would be relevant in assessing new source standard applicability.

As described by commenters, the definition of an incinerator at 40 CFR 260.10 is unclear with regard to whether the “enclosed device” includes the air pollution control device (APCD). In one instance, the enclosed device can be interpreted to include only the burn chamber, typically either a box or cylindrical configuration, into which waste is fed and burned using controlled flame combustion. However, the definition also can be read to include not only the burn chamber, but also to include other parts of the device through which combustion off-gases, that can contain significant concentrations of hazardous air pollutants (HAPs), flow prior to release to the environment. These APCDs, of course, are also enclosed and so are part of the device preventing release of HAPs until the end of the combustion process. These gases continue to be regulated, as is the APCD itself.

In promulgating the HWC NESHAP rule, we intended that the incinerator source include not only the combustion chamber, but also the waste firing system and the APCD. The commercial purpose of an HWC is the safe treatment (destruction) of hazardous organic pollutants. In order to provide safe treatment, other HAPs may require capture, additional treatment, and disposal. For hazardous waste incinerators, we regulate, through specific operating conditions and monitoring requirements, all aspects of the source that may affect emissions of HAPs from the burning of hazardous wastes. See 64 FR at 53055—53062. Because the APCD affects emissions of HAPs, e.g., dioxin/furan formation, toxic metals capture, acid gas removal, we consider the APCD integral to the treatment process, and, therefore, to the source as a whole. For example, when describing the applicability of requirements in response to comments, we say that requirements apply to “* * * all components of the combustor, including associated pollution control equipment.” US EPA, Response to Comments Background Document, Volume II: Compliance, PM Control (PMCOMP.WPD), page 6.

We acknowledge that this intent should have been expressed in the definition of an incinerator. Therefore, we make our intent explicit by adding the following clarification to the rule: To the definition of a hazardous waste incinerator in § 63.1201(a) we add the following sentence: “For purposes of this subpart, the hazardous waste incinerator includes all associated firing systems and air pollution control devices, as well as the combustion chamber equipment.”

Most importantly, this interpretation maintains the status quo in defining new source incinerators. In implementing the RCRA subtitle C rules, we included air pollution controls as part of the incinerator. This is important in that section 112(n)(7) of the CAA calls for integration of the standards under both RCRA and CAA programs to the extent practicable (consistent with the requirements of section 112). In this case, it is “practicable,” in the words of section 112(n)(7), to carry over this RCRA practice into implementation of the MACT standard. We are therefore doing so here. However, we note that due to this need to link with the RCRA subtitle C program, this action creates no precedent for any other CAA source category.

Section 63.1206(a)(3), as promulgated, states that “if you commenced construction or reconstruction of your hazardous waste combustor after April 19, 1996, you must comply with (the new source standards).” “Reconstruction,” in turn, is defined in the General Provisions (in relevant part) as “the replacement of components of an affected * * * source to such an extent that the fixed capital cost of the new components exceeds 50 percent of the fixed capital costs that would be required to construct a comparable new source.” Section 63.2 (definition of “reconstruction”). In adopting § 63.1206(a)(3), we intended that the cost of retrofitting and replacement of air pollution control devices installed to comply with the MACT standard is not to be considered as a cost of reconstruction. As shown below, this principle has long been codified in the RCRA subtitle C rules. We also stated in the administrative record to the 1999 HWC MACT rule that we meant for the same principle to apply here.

The RCRA subtitle C rules have long included the same cost test for determining when reconstruction occurs as is found in the General Provisions. In 40 CFR 270.72(b) we use the definition of reconstruction in a context directly analogous to whether new source status is triggered. This section defines when changes to an interim status RCRA facility are so extensive as to amount to reconstruction, causing a source to be subject to the more stringent standards for fully permitted facilities. The rules state, however, that this reconstruction cost test does not apply to units that are added due to the need to comply with a new RCRA rule. Section 270.72(b)(7). We initially proposed this principle for boilers and industrial furnaces burning hazardous waste (see 52 FR at 17013 (May 6, 1987)), but later codified the policy for all RCRA facilities in order that the principle—new units added to meet new regulations are not to be considered in applying the reconstruction cost test—apply generally. 56 FR at 7186 (Feb. 21, 1991). In addition, the RCRA rules (as amended in a 1998 rulemaking) further state that “changes necessary to comply with standards under 40 CFR Part 63 subpart EEE (the hazardous waste combustor MACT standards)” are not to be considered as reconstruction costs for purposes of RCRA. Section 270.72(b). This provision was added specifically to ensure that the costs of coming into compliance with the MACT standards incurred by hazardous waste combustion sources were not to be considered in applying the reconstruction cost test. 63 FR at 33805 (June 19, 1998).

With these existing rules establishing our approach, we intended to apply the same principle in determining which costs were to be included within the reconstruction cost test used for determining applicability of new source standards for hazardous waste combustors. We also reiterated that these costs would not be considered as reconstruction costs in the RCRA context, emphasizing that this approach avoided any potential conflict between the CAA and RCRA regimes (implying that the principle regarding reconstruction costs was meant to apply in both contexts). US EPA, Response to Comments Background Document, Vol. 1: Miscellaneous Standards, pp. 56-7.

To clarify our intent, today we add the following sentence to the end of § 63.1206(a)(3) New or reconstructed sources: “The costs of retrofitting and replacement of equipment that is installed specifically to comply with this subpart, between April 19, 1996 and a source's compliance date, are not considered to be reconstruction costs.”

As with the definition of affected source, this clarifying change regarding the reconstruction test, is needed to further the purpose of section 112(n)(7) of the CAA. This section calls for integration of the standards under both CAA and RCRA programs to the extent practicable (consistent with the requirements of section 112). Here, as just explained, longstanding RCRA practice is not to include costs of new units needed to comply with new regulatory standards as reconstruction costs. It is “practicable “ (section 112(n)(7)) to carry this administrative principle over into the CAA regime for RCRA sources. As with the definition of affected source, this action is therefore not precedential for any non-RCRA source category.

This final rule also makes three technical corrections to the Hazardous Waste Combustor NESHAPS promulgated on September 30, 1999 (64 FR 52828). First, if you use data in lieu of your initial comprehensive performance test, you must commence a comprehensive performance test within five years of the commencement date of the test from which the data were obtained. Second, you are required to submit your continuous monitoring system (CMS) evaluation test plan rather than the evaluation plan for review and approval. Third, if you comply with the standards early, you begin calculating continuous monitoring system rolling averages at the time you elect to begin complying with the standards.

Section 63.1207(d)(1) inadvertently requires you to commence the subsequent comprehensive performance test within 61 months of the date six months after the compliance date if you submit data in lieu of the initial comprehensive performance test. This is incorrect. As discussed in the preamble (see 64 FR at 52917-18), your subsequent comprehensive performance test must commence within five years of the commencement date of the test from which you are using data in lieu of the initial comprehensive performance test. For example, if you commence an emissions test on September 30 2001, one year prior to the compliance date, and the results of that test can be used in lieu of the initial comprehensive performance test to demonstrate compliance with Subpart EEE, you must commence your subsequent comprehensive performance test within five years of that date, September 30, 2006.

For the reasons discussed above, we revise § 63.1207(d)(1) to make it consistent with the preamble.

Sections 63.1207(e)(1) and (e)(2) inadvertently require you to submit a continuous monitoring system (CMS) evaluation plan for review and approval at least one year prior to the scheduled date of the CMS performance evaluation. What we actually intended was to require you to submit the CMS evaluation test plan, for review and approval. The CMS evaluation test plan describes the actual testing necessary to demonstrate calibration, minimization of malfunctions, and how the CMS will meet the required performance specifications.

The CMS evaluation plan implements your CMS quality control program and specifies how a source will maintain calibration of the CMS and minimize malfunctions. As required by Subpart EEE, you must keep the CMS evaluation plan on record for the life of the source and make the plan available for inspection upon request by the Administrator. As we correct in today's notice you need not submit the CMS evaluation plan for review and approval.

We revise §§ 63.1207(e)(1) and (e)(2) accordingly.

The September 30, 1999 Final Rule requires you to begin recording one-minute continuous emission monitor (CEM) and continuous monitoring system (CMS) values by 12:01 a.m., hourly rolling average values by 1:01 a.m., and twelve hour rolling averages by 12:01 p.m.. See §§ 63.1209(a)(6)(i) and (b)(5)(i). Although not explicitly written, we intended this provision to apply to you on the regulatory compliance date (i.e., three years after Final Rule promulgation). We have since determined that there could be situations where you would choose to voluntarily comply with the MACT standards before the compliance date. In such situations, the requirement for you to begin calculating one-minute averages, hourly rolling averages, and 12-hour rolling averages by 12:01 a.m., 1:01 a.m., and 12:01 p.m., respectively, is inappropriate.

Today we are correcting the regulatory language in §§ 63.1209(a)(6)(i) and (b)(5)(i) in order to clarify that: (1) The requirement to begin calculating one-minute averages, hourly rolling averages, and 12-hour rolling averages by 12:01 a.m., 1:01 a.m., and 12:01 p.m., respectively, applies only to sources that begin complying with the MACT standards on the regulatory compliance date; and, (2) if you elect to comply early with the MACT standards, you must simply begin recording CEM and CMS rolling averages at the time at which you elect to begin complying with the MACT standards. We believe this correction is prudent because of our desire to promote the concept of early compliance.

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. 1 EPA has determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because it merely clarifies certain requirements and provides technical corrections (corrects errors) to the Hazardous Waste Combustors NESHAP Final Rule (64 FR 52828, September 30, 1999). The final rule was subject to notice and comment, and the clarified regulatory language reflects the Agency's views already set out during the rulemaking and in past Agency practice. Thus, notice and public procedure for this action are unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).

States can implement and enforce the new MACT standards through their delegated 112(l) CAA program and/or by having title V authority. A State's title V authority is independent of whether it has been delegated section 112(l) of the CAA. Additional information on state authority under the CAA may be found in the HWC MACT rule (64 FR 52991).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. Because the agency has made a “good cause” finding, see Section I above, that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute (see Part Three: Good Cause Exemption), it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

This interpretive clarification and technical correction action does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, we have taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). 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. ). Our compliance with these statutes and Executive Orders for the underlying rule is discussed in the September 30, 1999, Federal Register notice.

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. Section 808 allows the issuing agency to make a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of November 9, 2000. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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

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

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

2. In person . The Agency has established an official record for this action under docket control number OPP-301074. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

EPA, on its own initiative, in accordance with sections 408(e) and 408 (l)(6) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, is establishing a tolerance for combined residues of the herbicide sulfentrazone, in or on horseradish and sugarcane at 0.1 and 0.05 part per million (ppm) respectively. These tolerances will expire and are revoked on December 31, 2002. EPA will publish a document in the Federal Register to remove the revoked tolerance from the Code of Federal Regulations.

Section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of FIFRA. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on section 18 related tolerances to set binding precedents for the application of section 408 and the new safety standard to other tolerances and exemptions. Section 408(e) of the FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party.

Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . . ”

Section 18 of the FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” This provision was not amended by the Food Quality Protection Act (FQPA). EPA has established regulations governing such emergency exemptions in 40 CFR part 166.

Illinois submitted a section 18 request for the emergency use of sulfentrazone on horseradish to control annual broadleaf weeds. EPA reviewed the request and concluded that the situation was urgent and nonroutine because heavy rains, urbanization, and drainage canal problems led to flooding of fields during the spring of 1999 resulting in significant problems with yellow nutsedge and broadleaf weeds.

Louisiana submitted a section 18 request for the emergency use of sulfentrazone to control morning glories infesting sugarcane fields. EPA agrees that morning glory infestations may create emergency conditions for growers since the registered alternative herbicide is ineffective against late season infestations when used on a higher yielding sugarcane variety. Due to this variety's earlier lay-by, late season applications of soil herbicides are not possible. Additionally, morning glory vines can cause indirect economic costs to growers by disabling combine-type harvesters.

EPA has authorized under FIFRA section 18 the use of sulfentrazone on horseradish and sugarcane for control of annual broadleaf weeds in Illinois and morning glories in Louisiana, respectively. After having reviewed the submissions, EPA concurs that emergency conditions exist for these States.

As part of its assessment of this emergency exemption, EPA assessed the potential risks presented by the combined residues of sulfentrazone in or on horseradish and sugarcane. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and EPA decided that the necessary tolerances under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemptions in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing these tolerances without notice and opportunity for public comment as provided in section 408(l)(6). Although these tolerances will expire and are revoked on December 31, 2002, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerances remaining in or on horseradish and sugarcane after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by these tolerances at the time of that application. EPA will take action to revoke these tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Because these tolerances are being approved under emergency conditions, EPA has not made any decisions about whether sulfentrazone meets EPA's registration requirements for use on horseradish or on sugarcane or whether permanent tolerances for these uses would be appropriate. Under these circumstances, EPA does not believe that these tolerances serve as a basis for registration of sulfentrazone by a State for special local needs under FIFRA section 24(c). Nor do these tolerances serve as the basis for any State other than Illinois and Louisiana to use this pesticide on these crops under section 18 of FIFRA without following all provisions of EPA's regulations implementing section 18 as identified in 40 CFR part 166. For additional information regarding the emergency exemptions for sulfentrazone, contact the Agency's Registration Division at the address provided under FOR FURTHER INFORMATION CONTACT .

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7) .

Consistent with section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of sulfentrazone and to make a determination on aggregate exposure, consistent with section 408(b)(2), for time-limited tolerances for combined residues of sulfentrazone in or on horseradish and sugarcane at 0.1 and 0.05 ppm, respectively. EPA's assessment of the dietary exposures and risks associated with establishing these tolerances follows.

The dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological endpoint. However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor (UF) is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. An UF of 100 is routinely used, 10X to account for interspecies differences and 10X for intra species differences.

For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). Where an additional safety factor is retained due to concerns unique to the FQPA, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute or chronic Population Adjusted Dose (aPAD or cPAD) is a modification of the RfD to accommodate this type of FQPA Safety Factor.

For non-dietary risk assessments (other than cancer) the UF is used to determine the level of concern (LOC). For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure (MOE) = NOAEL/exposure) is calculated and compared to the LOC.

The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify carcinogenic risk. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk. A Q* is calculated and used to estimate risk which represents a probability of occurrence of additional cancer cases (e.g., risk is expressed as 1 x10 -6 or one in a million). Under certain specific circumstances, MOE calculations will be used for the carcinogenic risk assessment. In this non-linear approach, a “point of departure” is identified below which carcinogenic effects are not expected. The point of departure is typically a NOAEL based on an endpoint related to cancer effects though it may be a different value derived from the dose response curve. To estimate risk, a ratio of the point of departure to exposure (MOE cancer = point of departure/exposures) is calculated. A summary of the toxicological endpoints for sulfentrazone used for human risk assessment is shown in the following Table 1:

1. Dietary exposure from food and feed uses . Tolerances have been established (40 CFR 180.498) for the combined residues of sulfentrazone, in or on a variety of raw agricultural commodities. A permanent tolerance has been established for soybean, seed at 0.05 ppm. Time-limited tolerances have been established for cowpeas, lima beans, and sunflowers, with an expiration date of 12/30/00. Risk assessments were conducted by EPA to assess dietary exposures from sulfentrazone in food as follows:

i. Acute exposure . Acute dietary risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a one day or single exposure. The Dietary Exposure Evaluation Model (DEEM ) analysis evaluated the individual food consumption as reported by respondents in the USDA 1989-1992 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the acute exposure assessments: Two acute doses and endpoints were selected, one for the females 13+ years old population subgroup and another for the U.S. population and other subgroups (excluding females 13+ years old). Therefore, acute dietary exposure analyses were performed using two separate endpoints. Tolerance level residues and 100% crop treated were used for all commodities (Tier 1). As the acute analyses were Tier 1 assessments, acute risk estimates are shown at the 95th percentile.

ii. Chronic exposure . In conducting this chronic dietary risk assessment the Dietary Exposure Evaluation Model (DEEM ) analysis evaluated the individual food consumption as reported by respondents in the USDA 1989-1992 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: Tolerance level residues and 100% crop treated information were used for all commodities (Tier 1).

iii. Cancer . Sulfentrazone has been classified as a “Group E” chemical (not likely to be carcinogenic to humans via relevant routes of exposure). Therefore, no cancer dietary exposure risk analysis was performed.

2. Dietary exposure from drinking water . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for sulfentrazone in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the physical characteristics of sulfentrazone.

The Agency uses the Generic Estimated Environmental Concentration (GENEEC) or the Pesticide Root Zone/Exposure Analysis Modeling System (PRZM/EXAMS) to estimate pesticide concentrations in surface water and SCI-GROW, which predicts pesticide concentrations in groundwater. In general, EPA will use GENEEC (a tier 1 model) before using PRZM/EXAMS (a tier 2 model) for a screening-level assessment for surface water. The GENEEC model is a subset of the PRZM/EXAMS model that uses a specific high-end runoff scenario for pesticides. GENEEC incorporates a farm pond scenario, while PRZM/EXAMS incorporate an index reservoir environment in place of the previous pond scenario. The PRZM/EXAMS model includes a percent crop area factor as an adjustment to account for the maximum percent crop coverage within a watershed or drainage basin.

None of these models include consideration of the impact processing (mixing, dilution, or treatment) of raw water for distribution as drinking water would likely have on the removal of pesticides from the source water. The primary use of these models by the Agency at this stage is to provide a coarse screen for sorting out pesticides for which it is highly unlikely that drinking water concentrations would ever exceed human health levels of concern.

Since the models used are considered to be screening tools in the risk assessment process, the Agency does not use estimated environmental concentrations (EECs) from these models to quantify drinking water exposure and risk as a %RfD or %PAD. Instead drinking water levels of comparison (DWLOCs) are calculated and used as a point of comparison against the model estimates of a pesticide's concentration in water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food, and from residential uses. Since DWLOCs address total aggregate exposure to sulfentrazone they are further discussed in the aggregate risk sections below.

Based on the GENEEC and SCI-GROW models the EECs of sulfentrazone for acute exposures are estimated to be 12.5 parts per billion (ppb) for surface water and 21.8 ppb for ground water. The EECs for chronic exposures are estimated to be 12.0 ppb for surface water and 10.2 ppb for ground water.

3. From non-dietary exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Sulfentrazone is not registered for use on any sites that would result in residential exposure.

4. Cumulative exposure to substances with a common mechanism of toxicity . Section 408(b)(2)(D)(v) requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA does not have, at this time, available data to determine whether sulfentrazone has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, sulfentrazone does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that sulfentrazone has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the final rule for Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997).

1. Safety factor for infants and children — i. In general . FFDCA section 408 provides that EPA shall apply an additional ten-fold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a margin of exposure (MOE) analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans.

ii. Developmental toxicity studies — a. Rats . In the oral developmental study in rats, the maternal (systemic) NOAEL was 25 mg/kg/day, based on increased spleen weights and splenic extramedullary hematopoiesis at the LOAEL of 50 mg/kg/day. The developmental (fetal) NOAEL was 10 mg/kg/day, based on decreased mean fetal weight and retardation in skeletal development as evidenced by increased numbers of litters with any variation and by decreased numbers of caudal vertebral and metacarpal ossification sites at the LOAEL of 25 mg/kg/day.

In the dermal developmental study in rats, the maternal (systemic) NOAEL was ≥250 mg/kg/day and a LOAEL was not determined. The developmental (fetal) NOAEL was 100 mg/kg/day, based on decreased fetal weight and increased fetal variations (hypoplastic or wavy ribs, incompletely ossified lumbar vertebral arches, incompletely ossified ischia or pubes, and reduced numbers of thoracic vertebral and rib ossification sites) at the LOAEL of 250 mg/kg/day.

b. Rabbits . In the oral developmental toxicity study in rabbits, the maternal (systemic) NOAEL was 100 mg/kg/day, based on increased abortions, clinical signs (decreased feces and hematuria), and reduced body weight gain during gestation at the LOAEL of 250 mg/kg/day. The developmental (pup) NOAEL was 100 mg/kg/day, based on increased resorptions, decreased live fetuses per litter, and decreased fetal weight at the LOAEL of 250 mg/kg/day.

iii. Reproductive toxicity study — Rats . In the 2-generation reproductive toxicity study in rats, the maternal (systemic) NOAEL was 14/16 mg/kg/day in males and females, respectively, based on decreased maternal body weight and/or body weight gain during gestation in both P and F1 generations, and reduced premating body weight gains in the second generation (F1 adults) at the LOAEL of 33/44 mg/kg/day for males and females, respectively. The developmental (pup) NOAEL was 14/16 mg/kg/day based on 1) reduced prenatal viability (fetal and litter), 2) reduced litter size, 3) increased number of stillborn pups, 4) reduced pup and litter postnatal survival, and 5) decreased pup body weights throughout lactation at the LOAEL of 33/44 mg/kg/day. The reproductive NOAEL was 14/16 mg/kg/day, based on 1) increased duration of gestation in both F1 and F2 dams, 2) decreased fertility in F1 generation (males), and/or 3) atrophy of the germinal epithelium of the testes, oligospermia and intratubular degeneration of the seminal product in the epididymis at the LOAEL of 33/44 mg/kg/day.

iv. Prenatal and postnatal sensitivity . The toxicological data base for evaluating prenatal and postnatal toxicity for sulfentrazone is complete with respect to current data requirements. Based on the developmental and reproductive toxicity studies discussed above for sulfentrazone there appears to be prenatal and postnatal sensitivity.

v. Conclusion . There is a complete toxicity data base for sulfentrazone and exposure data are complete or are estimated based on data that reasonably accounts for potential exposures. EPA determined that the 10X safety factor to protect infants and children should be retained. For acute dietary analysis, the FQPA SF was retained and is applicable to the U.S. population and all subgroups due to the increased susceptibility observed in the prenatal developmental studies. For chronic dietary analysis, the FQPA safety factor was retained and is applicable for all populations due to the qualitative increased susceptibility observed in the 2-generation reproduction study.

To estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses, the Agency calculates DWLOCs which are used as a point of comparison against the model estimates of a pesticide's concentration in water (EECs). DWLOC values are not regulatory standards for drinking water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. In calculating a DWLOC, the Agency determines how much of the acceptable exposure (i.e., the PAD) is available for exposure through drinking water e.g., allowable chronic water exposure (mg/kg/day) = cPAD − (average food + chronic non-dietary, non-occupational exposure). This allowable exposure through drinking water is used to calculate a DWLOC.

A DWLOC will vary depending on the toxic endpoint, drinking water consumption, and body weights. Default body weights and consumption values as used by the USEPA Office of Water are used to calculate DWLOCs: 2L/70 kg (adult male), 2L/60 kg (adult female), and 1L/10 kg (child). Default body weights and drinking water consumption values vary on an individual basis. This variation will be taken into account in more refined screening-level and quantitative drinking water exposure assessments. Different populations will have different DWLOCs. Generally, a DWLOC is calculated for each type of risk assessment used: Acute, short-term, intermediate-term, chronic, and cancer.

When EECs for surface water and groundwater are less than the calculated DWLOCs, OPP concludes with reasonable certainty that exposures to sulfentrazone in drinking water (when considered along with other sources of exposure for which OPP has reliable data) would not result in unacceptable levels of aggregate human health risk at this time. Because OPP considers the aggregate risk resulting from multiple exposure pathways associated with a pesticide's uses, levels of comparison in drinking water may vary as those uses change. If new uses are added in the future, OPP will reassess the potential impacts of sulfentrazone on drinking water as a part of the aggregate risk assessment process.

1. Acute risk . Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food to sulfentrazone will occupy <1% of the aPAD for the U.S. population, 6% of the aPAD for females 13 years and older, <1% of the aPAD for all infants (<1 year old) and <1% of the aPAD for children (1-6 years old). In addition, despite the potential for acute dietary exposure to sulfentrazone in drinking water, after calculating DWLOCs and comparing them to conservative model estimated environmental concentrations of sulfentrazone in surface and ground water, EPA does not expect the aggregate exposure to exceed 100% of the aPAD, as shown in the following Table 2.

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to sulfentrazone from food will utilize 2% of the cPAD for the U.S. population, 4% of the cPAD for all infants (< 1 year old) and 6 % of the cPAD for children (1-6 years old). There are no residential uses for sulfentrazone that result in chronic residential exposure to sulfentrazone. In addition, despite the potential for chronic dietary exposure to sulfentrazone in drinking water, after calculating DWLOCs and comparing them to conservative model estimated environmental concentrations of sulfentrazone in surface and ground water, EPA does not expect the aggregate exposure to exceed 100% of the cPAD, as shown in the following Table 3:

3. Short-term risk . Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Sulfentrazone is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which were previously addressed.

4. Intermediate-term risk . Intermediate-term aggregate exposure takes into account non-dietary, non-occupational exposure plus chronic exposure to food and water (considered to be a background exposure level).

Sulfentrazone is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which were previously addressed.

5. Aggregate cancer risk for U.S. population . Because sulfentrazone is not a carcinogen, a cancer aggregate risk assessment was not conducted.

6. Determination of safety . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to sulfentrazone residues.

An analytical methodology for the determination of sulfentrazone, 3-desmethyl sulfentrazone, and 3-hydroxymethyl sulfentrazone residues in/on various matrices was submitted with a petition for a sulfentrazone tolerance on soybeans. A petition method validation (PMV) was successfully completed by the Agency's Analytical Chemistry Laboratory. The Limit of Quantitation (LOQ) and Minimum Detection Limit (MDL) were determined to be 0.05 ppm and 0.005-0.025 ppm, respectively. EPA concluded that the method is suitable for enforcement purposes.

Adequate enforcement methodology (example - gas chromotography) is available to enforce the tolerance expression. The method may be requested from: Calvin Furlow, PIRIB, IRSD (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW, Washington, DC 20460; telephone number: (703) 305-5229; e-mail address: furlow.calvin@epa.gov.

There are no Codex, Canandian or Mexican residue limits for sulfentrazone on horseradish and sugarcane. Therefore, no compatibility problems exist for the proposed tolerances.

Rotational field trial data for wheat, corn, rice and sorghum were submitted in support of a petition for a sulfentrazone tolerance on soybeans. Permanent tolerances have been established on cereal grains (excluding sweet corn) when planted in rotation with the primary crop soybeans. The suggested rotational crop restrictions on the Section 18 labels pertaining to these emergencies are the same as those on the label for soybeans. Therefore, additional rotational crop data are not necessary for this action.

Therefore, the tolerances are established for combined residues of sulfentrazone, in or on horseradish and sugarcane at 0.1 and 0.05 ppm, respectively.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301074 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before January 8, 2001.

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

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

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

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

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

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VII.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by the docket control number OPP-301074, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

This final rule establishes a time-limited tolerance under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any prior consultation as specified by Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 19, 1998); special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or require OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a FIFRA section 18 petition under FFDCA section 408, such as the tolerance/exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4).

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

The Environmental Protection Agency (EPA) Region 5 announces the deletion of the Ilada Energy Company Site, East Girardeau, Illinois from the National Priorities List (NPL), appendix B of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300. EPA identifies sites that appear to present a significant risk to public health, welfare, or the environment and maintains the NPL as the list of these sites. EPA and the State of Illinois have determined that the remedial action for the Site has been successfully executed. EPA will accept comments on this action for thirty days after publication of this action in the Federal Register .

Section II of this notice explains the criteria for deleting sites from the NPL. Section III discusses the procedures that EPA is using for this action. Section IV discusses the history of the Ilada Energy Company Site and explains how the Site meets the deletion criteria. Section V states EPA's action to delete the Site from the NPL unless dissenting comments are received during the comment period.

Section 300.425(e) of the NCP provides that Sites may be deleted from, or recategorized on the NPL where no further response is appropriate. In making a determination to delete a Site from the NPL, EPA shall consider, in consultation with the state, whether any of the following criteria has been met:

(i) Responsible parties or other persons have implemented all appropriate response actions required;

(ii) All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

(iii) The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, taking of remedial measures is not appropriate.

Even if the Site is deleted from the NPL, where hazardous substances, pollutants, or contaminants remain at the Site above levels that allow for unlimited use and unrestricted exposure, EPA's policy is that a subsequent review of the Site will be conducted at least every five years after the initiation of the remedial action at the Site to ensure that the Site remains protective of public health and the environment. In the case of this Site, EPA will conduct a Five-Year Review in the year of 2005. As explained below, the Site meets the NCP's deletion criteria (i) listed above. If new information becomes available which indicates a need for further action, EPA may initiate remedial actions. Whenever there is a significant release from a site deleted from the NPL, the site shall be restored to the NPL without the application of the Hazard Ranking System (HRS).

The following procedures were used for the intended deletion of the Site:

(1) All appropriate responses under CERCLA have been implemented and no further action by EPA is appropriate; (2) The State has concurred with the proposed deletion decision; (3) A notice has been published in the local newspaper and has been distributed to appropriate federal, state, and local officials and other interested parties announcing the commencement of a 30-day dissenting public comment period on EPA's Direct Final Action to Delete; and, (4) All relevant documents have been made available for public review in the local Site information repositories. EPA is requesting only dissenting comments on the Direct Final Action to Delete.

For deletion of the Site, EPA's Regional Office will accept and evaluate public comments on EPA's Final Notice before making a final decision to delete. If necessary, the Agency will prepare a Responsiveness Summary, responding to each significant comment submitted during the public comment period. Deletion of the Site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. The NPL is designed primarily for informational purposes and to assist Agency management. As mentioned in section II of this document, § 300.425(e)(3) of the NCP states that the deletion of a Site from the NPL does not preclude eligibility for future response actions.

The following site summary provides the Agency's rationale for the proposal to delete this Site from the NPL.

The Ilada Energy Company site (the “Site”) encompasses approximately 17 acres in southern Illinois, south of the town of East Cape Girardeau in the northwest quadrant of Section 32, Township 14 South, Range 3 West. The surrounding area is utilized primarily for agricultural purposes. Farmland borders the Site to the northeast, but the remainder is owned by the US Forest Service and used for silviculture. The area is relatively flat with a ground surface elevation of approximately 330 feet above mean sea level. The Site is located within the 100-year floodplain of the Mississippi River on the “dry” side of the 20-foot high flood control levee which is located immediately to the south of the Site. A 200-foot wide slough was formed along the south toe of the levee as a result of borrowing material for its construction. This area is swampy during the wet season (approximately Fall through Spring) supporting riparian vegetation consisting of cattails and other aquatic plants. The quarter-mile wide strip between the river and the slough comprises wooded areas, dense brush and ground vegetation, and patches of overgrown, idle cropland.

The main portion of the Site is surrounded by a locked chain-link fence to restrict access. Prior to the removal action, there were seven structures and twenty-two bulk oil tank and numerous underground pipelines. All were removed from the Site along with the tank contents and the grossly contaminated, on Site soil. The Site is overgrown yearly with native grasses and weeds.

The Site originally consisted of a tank farm built for the U. S. Department of War (DOW) in 1942. The location was selected to take advantage of access provided by the Mississippi River. The facility was operated by Allied Oil Terminal Company as a bulk fuel oil storage/transfer terminal until the early or mid-1950's. Transfer piping ran across the levee towards the river.

After Allied Terminal ceased using the facility in the mid-1950's, the Site sat idle until purchased by the Kara Oil Company in 1979. In 1982, it was assigned to Larry Wilson of the Ilada Energy Company (Ilada).

From 1981 to 1983, Ilada operated the tank farm as a waste oil reclamation facility. Additional tanks and structures were added to the facility in that time period.

Several inspections of the then operating facility were conducted by the Illinois EPA and the USEPA in 1982 and 1983. These inspections revealed that Ilada was improperly storing, handling, mixing, and disposing waste oils contaminated with PCBs. Ilada and the USEPA entered into a consent decree in January 18, 1983. This decree ordered Ilada to remove PCB-contaminated materials and cease handling hazardous materials and waste. Among other actions, the order required the removal of PCB-contaminated materials in accordance with Toxic Substance Control Act (TSCA). It also required Ilada to close all activities relating to the receipt, transportation, storage, handling, use and disposal of PCBs, chemicals, and other wastes. Later in 1983, the boiler was removed by Ilada as well as some pumps and related equipment from the pump house, and office and laboratory equipment were removed from the Office Building. In 1986, the Illinois EPA installed six groundwater monitoring wells on the Site. The Site was subsequently proposed for inclusion on the National Priorities List (NPL) pursuant to section 105 of CERCLA on June 24, 1988. The listing of the Site on the NPL was finalized on October 4, 1989. Site visits in 1989 indicated spillage and leakage of oils on the ground near several tanks and tank valves. Ilada failed to remove any of the PCB waste. After Ilada's failure to perform the required actions, a Unilateral Order was issued.

In 1989, a Unilateral Administrative Order was issued pursuant to section 106 of CERCLA to remove PCB materials from the Site. As a result of the section 106 Order, four of the companies included as PRPs formed the Ilada Energy Company—East Cape Girardeau Group. These companies included Shell Oil Company, Metal Container Corporation, Granite City Steel Division of National Steel, and Emerson Electric Company. The group was then ordered to initiate a Remedial Investigation (RI) to determine the source, nature and extent of the contamination at the Site following the removal action.

The RI was finalized and approved by Illinois EPA in April of 1999. The Human Health Baseline Risk Assessment (HHRA) and Ecological Risk Assessment (ERA) were finalized and approved by Illinois EPA in July of 1999.

All structures used by Ilada Energy, including foundations, tanks, above ground and buried pipelines (including those south of the levee), debris, and grossly contaminated soils were removed as part of the August 7, 1992, removal action. The only remnants of the tank farm are the repaired seven-foot high perimeter fence, roads, subdued remnants of the six berms around the tank areas, and the former site production water well. Nearly all of the brush and trees were removed during the removal action. Weeds and brush have re-established a vegetative cover since completion of site activities.

With the exception of a localized pool of subsurface aviation gasoline, no continuing source of constituents associated with site operations remains on the Site. The lateral extent of this pool has been fully delineated and is confined to an area of about 50 by 75 feet. This pool was observed in one monitoring well, D12. Subsurface investigation in the area of D12 revealed that the pool is discontinuous and is not present as a contiguous pool of mobile liquid floating on the groundwater. All other materials and potential sources, including grossly contaminated surficial soils, were removed during the removal action.

The 1999 RI report yielded information regarding the nature and extent of the contamination remaining at the Site including the following:

• The site surface and subsurface soils contain generally low levels of Volatile Organic Compounds (VOC's) and Semi-Volatile Organic Compounds (SVOC'S).

• A localized subsurface pocket of light non-aqueous phase liquid (LNAPL) composed of aviation gasoline remains from the site's original use as a fuel storage depot approximately 40 years ago. The lateral extent of this pocket measures approximately 50 by 75 feet, and it is entirely contained on the Site.

• The adjacent properties to the south, east, west, and north are unavailable for future development because they were acquired in 1997 as part of a federal flood control program.

The removal action conducted between 1989 and 1991 substantially mitigated the human health and environmental threats posed by this site. This action resulted in the removal from the Site of all tanks and their contents, piping, structures, and grossly contaminated soils. A total of 442,162 gallons of oil and sludge were sent offsite to be burned as waste fuel in cement kilns; 142,700 gallons of PCB contaminated oil and sludge were incinerated at a permitted off-site facility; 865,700 gallons of contaminated water were treated and discharged to the river after testing showed that it met Clean Water Act standards; 1055 cubic yards of soil and miscellaneous debris were disposed offsite as special waste; 637 cubic yards were disposed offsite as demolition debris; fifty cubic yards of PCB-contaminated soil were landfilled at a permitted offsite facility; and 1264 tons of steel were recycled. All wastes were removed from the Site and treated or disposed elsewhere.

During the RI, an analysis was conducted to estimate the health and environmental problems that could result from the residual soil and groundwater constituents at the Ilada Energy Site after the completion of the removal action at the Site.

The Proposed Plan for the Ilada Energy Superfund Site was released for public comment in July 1999. The Proposed Plan identified the “No Further Action” alternative as the preferred and only alternative for the Site. Illinois EPA reviewed all written and verbal comments submitted during the public comment period. None were received. It was determined that no significant changes to the remedy, as originally identified in the Proposed Plan, were necessary or appropriate.

A no further remedial action Record of Decision (ROD) was sign on September 27, 1999. It has been determined that no further remedial action is necessary for the purpose of mitigating environmental or human health threats at this Site. The selected remedy is protective of human health and the environment, attains Federal and State requirements that are applicable or relevant and appropriate for this remedial action, and is cost-effective.

This remedy requires the maintenance of institutional controls. The institutional controls that consist of the following:

• Prohibiting the installation of groundwater wells for the purpose of producing potable water, and;

• Prohibiting the use, improvement or maintenance of any type of Site property for residential purposes.

The remedy selected for this Site has been implemented in accordance with the Record of Decision. The remedy along with the previous removal actions have resulted in the significant reduction of the long-term potential for release of contaminants, therefore, threats to human health and the environment have been minimized. EPA and the State of Illinois find that the response actions implemented provide adequate protection of human health the environment.

The Illinois EPA concurs with the EPA that the criteria for deletion of the Site have been met. Therefore, EPA is deleting the Site from the NPL.

This action will be effective January 8, 2001. However, if EPA receives dissenting comments by December 11, 2000, EPA will publish a document that withdraws this action.

This is a summary of the Commission's Report and Order, MM Docket No. 99-220, adopted October 11, 2000, and released October 20, 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.

This is a synopsis of the Commission's Memorandum Opinion and Order, MM Docket No. 99-75, adopted October 11, 2000, and released October 20, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036.

This is a synopsis of the Commission's Report and Order, MM Docket No. 99-195, adopted October 11, 2000, and released October 20, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Service, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

This is a summary of the Report and Order (“ R&O ”) in MM Docket No. 00-44, FCC 00-343, adopted on September 14, 2000, and released on October 5, 2000. The full text of this decision is available for inspection and copying during regular business hours in the FCC Reference Center, 445 Twelfth Street, SW, Room CY-A257, Washington DC, and also may be purchased from the Commission's copy contractor, International Transcription Service, (202) 857-3800, 445 Twelfth Street, SW, Room CY-B402, Washington DC. The complete text is also available under the file name fcc00343.pdf on the Commission's Internet site at www.fcc.gov.

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

Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies via the Internet to http://www.fcc.gov.e-file/ecfs.html. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, “get form, <your e-mail address>.” A sample form and directions will be sent in reply.

This document contains either new or modified information collection(s). The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public to comment on the information collection(s) contained in this R&O, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due January 8, 2001. Comments should address (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) ways to enhance the quality, utility, and clarity of the information collected; (c) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

OMB Control Number: 3060-XXXX

Title: Children's Television Programming Report

Form No: FCC Form 398

Type of Review: revision of existing collection

Respondents: business or other for-profit

Number of respondents: 1,250

Estimated Time Per Response: 6 hours/quarter

Total Annual Burden: 30,000 hours

Total Annual Costs: $489,600

Needs and Uses: The R&O continues indefinitely the requirement that commercial broadcast television licensees file with the Commission their quarterly Children's Television Programming Reports (FCC 398). The R&O also requires that the reports be filed quarterly, when they are prepared, rather than annually. In addition, the R&O makes a number of revisions to FCC 398 to make the information contained in the form clearer and more useful to the public and the FCC. These revisions include a new preemption report to be completed for each preempted core program during the quarter. This information collection will assist in efforts by the public and the Commission to monitor compliance with the Children's Television Act.

1. In this Report and Order (“ R&O ”), the Commission makes a number of changes to the children's educational television reporting requirements of commercial broadcast television licensees. First, we extend indefinitely the requirement that commercial broadcast television licensees file with the Commission their quarterly Children's Television Programming Reports (FCC Form 398). The Commission's rules currently state that such reports shall be completed quarterly and filed on an annual basis for an experimental period of three years, from January 1998 through January 2000. These reports are required to be filed electronically. Second, we require broadcasters in the future to file these reports on a quarterly basis, at the time they are prepared, rather than annually. Finally, we also announce herein a number of revisions to be made to FCC Form 398 to make the information contained in the form clearer and more useful to the public and the FCC. The actions we take herein will assist the Commission in continuing to enforce the Children's Television Act of 1990 (“CTA”) and our rules implementing the CTA by facilitating monitoring by the FCC and the public of the amount and quality of educational television programming for children and industry compliance with the Commission's children's educational programming requirements.

2. Data indicate that children spend, on average, almost three hours a day watching television. In view of the significant impact this medium has on children, Congress has concluded that television should be contributing to children's development. The CTA requires the Commission, in its review of each television broadcast license renewal application, to “consider the extent to which the licensee . . . has served the educational and informational needs of children through the licensee's overall programming, including programming specifically designed to serve such needs.” In enacting the CTA, Congress found that, while television can benefit society by helping to educate and inform children, there are significant market disincentives for commercial broadcasters to air children's educational and informational programming. The objective of Congress in enacting the CTA was to increase the amount of educational and informational programming available on television. The CTA places on every licensee an obligation to provide such programming, including programming specifically designed to educate and inform children, and requires the FCC to enforce that obligation.

3. In August 1996, the Commission adopted its current educational programming rules to strengthen its enforcement of the CTA. See Policies and Rules Concerning Children's Television Programming, 61 FR 43981 (Aug. 27, 1996). The Commission's rules include several measures to increase the availability of programming “specifically designed” to serve children's educational needs (otherwise known as “core” programming) and to facilitate public access to information about such programming. These measures include a requirement the licensees identify core programming at the time it is aired and in information provided to publishers of television guides. Licensees are also required to designate a children's liaison at the station responsible for collecting comments on the station's compliance with the CTA. Furthermore, the rules establish a definition of “core” programming as well as a three-hour-per-week processing guideline pursuant to which broadcasters airing at least three hours per week of programming that meets the definition of “core” will receive staff-level approval of the CTA portion of their renewal applications.

4. One of the most important public information measures adopted by the Commission in 1996 was the requirement that licensees complete a Children's Television Programming Report, on FCC Form 398, each calendar quarter and place the report in the station's public inspection file. Broadcasters are required to separate the children's programming reports from other materials they maintain in their public files. The Commission required that these quarterly reports be filed jointly with the Commission on an annual basis for an experimental period of three years. Among other things, these reports identify the educational and informational programs aired by the licensee over the previous quarter and the days and times these programs were regularly scheduled, the age of the target audience for each program, and the average number of hours per week of core programming broadcast over the past quarter. Licensees must include in the reports an explanation of how each core program meets the definition of “core” programming adopted by the Commission. Stations must also identify in their reports the core programs the station plans to air during the next calendar quarter. The Commission makes the reports available at its website.

5. The public information initiatives, including the Children's Television Programming Reports, are an integral part of the children's programming rules. These measures are designed to ensure that the public, and especially parents, has access to information regarding the educational programming being aired by broadcasters so that parents and others can help achieve the goal of the CTA to increase the amount of educational programming available on television. Facilitating public access to the information contained in the Children's Television Programming Reports helps achieve the goals of the CTA in a number of ways. Parents who have access to information about educational programming, such as the titles of programs, the times they are regularly scheduled to air, and the age for which the programs are intended, can select such programming for their children to watch, thereby increasing the audience for such programs and the incentive of broadcasters to air, and producers to supply, more such programs. The information contained in the reports can also be used by parents, educators, and others interested in educational programming to monitor a station's performance in complying with the CTA and the Commission's rules. In this way, the public can play an active role in helping to enforce children's programming requirements. Finally, requiring broadcasters to identify programming they rely upon to meet their obligation to air educational programming makes broadcasters more accountable to the public. Improving broadcaster accountability minimizes the need for government involvement to enforce the CTA and helps to ensure that broadcasters, with input from the public, rather than the Commission determine which television programs serve children's educational needs.

6. In its August 1996 Children's Programming Report and Order, the Commission also required that a children's program be “regularly scheduled” to be counted as core programming for purposes of meeting the three-hour-per-week processing guideline, i.e.,—a core children's program must “be scheduled to air at least once a week” and “must air on a regular basis.” The Commission stated that television series typically air in the same time slot for 13 consecutive weeks, although some episodes may be preempted for programs such as breaking news or live sports events. The Commission noted that programming that is aired on a regular basis is more easily anticipated and located by viewers, and can build loyalty that will improve its chance for commercial success. The Commission stated that it would leave to the staff to determine, with guidance from the full Commission as necessary, what constitutes regularly scheduled programming and what level of preemption is allowable. Subsequent to the adoption of the Children's Programming Report and Order, and in response to requests from the ABC, CBS, and NBC networks that local stations be given flexibility to reschedule episodes of core programs that are preempted by live network sports events without adversely affecting the program's status as “regularly scheduled,” the Mass Media Bureau has allowed the networks limited flexibility in preempting core children's programming. Specifically, within certain limitations, the Bureau advised that preempted core programs could count toward a station's core programming obligation if the program were rescheduled. The Bureau also indicated that it would revisit this limited flexibility regarding preempted core programming based on the level of preempted programs, the rescheduling and broadcast of the preempted programs, and the impact of promotions and other steps taken by the stations to make children's educational programming a success.

7. The Commission has reviewed all of the reports filed since commencement of the FCC filing requirement, and has used the information in the reports to evaluate industry practices in connection with preemption of children's programming. In addition, the Commission staff is currently preparing an analysis based on the data reflected in reports filed over the past three years. In adopting the children's programming rules, the Commission stated it would monitor the broadcast industry's children's educational programming performance for three years based upon the Children's Television Programming Reports filed with the Commission, and would review the reports at the end of the three-year period and take appropriate action as necessary to ensure that stations are complying with the rules and guidelines.

8. In addition to extending the filing requirement, we will require broadcasters to file their Children's Television Programming Reports with the Commission on a quarterly basis, at the time the reports are prepared, rather than annually. Section 73.3526(e)(11)(iii) currently requires that the report for each calendar quarter be filed in the station's public inspection file by the tenth day of the succeeding calendar quarter. Beginning January 10, 2001, we will require that reports for each quarter be filed electronically with the Commission by the same date the report is due to be placed in the station's public inspection file.

9. We agree with CME et al. that quarterly filing with the Commission will provide the public and the Commission with more current information on the educational and informational programming offered by broadcasters to meet their obligation under the CTA and our rules. Among other things, the reports include information on the core educational and informational programs the licensee plans to air during the next calendar quarter. The purpose of requiring licensees to report this information is to permit parents, teachers, and others to better anticipate and plan for the viewing of educational programs by children. Facilitating timely public access to the station's schedule of core educational and informational programs for the succeeding calendar quarter will permit parents and others to use this information more effectively to plan their children's television viewing. CME et al. suggests that quarterly filings will be more helpful to parents, and argues that they will also allow researchers to report more timely on programming trends for the annual television season, which could influence programming for the subsequent television season.

10. NAB opposes a quarterly filing requirement, arguing that licensees appear to be complying with the children's television programming rules and that there is no demonstrated need for increased reporting requirements. While we agree that the reports filed since our revised children's television programming rules became effective indicate that virtually all licensees claim to be airing at least 3 hours per week of programming that meets our definition of programming “specifically designed” to meet the educational and informational needs of children, we believe that improving public access to the information contained in the reports will assist parents and others interested in selecting programs for children to watch. As noted, assisting parents in choosing educational programming for their children may possibly increase the commercial success of such programming and thereby prompt broadcasters to increase the amount of educational and informational broadcast television programming available to children—one of the underlying goals of our children's programming public information initiatives. More timely information will also assist those interested in monitoring station performance under our rules, thus assisting the Commission in its enforcement role.

11. As reports must now be prepared and placed in the station's public inspection file on a quarterly basis, we continue to believe that requiring these quarterly reports to be transmitted electronically to the Commission on a quarterly basis, rather than once a year, will not impose a significant additional burden on licensees. In this regard, we note that more than seventy percent of licensees already voluntarily file their reports quarterly. Reports are currently required to be filed electronically with the Commission, and the Commission makes an electronic version of a blank FCC Form 398 available on its website to be used by licensees to prepare their quarterly submissions. As CME et al. suggests, transmitting the reports to the Commission quarterly rather than annually should require very little additional time and effort on the part of licensees. In view of the benefits of quarterly filing with the FCC and the minimal additional burden this will impose on licensees, we believe that quarterly filing is warranted.

12. CME et al. suggested that FCC Form 398 be revised to provide more information regarding (1) why a broadcaster has preempted a children's educational program, (2) which program guide publishers are not printing the programming information provided by local broadcasters, and (3) what efforts broadcasters are making to publicize the existence and location of their Reports (question 8). CME et al. also suggests that broadcasters be required to post their reports on their website, that the FCC's own children's television webpage be made more user-friendly, and that Form 398 be revised to reflect the station's license renewal date.

13. The Commission required that programming must be “regularly scheduled” to qualify under the three-hour guideline. This requirement was based on the fact that programming that is aired on a regular basis is more easily anticipated and located by viewers, and therefore more likely to be seen by its intended audience. Although acknowledging that preemption might occur, the Commission expected that preemption of core programming would be rare. The Mass Media Bureau staff has recently reviewed a random sample of the Children's Television Programming Reports, and determined that the average preemption rate by stations affiliated with the largest networks during the past two years is nearly 10%, and has been as high as 25% during a quarter when a large number of sports programming commitments. Given this level of preemption, and the difficulty that some members of the public and the Commission staff have experienced in interpreting the information set forth in Form 398, we wish to gather more information about the circumstances of preemption to ensure that our preemption policy does not thwart the CTA.

14. To make the information in the Children's Television Programming Reports clearer and to improve public access to information about educational and informational programming and licensee compliance with the CTA and our rules, we will make a few revisions to FCC Form 398. Currently, question 5 of FCC Form 398 requires broadcasters to list, among other information, the title of each core educational and informational program aired by the station during the past calendar quarter, the days and times the program is regularly scheduled, the total times the program aired, the number of preemptions and, if the program was preempted and rescheduled, the date and time the program was aired. From the way this question is currently worded and formatted, it is difficult to determine from the responses to this question exactly how many times each core program was preempted during the calendar quarter, whether the preempted episode was eventually aired and, if so, when the program was aired. In addition, as CME suggests, it would be useful to know the reason for each preemption. Although we encourage stations to reschedule core programming preempted for breaking news, even if programs preempted for breaking news are not rescheduled they can count toward the three-hour-per-week core programming guideline. We cannot currently determine whether a program was preempted for breaking news or another reason, and thus whether the program must have been rescheduled and aired in order to count toward the three-hour guideline. Finally, we would also like to know if licensees made efforts to notify viewers and publishers of program guides of the date and time their rescheduled programs would air. To address these issues, we will revise question 5 of FCC Form 398 to gather more information about preempted core programs during the quarter and add as an addendum to the form a “Preemption Report” to be completed for each preempted core program during the quarter. The Preemption Report will request information on the date of each preemption, if the program was rescheduled the date and time the program was aired, and the reason for the preemption (e.g., we will ask the licensee to pick a reason from among several options, including breaking news). We will also ask licensees to indicate whether promotional efforts were made to notify the public of the time and date the rescheduled program would air. This data will provide more complete information regarding the level of preemption of core programs and station practices in rescheduling such programs. This information will in turn allow the FCC and interested members of the public to continue to monitor the impact of preemptions generally on the availability of core programs.

15. We will also revise question 4 of FCC Form 398 in order to collect more extensive data about the information furnished by licensees to publishers of program guides regarding core programming aired by the station. Section 73.673(b) of our rules requires commercial television station licensees to provide information identifying core programming, and the age group for which the program is intended, to publishers of program guides. In adopting this requirement, we noted that program guides are an effective means of providing parents with advance notice of scheduling of educational programs, and that such information can assist both parents in finding suitable programs for their children and others who wish to monitor station performance in complying with the CTA. While we noted that we cannot require guides to print this information, we stated that the information is more likely to be included in program listings if broadcasters routinely provide it.

16. Question 4 as currently written asks whether licensees have provided information to publishers of program guides as required by our rules, with the licensee indicating “yes” or “no.” We will revise this question to ask licensees to identify by name the program guides to which information was provided, but decline to require broadcasters to indicate in their reports whether the program guides to which the information was provided actually published this information. Our purpose in making this change is twofold. First, we agree with CME et al. that requiring broadcasters to list the publishers to whom information was submitted will provide parents, the public and the Commission useful data by which to judge a broadcasters good-faith efforts to comply with our goal of facilitating public access to information about educational programming. Second, and perhaps more important, requiring broadcasters to provide this information will help in identifying those publishers that decline to include information about educational programming in their program guides. Studies examining the impact of the children's programming rules have concluded that many parents still do not know which programs carry educational labels, and that the widespread failure of program guides to include information identifying core educational programming contributes to this problem. It does not appear that any newspapers or program guides routinely include in their television listings the symbols identifying core programs. Requiring stations to identify publishers to which information about core programs is being provided will allow parents and others to encourage other program guide publishers to include this information in their TV listings. As broadcasters are already required by our rules to provide information to program guide publishers, it should not be difficult for broadcasters simply to identify those publishers on their quarterly programming reports. We disagree with CME et al., however, that broadcasters should be required to indicate in their reports whether the program guides to which information was provided actually published this information. As NAB argues, tracking what was actually published could impose a significant burden on broadcasters. Once publishers that have been provided with information are identified by licensees in their reports, interested members of the public can monitor those publications and urge them to include educational children's program identifiers.

17. Finally, as CME et al. suggests, we will also add a question to FCC Form 398 requiring the station to indicate its license renewal date. This information is readily available to broadcasters and easy to provide, and will be useful to members of the public interested in monitoring station compliance.

18. We will amend § 73.3526 of the Commission's rules as set forth in FCC Form 398, Children's Television Programming Report, to reflect the changes discussed. We direct the Mass Media Bureau to revise FCC Form 398 accordingly and submit it to OMB for approval.

19. The R&O amends § 73.3526(e)(11)(iii) of the Commission's rules to continue indefinitely the requirement that commercial broadcast television licensees file with the Commission, on an annual basis, their quarterly Children's Television Programming Reports (FCC Form 398). The Commission's rules currently state that such reports shall be filed on an annual basis for an experimental period of three years, from January 1998 through January 2000. Continuation of the filing requirement will permit the Commission to continue to enforce the Children's Television Act of 1990 (“CTA”), and its rules implementing the CTA, by monitoring the amount and quality of educational television programming for children and industry compliance with the Commission's children's educational programming requirements. The R&O also requires that the reports be filed with the Commission quarterly, at the time they are prepared, instead of annually, which will make available to the public more timely information about the educational and informational programming aired by the licensee during the preceding calendar quarter and planned to be aired during the succeeding quarter. Finally, the R&O also makes a number of revisions to FCC Form 398 to make the information in the reports clearer and more useful to the Commission and the public. Specifically, the R&O adds a “Preemption Report” to FCC Form 398 to be completed for each preempted core program during the quarter requesting information on the date of each preemption, if the program was rescheduled the date and time the program was aired, and the reason for the preemption. The revised form also asks whether promotional efforts were made to notify the public of the time and date the rescheduled program would air, and requires licensees to identify the program guide publishers provided information about the licensee's core educational programming. Finally, licensees must indicate on the revised form the station's next license renewal date. These measures are designed to permit us to continue to enforce the CTA and our rules implementing that statute, and to improve public access to information about licensee compliance with their obligations to provide educational and informational programming for children.

20. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the rules. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small business concern” under section 3 of the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

21. Small TV Broadcast Stations. The SBA defines small television broadcasting stations as television broadcasting stations with $10.5 million or less in annual receipts. BIA Research Inc. reports that 784 out of 1221 commercial television stations (64%) have annual revenues less than $10.5 million. Thus, we estimate that 784 or fewer commercial TV broadcast stations are small businesses, as defined by the SBA.

22. The R&O continues the requirement that commercial broadcast television stations file with the FCC a copy of their quarterly Children's Television Programming Reports on FCC Form 398. In addition, the R&O requires that these reports be filed on a quarterly basis, as they are prepared, rather than annually. Finally, the R&O makes a number of changes in FCC Form 398 to make the information in the reports clearer and more useful to the FCC and the public. Specifically, the R&O adds a “Preemption Report” to FCC Form 398 to be completed for each preempted core program during the quarter requesting information on the date of each preemption, if the program was rescheduled the date and time the program was aired, and the reason for the preemption. The revised form also asks whether promotional efforts were made to notify the public of the time and date the rescheduled program would air, and requires licensees to identify the program guide publishers provided information about the licensee's core educational programming. Finally, licensees must indicate on the revised form the station's next license renewal date.

23. The R&O requires licensees to identify in their Children's Television Programming Reports the program guide publishers to whom information regarding the licensee's educational and informational children's programming was provided. Although commenters also advocated that licensees be required to state whether this information was actually published, the R&O declines to impose this additional obligation on licensees because we believe that this might have constituted a significant economic impact without an adequate resulting benefit. In addition, although commenters proposed requiring that licensees be required to identify in their reports the precise efforts made to publicize the existence and location of the reports as required by 47 CFR 73.3526(e)(11)(iii), this proposal was not adopted in the R&O.

24. The Commission will send a copy of the R&O, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of the R&O, including the certification and FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the R&O, certification, and FRFA (or summaries thereof) will also be published in the Federal Register . See 5 U.S.C. 604(b) and 605(b).

25. Pursuant to authority contained in sections 4(i), 303, and 308 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i ), 303, and 308, and the Children's Television Act of 1990, 47 U.S.C. 303a, 303b, part 73 of the Commission's rules, 47 CFR part 73, is amended as set forth.

26. Pursuant to the Congressional Review Act, 5 U.S.C. 801, et seq. , the amendments set forth shall be effective January 1, 2001. Children's Television Programming Reports for the fourth quarter of 2000, due to be filed with the Commission by January 10, 2001, should be completed using the current FCC Form 398. The Commission will revise its electronic version of FCC Form 398 to reflect the changes adopted herein. Reports for the first quarter of 2001, due to be filed by April 10, 2001, should be completed using the revised form.

27. The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this R&O, including the Initial and Final Regulatory Flexibility Act Analyses, to the Chief Counsel for the Small Business Administration.

28. Pursuant to 47 U.S.C. 155(c), the Chief, Mass Media Bureau, is granted delegated authority to implement the changes to Form 398 adopted in this R&O.

This is a summary of the Commission's Memorandum Opinion and Order on Reconsideration ( “MO&O” ), MM 99-25; FCC 00-349, adopted September 20, 2000; released September 28, 2000. The full text of the Commission's MO&O is available for inspection and copying during normal business hours in the FCC Dockets Branch (Room TW-A306), 445 12 St. S.W., Washington, D.C. The complete text of this MO&O may also be purchased from the Commission's copy contractor, International Transcription Services (202) 857-3800, 1231 20th St., N.W., Washington, D.C. 20036.

1. In January, we adopted a Report and Order ( “R&O” ), 65 FR 7616 (February 15, 2000), establishing a low power FM radio service. We authorized this new service to provide opportunities for new voices to be heard, while at the same time preserving the integrity and technical excellence of existing FM radio service and safeguarding its transition to a digital transmission mode. In this MO&O , we dispose of petitions for reconsideration of the R&O , make certain changes to our rules, and provide certain clarifications of our rules.

2. In the R&O , the Commission authorized two new classes of FM radio service, known collectively as low power FM (LPFM). The LP100 class will consist of stations with a maximum power of 100 watts effective radiated power (ERP) at 30 meters antenna height above average terrain (HAAT), providing a signal level equivalent to the FM “protected” service (1 mV/m or 60 dBu) within a radius of approximately 3.5 miles. After a period of time sufficient to act on LP100 applications that are filed, the Mass Media Bureau will accept applications for LP10 stations. We are accepting applications for LP100 stations on a geographically staggered basis. See filing window schedule. The initial filing window for the first region closed June 8, 2000. The initial filing window for the fifth, and last, region is expected to be opened in May 2001. These stations will have a maximum power of 10 watts ERP at 30 meters HAAT, providing the same signal strength out to approximately 1 or 2 miles from the station's antenna. To avoid compromising existing FM radio service, given the new nature of the LPFM service, we imposed separation requirements for LPFM with respect to full power stations operating on co-, 1st—and 2nd—adjacent and intermediate frequency (IF) channels. Based on our engineers' technical analysis and careful review of other analyses submitted, we determined that 100-watt LPFM stations operating without 3rd adjacent channel separation requirements will not result in unacceptable new interference to the service of existing FM stations. We decided, therefore, not to impose 3rd adjacent channel separation requirements because doing so would unnecessarily and substantially restrict the number of LPFM stations that could be authorized, particularly in higher population areas.

3. We restricted LPFM service to noncommercial operations by noncommercial educational entities and public safety radio services. With certain narrow exceptions, we decided to restrict ownership to entities that have no attributable interest in any other broadcast station or other media subject to our ownership rules. We severely restricted the number of LPFM stations that a single entity can own and limited ownership to locally-based entities for the first two years. We determined not to permit the sale of an LPFM station. To resolve mutually exclusive applications, we decided to use a point system that favors local ownership and locally-originated programming, with time-sharing and successive license terms as tie-breakers. Finally, we have minimized the regulatory burdens imposed on these stations, consistent with their size and very localized operation.

4. In this MO&O , we generally affirm the decisions we reached in the R&O , although we make some changes and clarify certain aspects of our rules. As explained, we reject arguments by petitioners proposing more stringent channel separation requirements, as well as arguments in favor of relaxing those requirements. We adopt complaint and license modification procedures to ensure that if any unexpected, significant 3rd adjacent channel interference problems are caused by the operation of a particular LPFM station, it can be resolved expeditiously. We decline to modify the permissible power levels for the service. We modify the spacing standards adopted in the R&O to require that LPFM stations operating on 3rd adjacent channels protect stations operating radio reading services and, pending further study, will not authorize an LPFM station that would not be sufficiently geographically separated from any full-service FM station on a 3rd adjacent channel that operates a radio reading service as of the date of the adoption of this MO&O . We also decline to alter the noncommercial nature of the service. We affirm our decision to apply our character qualifications policy with respect to former illegal broadcasters. We increase the flexibility of the ownership rules for certain specific types of applicants: government, transportation and public safety entities, and universities. We provide clarifications on eligibility issues concerning Indian tribes, student stations, licensees in the Instructional Television Fixed Service (ITFS), and schools with multiple campuses. We affirm our tie-breaker criteria, with certain clarifications regarding the credit for programming that is locally originated. Finally, we address a number of questions and suggestions regarding individual elements of our rules.

5. In the R&O , we determined that it was not necessary to require that LPFM stations protect other full or low power FM stations operating on 3rd adjacent channels, i.e., stations +/−600 KHz apart. Our decision on this issue was based on our finding that 100-watt LPFM stations operating on 3rd adjacent channels will not result in significant new interference to the service of existing FM stations. We concluded that any small amount of interference that may occur in individual cases would be outweighed by the benefits of new low power FM service. We also determined that the risk of interference from LPFM stations on 2nd adjacent channels may be somewhat higher than that from such operations on 3rd adjacent channels and therefore chose to retain 2nd adjacent channel protection requirements for LPFM stations.

6. These decisions were based on the substantial record of information and analyses on FM receiver performance characteristics that was developed in response to the Notice of Proposed Rulemaking, ( “NPRM” ), 64 FR 07577 (February 16, 1999). The record included three technical studies of FM receivers that were filed by commenting parties.

7. 3rd Adjacent Channel Protection . NPR disagrees with our findings that any risk of interference from 100-watt LPFM stations operating on 3rd adjacent channels is small and that any such interference that does occur is, on balance, outweighed by the benefits of the new service. It argues that neither of these premises, nor our decision to reduce the existing FM interference protections, are supported by the record.

8. Radio Reading Services. In its petition, NPR requests that we provide additional interference protection for FM stations that operate radio reading services. Radio reading services, which provide access to printed news and other information sources for blind or print-disabled persons, are transmitted via FM station subcarrier (SCA) facilities.

9. 2nd Adjacent Channel Operation . J. Rodger Skinner and UCC request that we reconsider our decision to apply 2nd adjacent channel protection requirements to LPFM stations and revise the rules to allow operation of LPFM stations without regard to 2nd adjacent channel separation. Skinner submits that our recent receiver tests, and the fact that no interference has been reported during the many years when short-spaced grandfathered full service stations were allowed to relocate without regard to 2nd or 3rd adjacent channel restrictions, are indicative that low power stations could operate on such channels without causing interference.

10. The existing FM interference protections, which are provided through spacing standards, are based on the following ratios: 20 dB co-channel D/U; 6 dB 1st adjacent channel D/U; −40 dB 2nd adjacent channel D/U for commercial FM stations and −20dB for noncommercial stations operating in the reserved FM band; −40 dB 3rd adjacent channel D/U. Receivers with the ability to reject interference at these ratios could be expected to provide interference free service within a station's 60 dBu contour service area. (Such radios might not, however, be able to receive service at all locations within that contour if they did not have sufficient sensitivity to receive signals at the 60 dBu level even in the absence of any interference.) Receivers with lower capabilities might experience interference within a station's service area, while those with higher capabilities might be able to reject interference at greater distances.

11. We believe that the principal issue is receiver performance, i.e. the ability of modern FM radios to reject unwanted 3rd adjacent channel signals. Laboratory tests allow examination of individual receiver performance under controlled conditions. This permits precise control of both desired and interfering signals so that the interference performance of individual receivers can be accurately determined. Field testing, on the other hand, is generally used to confirm models or estimates of how both desired and interfering signals propagate to individual locations. For example, in the case of FM radio, estimates of desired field strength are based on the F(50, 50) field strength chart contained in 47 CFR 73.333, while estimates of interference are based on the F(50, 10) field strength chart in that Section. These charts shows the distances from their respective transmitters at which the desired signal strength is predicted to exceed a given level at 50 percent of the locations 50 percent of the time and at which the interfering signal strength is predicted to exceed a given level at 50 percent of the locations 10 percent of the time. In simple terms, this approach assumes that the desired signal is at an average level while the interfering signal is at a much stronger level, i.e ., a “worse case” interference situation. These propagation and interference models have been used for many years for the FM radio and other services, and are independent of receiver performance. No questions have been raised by any of the parties in this proceeding regarding the propagation and interference models used for FM radio. Further, it is unclear as to what additional information, if any, field tests, would reveal about receiver performance, which is the principal technical issue in this matter affecting 3rd adjacent channel interference. Field test data, in our opinion, would merely assess the accuracy of our propagation predictions, rather than reveal information on receiver performance.

12. Stations on noncommercial reserved FM channels (channels 201-220, in the band 88-92 MHz) are authorized based on contour overlap, rather than the minimum spacing standards used for commercial stations. The contour overlap standards for noncommercial stations are the same as the D/U ratios on which the spacing standards for commercial stations are based, with one exception. The exception is that the D/U ratio for 2nd adjacent channel protection for noncommercial stations is −20 dB, whereas the 2nd adjacent channel spacing standard for commercial stations is based on the less stringent D/U ratio of −40 dB.

13. We decided in the R&O to require LPFM stations to protect existing full-power FM stations, translator, boosters, and vacant allotments, according to the separation requirements adopted, and not to protect LPFM stations from interference introduced by new or modified FM stations. We also decided that LPFM stations will be required to cease operation if they cause interference within the 3.16 mV/m contour of a subsequently authorized or modified FM station. One of our paramount goals in introducing LPFM service was that it not interfere with existing service. We believe that the rules we adopted strike a reasonable balance between the need to foster new service and our responsibility both to maintain the integrity of existing FM service and to allow for its expansion to better serve the public.

14. Translators . FM translator stations may not continue to operate if any interference occurs in areas where a full service FM station has a “regularly used” signal, including locations beyond the full service station's applicable protected contour. However, LPFM stations are only required to protect subsequently authorized full service FM stations if interference is created within the full service station's 70 dBu principal community contour. The Commission's decision permitting LPFM stations to continue operation if overlap occurs in an FM station's service area outside its 70 dBu contour was an attempt to balance the service needs of full service stations with the need for stability in the LPFM service. FM translators provide full service FM stations with a means of supplementing signal coverage made deficient due to terrain or other transmission issues, while LPFM stations will provide a new program origination service. Given the differing purposes of the LPFM and FM translator services we do not feel that it is necessary for both services to have identical interference protection requirements.

15. In order to minimize the potential for interference from LPFM stations, the Commission concluded that LPFM stations would be required to meet current FM transmission standards. Additionally, in order to ensure that these standards are met, the R&O restricted LPFM stations to the use of FCC “type certified” transmitters.

16. In most cases, these standards will be met through the use of certified equipment without need for further adjustment by the LPFM licensee. LPFM stations will be required to adhere to the 200 kHz channel bandwidth applicable to full service stations, as well as the out-of-channel signal attenuation requirements in 47 CFR 73.317 [via reference in § 73.508], the center frequency drift limits in 47 CFR 73.1545(b), and the limits on modulation in 47 CFR 73.1570 (a) and (b).” In this regard, we note that one of the rules modified in the R&O , inadvertently specified verification rather than certification procedures for LPFM stations. We are correcting the rules accordingly to correspond to our decisions in the R&O .

17. The R&O adopted a nationwide filing window for LP100 applications and tentatively set the first window for May, 2000. The Commission directed the Mass Media Bureau to announce by Public Notice, (DA 00-621, released March 17, 2000) the opening of the first national window and to release this notice at least 30 days in advance. Subsequently, the Mass Media Bureau decided to accept LPFM applications in five separate filing windows to “ensure the expeditious implementation of the LPFM service and to promote the efficient use of Commission resources.” The R&O also established protection rights for both full service and low power stations. LPFM applications must protect all full service FM station applications on file as of the date of the public notice in accordance with the minimum distance separation requirements adopted in the R&O . Full service FM applications filed on or after the public notice date would be protected only to the extent that the applicant's 3.16 mV/m contour is affected by an LPFM facility.

18. In light of our decision to use multiple filing windows to implement the LPFM service, we clarify our LPFM cut-off rules. We will use the release date of each public notice announcing the opening of the next LP100 window as the “cut-off” date for protection of pending full service FM applications. Thus, LPFM applicants in subsequent filing windows will be required to protect all full service applications on file as of the date of the public notice for their particular window. This includes applications that may not have been protected in previous windows.

19. In the R&O , the Commission made LPFM stations subject to the existing full service station requirements regarding the amelioration of blanketing interference. Cable headends are among the facilities covered by this rule.

20. As part of its overall plan to protect FM stations from interference, the Commission adopted FM translator/booster-LPFM station minimum distance separation requirements. Because FM translator and booster stations generally do not have specific class limitations, the separation requirements were determined by analyzing the 60 dBu contours of authorized stations and grouping them into three cohorts based on station power and height. Additionally, we also amended part 74 rules to require that FM translator and booster stations protect the 1 mV/m contour of LP100 stations.

21. Protection of Class A TV, Low Power Television and Television Translator Stations Operating on TV Channel 6 . In order to protect TV Channel 6 stations from LPFM station interference, we adopted a rule (47 CFR 73.825) requiring LPFM stations proposing operation in the NCE portion of the FM Band (Channels 201-220) to meet minimum distance separation requirements with respect to TV Channel 6 stations. Section 73.825 does not specifically address Class A TV, low power television (LPTV) and television translator stations operating on TV Channel 6. Accordingly, we will amend § 73.825 to include additional minimum distance separation requirements which we believe will be adequate to protect the service provided by the Class A TV, LPTV and television translator facilities.

22. An anomaly in the minimum distance separation requirements of 47 CFR 73.807(g) has come to our attention. Specifically, the tables specify greater 2nd adjacent channel spacing requirements to Canadian stations from LP10 stations than from LP100 stations. When considering low-powered facilities at very high signal strengths, the Commission's F(50,50) curves often must be used instead of its F(50,10) curves. However, in some cases the staff must utilize the “free space equation” formula to determine contour distances. “In those cases where the distance calculated from the free space equation is greater than 5280 feet [one mile], but the F(50,50) curves show a distance of less than one mile, we use a distance of one mile.” Although the staff properly used the treaty-required +20 dBu undesired-to-desired signal radio to determine 2nd adjacent channel interfering contours near the Canadian border area, the staff failed to account for the fact that, in cases where the free space equation yields a result greater than 1.6 kilometers (one mile), 1.6 kilometers must be used as the contour distance. We have recalculated the minimum separation distances for 2nd adjacent channel LP10 stations near the Canadian border and are amending § 73.807 accordingly. For the same reason, we are also amending the IF frequency separation requirements for Class LP100 stations with respect to Class A and Class D stations, and Class B stations in Puerto Rico and the U.S. Virgin Islands.

23. In addition to the anomaly in 47 CFR 73.807(g), we have determined that low power FM stations within Canada and Mexico had not been specifically protected from new domestic LPFM stations in the R&O . While these stations are protected by treaty, the R&O failed to include spacing tables explicitly protecting Canadian and Mexican low power FM Stations. To eliminate any uncertainty with respect to Canadian and Mexican stations, we are supplementing the international spacing tables specified in 47 CFR 73.807 to include specific distance separation requirements. To determine the spacings, we took the maximum facilities allowed for Canadian and Mexican FM translator stations, calculated the distance to the F(50,50) protected contour, and added the distance to the F(50,10) interfering curve from the domestic LPFM station required to protect those stations. In doing so, we determined that Canadian low power FM stations should receive the same protections provided to Canadian Class A1 facilities. Therefore, the Class A1 spacings in 47 CFR 73.807(g)(1) and (g)(3) will also be used for protecting Canadian low power FM Stations. However, due to the differences in treaty requirements, Mexican low power FM stations require unique spacing distances, and 47 CFR 73.807(g)(2) and 73.807(g)(4) are amended accordingly.

24. In the R&O , we determined not to authorize directional antennas for LPFM stations. We concluded that directional antennas are unnecessary due to our reliance on a minimum distance separation methodology for interference protection, which assumes the use of a non-directional antenna. We also reasoned that authorizing only nondirectional antennas would simplify the preparation and processing of applications, thereby facilitating the expeditious implementation of the service.

25. As we stated in the R&O , there are compelling needs for the services that will be provided by LPFM stations. As part of a streamlined application process to expedite the authorization and implementation of the service, we prohibited the use of directional antennas by LPFM stations. We continue to believe that given the low power levels in the LPFM service, authorizing stations to limit power in particular directions would not generally yield benefits sufficient to offset our concerns about the complexities of directional antenna authorizations. Authorization of directional antennas entails the submission and staff evaluation of radiation patterns and related information. Applicants for directional FM station licenses are required to submit measurement data to verify the radiation characteristics of directional antennas, as installed. Station proposals involving non-directional antennas can be authorized more quickly and with much less information from applicants. Such antennas will also facilitate uniform signal coverage within an LPFM station's service contour. Moreover, the conservative distance separation requirements established for LPFM stations will ensure that other stations are adequately protected against interference without the use of directional antennas. For these reasons, we generally affirm our determination not to authorize directional antennas for LPFM stations.

26. As noted by the petitioners, however, we recognize that there could be tangible benefits to allowing the use of directional antennas, particularly for licensees whose service is generally tailored to directional signal paths.

27. We will make a limited exception to the prohibition of LPFM directional antennas and permit such antennas to be used only by public safety and transportation entities in connection with the operation of TIS services. However, under no circumstances will a specific antenna pattern be considered when determining compliance with our LPFM interference requirements with respect to other stations. Thus, we affirm that all such applicants must propose LPFM locations that comply with the LPFM distance separation requirements; requirements which assume use of a nondirectional antenna. Additionally, the use of a directional antenna will not affect a licensee's obligation to operate at its authorized ERP and will therefore not result in any extension of predicted coverage. Use of a high gain directional antenna will require a corresponding transmitter output power and transmission line loss that produces the authorized ERP.

28. TIS applicants wishing to utilize directional antennas will be limited to the use of a single “off-the-shelf” antenna with pattern characteristics pre-set by the manufacturer. A composite antenna consisting of more than one antenna mounted together may not be utilized. Nor will we permit multiple directional antennas and transmitters to be used from a single licensed facility. When filing an application for license to cover a construction permit (FCC Form 319), permittees will be required to certify that the gain of the specified antenna and transmitter power output (TPO), coupled with the necessary transmission line, produces the licensed ERP. For the purposes of station authorizations and our engineering database, all LPFM stations, including those of TIS stations, will be considered “non-directional.” Thus, we will not require applicants for station licenses to submit any data beyond antenna make and model. We will expect all licensees to install their antennas in accordance with the manufacturer's specifications.

29. In order to avoid the creation of interference to existing FM broadcast stations, the R&O adopted minimum distance separation requirements that were premised on the lack of prohibited overlap to each station class' maximum protected contour. In addition, in an effort to account for modifications to existing full service stations, and minimize interference, an additional 20 kilometer “buffer” was added to the co-and 1st adjacent channel separation requirements. Greater protection still was given to several superpowered stations operating within the reserved portion of the FM band. Finally, although a full service station proposing a facility modification could potentially be required to accept some interference from an operating LPFM station, the rules require that LPFM stations fully protect FM station modifications to their principal community (70 dBu) contours.

30. We wish to clarify 47 CFR 73.809 as it relates to determining interference caused by LPFM stations to full service stations operating on IF frequency channels. That section states that interference will be shown by demonstrating contour overlap based upon the interference ratios of 47 CFR 73.215. However, § 73.215 does not apply to IF frequency channel stations. Accordingly, we are amending § 73.809 to state that IF frequency channel interference will be determined via overlap of the 91 dBu F(50,50) (36 mV/m) contours. This contour was utilized to calculate the LPFM IF frequency channel spacing requirements.

31. All full service stations operating in the non-reserved band, regardless of facilities, must be protected under the provisions of 47 CFR 73.207 (distance separations based upon maximum class facilities) or § 73.215 (lesser separation requirements based upon the lack of contour overlap with maximum class facilities).

32. The Commission's decision to retain 2nd adjacent channel LPFM protection requirements but eliminate 3rd adjacent channel standards was designed, in part, to ensure that the introduction of the LPFM service did not impede the development of in-band on-channel (IBOC) digital audio broadcasting (DAB) technologies.

33. Based on the Commission's technical analyses and its review of several independent studies submitted in this proceeding we decided not to require LPFM stations to provide 3rd adjacent channel protection to full power stations. As discussed above, no issues have been raised on reconsideration that have persuaded us to reconsider our findings and conclusions on this matter. We continue to believe that the risk of interference from LPFM stations is small, and that the interference that may occur in individual cases would be vastly outweighed by the benefits of initiating a new service that will create new outlets for locally based community-oriented voices.

34. We concluded in the R&O that the licensing of LPFM stations on 3rd adjacent channels would not result in significant new interference to existing FM stations, i.e. that very few listeners would be able to detect additional interference as a result of commencement of LPFM service on a 3rd adjacent channel. Although we expect it to be the rare case where an LPFM station operating on a 3rd adjacent channel causes more than a de minimis level of interference within the service area of a full power station protected by the distance separation requirements for other channel relationships, such a result would be unacceptable if it were to occur. Accordingly, we conclude on reconsideration that it would be prudent to establish procedures that would encourage cooperation between the parties and permit the Commission to take prompt remedial action where a significant level of interference can be traced to the commencement of broadcasts by a new LPFM station. As a result of these new procedures, there may be circumstances where, contrary to what we said in the R&O, an LPFM station will be required to take steps to resolve complaints that its signal is interfering with the reception of a full power FM station even though the LPFM station is operating in accordance with the relevant rules.

35. This marks the first time that the Commission has departed from a purely “predicted interference” approach for an aural service that has program origination authority and that enjoys certain protections generally thought of as “primary” stations rights. Our willingness to do so is based on a unique combination of factors. Most importantly, we are confident about the technical conclusions we have reached in the proceeding. Specifically, we continue to believe that it is unlikely that more than a few listeners will detect any additional interference to the reception of an existing FM station at locations that would be entitled to protection under our full power third adjacent channel interference methodology. Thus, the post-construction “actual interference” complaint procedure we are establishing should not pose a significant threat to the viability or stability of the LPFM service.

36. Moreover, an efficient complaint procedure will promote the fullest interference-free use of the FM broadcast spectrum. At this time there are few, if any, full power FM station opportunities in most of the highly populated areas of the country. In fact, staff studies in this proceeding establish that there are no available FM channels for LP100 stations in a number of major markets. In many communities broadcasters have fully taken advantage of the Commission's policy of licensing efficient high-power stations that serve wide areas with limited technical preclusiveness. As a result, most Americans enjoy abundant radio service. LPFM is not, as some argue, in conflict with these principles. Rather it is a complementary way to serve the needs of communities within a mature broadcast service. It is grounded on the success of the Commission's licensing policies and is designed to efficiently match the little spectrum that remains with the demonstrable demand for locally based programming. We conclude that an efficient, limited complaint procedure fairly balances the interests of incumbent broadcasters against the benefits of fostering a new and different kind of radio service.

37. For purposes of the complaint process we will consider interference to occur whenever reception of a full power station is impaired by the operation of an LPFM station operating on a third adjacent channel station. We believe that it is unnecessary to adopt a more technically objective standard for determining whether a listener is experiencing “actual” interference. The “any impairment” standard has worked successfully over the past decade in the FM translator context. A particular listener's perception of signal impairment is dependent on many factors, including the receiver used, the programming, listener sound quality expectations, and listener auditory discrimination capabilities. As a result, we are reluctant to adopt a single “objectionable interference” standard. We are also concerned that this approach could add a level of factual complexity to the complaint process set forth below without any clear public interest justification.

38. The complaint process may be invoked where an LPFM station's transmission facilities are located inside the predicted 60 dBu contour of an existing full power FM station operating on a 3rd adjacent channel; that is, the 60 dBu contour corresponding to the station facilities that existed at the time construction of the LPFM station was authorized. That contour, which encompasses the area that would have been protected had a 3rd adjacent channel distance separation requirement been applied to LPFM stations, will bound the complaint area. With regard to LPFM protection of subsequently modified, upgraded, or new full-service FM stations, we will conform 3rd adjacent channel protection responsibilities to the generally applicable provisions in paragraph 66 of the R&O and as codified in 47 CFR 73.809. In this manner, operating LPFM stations will be permitted to interfere within the 60 dBu contour of a new or subsequently modified FM station, but not within such a station's 70 dBu “city grade” signal contour or principal community of license, as applicable ( see discussion of service area issues). Complaints will be limited to receivers located at fixed, identifiable locations within the full power station's 60 dBu contour that are not more than one kilometer from the LPFM transmitter site. This geographic limitation is intended to address broadcasters' specific concern about the lack of LPFM station 3rd adjacent channel interference protection requirements. An LPFM station's interfering contour would extend slightly less than one kilometer from the LPFM transmitter site. Under the Commission's interference methodology for FM stations, 3rd adjacent channel interference is predicted where the undesired signal is more than 40 dB stronger than the desired signal level, e.g., where the 3rd adjacent channel station's 100 dBu contour overlaps the desired signal level. The predicted 100 dBu contour of an LPFM station operating at maximum facilities would extend slightly less than one kilometer from the LPFM's transmitter site. The fixed receiver requirement is based on our desire to put in place a manageable and efficient complaint procedure. Mobile receiver complaints are generally much more difficult to identify and resolve. A mobile receiver, such as a car or portable radio, will encounter constantly varying signal strengths from various stations, resulting in a continuously variable potential for interference. The complaint must be received by either the LPFM or full power station within one year of the date on which the LPFM station commenced operation. This time frame is necessary to limit uncertainty regarding the potential modification or cancellation of an LPFM station's license and such station's financial obligation to resolve interference complaints. Any interference caused by the LPFM station should be detectable within one year after it commences operation. The one-year cure period is similar to the technical requirement that each FM permittee resolve at its sole expense all blanketing interference complaints for a one-year period beginning with the commencement of program tests. The Commission will consider the modification of a station's license, including its cancellation, where as a result of the process described below, bona fide complaints from at least one percent of the households or thirty households, whichever is less, within the specified complaint area remain unresolved. The exact number of complaints necessary to satisfy this one-percent threshold can only be calculated on the basis of a specific antenna location of an allegedly interfering LPFM station. Assuming uniform population distribution within a community of license, the number of complaints necessary to reach this threshold would be, for example, approximately 19 in Charlottesville, Virginia, 29 in Minneapolis, Minnesota, and 12 in Frederick, Maryland. As noted, in no event would this procedure require more than 30 bona fide complaints. We do not anticipate this level of interference as a result of licensing LPFM stations on 3rd adjacent channels and will not consider it de minimis .

39. The first stage of the complaint process is designed to facilitate cooperative efforts between LPFM and full power FM licensees to identify and resolve bona fide interference complaints. A listener who believes that an LPFM station signal is interfering with the reception of a full power station may initiate the complaint procedure by providing the full power station an affidavit that describes the nature and location of the alleged interference. LPFM stations receiving complaints directly from listeners will be required to forward promptly such complaints to the affected full power FM stations. The full power FM station will be required to identify those complainants who reside at locations covered by these procedures, and provide copies of all such bona fide complaints to the LPFM station. Initially, an LPFM station will have the opportunity to resolve individual interference complaints. For example, an LPFM station may agree to provide new receivers to impacted listeners or to install filters at the receiver site. The LPFM station also may wish to consider a power reduction or other facility modification to alleviate the interference. We expect the LPFM station to make serious and diligent efforts to resolve each bona fide complaint received.

40. In the event that the LPFM station concludes that it is not the source of the interference and the number of unresolved complaints equals at least one percent of households or 30 households—whichever is less—in the complaint area, the LPFM and full power stations must cooperate in an “on-off test” to determine whether the interference is traceable to the LPFM station. To the extent necessary and where practical, we instruct our Enforcement Bureau field personnel to assist the parties in determining the source of the interference and identifying possible solutions. The Commission will consider a complaint resolved if the complainant does not reasonably cooperate with the LPFM station's investigatory and remedial efforts. If the licensees fail to reach agreement and the requisite number of complaints remain unresolved, the full power FM station licensee may request that the Commission initiate a proceeding to consider whether the LPFM station's license should be modified or cancelled. To expedite this process, LPFM licenses will include a condition permitting the Commission to modify or cancel such licenses where the Commission determines that the LPFM station is causing more than de minimis levels of 3rd adjacent channel interference to the reception of a full power FM station in the complaint area, i.e., where the number of bona fide complaints meets or exceeds the one-percent-of-households or thirty-households threshold set forth above. This modification procedure will be conducted pursuant to 47 U.S.C. 316 and any such modification proceeding will be completed within 90 days of the filing of the complaint with the Commission, provided that the parties may seek extensions of this deadline consistent with our procedural rules. An LPFM station may stay this procedure by voluntarily ceasing operations and filing a “displacement” application on Form 318 within twenty days of the commencement of this modification procedure. A displacement application may propose a station relocation and/or channel change to any available channel. It will be treated as a “minor” change that is not subject to competing applications, provided that a requested LP100 station site change is not greater than 2 kilometers or, in the case of an LP10 station, 1 kilometer.

41. The R&O established two classes of LPFM stations. LP100 stations will be authorized to operate with maximum facilities of 100 watts effective radiated power (ERP) at 30 meters (100 feet) antenna height above average terrain (HAAT). LP10 stations will be licensed with the equivalent of 10 watts ERP at 30 meters HAAT. The Commission declined to create a 1000 watt class of low power stations because of potential interference concerns, and because it determined that LP100 and LP10 stations would create more opportunities for community-oriented service.

42. Our conclusion that licensing these two classes of service at this time would serve the public interest is warranted by changes in the radio industry. In the past we have struck the balance in favor of licensing higher powered stations to ensure that large audiences were served. Now, when radio service is widely available throughout the country and very little spectrum remains available for new full-powered stations, we conclude that licensing very low powered stations will fill in the gaps in the spectrum that would otherwise go unused. This will maximize the use of the available spectrum, rather than create the inefficiencies we sought to avoid. In the past, we have declined to authorize low power FM radio broadcast stations because of our concern that they would “preclude the establishment of more efficient, stable, full powered stations.” At this time, however, we are creating an LPFM service that is designed to allow small stations to operate where full powered stations cannot. Moreover, we have adopted rules to ensure that the operation of LPFM stations does not undermine the technical integrity of the existing FM radio service. Consistent with this approach, we are licensing LP100 stations before LP10 stations. As we stated in the R&O, [w]e adopt this sequential process in order to provide the larger (100 watt) stations with their greater service areas the first opportunity to become established. Given that some LP10 stations can be sited where LP100 stations cannot, we expect that opportunities will remain for LP10 stations after the initial demand for LP100 stations has been accommodated. Additionally, our own resources will be better spent first advancing services to relatively greater areas.” Our decision to begin licensing low power FM radio stations at this time is also in response to the dramatic changes in the radio industry during the last four years since our radio multiple ownership limits were relaxed pursuant to the 1996 Act. Given the substantial consolidation of radio station ownership in recent years, the need for adding diverse voices to the airwaves has grown. Because we have concluded that taking this step will not undermine our spectrum efficiency goals, we affirm our decision to create these two new classes of FM radio service.

43. In the R&O, we determined that only noncommercial educational entities would be eligible to hold LPFM licenses.

44. Our goals in establishing the LPFM service were to create opportunities for new voices on the airwaves and to allow local groups, including schools, churches, and other community-based organizations, to provide programming responsive to local community needs and interests. As discussed extensively in the R&O, although we considered the entrepreneurial opportunities a commercial LPFM service would create, we concluded that a noncommercial service would best serve the Commission's goals in this proceeding.

45. Specific questions were raised as to whether Indian tribes may apply for LPFM stations, or whether only their educational institutions may apply. As long as they meet the NCE criteria and other eligibility rules applicable to all applicants, Indian tribes may apply for LPFM construction permits. We have granted NCE radio station licenses to Indian tribes and to educational institutions operated by Indian tribes and thus, this LPFM eligibility rule follows current policy. We will apply the NCE criteria to Indian tribe applicants—and all applicants—in the same manner in LPFM as we have in the existing FM radio service.

46. In the R&O we prohibited common ownership of more than one LPFM station in the same area and cross-ownership of any LPFM by any other broadcast station, including translator and low power television stations, as well as other media subject to our ownership rules. As discussed extensively in the R&O, we believe that strict ownership rules are an important mechanism for assuring the diversity of ownership that is so critical to this service. We concluded that the interest in bringing new voices to the airwaves would be best served by barring cross-ownership between LPFM licensees and existing broadcast owners and other media entities. We believe that the rules we have adopted for the LPFM service— including the strict cross ownership ban—will lead to more access by all segments of the population to the airwaves. We will, therefore, maintain the cross-ownership restrictions set forth in the R&O . As noted in the R&O, if a licensee of an AM station (or any other station) agrees to divest its interest in its license upon grant of the LPFM license, it may apply for an LPFM license.

47. The Commission established a staged national ownership rule. For the first two years after a filing window opens, an entity may own only one LPFM station. After the first two years we will allow one entity to own up to five stations nationwide; after three years, we will allow an entity to own up to ten stations nationwide. The purpose of this staged approach is to foster diversity by initially disallowing common ownership of LPFM stations, but eventually permitting common ownership where local applicants fail to come forward. As noted, since adoption of the R&O we adopted staggered filing windows based on geographic regions. We clarify that this two year limitation—as well as other time periods tied to the opening of a filing window—will begin to run in a geographic region based on the opening of that region's filing window.

48. Public Safety and Transportation. In addition to NCEs, state or local governments or not-for-profit organizations that operate public safety or emergency services are also eligible owners for LPFM licenses.

49. We will allow government, public safety and transportation organizations to apply for more than one license, but they must designate a “priority” application among those applications. The “priority” application will undergo the usual selection process as outlined in the R&O whether or not it encounters mutually exclusive applicants. The other applications they submit will be dismissed if they are mutually exclusive with any other applications but will be eligible for grant in the absence of competing applications.

50. Thus, we will allow government, public safety and transportation organizations to apply for more than one license, but they must designate a “priority” application among those applications. The “priority” application will undergo the usual selection process as outlined in the R&O whether or not it encounters mutually exclusive applicants. The other applications they submit will be dismissed if they are mutually exclusive with any other applications but will be eligible for grant in the absence of competing applications.

51. Schools with Multiple Campuses. Several schools with multiple campuses sought clarification of the national ownership rules to permit the separate licensing of LPFM stations at several campuses. We believe the LPFM attribution exception should be expanded to cover separate school campuses in most cases, allowing schools to have LPFM stations on separate campuses notwithstanding our national ownership rule. This LPFM exception is inapplicable to full service NCE stations, for which there are no national ownership limits. Schools with multiple campuses applying for full service NCE stations are directed to the definition of attribution and the selection standards in 47 CFR 73.7000 and 73.7003. For example, if several high schools in an area seek LPFM licenses but are all governed by a local school board, the high schools can assert that they are local chapters of a large organization and can apply for their own licenses. If multiple campuses of the same university apply for LPFM licenses, they too would be considered separate local entities under that exception. The same principle will apply to charter schools that are a part of a larger school system but seek their own licenses.

52. As noted, in the R&O, we determined that no broadcaster or other media entity subject to our ownership rules, or any party with an attributable interest in a broadcaster or media entity subject to our ownership rules, could hold an attributable ownership interest in an LPFM licensee. Moreover, we restricted local ownership, allowing an entity to own only one LPFM station in a community. We use the term “community” to refer to the very small area and population group that makes up a station's potential service area and audience. For purposes of the LPFM local ownership rules, we require that no entity own or have an attributable interest in two or more LPFM stations located within seven miles of each other. Finally, for purposes of our national ownership limits, an entity may own only one LPFM station during the first two years of LPFM service. While we will disallow common ownership of LPFM stations for the first two years of LPFM service, we will permit multiple ownership of LPFM stations nationally, up to a maximum of 10 LPFM stations over a phased-in period, to bring into use whatever low power stations remain available but unapplied for.

53. Two petitioners ask us to create an exception to these LPFM multiple and cross-ownership rules to allow universities that hold full-power FM radio licenses to obtain LPFM licenses for student-run stations. Specifically, petitioners contend that our LPFM ownership rules preclude students from operating a university-licensed LPFM station where the university already holds licenses for radio broadcast stations, including NPR affiliated stations. Petitioners argue that students are not permitted to participate in the operation of these full-power stations and that our LPFM ownership rules deny students the opportunity to operate LPFM stations.

54. We will allow universities that hold licenses for full-power broadcast stations that are not student-run to apply for LPFM licenses for stations that would be managed and operated on a day-to-day basis by students, provided that they do not face any competing applications. We find that allowing this limited exception to our LPFM ownership rules will promote our goals of maximizing diversity of ownership in a community and providing a medium for new speakers, including students, to gain experience in the broadcast field. Accordingly, if a university's full-power station does not provide the university's students with a meaningful opportunity to participate in the management and operation of that station, we will allow the university to apply for a license for a student-run LFPM station on that campus. If a license is granted, the station must be managed and operated by students of the university, although as the licensee, the University must retain ultimate control of the station's operations. However, in those cases where a university already holds an attributable interest in a broadcast station, its LPFM application will be eligible for grant only if it does not face competing applications. If the university is a licensee and its LPFM application faces a competing application, the university's LPFM application will be dismissed. We believe this exception properly balances the interests of local groups in acquiring a first broadcast facility and of university licensees that desire to provide a distinct media outlet for students.

55. In the R&O, the Commission established a two-year time period during which only local, community-based applicants are eligible, and an entity can only own one station nationwide.

56. When deciding on the two-year time period for the community-based requirement, we weighed our interest in putting LPFM stations into the hands of local and diverse entities against our interest in ensuring that available spectrum does not go unused. As noted, we have adopted a staggered filing window approach for accepting LPFM applications based on geographic region. We clarify that the two-year period for the community-based requirement for each jurisdiction starts on the date of the filing window for that jurisdiction. Therefore, in Alaska, California, District of Columbia, Georgia, Indiana, Louisiana, Maine, Mariana Islands, Maryland, Oklahoma, Rhode Island and Utah, for which we opened a filing window on May 30, 2000, the two-year period began running on that date. In the remainder of the jurisdictions, in which LPFM filing windows have not yet opened, the two-year period has not yet begun to run. Thus, applicants in these jurisdictions that have not yet had a filing window will have additional time to organize and prepare their applications.

57. Questions have arisen with respect to the application of statutory foreign ownership requirements to LPFM applicants and licensees. As we explained in the NPRM , all low-power facilities will be subject to the statutory requirements of Section 310(b) of the Act, which limits foreign ownership and voting interests in radio station licenses, including broadcast licenses. Sections 310 (b)(1) and (b)(2) prohibit the grant of a license to a foreign government or a representative of a foreign government; an alien or representative of an alien; or a corporation organized under the laws of a foreign government. While foreign parties may act as officers or directors of corporate licensees, Section 310(b)(3) prohibits foreign entities from owning or voting more than 20 percent of the capital stock of a broadcast licensee. If either the foreign ownership or voting interest in an applicant or licensee exceeds the 20 percent benchmark, we are required by law to revoke the license or refuse to grant the license application. In the Matter of Request for Declaratory Ruling Concerning the Citizenship Requirements of Sections 310 (b)(3) and (4) of the Communications Act of 1934, as amended, Declaratory Ruling . Section 310(b)(4), which limits foreign ownership in parent corporations, allows us to deny a license application, upon a determination that denial is in the public interest, where more than 25 percent of the parent corporation's capital stock is owned or voted by foreign entities. The Commission has determined that Section 310(b) applies not only to corporate interests, but also to partnership and other non-corporate interests. Thus, we will apply our foreign ownership rules and policies on a case-by-case basis to all entities that are LPFM applicants and licensees, guided by Commission precedent.

58. We recognize that many entities that will hold LPFM licenses will be non-stock corporations or other non-stock entities, and that non-stock entities do not have “owners” in the traditional sense. As the Commission has explained, the specific citizenship requirements of Section 310(b) reflect a deliberate judgment on the part of Congress to prevent undue foreign influence in broadcasting. Thus, for the purpose of determining whether a non-stock LPFM applicant or licensee complies with the statutory foreign ownership requirements, we will first consider the citizenship of those individuals who would have the ability, comparable to that of a traditional owner, to influence or control the licensee. In making these determinations we will be guided by Commission precedent.

59. An applicant or licensee must directly inform us that an ownership structure may or does in fact exceed the foreign ownership benchmarks in Section 310(b) of the Act.

60. We agree that providing minority broadcast education would be a valuable use of the LPFM service, it is not the only valuable use. We believe our current eligibility rules will lead to the ownership of LPFM stations by a wide variety of groups, which will best promote our goals in this proceeding.

61. As we stated in the R&O in response to requests for preferences for entities controlled by minorities, the Commission is conducting fact-finding studies as to whether such preferences may be justified consistent with Adarand. Depending on the outcome of these studies, as well as our experience with LPFM, we will consider in the future whether to adjust our rules to facilitate participation of more minority-oriented organizations in the service.

62. In the R&O , we determined that unauthorized broadcasters would not be eligible for LPFM licenses unless they could certify that they (1) promptly ceased operation when directed by the Commission to do so if that direction was received prior to February 26, 1999, or (2) voluntarily ceased operation by February 26, 1999. In no event will an unlicensed broadcaster be eligible for an LPFM license if it continued illegally broadcasting after February 26, 1999. We have modified § 73.854 to make clear that no unlicensed broadcaster that continued to broadcast after February 26, 1999 will be eligible for an LPFM license. As discussed in the R&O, our rule on unlicensed broadcasters was based on our concern that past illegal broadcast operations reflect on the entity's proclivity to deal truthfully with the Commission and to comply with our rules and policies. We continue to believe that a party that continued to operate in contravention of an FCC direction to cease operations should not be eligible to apply for an LPFM license. Such a party should have ceased its illegal broadcast while pursuing any legal challenge to a Commission order. Any party ignoring our order has demonstrated an unwillingness to comply with the Commission's rules and thus should not be rewarded with an LPFM license.

63. In the R&O , the Commission created a point system to determine selection among mutually exclusive applications. The point system includes three selection criteria: (1) Established community presence; (2) proposed operating hours; and (3) local program origination. The system will employ voluntary time-sharing as an initial tie-breaker; that is, tied applicants will have an opportunity to aggregate points by submitting time-share proposals. Successive license terms will be used as a final tie-breaker.

64. Low Power Advisory Committee. LPFM broadcasters and other interested parties are free, of course, to form a private organization to promote LPFM, support and assist its members and their operations, and address technical issues with each other and, where appropriate, raise them with the Commission.

65. Automatic Program Review. We are open to proposing, or considering proposals, to revise our rules after we have had experience with the service, we do not find it necessary to commit now to a review in the future.

66. Transfers of Control—Nonstock Entities. In the R&O , we established that LPFM licenses (and licensees) cannot be sold or transferred to another entity.

67. In this MO&O , we generally affirm the decisions we reached in the R&O . We do clarify certain rules to provide better guidance to the public, and make minor revisions to improve our procedures and the quality of the LPFM service, and to protect stations operating radio reading services, while at the same time preserving the quality of full power FM service. We also establish a process to ensure prompt resolution of certain interference problems in the unlikely event they occur.

68. Authority for issuance of this MO&O is contained in Sections 4(i), 303(r), 403, and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 403, and 405.

69. The actions taken in this MO&O have been analyzed with respect to the Paperwork Reduction Act of 1995, and found to impose no new or modified reporting and record-keeping requirements or burdens on the public.

70. The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this MO&O including the Supplemental Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

71. Accordingly, the petitions for reconsideration or clarification listed below are granted to the extent provided herein and otherwise are denied pursuant to Sections 4(i), 303(r), 403, and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 403, and 405, and § 1.429(i) of the Commission's rules, 47 CFR 1.429(i).

72. The Motion of The Amherst Alliance et al . for a Decision on the Motion for Reconsideration of the Amherst Alliance filed June 5, 2000, and the Motion of Don Shellhardt et al. for a Decision on the Motion for Reconsideration of Don Schellhardt filed June 5, 2000, are to the extent provided herein dismissed as untimely and moot pursuant to Sections 4(i), 303(r), and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 403, and 405, and §§ 1.429(d) and (i) of the Commission's rules, 47 CFR 1.429(d) and (i).

73. The Commission's rules are amended as set forth. The provisions of this MO&O and the Commission's rules, as amended, shall become effective 30 days after publication in the Federal Register .

74. As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM and a Final Regulatory Flexibility Analysis (FRFA) was incorporated in the R&O . The Commission sought written public comment on the proposals in the NPRM and the R&O , including comment on the IRFA and FRFA. No comments were received in response to the IRFA and the one comment received in response to the FRFA is addressed below. This present Supplemental Final Regulatory Flexibility Analysis (Supplemental FRFA) conforms to the RFA.

75. In the R&O , the Commission adopted a 100-watt class (LP100) and a 10-watt class (LP10) of small radio stations. Because of the predicted lower construction and operational costs of LPFM stations as opposed to full power facilities, the Commission expects that small entities would be expected to have few economic obstacles to becoming LPFM licensees. Therefore, as discussed in the R&O and the FRFA, this new service may serve as a vehicle for small entities and under-represented groups (including women and minorities) to gain valuable broadcast experience and to add their voices to their local communities. The Commission received petitions for reconsideration of the R&O that requested reconsideration of a variety of issues. This MO&O resolves those issues.

76. We do not change most of the determinations made in the R&O . We do, however, adopt the following few changes. We adopt complaint and license modification procedures to ensure that if any unexpected, significant 3rd adjacent channel interference problems are caused by the operation of a particular LPFM station, it can be resolved expeditiously. We modify the spacing standards adopted in the R&O to require that LPFM stations operating on 3rd adjacent channels protect stations operating radio reading services and we increase the flexibility of the ownership rules for certain specific types of applicants.

77. J. Rodger Skinner (Skinner), who submitted one of the original Petitions for Rulemaking regarding LPFM on February 5, 1998, contends in his Comments that the R&O 's FRFA analysis was flawed in claiming that the institution of LPFM service would “create significant opportunities for new small businesses.” Skinner argues that the rejection of commercial service, the imposition of 3rd adjacent channel separations and the refusal to include 1000 watt stations undercut the Commission's expectation of new stations in the LPFM service. His argument, however, that the alternative resolutions he proposes were not considered and their rejection explained is mistaken. Both the R&O and the MO&O address each issue that he raises. In instituting this new LPFM service and in determining the rules that will govern it, we were concerned with the impact of our rules on small businesses, and took many steps to ensure the availability of this service to new entities. For instance, we adopted strict ownership limitations, made electronic filing voluntary, and refrained from main studio requirements for LPFM stations. At the same time, we explicitly weighed the best manner in which to achieve our goals in protecting existing service and creating this service against the benefits of commercial service, less stringent interference protection and higher power limits. Skinner's argument that small local businesses will be deprived of a potential economical advertising outlet also is insufficient to outweigh the reasons for our determination to make LPFM a strictly noncommercial service.

78. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the rules. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 1992, there were approximately 275,801 small organizations. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, we estimate that 81,600 (91 per cent) are small entities.

79. The SBA defines a radio broadcasting station that has $5 million or less in annual receipts as a small business. A radio broadcasting station is an establishment primarily engaged in broadcasting aural programs by radio to the public. Included in this industry are commercial, religious, educational, and other radio stations. The 1992 Census indicates that 96 percent (5,861 of 6,127) radio station establishments produced less than $5 million in revenue in 1992. Official Commission records indicate that 11,334 individual radio stations were operating in 1992. As of September 30, 1999, Commission records indicate that 12,615 radio stations were operating, of which 7,832 were FM stations.

80. The rules will apply to a new category of FM radio broadcasting service. It is not known how many entities may seek to obtain a low power radio license. Nor do we know how many of these entities will be small entities. We note, however, that in the eighteen months since we issued the NPRM , the Commission's LPFM website has received approximately 100,000 hits, demonstrating the interest of individuals and groups in operating such a facility. In addition, we expect that, due to the small size of low power FM stations, small entities would generally have a greater interest than large ones in acquiring them.

81. Most of the provisions of the R&O are unchanged by the MO&O . As noted in the R&O , the new service will require the collection of information for the purposes of processing applications for (among other things) initial construction permits, assignments and transfers, and renewals. We will also require lower power radio stations to comply with some of the reporting, recordkeeping, and other compliance requirements of full power radio broadcasters.

82. The portions of the R&O that were altered by the MO&O follow: (1) Radio reading services will be protected on the 3rd adjacent channel, (2) corrections were made to the spacing table, (3) a complaint procedure was added, (4) transportation entities will be permitted to hold multiple stations in certain instances, and (5) an ownership exception was created for university-licensees of low power radio stations. We do not anticipate that these changes will result in any changes to the reporting and recordkeeping requirements of LPFM licensees.

83. The RFA requires agencies to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

84. The Commission believes that the LPFM service is likely to create significant opportunities for new small businesses. None of the changes made by the MO&O alter that belief. This MO&O alters the LPFM rules by allowing an expedited complaint process, creating additional interference protection for radio reading services, and increasing flexibility for specific licensees (university and public safety entities). The Commission believes that none of these revisions will have a significant economic impact on a substantial number of small entities. However, in an abundance of caution we will examine any potential impact to potential LPFM licensees.

85. The Commission does not anticipate that LPFM service will cause interference to existing stations. Due to concern expressed by parties about potential interference, however, the Commission has adopted complaint and license modification procedures to ensure that if any unexpected, significant 3rd adjacent channel interference problems are caused by the operation of a particular LPFM station, they can be resolved expeditiously. We believe this process will assist small entities by providing resolution to problems without delays and the potential for incurring legal and consulting expenses.

86. The Commission offered additional protection to the radio reading services, pending its analysis of a Commission study conducted to assess radio reading service's performance as compared with other receivers. While awaiting the results of the study, the Commission will not license LPFM stations on 3rd adjacent channels to existing stations with radio reading services. Because radio reading services provide such a valuable service, we have modified the rules to assure that interference to radio reading services does not occur. The only other alternative considered would have been to leave the rules as originally drafted in the R&O . We decided against that alternative until such a time as the Commission can confirm that no unacceptable interference would occur.

87. The Commission makes a few other changes to the R&O . We allow transportation and public safety entities to hold multiple LPFM stations in certain instances and create an ownership exception for university-licensees of low power radio stations. Petitioners showed the Commission that these exceptions were merited based on the specific circumstances of these potential licensees. The only other alternative was to leave the rules as adopted in the R&O ; to do so would not have accounted for the beneficial service, and unique circumstances, of particular applicants.

88. The Commission will send a copy of the MO&O , including this Supplemental FRFA, in a report to be sent to Congress pursuant to the SBREFA. In addition, the Commission will send a copy of the MO&O , including the Supplemental FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the MO&O and Supplemental FRFA (or summaries thereof) will also be published in the Federal Register .

89. The country has been divided into five groups of states accepting LPFM applications. The FCC has accepted applications from the first and second groups of states:

90. 1st: Alaska, California, District of Columbia, Georgia, Indiana, Louisiana, Maine, Mariana Islands, Maryland, Oklahoma, Rhode Island, Utah.

91. 2nd: Connecticut, Illinois, Kansas, Michigan, Minnesota, Mississippi, Nevada, New Hampshire, Puerto Rico, Virginia, Wyoming.

92. The remaining three groups of states' LPFM applications are anticipated to be accepted as follows:

93. 3rd: American Samoa, Colorado, Delaware, Hawaii, Idaho, Missouri, New York, Ohio, South Carolina, South Dakota, Wisconsin (Public Notice October 2000; filing window: November 2000).

94. 4th: Arizona, Florida, Iowa, New Jersey, North Dakota, Oregon, Tennessee, Texas, U.S. Virgin Islands, Vermont, West Virginia (Public Notice January 2001; filing window: February 2001).

95. 5th: Alabama, Arkansas, Guam, Kentucky, Massachusetts, Montana, Nebraska, New Mexico, North Carolina, Pennsylvania, Washington (Public Notice April 2001; filing window: May 2001).

On December 15, 1998, our regulations at 50 CFR Part 18, Subpart J expired. These regulations were effective beginning on December 16, 1993 (58 FR 60402, November 16, 1993), and authorized the incidental, unintentional take of small numbers of polar bears and Pacific walrus during year-round oil and gas industry exploration, development, and production operations in the Beaufort Sea and adjacent coast of Alaska. We subsequently issued final regulations on January 29, 1999 (64 FR 4328) “revising” these expired regulations. Later regulations appear on February 3, 2000 (65 FR 5275), and March 30, 2000 (65 FR 16828). Rather than “revising” our regulations, we should have stated that we were “adding” these regulations at 50 CFR Part 18. Therefore, this action corrects this technical error by changing the amendatory instructions in our March 30, 2000, final rule to state that we are “adding” those regulations to 50 CFR Part 18, Subpart J. Letters of Authorization issued under the regulations are not affected by this action.

The domestic groundfish fisheries of the Gulf of Alaska (GOA) are managed by NMFS under the FMP. The FMP was prepared by the North Pacific Fishery Management Council (Council) under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations governing the domestic groundfish fisheries in the exclusive economic zone of the GOA appear at 50 CFR parts 600 and 679. Regulations governing the IFQ halibut fisheries in the exclusive economic zone of the GOA appear at 50 CFR part 679. Regulations governing the domestic halibut fisheries appear at 50 CFR 300.60 to 300.65, which supplements the annual fishery management measures adopted by the International Pacific Halibut Commission (IPHC) under the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea.

Amendment 59 was submitted to NMFS for review and a notice of availability of the FMP amendment was published on May 12, 2000 (65 FR 30559), with comments on the FMP amendment invited through July 11, 2000. Amendment 59 was approved by NMFS on August 9, 2000. The proposed rule to implement Amendment 59 was published on June 26, 2000 (64 FR 39342). The public comment period ended on August 10, 2000. One letter of comments was received on Amendment 59 and its implementing regulations. A summary of this letter and NMFS’ response is provided in the “Response to Comments” section.

The Sitka Pinnacles area, in the Southeast Outside District of the GOA near Cape Edgecumbe, provides highly productive habitat for many species at different stages of their life cycles. Information collected during manned submersible surveys of groundfish habitat by the Alaska Department of Fish & Game (ADF&G) indicates that the diversity and density of fish around the Sitka Pinnacles are much greater than the typical eastern continental shelf of the GOA. The pinnacles habitat is fragile, and the concentration of fishes in a relatively small, compact space can lend itself to overfishing of certain species, particularly lingcod, at sensitive life stages.

The Sitka Pinnacles (also called the Cape Edgecumbe Pinnacles) consist of two large volcanic cones that rise abruptly off the seafloor. The top of one is within 70 meters (229.6 feet) of the sea surface, and the other within 40 meters (131.2 feet). The area from sea surface to seafloor provides a variety of rich habitat suitable for different species. The field of boulders on the bottom provides a spawning bed for lingcod and refuge for large numbers of such commercially valuable species as yelloweye and tiger rockfish, and of such non-commercial species as prowfish. The flat, irregular tops of the pinnacles are used as a feeding platform by juvenile and adult rockfish and by huge concentrations of lingcod. The walls of the pinnacles, covered with algae, anemones, and other organisms, provide shelter to large numbers of juvenile and adult bottom-dwelling rockfish. Finally, schooling species, such as yellowtail and widow rockfish, feed along the pinnacle walls and in the water column between the top of the pinnacles and the surface.

Since 1997, when the State of Alaska (State) initially proposed this action to the Council, NMFS, ADF&G, and the IPHC have cooperated on creating the Reserve, as different species are managed under different jurisdictions (see Table 1).

The area has been used for fishing, especially with hook-and-line gear, for decades. In the late 1980s, a directed fishery for lingcod developed on the pinnacles. The high density and aggressive feeding behavior of lingcod made them extremely susceptible to capture; hourly catch rates of lingcod at the site exceeded catch rates in the surrounding area by threefold. In 1991, the State of Alaska (State) began attempting to preserve lingcod populations in nearby State waters (the Sitka Pinnacles are in Federal waters) through closures during winter when male lingcod are nest guarding and, in 1994, through spring/summer in-season closures of State-regulated fishing in areas that included the pinnacles. In 1995, the pinnacles area was included in the winter closure as well. In 1997, ADF&G issued an emergency order closing the area to all State-regulated groundfish fishing for the entire season. However, the sport fishery was not affected by any of the State’s management actions and continued to take lingcod and Pacific halibut. In May 1998, the commercial and sportfish divisions of ADF&G submitted joint proposals to the State’s Board of Fish and the Council to close the Sitka Pinnacles area. The Board of Fish closed the area to fishing for lingcod and black rockfish, which are species under its jurisdiction. It took up the question of closing the area to commercial and recreational salmon fishing in February 2000 but rejected the proposal.

This action has two parts:

This action complements State regulations by designating a 2.5 square nm area of the GOA as the Sitka Pinnacles Marine Reserve and closing this area to groundfish fishing or anchoring by vessels required to have a Federal fisheries permit under § 679.4(b).

The Pacific halibut fishery is managed by the IPHC, under the Northern Pacific Halibut Act. The Act states that the Regional Fishery Management Council with authority for a geographic area may develop regulations governing U.S. waters “which are in addition to, and not in conflict with, regulations adopted by the Commission” (16 U.S.C. 773c(c)). Pursuant to this authority, this action closes the Reserve to fishing for halibut or anchoring by vessels required to have on board an Individual Fishing Quota (IFQ) halibut permit under § 679.4(d). Also pursuant to this authority, this action closes the area to sport fishing for halibut as defined at § 300.61, or anchoring by any vessel having halibut on board.

The combined effect of State and Federal regulations will allow the Sitka Pinnacles ecosystem to maintain its natural level of production by eliminating the harvest or bycatch of fish during critical portions of their life history. The prohibition on anchoring will prevent degradation of the area’s fragile habitat.

One letter was received during the public comment period. It was from the Center for Marine Conservation (CMC). CMC’s comments are summarized and responded to as follows:

Comment: CMC supported the closure generally with certain reservations: (1) It would have preferred an “ecosystem-based management strategy” including designation of the reserve as a Habitat Area of Particular Concern (HAPC) to the “species-specific strategy” adopted by NMFS; (2) it supports a ban on all anchoring in the pinnacles area; (3) it supports closing a larger area to fishing that would include a buffer zone around the pinnacles, noting that initial State-regulated closures designated a 3.1 square nm area.

Response: (1) The Reserve is being considered by the Council for HAPC designation as part of a broader HAPC amendment, which is undergoing a public planning process. (2) NMFS agrees that the anchoring prohibition is selective, not comprehensive. However, NMFS’ authority under the Magnuson-Stevens Act is limited to the regulation of fishing vessels. Thus, NMFS does not have authority to prohibit anchoring by non fishing vessels. NMFS has delegated the management of commercial and sport salmon fishing to the State. NMFS has corresponded with the State over the possibility of prohibiting anchoring by salmon fishing vessels. (3) Initial state-regulated closures designated a 3.1 square nm area around the pinnacles. The discrepancy is due to an initial miscalculation of the area, which has been corrected. The area is actually 2.5 square nm. The area delineated has remained the same dimension and includes the entire area around the pinnacles recommended by the State in its initial presentation to the Council, as described in the final rule. A larger closed area would lead to greater impacts on fishermen and would have less community support. The 2.5 square nm closure adequately protects the discrete habitat area surrounding the Sitka Pinnacles.

This action has been determined to be not significant under Executive Order12866. No new reporting, recordkeeping, or compliance requirements are imposed by this final rule.

NMFS has prepared an FRFA that describes the impact this final rule is expected to have on small entities. A copy of this analysis is available from NMFS (see ADDRESSES ). At the upper limit, the total number of entities that could be affected by this action is estimated at 2,618, which includes 1,048 fixed gear groundfish vessels and 1,570 halibut vessels, based on 1998 data for vessels that fished in the GOA. This figure does not include trawl vessels, which are already prohibited from fishing in this area under Amendment 41 (63 FR 8356, February 19, 1998). Of the non-trawl vessels, the great majority (90 percent) are catcher vessels under 60 feet in length overall (as opposed to larger catcher vessels and catcher-processors). The necessary data on ownership, affiliation, contractual relationships, and the rest from which to conclusively determine which of these operations are “small entities” for Regulatory Flexibility Act purposes are not available, and some of these 2,618 vessels might not qualify under Small Business Administration criteria. However, for the purposes of the FRFA analysis, all of these groundfish and commercial halibut vessels are assumed to be small entities, given the nature of the fisheries they participate in and the unlikelihood that many of them have annual gross revenues in excess of $3 million. This simplifying assumption avoids the risk of understating the potential impact on small entities.

Realistically, the assumption that all vessels fishing in the GOA could be affected greatly inflates the estimate of vessels whose opportunity to fish could potentially be affected by this final rule. The closure is in Statistical Area (S.A.) 355631. Information from the State’s Commercial Fisheries Entry Commission fish ticket data shows that, in 1998, 97 vessels fished for groundfish in S. A. 355631. The NMFS IFQ landings database shows that 67 vessels caught IFQ halibut in 1998 in S. A. 355631 (4.2 percent of halibut vessels). Therefore, 157 is a more realistic estimate of the universe of commercial groundfish and halibut vessels that fish in the vicinity and whose opportunity to fish could potentially be affected by the final rule.

The total landings of State and federally managed species in 1998 in S. A. 355631, based on fish ticket data, were 748,378 lb (or about 0.14 percent of the total landings in the GOA that year). The total amount of halibut landed in S. A. 355631 was 409,000 lb, or 0.9 percent of the total landed in the GOA, a percentage which remained consistent from 1995 to 1998. The closure area itself is less than 1 percent of S. A. 355631 (2.5 sq nm out of a total of 466 sq nm). The historical poundage of groundfish and halibut taken in the closure area cannot be ascertained with any further accuracy, however, because the data built from fish tickets give only statistical areas and not exact catch locations.

In addition to the commercial fishing vessels, 588 charter vessels, owned by 397 unique businesses, fished for halibut in 1988 in IPHC Area 2C, in which the Sitka Pinnacles are located. Of the charter vessels, 364 were homeported in Sitka, and 191 of the Sitka vessels targeted bottomfish, including Pacific halibut. Opportunities of charter boat operators, as well as individual anglers, to fish for Pacific halibut could be affected by this action. But few, if any, of these charter boats have been fishing on the pinnacles since the State closed the area to fishing for lingcod and State-managed rockfish species in the summer of 1998. The aggregations of lingcod present on the pinnacles were an incentive to travel to this site. Although halibut may be found near the Sitka Pinnacles, they do not aggregate there in any greater numbers than elsewhere in S. A. 355631.

The actual number of vessels affected by the rule will be even smaller than the number outlined. Few fishing vessels currently use the area. Most, if not all, groundfish and halibut fishermen have voluntarily avoided the pinnacles area for the past 2 years, since ADF&G regulations prohibiting the take of groundfish species under its jurisdiction took effect. Local fishermen have been supportive of protecting the Sitka Pinnacles.

If any vessels continue to fish in the reserve, they are not likely to be adversely affected by the closure to any significant extent, as the area constitutes less than 1 percent of the grounds in S. A. 355631 and less than .001 percent of the total available fishing grounds in the GOA (about 340,000 sq nm). Some long-term advantage may accrue to fishermen in terms of fishing opportunity in nearby areas because leaving an area of notably high biological importance and productivity (e.g., unique breeding, spawning, rearing habitat) undisturbed has the potential of increasing production through a spillover effect in adjacent areas that remain open to fishing. Any such benefits from increased production, however, could be offset in an open-access situation because increased catch per unit effort in adjacent areas could lead to crowding externalities. The preferred alternative selected, under which salmon fishing would continue to be allowed, was chosen in order to reduce the potential impact on small entities. The State Board of Fish considered and rejected closing the area to salmon fishing at its February 2000 meeting in order to minimize unwarranted adverse impacts on numerous salmon vessels that fish in the GOA.

In summary, the cost to small entities of implementing the final rule is expected to be quite low, as the area being proposed for closure constitutes an extremely small percentage of available fishing grounds, and few, if any, vessels have been fishing in the area since ADF&G promulgated regulations prohibiting fishing for groundfish species under its jurisdiction in 1998. No total allowable catch quotas will be changed by the rule, and NMFS does not anticipate a reduction in catch for any species as a result of this rulemaking.

The Environmental Assessment concluded that implementing the amendment is not likely to affect the quality of the human environment.

The President has directed Federal agencies to use plain language in their communication 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 final rule. Such comments should be sent to the Alaska Regional Administrator (see ADDRESSES ).

Administrative practice and procedure, Exports, Fish, Fisheries, Marine resources.

Alaska, Fisheries, Recordkeeping and reporting requirements.

This action is authorized by regulations implementing the Pacific Coast Groundfish Fishery Management Plan (FMP), which governs the groundfish fishery off Washington, Oregon, and California. On January 4, 2000 (65 FR 221), the levels of allowable biological catch (ABC), the optimum yield (OY) and the commercial OY (the OY minus the tribal allocation) for U.S. harvests of whiting were announced in the Federal Register . For 2000, the whiting ABC and OY are 232,000 mt (mt), the tribal whiting allocation is 32,500 mt, and the commercial OY is 199,500 mt.

Regulations at 50 CFR 660.323(a)(4) divide the commercial OY into separate allocations for the catcher/processor (34 percent), mothership (24 percent), and shore-based (42 percent) sectors of the whiting fishery. The 2000 commercial whiting allocations are 67,830 mt for the catcher/processor sector, 47,880 mt for the mothership sector, and 83,790 mt for the shoreside sector. The catcher/processor sector is composed of vessels that harvest and process whiting. The mothership sector is composed of motherships, and catcher vessels that harvest whiting for delivery to motherships. Motherships are vessels that process, but do not harvest, whiting. The shoreside sector is composed of vessels that harvest whiting for delivery to shoreside processors.

Regulations at 50 CFR 660.323(a)(3)(i) describe the primary season for catcher/processors as the period(s) when at-sea processing is allowed and the fishery is open for the catcher/processor sector. When each sector's allocation is reached, the primary season for that sector is ended.

This action announces achievement of the allocation for the catcher/processor sector only. The best available information on November 1, 2000, indicated that the 67,830 mt catcher/processor allocation would be reached by 6 p.m. l.t. on November 6, 2000, at which time the primary season the catcher/processor sector ends.

For the reasons stated here and in accordance with the regulations at 50 CFR 660.323(a)(4)(iii)(A), NMFS herein announces:

Effective 6 p.m. l.t. on November 6, 2000, further taking and retaining, receiving or at-sea processing of whiting by a catcher/processor is prohibited. No additional unprocessed whiting may be brought on board after at-sea processing is prohibited, but a catcher/processor may continue to process whiting that was on board before at-sea processing was prohibited.

This action is authorized by the regulations implementing the FMP. The determination to take this action is based on the most recent data available. The aggregate data upon which the determination is based are available for public inspection at the Office of the Regional Administrator (see ADDRESSES ) during business hours. This action is taken under the authority of 50 CFR 660.323(a)(4)(iii)(A) and is exempt from review under Executive Order 12866.

This document corrects the reallocation of Pacific cod in the Bering Sea and Aleutian Islands from trawl catcher/processors and vessels using jig gear to vessels using hook-and-line or pot gear.

In the final rule Pacific Cod in the Bering Sea and Aleutian Islands Management Area; published on November 1, 2000 (65 FR 65272), FR Doc. 00-28023, an error was made in SUPPLEMENTARY INFORMATION .

On page 65273, in the third column, the tenth line is corrected to read as follows: “processors, 81,958 mt to catcher/processor vessels using”.