On September 20, 2000, we published in the Federal Register (65 FR 56803-56806, Docket No. 98-103-1) a proposed rule to amend our regulations governing the importation of plants and plant products to allow artificially dwarfed (penjing) plants of the genera Buxus, Ehretia (Carmona), Podocarpus, Sageretia, and Serissa to be imported into the United States from the People's Republic of China in an approved growing medium subject to specified growing, inspection, and certification requirements.

Comments on the proposed rule were required to be received on or before November 20, 2000. We are reopening and extending the comment period on Docket No. 98-103-1 for an additional 30 days. This action will allow interested persons additional time to prepare and submit comments. We will consider all comments that we received between September 20, 2000, and December 20, 2000.

Further, interested persons may now obtain the qualitative, pathway-initiated pest risk assessment for this action, titled “Pest Risk Assessments, Penjing Plants from China,” on the APHIS web site at: http://www.aphis.usda.gov/ppq/pim/.

FSIS is responsible for ensuring that poultry products distributed in commerce are wholesome, not adulterated, and properly marked, labeled, and packaged. Under the Poultry Products Inspection Act (PPIA) (21 U.S.C. 451-470), FSIS provides mandatory inspection of poultry and poultry products distributed in interstate and foreign commerce and in designated States and U.S. territories. Inspection of poultry slaughtering establishments is intended to ensure that fresh, ready-to-cook poultry and parts are not adulterated or misbranded.

FSIS estimates that 2 percent of inspected poultry carcasses are reprocessed. This estimate is based on approximately two years of in-plant data collection and represents the national average. The Agency requires that poultry with cut, contaminated surfaces be reprocessed by trimming, and poultry with uncut, contaminated inner surfaces be reprocessed by trimming alone or in combination with other methods, such as washing or vacuuming. After viscera removal, the contaminated carcasses are hung on a designated area of the retain rack. Carcasses are then transferred to the reprocessing station where they are suspended to prevent contamination during trimming and washing. The crops are removed, and external carcass surfaces are thoroughly washed. The contaminant is removed, and the reprocessed carcass is rinsed with water containing 20 ppm chlorine. After further examination by plant personnel, clean carcasses are lotted and made available for reinspection by FSIS inspectors. Carcasses found by the FSIS inspectors to be not adulterated are passed for human consumption.

Reprocessing procedures must be submitted in writing to FSIS. FSIS field personnel are authorized to grant approvals for reprocessing stations to include 60-day provisional approvals (experimental under section 381.3(b)) to permit method development and data accumulation via MPI Bulletin 78-40 (“Disposition of Contaminated Poultry Carcasses,” 3/28/78). Provisional approvals can be refused or revoked if the establishment cannot maintain consistently effective results. Final approvals must be based in part upon data from 20 consecutive days of successful operations.

The statutory basis for poultry reprocessing is section 6(c) of the PPIA (21 U.S.C. 455(c)) which provides that carcasses, parts, and products that may by reprocessing be made not adulterated, need not be condemned and destroyed if reprocessed under the supervision of an inspector and found to be not adulterated. The methods used to reprocess carcasses have changed over time. In the early 1960's, FSIS prohibited reprocessing by washing of poultry carcasses. This meant that contamination had to be removed by trimming. As a practical matter, the entire back of contaminated carcasses often had to be cut out and discarded.

In 1975, an Agriculture Research Service (ARS) study showed that the microbial profile of thoroughly washed carcasses previously contaminated with digestive tract contents was no different than the microbial profile of uncontaminated birds. Industry responded by requesting that FSIS permit contamination to be removed by washing. Industry also supplied data to demonstrate that washing also removed visible specks of internal contamination.

Citing newer technology that made the present procedure of trimming “unsuitable,” on August 19, 1977, the Food Safety and Quality Service (now FSIS) proposed (42 FR 41873) to permit the reprocessing of internally contaminated carcasses if two conditions were met. First, each establishment must receive approval from FSIS of the off-line reprocessing procedure (trimming, vacuuming, or washing singly or in various combinations) and equipment. Second, the surface of each reprocessed carcass must be treated with a chlorinated water solution. A final rule, issued on March 8, 1978 (43 FR 12846), reduced the chlorine requirements from 50 ppm to 20 ppm and clarified some information about the areas designated for reprocessing.

During the 1970's and 1980's, the industry made significant technological advances and increased its process control capabilities. The development of automated evisceration equipment and improvements in genetics, nutrition health, and flock management permitted the poultry industry to present uniform lots of birds to inspectors faster than inspectors could inspect them using traditional methods. In the 1980's, the Agency developed new inspection procedures, including New Line Speed (NELS) and Streamlined Inspection System (SIS) for chickens and the New Turkey Inspection (NTI) system, which shifted quality control responsibilities to the plant and relied more heavily on monitoring and verification than in the past. Inspection was now conducted in two distinct phases—a post-mortem inspection phase and a reinspection phase.

Under the current regulations, any carcass of poultry accidently contaminated during slaughter with digestive tract contents will not be condemned if promptly reprocessed in a designated area off-line under the supervision of an inspector and found to be not adulterated. Under provisions of § 381.91, carcasses of poultry contaminated with volatile oils, paints, or any other substance that renders the carcass adulterated will be condemned. In addition, any organ or other part of a carcass that has been accidentally mutilated in the course of processing will be condemned, and if the whole carcass is affected, the whole carcass will be condemned.

Although FSIS' regulations require any visibly contaminated poultry carcass to be reprocessed at an approved reprocessing station away from the main processing line, there has been concern that pathogenic organisms may be spread by the off-line reprocessing technique (Beuchat, LR, and JH Ryu, Produce Handling and Process Practices, 1997). This technique involves a significant amount of product handling and provides an opportunity for cross-contamination.

On-line reprocessing of pre-chill poultry would provide great benefits to poultry slaughtering establishments. Production rates could increase considerably if such reprocessing were permitted. An increase in annual revenues resulting from an increase in the production rate would more than offset any one-time investment for the purchase and installation of equipment needed to reprocess on-line.The Agency does not foresee that any establishment would need to reduce its linespeeds as a result of on-line reprocessing, although the FSIS inspector-in-charge has discretion to reduce linespeeds, when necessary.

The benefits to be derived from on-line reprocessing include substantial reductions in pathogens on dressed, ready-to-cook poultry. A reduction in contamination, coupled with an antimicrobial treatment, would result in reduced microbial loads on dressed poultry carcasses. Because carcasses without visible contamination would undergo the antimicrobial treatment if reprocessing was done on-line, most poultry products would benefit from on-line reprocessing. There would be added assurance that reprocessed poultry are free of contamination and unlikely to be a cause of cross contamination when introduced into the chiller system.

Industry is aware of the potential benefits to be derived from on-line reprocessing. Consequently, over the last several years, companies have been exploring various methodologies. The first to come forward with data from trials performed at five plants (Choctow Maid, Carthage, MS; Perdue Farms, Rockingham, NC; Wayne Farms, Jack, AL; Choctow Foods, Forrest, MS; and Amick Farms, Batesburg, SC) was Rhodia, Inc., whose system uses trisodium phosphate (TSP). Rhodia's data show that its on-line reprocessing system can achieve pathogen levels significantly lower than the Agency pathogen reduction performance standards and process control verification criteria.

In addition, Alcide Corporation has developed the Sanova TM Continuous On-line Processing (COP) antimicrobial intervention process for poultry, which uses acidified sodium chlorite. FSIS is aware that other companies in addition to Rhodia and Alcide are doing in-plant testing and may soon be coming forward with data on the effectiveness of their antimicrobial systems.

Rhodia Inc., Rhone-Poulenc, Inc., its parent company, and Stauffer Chemical Company, its predecessor company, have conducted tests on the efficacy of various processes using solutions of food-grade TSP as a processing aid on raw meat and poultry carcasses for the purpose of reducing the numbers and prevalence of various pathogenic microorganisms. TSP is listed by the Food and Drug Administration (FDA) as generally recognized as safe (GRAS) for multiple-purpose use in accordance with good manufacturing practices (GMP) (21 CFR 182.1778). As part of the testing of TSP, numerous laboratory, plant, and commercial trials have been conducted pre-chill and post-chill in slaughtering operations for beef and poultry (chicken and turkey) and for poultry giblets.

The trials tested both TSP spray/drench systems using inside/outside birdwashers (IOBW) and TSP immersion/application techniques using a drag through tank. Each of the commercial plant trials consistently demonstrated the efficacy of TSP in reducing prevalence and levels of Aerobic Plate Counts (APC's), Campylobacter, E. coli, and Enterobacteriaceae on meat and poultry.

The efficacy of a TSP rinse combined with a chlorine rinse in reducing the prevalence and levels of pathogenic bacteria on poultry is well documented by Rhodia. From the data submitted by Rhodia, it appears that APC's can be reduced up to 1.5 log 10 cycles ( i.e., just less than 99 percent); Campylobacter prevalence can be reduced from 78.6 percent to 41.6 percent, a 37 percent reduction; E. coli and Enterobacteriaceae can be reduced to below the level of detection; and Salmonella can be reduced to below 1 percent of the total number of birds sampled.

In 1992, Rhone-Poulenc petitioned FSIS for approval of the use of TSP on raw, chilled poultry carcasses. The petitioner included data in its petition to demonstrate that the use of TSP is effective in reducing the prevalence of bacteria, including pathogenic bacteria, on raw, chilled poultry products. FSIS evaluated the petitioner's request and concluded that the treatment leaves virtually no residues in or on the product.

FSIS also determined that the use of TSP requested by the petitioner was suitable for its intended purpose as an antimicrobial processing aid, and that the use of this substance on raw, chilled poultry carcasses at the stated level would not render the treated product adulterated, misbranded, or otherwise not in accordance with the requirements of the PPIA. In a final rule issued on July 29, 1996 (61 FR 39273), FSIS amended the poultry products inspection regulations (formerly in § 381.147; now in the table in § 424.21(c)) to add “antimicrobial agents” as a new class of substance for use on poultry products and to include TSP as an approved antimicrobial agent whose use is limited to raw, chilled poultry carcasses.

Because of the antimicrobial efficacy demonstrated by TSP on chilled poultry in commercial poultry slaughter operations, Rhodia requested and received authorization from FSIS to conduct in-plant trials of the use of TSP for on-line reprocessing of pre-chill carcasses. FSIS regulations (§ 381.91(b)(1) and (2)) require that the carcasses be reprocessed off-line under the supervision of an FSIS inspector.

Under the FSIS-approved protocol, a TSP treatment using an IOBW for the on-line reprocessing was tested. In the first stage of the approved protocol, visible contamination was removed from carcasses prior to zero tolerance verification by using one or more IOBW with a water spray containing 20 ppm chlorine. In the second stage, carcasses passed through another IOBW where a TSP antimicrobial rinse was applied.

Two separate phases of sampling took place in each trial at five plants. Phase 1 was conducted over a 4-week period and involved extensive sampling, in part, to verify proper startup of the system. Phase 2 was conducted over an 8-week period and involved collecting a lesser number of samples on a random basis.

The trials were conducted within the following operating parameters:

(1) There was strict compliance with FSIS regulatory policy, including the zero tolerance for fecal matter (9 CFR 381.65(e)), and with the existing pre-chill finished product standards (9 CFR 381.76, Table 1).

(2) Birds whose entire carcass was affected with contamination were not eligible for on-line reprocessing with TSP. These carcasses were reprocessed off-line in accordance with 9 CFR 381.91.

(3) The temperature of the TSP treatment solution did not exceed the carcass temperature at the time of treatment, and the treatment solution was applied by spraying/drenching carcasses up to 15 seconds.

(4) The TSP concentration levels were between 8 and 12 percent, with a critical limit of not less than 8 percent.

The 960 samples generated at each plant were divided equally among three sampling points. “A” samples were taken randomly from “normal” on-line fully eviscerated carcasses with no visible contamination before they underwent the first IOBW rinse for on-line reprocessing. The “A” samples, therefore, can be considered the control samples because they represented the actual bacterial load on carcasses proceeding on-line during days the sampling was conducted. “B” samples were taken from visibly contaminated carcasses that would normally have been reprocessed off-line but that were marked and allowed to be reprocessed on-line. “C” samples were obtained from carcasses after they were reprocessed off-line, where they underwent procedures such as vacuuming, washing, or trimming, singly or in combination, and treated with chlorinated water. All samples were frozen and shipped to laboratories for analysis by AOAC/BAM analytical methods.

The data submitted to FSIS in support of Rhodia's petition show that the combined effects of the TSP and chlorine rinses substantially reduced the average APC's and Enterobacteriaceae counts and the prevalence of Campylobacter, E. coli, and Salmonella on treated sample carcasses. Specifically, the data show that:

• On-line TSP reprocessing achieved a 1 log 10 greater reduction in average APC's than normally reprocessed on-line carcasses before the chiller (“A” samples) and a one-half log greater reduction in average APC's than off-line reprocessed carcasses before the chiller (“C” samples).

• The average prevalence of Campylobacter on normal on-line carcasses before the chiller (“A” samples) was 78 percent, and the average prevalence was 80 percent for off-line carcasses before the chiller (“C” samples). There was a 32 percent reduction in Campylobacter prevalence for TSP reprocessed birds. (There were no Campylobacter samples tested in Phase 2 of the trials).

• On-line TSP reprocessing resulted in less than a 1.0 percent prevalence for E. coli. On-line carcasses in the control group (“A” samples) had an average E. coli prevalence of 97 percent before the chiller, and off-line reprocessed carcasses (“C” samples) averaged a 22 percent prevalence rate before the chiller.

• TSP on-line reprocessing reduced the prevalence for Enterobacteriaceae to 1.0 percent of carcasses. The average prevalence of Enterobacteriaceae on normal on-line pre-chilled carcasses (“A” samples) was 98 percent, and the average prevalence was 81 percent for off-line reprocessed pre-chilled carcasses (“C” samples).

• Salmonella prevalences were based on more than 1,200 samples each of the normal on-line carcasses, the TSP on-line reprocessed carcasses, and the off-line reprocessed carcasses. Less than 0.5 percent of the on-line carcasses treated with chlorine and TSP rinses were positive for Salmonella. On-line pre-chilled carcasses (“A” samples) averaged a prevalence of 30 percent, and off-line reprocessed pre-chilled carcasses (“C” samples) averaged a 22 percent prevalence.

In its petition, as noted above, Rhodia presented data from frozen samples that showed that the TSP rinse, in combination with a chlorinated water system, achieved substantial microbial load reduction on treated carcasses. Rhodia Inc., asked that FSIS amend its rules to provide for the on-line reprocessing of poultry with a substance or reprocessing system that has demonstrated, with statistically significant validating data generated under conditions of in-plant trial tests, the ability to reduce the pre-chill prevalence of Salmonella to less than 0.5 percent and to reduce the pre-chill prevalence of E. coli to less than 1.0 percent on frozen samples.

The on-line reprocessing of carcasses would occur after FSIS post-mortem inspection (in non-HACCP Inspection Models project plants) and the removal from the slaughter/processing line of carcasses extensively contaminated with digestive tract content or fecal material, condemned poultry carcasses, and parts or organs that are obviously unwholesome or unfit for human food. The removal of processing defects (nonconformances such as digestive tract contents, lungs, hair, feathers, bruises, scabies, airsacculitis, and others listed in § 381.76) is unchanged by this proposed rule and would continue to occur before on-line antimicrobial processing and before carcasses enter the chiller tank.

Under this proposal, carcasses with visible digestive tract contamination, including fecal contamination, would be permitted to remain on-line and would be treated with an antimicrobial agent before entering the chiller. Carcasses with extensive digestive tract contamination would continue to be eligible for reprocessing off-line but would not be eligible for on-line reprocessing.

FSIS is not proposing the specific pre-chill Salmonella and E. coli standards because, at this time, various antimicrobial treatments have been demonstrated to have differing effects. FSIS does intend to establish one or more pre-chill performance standards that establishments using on-line reprocessing with an antimicrobial treatment will be required to meet. FSIS invites comment, especially in the form of additional data, on the specific performance standards that establishments should be required to meet.

E. coli continues to be the best microbial indicator for fecal contamination. Salmonella is the most frequently occurring foodborne pathogen, and it is widely associated with raw poultry. Because E. coli contamination is largely preventable, and because the current E. coli and Salmonella requirements contained in § 381.94 were met or exceeded in the commercial on-line reprocessing trials, FSIS believes that these organisms would be appropriate for pre-chill performance standards for reprocessing on line.

Under provisions of the HACCP final rule, FSIS requires all poultry slaughter establishments to test carcasses for generic E. coli using an AOAC approved method of analysis to verify process control for fecal contamination. The rule establishes testing frequencies based on production levels. The HACCP final rule does not require establishments to conduct their own testing for Salmonella, but FSIS tests product and reports the results to establishments. FSIS has published guide books for sampling for both E. coli and Salmonella (footnotes 1 and 3 in § 381.94). The guidebooks are available in the Docket Room (See ADDRESSES ) and on the FSIS web page at http://www.fsis.usda.gov. FSIS believes that establishments operating on-line antimicrobial reprocessing systems for pre-chilled carcasses should follow the guidelines for sample collection for the pre-chill pathogen reduction performance standards for E. coli and Salmonella in accordance with footnotes 1 and 3 in 9 CFR 381.94.

In 1999, the National Advisory Committee on Meat and Poultry Inspection requested that the National Advisory Committee for Microbiological Criteria for Foods evaluate options for defining a performance standard for Campylobacter . Campylobacter is the most frequent cause of bacterial foodborne illness in the United States. It is estimated that between 60 and 80 percent of chilled whole birds sampled at processing facilities are contaminated with the microorganism. The National Advisory Committee for Microbiological Criteria for Foods expressed concern in defining a Campylobacter standard, in part, because of the paucity of data on the relationship among Campylobacter , other microorganisms ( e.g., Salmonella and generic E. coli ), and poultry. For example, there are no available on-farm or slaughter intervention strategies designed to eliminate Campylobacter , and a new method developed by the Agricultural Research Service to detect and quantify Campylobacter has not yet been fully assessed and compared against the current method used by FSIS. Consequently, FSIS believes that there are insufficient data to establish a performance standard for Campylobacter as part of this proposed rulemaking for on-line antimicrobial reprocessing of pre-chill poultry carcasses. However, FSIS is interested in establishing such a standard for this pathogen and is seeking comment and data regarding this issue.

In January 1999, FSIS granted interim approval to the Alcide Corporation of Redmond, Washington, to permit the use of Sanova TM equipment using acidified sodium chlorite as an antimicrobial treatment for reducing microbial levels on raw poultry carcasses. The Agency's approval did not extend to the use of the equipment and acidified sodium chlorite for on-line reprocessing of contaminated poultry. FSIS stated in the January 1999 letter that it would eventually add the substance to the chart specifying the food ingredients approved for use in the preparation of meat and poultry products under the heading “Antimicrobial agents” for pre-chilled poultry carcasses at § 424.21(c).

In November 1999, FSIS received a petition from Alcide requesting that the Agency conduct rulemaking to approve the use of its Sanova TM continuous on-line processing (COP) system, which uses acidified sodium chlorite as an antimicrobial treatment for on-line reprocessing of contaminated poultry. The process can be used in conjunction with an IOBW, but an IOBW is not a requirement of the system. The COP system features a spray cabinet to deliver an antimicrobial treatment of acidified sodium chlorite (500 to 1200 ppm sodium with citric acid) to poultry carcasses before the carcasses are chilled.

FSIS intended to initiate rulemaking to amend the chart to include acidified sodium chlorite until a recent final rule (64 FR 72168) and a Memorandum of Understanding with the Food and Drug Administration (FDA) on the listing of food ingredients (MOU; FDA/FSIS Regarding the Listing of Food Ingredients and Sources of Radiation Used in the Production of Meat and Poultry Products, January 2000) were issued. The documents provide that FDA will list in its regulations in title 21 of the Code of Federal Regulations (CFR) all food ingredients and sources of radiation that are safe for use in the production of meat and poultry products. FSIS, through a separate rulemaking activity, intends to delete the chart in § 424.21(c), and the contents of the chart will be appended to 21 CFR. Meanwhile, FDA amended its food additive regulations to provide for the safe use of acidified sodium chlorite as a antimicrobial agent in the processing of red meat carcasses (63 FR 11118), on red meat parts and organs (65 FR 1776), in poultry processing (64 FR 26841), and on poultry carcass parts (65 FR 16312).

Alcide also requested that any regulatory proposal on performance standards for on-line reprocessing of poultry be deferred until FSIS has had the opportunity to evaluate Alcide's petition. The Agency has reviewed Alcide's petition and the accompanying data. The Agency's review of the test results from Alcide indicates that the COP system achieves an average reduction in Salmonella prevalence of 27.27 percent, and an average reduction of Campylobacter prevalence of 25.6 percent. Alcide's samples were fresh and chilled, not frozen. Of the 1,070 post-COP treated carcasses sampled in the five establishments, an average of 34 percent were negative for E. coli , and 66 percent were positive. Assuming that 10 or fewer cells of E. coli are considered as a limit of detection, the estimated prevalence in the sampling is 26.4 percent. If the samples were frozen, Alcide estimated that freezing would reduce the number of organisms in a sample by 1 log 10 ( i.e., 90 percent) resulting in only 5.4 percent of the samples having a count greater than 10.

Unlike the Rhodia data that were quantitative and focused on absolute levels of reduction ( i.e., less than 0.5 percent of the treated samples were positive for Salmonella ), Alcide's data documented degrees of reduction ( i.e., there was an average reduction by 27.27 percent of the prevalence of Salmonella on the treated samples). Alcide's data appear to document statistically significant food safety enhancements achieved at the five test establishments, without establishing specific numerical performance standards as Rhodia did through its petition. Therefore, at this time, the Agency has not been able to equate the results of the data from the two petitions. Nonetheless, because the Agency has decided to go forward with this rulemaking, it has granted the Alcide petition, in part, except for the company's request to use non-quantitative performance standards. FSIS is seeking public comment on performance standard levels and hopes to receive further data that are relevant to this issue. It also seeks comment on whether is is possible to equate the Rhodia and Alicde data.

Meanwhile, a third set of data was submitted to the Agency by the National Chicken Council (NCC). The NCC conducted testing in five establishments regarding the commercial application of TSP. The NCC data, like the Rhodia data, show that on-line antimicrobial reprocessing is superior to off-line reprocessing, and that the prevalence of E. coli and Salmonella can be reduced considerably. In contrast to the Rhodia data, however, the NCC data show that freezing the samples has an impact on the prevalence and counts of E. coli and results in lower numbers. Although the prevalence of Salmonella was lower in frozen samples than in refrigerated samples in the NCC study, the difference between frozen and refrigerated samples was not statistically significant. NCC asserted that its sampling (1,840 samples were analyzed for Salmonella spp, and 1,320 were analyzed for E. coli ) demonstrated that the that the 0.5 percent pre-chill performance standard for Salmonella and the 1.0 percent pre-chill performance standard for E. coli were not achievable following TSP application in commercial operations.

NCC's study was conducted in four stages. Carcass rinses of whole birds were performed at three designated sites along the production line: pre TSP (post IOBW), post TSP, and post-chill. The sample types included “visually clean/no TSP,” “visually contaminated/with TSP,” and “visually contaminated/off-line reprocessed/no TSP.” All carcass rinses were tested for the presence or absence of E. coli and Salmonella using validated rapid screening methods. Carcass rinses were kept chilled on wet ice or refrigerated until transported to the laboratory. Frozen samples were held on dry ice for 18 to 24 hours and thawed before setting. Positive results were confirmed biochemically and serologically.

Because the NCC data results are substantially different from the Rhodia data, the Agency is seeking comment on what should be the new pre-chill performance standards in order to balance public health benefits for consumers and achievable goals that encourage establishment participation. The Agency also is seeking comments on the issue of the effect freezing has on samples and any other aspects of the NCC data. The data are available in the FSIS Docket Room and on the FSIS web page.

The NCC data point out another factor. Currently, even in plants where TSP or the Sanova system is in use, birds that are grossly contaminated, and then reprocessed off-line, enter the chiller without the TSP or Sanova treatment. This fact is significant because there is sometimes a higher prevalence of Salmonella in these plants post-chill than pre-chill. Thus, FSIS requests comment on whether it should include, as a condition for permitting on-line reprocessing, that all birds entering the chiller, including those reprocessed off-line, be treated with the antimicrobial intervention.

There are increasing environmental concerns associated with the use of nutrients, particularly nitrogen, phosphorus, and potassium, in agricultural systems. In response to the growing body of evidence about the relationship among solid nutrient loadings, nutrient transport off-sites, and surface and ground water quality, USDA's Natural Resources Conservation Service (NRCS) and other Federal agencies have revised their policies for delivering nutrient management and issued new technical guidelines.

In agriculture, the greatest focus is on the inputs of nutrients in the form of fertilizers that exceed outputs of nitrogen and phosphorus in the form of crops and manure production. High densities of poultry plants in some areas in the United States have generated concerns about manure production exceeding the needs of crops to which the manure is applied. The density of animals on the land is directly related to nutrient flows to aquatic ecosystems.

In addition, there is a concern about the introduction of additional substances into the agricultural production process, particularly in view of NRCS's stated goal of reducing nutrients used in agricultural production. However, the waste water of the more than 80 poultry establishments that are engaged in on-line reprocessing operations with TSP is handled routinely by existing water treatment systems or recycled as by-products without entering the plant's systems, municipal water systems, or the ground water.

However, would establishments operating under more restrictive state environmental laws and regulations incur additional costs as a result of on-line reprocessing operations? Are such operations restricted in some States? FSIS would like the public to comment on the environmental impacts associated with on-line reprocessing operations.

FSIS has decided to publish this proposed rule and to solicit comments on the exact performance standard that it should adopt. Although the Agency is not now proposing specific performance levels, FSIS is giving the public an opportunity to comment on and provide data that would support adopting a particular performance level as the standard.

The Agency is aware that not all antimicrobial substances or processing systems for poultry pre-chill may be capable of attaining the pathogen reduction levels Rhodia claims to have achieved in its trials. FSIS is proceeding with this proposal because it considers pathogen reduction to be one of its primary goals, and data supplied to date appear to show significant improvements in the ability to reduce microbial contamination of poultry. FSIS remains open to considering other new technologies or treatments, and alternate standards, in developing a final rule. In recent years, trials with TSP and other substances have proliferated. FSIS would like to accommodate any technology that is safe and will significantly reduce the prevalence of E. coli, Salmonella, and other microorganisms on poultry carcasses pre-chill.

In developing an appropriate standard, the Agency believes that poultry contaminated with digestive tract contents must be held to a more rigid pathogen reduction standard than product that is not visibly contaminated because digestive tract contents are a source of pathogens and other microorganisms. Furthermore, physical removal of visible contamination does not necessarily remove significant levels of these pathogens and other microorganisms, as evidenced by the Rhodia trials involving off-line reprocessed pre-chill carcasses.

Persuasive data that support specific performance standards for on-line reprocessed visibly contaminated poultry pre-chill will be the basis for the final rule. The Agency would like public consideration of the following questions: Should the performance standards be based on organisms other than E. coli and Salmonella ? What is the appropriate standard if chilled ( i.e., not frozen) samples are submitted for laboratory analysis?

It is important to emphasize that Rhodia used frozen, not chilled, laboratory samples in its in-plant trials. Data obtained by Rhodia on the effects of freezing whole carcass rinse samples indicated that there was no difference between frozen or chilled TSP treated samples. All TSP treated samples were negative for E. coli, Enterobacteriaceae, and Salmonella. These results are based on a 2-day split sampling and testing study at a plant conducting on-line reprocessing using TSP. A copy of these results is available to the public for review in the FSIS Docket Room (See ADDRESSES ). No data were obtained regarding frozen Campylobacter samples. Campylobacter cells are sensitive to freezing and generally die off when subjected to temperatures at or below freezing.

If adopted, the performance standards should not only significantly improve a single establishment's performance but also should lower the national baseline, compelling improvements in process control and pathogen reduction by all establishments. FSIS is interested in hearing from the poultry industry, industry-related organizations, the scientific community, academia, consumers, consumer groups, and other interested persons before developing a final rule.

FSIS is proposing to amend the poultry products inspection regulations at 9 CFR 381.91 by adding a new subsection (c) that would allow poultry carcasses contaminated with digestive tract contents during slaughter to remain on the main processing line along with uncontaminated carcasses for treatment with an antimicrobial agent before the chiller. FSIS also is proposing to amend the chart in 9 CFR 424.21(c) to extend the use of antimicrobial agents to pre-chill poultry carcasses.

Because FSIS is proposing to hold the visibly contaminated carcasses to more rigorous performance standards than apply to other birds, plants would need to establish verification and validation procedures as part of their HACCP system requirements. As part of the plant's on-going verification procedures, FSIS expects that plants will identify the visibly contaminated carcasses to distinguish them from the uncontaminated carcasses before the birds proceed down the processing line in order that the visibly contaminated carcasses can be sampled separately from the other birds after the treatment. Furthermore, FSIS expects that plants will identify an appropriate sampling frequency for verification as part of the HACCP system requirements.

In addition, in accordance with § 417.5(a)(1), establishments will need to include in their hazard analyses validating data, generated under conditions of in-plant commercial operations, demonstrating that the on- line reprocessed contaminated poultry carcasses achieve the proposed pre-chill standards that FSIS adopts. Establishments would establish critical control points for the use of the antimicrobial treatment based on the determinations that they make as part of their reassessment.

FSIS is not proposing to change the requirement in § 381.65(e) that carcasses contaminated with visible fecal material not enter the chilling tank or to change the finished product standards in § 381.76(b)(3). In addition, under the proposed regulation, on-line reprocessed carcasses, as well as the on-line non-contaminated carcasses, must comply with the criteria for verifying process control ( E. coli testing) and with the pathogen reduction performance standards for Salmonella in accordance with § 381.94 of the poultry regulations.

The Agency emphasizes that this proposal would neither mandate on-line reprocessing by all establishments nor establish the use of specific equipment and antimicrobial aids to reprocess pre-chilled poultry carcasses on-line.

Finally, the Agency requests comments on amending the chart in § 424.21(c) to extend the use of trisodium phosphate to “pre-chill” poultry carcasses.

The economic impact of this rule is likely to be minimal because of the voluntary nature of the practice this proposal would authorize. An establishment will use on-line reprocessing if it is consistent with the objectives of the firm, conforms with plant configuration, provides increased efficiency in achieving product standards, improves product characteristics, and other factors. The poultry industry is highly competitive; an increase in product price by a single producer is likely to result in a loss of market share. A firm is not likely to purchase new equipment that will increase overall production costs or reduce profits.

The cost for a poultry plant to adopt an acceptable on-line reprocessing system will vary from plant to plant and will be contingent on the location, physical structure, and age of the plant and the adaptability of the equipment. Available information indicates that the capital cost per line ranges from $10,000 to more than $55,000, with an average cost of $35,600, which is close to the manufacturer's estimate for a single line cost of $30,000.

Operating costs associated with on-line reprocessing systems also can vary significantly as a result of plant size, number of lines, processing capacity, plant configuration, and other factors. Rhodia estimates that the TSP application cost will be about 0.2 cents per pound for an average chicken slaughter plant. The application of other antimicrobial substances may vary slightly in cost. Plant data suggest that total annual operating costs, which include labor, water softener, TSP, and water, are very close to the manufacturer's estimate. Available information suggests annual operating costs of about $125,000 per line for an average plant. Costs associated with off-line reprocessing would be expected to decline following installation of on-line reprocessing equipment because of reduced labor and other operating requirements. Available data suggest the decrease in operating costs because of reduced off-line reprocessing is about $70,000 per line, somewhat more than half of the increase in operating costs associated with TSP on-line reprocessing. The available plant information suggests that about two-thirds of the plants would not experience any change in sewage treatment. The remaining third would be required to perform additional treatment at the plant to meet discharge limits. Two-thirds of the plants would show no change in water use, while the remaining plants will have to increase use by 1 to 2 gallons per bird, or about 10 percent.

For the average plant, the net present value of capital costs and the net change in operating costs of TSP on-line reprocessing is about $1.2 million over a 10-year period using a discount rate of 7 percent. Based on the assumptions that the average plant processes about 200,000 birds per day, that an average bird has a dressed weight of 3.6 pounds, and the plant operates an average of 255 days per year over the next 10 years, the increase in total production costs is slightly more than .2 cents per pound. The capital costs amortized over a 10-year period are minimal on a per pound basis. The costs to the poultry processing industry would accrue to plants engaged in slaughter, either exclusively or in combination with processing. In 1996, there were 281 federally inspected plants of this description. Only one Federal-State cooperative inspection plant is currently engaged in poultry slaughter. If all such plants voluntarily install an on-line reprocessing system, the total cost to the poultry industry would be about $345 million over a 10-year period.

The cost of a TSP on-line reprocessing system represents an insignificant portion of the retail price per pound of poultry. If there is any increase in the retail price of poultry, it will be modest and offset by consumer confidence that the product presents lower microbial risks.

The impact of the proposed rule on small establishments is likely to be minimal given that it is voluntary. A firm will adopt the practice if it is consistent with its objectives. The limited evidence available does not indicate that small firms would be at a disadvantage if on-line reprocessing were a uniformly accepted practice. The initial capital costs and net change in operating costs do not appear to be related to plant size. In addition, the magnitude of the costs, $1.2 million over 10 years, would not represent a significant share of overall costs for small firms.

The Agency would like comment from the public and especially from poultry firms that are currently engaged in TSP or acidified sodium chlorite reprocessing on the costs presented in this document. Are the economic assumptions valid? Do the decreases in operating costs for reduced off-line reprocessing appear to be reasonable? The Agency expects that on-line reprocessing will provide establishments with considerable economic advantages related to cost savings gained from no longer having to reprocess birds off-line. What levels of savings would accrue to plants adopting on-line reprocessing operations? How much will the proposed new standards for Salmonella and E. coli, if implemented, contribute to higher costs for product sampling? If the pathogen reduction standards become tighter, can compliance costs be expected to increase? Because adopting on-line reprocessing is voluntary, the amounts of the increase are difficult to determine. FSIS also would like to hear from the public about whether the Agency should consider deleting the provisions for off-line reprocessing in § 381.91(b)(1) and (2) if on-line reprocessing is implemented. FSIS would like comments on the economic impact on both large and small establishments if such actions were taken.

At the request of FSIS, because of concerns raised by in-plant inspectors, an industrial hygiene survey was conducted in 1999 by an independent firm to evaluate potential dermal, ocular, respiratory, or other exposure of inspectors to TSP while working with TSP-treated poultry or around TSP treatment facilities. The study did not address TSP exposure to plant employees, whose job activities differ significantly from those of inspection employees. Based on interviews and observations of inspectors and sampling results, the risk of bodily contact with significant quantities of TSP solution is minimal for slaughter line inspectors. They are not present when the TSP solution is prepared and inspect and handle the birds prior to TSP application. This indicates no alkalinity, TSP contact, or dermal hazard. The survey results also show no respiratory or ocular hazard from ambient TSP dust or mist in the plant.

Other inspectors who perform a variety of tasks throughout the plant may come into contact with small quantities of TSP solution when conducting pre-chill finished product standard checks and Acceptable Quality Level (AQL) giblet checks. There is also the potential for transient ocular exposure. The survey recommends the mandatory use of safety glasses when performing activities where exposure to TSP occurs and PVC or natural rubber gloves when handling poultry post TSP application. It encourages the consideration of barrier creams on a voluntary basis, routine washing at signs of TSP solution contact, and awareness of emergency lavage for accidental eye contact. The study recommends that federally inspected establishments provide emergency eyewashes within a limited distance from TSP use areas and training regarding these recommendations.

Rhodia Inc. conducted a later study in June 1999 to monitor the effects of TSP exposure on both plant and inspection employees at four locations in 46 plants. The study concluded that there were no safety risks to either plant or inspection employees from exposure to TSP. Food Safety Benefits of On-line Reprocessing.

Scientific and public concern about microbiological contamination of poultry products has expanded from the processing of such products to conditions under which poultry are slaughtered to pre-slaughter poultry production. FSIS has encouraged the scientific community and the industry to develop slaughter and processing methods and treatments that would yield raw poultry products that are as free as practicable of pathogenic bacteria.

The use of TSP and other antimicrobial rinses would not eliminate the need for continued careful handling of raw poultry products. However, by allowing the visibly contaminated carcasses to remain on-line, all carcasses are subject to further rinsing and antimicrobial treatment. The result will be lesser risks because of reduced pathogen prevalence on contaminated poultry carcasses. Not handling contaminated carcasses in off-line reprocessing may reduce the risk of foodborne pathogens from cross-contamination of the contaminated carcasses.

FSIS has determined that this regulatory proposal is not a significant rule under Executive Order 12866 and, therefore, it has not undergone review by the Office of Management and Budget.

Executive Order 12866 requires that FSIS identify and assess alternative forms of regulation. FSIS considered two alternatives to this proposed rule: (1) Not proposing to allow for the on-line reprocessing of contaminated carcasses and (2) proposing to require plants to perform on-line reprocessing of pre-chill contaminated carcasses and establishing specific numerical performance standards that the reprocessed poultry must meet using a mandated antimicrobial treatment or process. FSIS rejected both alternatives for the reasons explained below.

FSIS is committed to reducing the levels of microbial pathogens in poultry products. On-line reprocessing of poultry in commercial trials using solutions of TSP/chlorine and acidified sodium chlorite has been shown to be a highly effective method of reducing the microbial levels of raw poultry to levels substantially below the performance standards and criteria established by the pathogen reduction/HACCP final rule.

FSIS is proposing to give all establishments the option of adopting on-line reprocessing of visibly contaminated birds. By not mandating that all plants adopt on-line reprocessing, FSIS is recognizing that there are other solutions to reducing bacterial loads that may be more appropriate and cost-effective for small plants. There are many possible solutions for pathogen reduction of raw poultry and poultry products, and the industry continues to seek out new products and equipment that will be effective.

Pathogen reduction is central to the FSIS food safety strategy. However, eliminating as many prescriptive or command-and-control regulations as possible also is an important part of the overall strategy for updating and improving inspection in light of HACCP. Therefore, there will be no mandate proposed for establishments to use TSP or any other substance as the antimicrobial reprocessing aid.

Various substances have undergone trials to determine their potential as antimicrobial processing agents. Such substances include acidified sodium chlorite; organic acids such as lactic, acetic, and formic acids; chlorine dioxides; and ozone. Plants will be free to use other products that have demonstrated their efficacy in reducing levels of microorganisms in in-plant commercial trials. This is consistent with the Agency's strategy of encouraging the industry to take advantage of new technology to reduce the risks associated with the consumption of meat and poultry products.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule would provide for the on-line reprocessing of poultry carcasses accidently contaminated with digestive tract contents during slaughter.

States and local jurisdictions are preempted under the PPIA from imposing any requirements with respect to federally inspected premises and facilities, and operations of such establishments, that are in addition to, or different from, those imposed under the PPIA. States and local jurisdictions also are preempted under the PPIA from imposing any marking, labeling, packaging, or ingredient requirements on federally inspected poultry products that are in addition to, or different than, those imposed under the PPIA. States and local jurisdictions, however, may exercise concurrent jurisdiction over poultry products that are misbranded or adulterated under the PPIA or, in the case of imported products, which are not at such an establishment after their entry into the United States. States and local jurisdictions also may make requirements or take other actions that are consistent with the PPIA, with respect to any other matters regulated under the PPIA.

Under PPIA provisions, States that maintain poultry inspection programs must impose requirements on State inspected products and establishments that are at least equal to those required under the PPIA. These States, however, may impose more stringent requirements on such State-inspected products and establishments.

FSIS has considered the potential civil rights impact of this proposed rule on minorities, women, and persons with disabilities. FSIS anticipates that this proposed rule will not have a negative or disproportionate impact on minorities, women, or persons with disabilities. However, proposed rules generally are designed to provide information and receive public comments on issues that may lead to new or revised Agency regulations or instructions. Public involvement in all segments of rulemaking and policy development is important. Consequently, in an effort to better ensure that minorities, women, and persons with disabilities are aware of this proposed rule and are informed about the mechanism for providing their comments, FSIS will announce it and provide copies of this Federal Register publication in the FSIS Constituent Update.

FSIS provides a weekly FSIS Constituent Update, which is communicated via fax to more than 300 organizations and individuals. In addition, the update is available on line through the FSIS web page located at http://www.fsis.usda.gov. The update is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, recalls, and any other types of information that could affect or would be of interest to our constituents/stakeholders. The constituent fax list consists of industry, trade, and farm groups, consumer interest groups, allied health professionals, scientific professionals, and other individuals that have requested to be included. Through these various channels, FSIS is able to provide information to a much broader, more diverse audience. For more information and to be added to the constituent fax list, fax your request to the Congressional and Public Affairs Office, at (202) 720-5704.

FSIS has reviewed the paper and recordkeeping requirements in this proposed rule in accordance with the Paperwork Reduction Act. Establishments choosing to reprocess poultry on-line using an antimicrobial treatment before the chiller will need to do so in accordance with 9 CFR Part 417. Accordingly, establishments will reassess their HACCP plans as prescribed in § 417.4(a)(3). Also, in accordance with § 417.5(a)(1), establishments will need to generate and maintain validating data, generated under conditions of in-plant commercial operation, demonstrating that the reprocessing substance or system resulted in product that meets any performance standard that FSIS adopts. Based on the determinations establishments make as part of their reassessments, they may establish critical control points for the use of the antimicrobial treatment.

Estimate of Burden: The Agency estimates that it will take 8 hours for establishments to reassess their HACCP plans and to prepare the validating data they will include in their hazard analysis. For purposes of this paperwork analysis, FSIS will assume that all establishments will establish a critical control point for the use of the antimicrobial treatment. Accordingly, an establishment will spend about 5 minutes a day (250 days) completing one monitoring record and 2 minutes a day filing the record for one HACCP plan.

Respondents: Meat and poultry product establishments.

Estimated Number of Respondents: 80.

Estimated Number of Responses per Respondent: 1 for HACCP reassessment; 250 for monitoring records, and 250 for filing the record.

Estimated Total Annual Burden on Respondents: 2,974.

Copies of this information collection assessment can be obtained from Lee Puricelli, Paperwork Specialist, FSIS, USDA, Room 109 Cotton Annex Building, Washington, DC 20250-3700.

Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (b) the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the method and assumption used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who respond, including through use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to Mr. Puricelli at the address above and to the Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, DC 20253.

For the reasons discussed in the preamble, FSIS is proposing to amend 9 CFR part 381 as follows:

The OCC charters, regulates, and supervises more than 2,300 national banks and 58 Federal branches and agencies of foreign banks in the United States, accounting for nearly 60 percent of the nation's banking assets. Its mission is to ensure a safe, sound, and competitive national banking system that supports the citizens, communities, and economy of the United States.

The OCC funds the activities it undertakes to carry out this mission through assessments and fees charged to the banks it supervises. The National Bank Act authorizes the OCC to collect “assessments, fees, or other charges as necessary or appropriate to carry out the responsibilities of the office of the Comptroller.” 12 U.S.C. 482 (Supp. 1999). The statute requires that our charges “be set to meet the Comptroller's expenses in carrying out authorized activities.” Id. Under part 8, the OCC currently assesses national banks, District of Columbia banks, and Federal branches and agencies according to a formula based on factors that include a bank's size, condition, and whether it is the “lead” bank or “non-lead” bank among national banks in a holding company. 1 The OCC also has the authority to assess a fee for special examinations and investigations of these banks. 12 CFR 8.6(a).

In its current form, section 8.6(a) refers only to fees for a special examination of a national bank, a District of Columbia bank, or an affiliate of either. 2 It does not reflect the OCC's authority to assess a national bank in connection with special examinations of any of the bank's service providers. The Bank Service Company Act provides that entities that perform services for national banks (or for other entities supervised by the OCC, including subsidiaries subject to examination by the OCC) “shall be subject to regulation and examination by [the OCC] to the same extent as if such services were being performed by the bank itself on its own premises.”  3

While banks historically have used third parties to perform certain activities—payment processing, for example—some banks are entering new lines of business or introducing novel and potentially high-risk new products, relying substantially on third party service providers to enable the bank to participate in or to conduct those activities. These include, for instance, certain types of credit card programs, sub-prime lending, check cashing, and other specialized types of lending. In many instances, the interest of the service provider in transactions it originates is significantly greater than that of the bank. This increased reliance on service providers will result in an increased need for the OCC to examine or investigate third party service providers in order to evaluate the effect that third-party activities and relationships have on the safety and soundness of the bank. 4

The OCC would charge a special examination or investigation fee when examination or investigation of the activities of a third party service provider is warranted by the high risk or unusual or novel nature of the activities conducted by the service provider for the bank, or when the OCC believes that the bank has insufficient systems, controls, or personnel to adequately monitor, measure, and control the risks associated with the activity. Thus, for example, the OCC would not impose the fee in the case of examinations of service providers that provide servicing and processing for a bank's ongoing transactions with its customers. The OCC also would plan to inform the bank, when commencing a special examination or investigation or expanding another examination, when we expect to charge a special examination or investigation fee.  5

Accordingly, we propose to amend our regulation to make explicit our authority to assess a national bank (or other entity supervised by the OCC) for an examination or investigation of any of its service providers. 6 The assessment authority extends to District of Columbia banks and to Federal branches and agencies as well as to national banks. In addition, the proposal permits the OCC to impose the assessment if we examine or investigate third party providers of services to subsidiaries subject to examination by the OCC. The proposal amends section 8.6(a) to state that the OCC may assess a national bank, a District of Columbia bank, or a Federal branch or agency, a fee for the examination or investigation of an entity that performs services for the institution or its subsidiary that is subject to OCC examination and regulation pursuant to the Bank Service Company Act (12 U.S.C. 1867(c)). The fees for special exams and investigations would be based on an hourly rate, with the hourly rate provided each year by the OCC in its Notice of Comptroller of the Currency Fees (Notice of Fees).  7

We also propose to amend section 8.6(a) to clarify that fees may be charged for conducting special examinations and investigations of Federal branches and agencies of foreign banks or their affiliates. Federal branches and agencies are subject to the same “duties, restrictions, penalties, liabilities, conditions, and limitations” that apply to national banks, except as otherwise specifically provided by statute.  8 Current section 8.6 does not address the assessment of a fee for the special examination or investigation of Federal branches and agencies or their affiliates. Proposed section 8.6 makes our authority to assess such a fee explicit. The amount of these fees would be provided in the Notice of Fees.

Finally, the title of part 8 would be amended to more accurately reflect the scope of the regulation. While part 8 includes Federal branches and agencies within the scope of the rule, only national banks and District of Columbia banks are listed in the title. The proposal removes from the title references to the types of regulated entities covered by the regulation.

The Regulatory Flexibility Act (RFA) requires federal agencies either to certify that a proposed rule would not, if adopted in final form, have a significant impact on a substantial number of small entities or to prepare an initial regulatory flexibility analysis (IRFA) of the proposal and publish the analysis for comment. See 5 U.S.C. 603, 605. On the basis of the information currently available, the OCC is of the opinion that this proposal, if it is adopted in final form, is unlikely to have a significant impact on a substantial number of small entities, within the meaning of those terms as used in the RFA. As previously noted, a national bank would be assessed a fee for the examination or investigation of its service provider only when the examination or investigation is warranted by the high risk or unusual or novel nature of the activities conducted by the service provider for the bank or when the OCC believes that the bank has insufficient systems, controls, or personnel to adequately monitor, measure, and control the risks associated with the activity. As a result, the OCC believes that the fees will not be imposed on a substantial number of small entities. Commenters are invited to provide the OCC with any information they may have about the likely quantitative effects of the proposal.

The OCC has determined that this proposal is not a significant regulatory action under Executive Order 12866.

Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L. 104-4 (2 U.S.C. 1532) (Unfunded Mandates Act), requires that an agency prepare a budgetary impact statement before promulgating any rule likely to result in a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. The OCC has determined that the proposed rule will not result in expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more in any one year. Accordingly, this rulemaking is not subject to section 202 of the Unfunded Mandates Act.

For reasons set forth in the preamble, the OCC proposes to amend part 8 of Chapter I of title 12 of the Code of Federal Regulations as follows:

Interested persons are invited to participate in the making of the proposed 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 above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed 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 summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2000-SW-13-AD.” The postcard will be date stamped and returned to the commenter.

You may obtain a copy of this NPRM by submitting a request to the FAA, Office of the Regional Counsel, Southwest Region, Attention: Rules Docket No. 2000-SW-13-AD, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137.

On August 21, 1998, the FAA issued AD 98-10-09, Amendment 39-10725 (63 FR 46160, August 31, 1998), to require inspecting the blade spar for cracks at 25-hour TIS intervals. That action was prompted by an accident in which a Model SA.315B helicopter blade spar failed due to fatigue cracking. That condition, if not corrected, could result in blade separation and subsequent loss of control of the helicopter.

Since the issuance of that AD, we have determined that the initial and recurring inspections for a cracked blade spar should be accomplished by a dye penetrant or eddy current inspection at intervals of 100 hours TIS or 600 cycles, whichever occurs first. Eddy current and dye penetrant inspections are more reliable than visual inspections especially on the lower surface of the rotor blade where the blade's weight may close the crack. ECF has issued Service Bulletins (SB) SA 315 No. 05.39 and SA 316/319 No. 05.98, both dated November 12, 1999, specifying a check of the main rotor blade root spar for cracks. ECF has also issued SB 65.137R1, dated November 17, 1993, specifying running a sealant bead around the spar-to-fitting junction and inspecting for corrosion. After investigating a main rotor blade failure at the first cuff-to-spar assembly bolt, ECF redefined the interval for crack inspections on the spar and added another criterion (sudden occurrence of vibrations) that makes this inspection necessary. A sudden occurrence of a one-per-rev vibration could indicate a cracked blade.

We have identified an unsafe condition that is likely to exist or develop on other ECF Model SA.315B, SA.316B, SA.316C, SE.3160, and SA.319B helicopters of these same type designs. The proposed AD would supersede the current AD and redefine the recurring inspection interval. The proposed AD will require, within 25 hours TIS and thereafter at intervals not to exceed 100 hours TIS or 600 cycles, whichever occurs first, inspecting each blade spar for a crack, using dye penetrant or eddy current, and inspecting each blade cuff to ensure an adequate sealant bead. A “cycle” is any landing, regardless of whether the main rotor rotation is continued or stopped, or any completion of an external load operation; e.g. load release. If a crack is found, the proposed AD would require replacing the blade with an airworthy blade before further flight.

The FAA estimates that 93 helicopters of U.S. registry would be affected by this proposed AD, that it would take approximately 4 hours to inspect and 4 hours to replace a blade, if necessary, and that the average labor rate is $60 per work hour. Based on these figures, the total cost impact of the proposed AD on U.S. operators is estimated to be $66,960, assuming three inspections per year and no blade replacement.

The regulations proposed herein would 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 proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the 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. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

In the notice section of today's Federal Register , the Department of Justice provides a description of the “ Giglio Information Files, JUSTICE/USA-018.” This order relates to individuals rather than small business entities. Nevertheless, pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-602, it is hereby stated that the order will not have “a significant economic impact on a substantial number of small entities.”

Pursuant to the authority vested in the Attorney General by 5 U.S.C. 552a and delegated to me by Attorney General Order No. 793-78, it is proposed to amend part 16 of Title 28 of the Code of Federal Regulations as follows:

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (USCG 2000-7080), indicate the specific section of this document to which each comment applies, and give the reason for each comment. You may submit your comments and material by mail, hand delivery, fax, or electronic means to the Docket Management Facility at the address under ADDRESSES ; but please submit your comments and material by only one means. If you submit them by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

A public meeting was held on this matter in Room 2415 of the Coast Guard's Headquarters Building in Washington, DC, on February 3, 1999. A notice of that meeting and its agenda was published in the Federal Register (64 FR 1648) on January 11, 1999.

We do not now plan to hold any further public meetings, but you may submit a request for one to the Docket Management Facility at the address under ADDRESSES explaining why one would be beneficial. If we determine that another meeting would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

Several maritime incidents during the early 1990's underscored the risk of serious injury or death, vessel loss, property damage, and environmental damage caused by improperly secured cargo aboard vessels. The most well-known incident occurred off the New Jersey coast in early 1992. During a voyage in bad weather, the M/V Santa Clara I lost 21 containers overboard, including 4 containers of the hazardous material, arsenic trioxide.

The Coast Guard convened a Board of Inquiry to investigate the M/V Santa Clara I mishap. The Board found that the container losses were caused by cargo securing failures related to bad weather and human error. Based on its findings, the Board recommended adopting the International Maritime Organization's (IMO) voluntary guidelines on cargo securing manuals as regulations in the International Convention for the Safety of Life at Sea, 1974 (SOLAS). The Commandant approved the Board's recommendation. With the support of other IMO member governments, the U.S. led a proposal to include new requirements for cargo securing manuals in SOLAS. These requirements were adopted as part of the 1994 amendments to SOLAS. These requirements are located in SOLAS Chapters VI/5.6 and VII/6.6.

Under SOLAS, all cargo vessels engaged on international voyages and equipped with cargo securing systems or individual securing arrangements must have a Flag State approved Cargo Securing Manual (CSM) by December 31, 1997. Under SOLAS and Executive Order 12234—which authorizes the Secretary to issue regulations that implement SOLAS—these requirements for a cargo securing manual apply to all U.S.-flag cargo vessels of 500 gross tons or more, engaged in international trade. Vessel types affected include general-cargo vessels, cellular containerships, roll-on/roll-off vessels, passenger/cargo vessels, supply vessels, bulk vessels capable of carrying non-bulk cargo, heavy lift ships, freight ships carrying packaged or break-bulk cargoes, and other similar vessels. Any vessel engaged solely in the carriage of bulk solids or liquid cargoes is exempt by SOLAS from the requirements for a cargo-securing manual.

To conform to these SOLAS requirements, CSMs must provide up-to-date information and guidance to assist a vessel's master and crew regarding the proper use of the equipment available to adequately stow and secure the vessel's cargo.

U.S. Coast Guard Navigation and Vessel Inspection Circular 10-97 (NVIC 10-97), “Guidelines for Cargo Securing Manual Approval,” provides interim guidance for U.S-flag vessel compliance with the SOLAS requirements. The NVIC includes CSM submittal, review, approval, and appeal procedures. A copy of the NVIC is available in the public docket or on the Internet at http://www.uscg.mil/hq/g-m/nvic/.

Problems with cargo securing are not limited to vessels engaged only in international trade. There have been a number of cargo-related marine casualties (such as loss overboard of containerized hazardous material) involving U.S.-flag vessels engaged in U.S. domestic coastwise trade. The majority of domestic marine casualties were caused by poor cargo securing methods, inadequate equipment, and poor planning and management of personnel securing cargo.

Changes in the technology of transporting hazardous materials, mostly in container feeder service using deck barges instead of ships within the U.S., have altered the management and oversight of cargo securing operations. These types of operations have had a significant number of cargo loss incidents over the last 5 years. These cargo losses have directly affected the safety at the arrival port facilities; introduced hazardous materials into U.S. domestic waters, and hazard the safety of the public in ports and along adjacent waterways used by commercial traffic. Because of this trend and the resulting increased risk of harm to the public and the environment, the Coast Guard is considering the need for cargo securing requirements for U.S. vessels engaged in U.S. domestic coastwise trade.

On February 3, 1999, the Coast Guard held a public meeting to collect comments on the need for U.S. regulations for national and international vessel cargo securing standards. The notice requested written and verbal comments that could be provided before, at, and after the meeting. Two written comments were received. You may view them at the public docket (USCG 1999-4951) on the Internet at http://dms.dot.gov. The meeting featured a presentation, including Coast Guard-collected casualty and risk-based information, as well as Coast Guard actions to date. The 14 members of the public and maritime industry who attended provided no verbal comments.

We contacted the Towing Safety Advisory Committee (TSAC) on this issue during the summer of 1999, and its executive staff decided to place this issue on its agenda for the TSAC's September 15, 1999 working meeting. At that meeting, a separate TSAC Container Barge Working Group was established, met, and discussed cargo securing operational standards within their industry. Several operational managers for container barge companies attended the Working Group session and spoke on their industry standards for cargo securing. The Working Group discussed whether there was a need for national cargo securing standards and options for reducing risk from hazardous material cargo transportation entailing cargo securing.

The Coast Guard has developed its proposal for options to develop national regulatory standards in line with the information received from the public meeting and TSAC Working Group session.

The incorporation of the international standards from SOLAS for cargo securing in U.S. regulations is being completed under the Secretary's authority provided by 46 U.S.C. 3306(a)(1). Section 3306 contains broad authority to prescribe regulations for the proper inspection and certification of vessels and their fittings, equipment and appliances. It also provides regulatory flexibility for meeting technological changes.

The Coast Guard has developed proposed regulations that it intends to place in a new part 97 in Title 33, Code of Federal Regulations, Subchapter F, “Vessel Operating Regulations.” This new part 97 will be consistent with the rules provided by Chapter VI, Regulation 5(6) and Chapter VII, Regulation 6(6) and IMO recommended guidelines on the development and approval of CSMs for vessels applicable to SOLAS. This new part will describe—

(a) Applicability of and authorities for the cargo securing rules;

(b) Required elements for cargo securing systems;

(c) Enforcement actions for failure to comply with the part while operating in U.S. waters; and

(d) Ability for an organization to become an approval authority of CSMs for the U.S.

At this point, the Coast Guard is not proposing regulations for U.S. vessels carrying hazardous materials as break-bulk or containerized cargoes in U.S. domestic coastwise trade. Rather, the Coast Guard is seeking comments on five options for the future development of national standards for these operations.

Option One: The Coast Guard develops regulations for the above described U.S. vessels that meet the same standards proposed for vessels required to meet the SOLAS requirements listed in this rulemaking as part of the new 33 CFR part 97.

Option Two: The Coast Guard develops regulations that allow companies to institute their own operational cargo securing and safety management standards for their vessel(s). These written standards would be submitted for approval by the Coast Guard, or to a recognized cargo standards organization selected by the Coast Guard for review and approval. If the vessel's company has already established cargo securing standards within a U.S.-certificated safety management system that meets 33 CFR part 96, this would be viewed as being equivalent to these requirements. The Coast Guard would amend and re-publish NVIC 10-97 to provide guidance on the minimum performance elements required for the company's cargo securing procedures or cargo securing manual. The Coast Guard would oversee the use of these procedures during vessel inspections and during normal, routine port safety monitoring of the vessel.

Option Three: The Coast Guard develops regulations that require a certificate of loading and securing, prior to a vessel's departure for sea, only when it will transport hazardous materials which come under the requirements of 49 CFR part 176. If the vessel is not carrying hazardous materials, it would not be required to be surveyed or have a cargo certificate for that voyage. A certificate for the cargo load would be received by the vessel's master, who would hire a Coast Guard recognized cargo surveying organization to survey the secured cargoes aboard the vessel before it departs from port. These regulations would establish standards for cargo surveying organizations to be recognized by the Coast Guard and enforcement authorities of the Coast Guard for violation of these regulations.

Option Four: The Coast Guard would develop regulations which would combine all three of the previously written options, allowing a vessel's owner to choose how to meet the regulations when a vessel would carry hazardous materials in domestic trade.

Option Five: The Coast Guard would not develop separate Federal cargo stowage and securing regulations but would incorporate by reference industry standards (developed in concert with TSAC) into regulations for coastwise-operating U.S. vessels. The Coast Guard would amend and re-publish NVIC 10-97 to provide guidance on the use of these industry standards and provide guidelines on how the industry would manage and internally audit the use of the standards by vessel personnel. The Coast Guard would externally audit the use of these incorporated standards and review records of their use during normal U.S-vessel inspections for certification or during routine port safety monitoring of the vessels.

The applicability for these standards would be for any U.S. vessel which—

(a) Is of 300 gross tons or more;

(b) Carries hazardous materials other than bulk solids or bulk liquids;

(c) Meets the requirements to hold a U.S. Coast Guard Certificate of Inspection under 46 CFR subchapter I (Parts 90-105); and

(d) Is certificated for domestic operation on coastwise voyages within the United States.

The Coast Guard proposes to place such regulations in 46 CFR part 91 and does not expect that these national standards will be applicable to U.S. vessels that operate only on inland waterways and rivers; lakes, bays, and sounds; or Great Lakes routes.

The Coast Guard requests that respondents, in their written comments about the five proposed options for domestic coastwise vessel operations, list which option they support, and explain the reason for their support. Respondents should also provide reasoning for not supporting the other four options, and they may offer any other proposals that they think we should consider to ensure the safety of the stowage and securing of hazardous materials in U.S. domestic coastwise trade.

This proposed 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).

Since this action parallels existing international requirements, which became effective on December 31, 1997, already enforced on vessels in that trade, we expect no economic impact from this proposed rule and a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this proposed 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 reviewed the effects of this enforcement policy when publishing its NVIC 10-97 on November 7, 1997. It is expected that this policy will not impact small entities, as there are few, if any, small entities that own or operate the craft affected by these proposed regulations.

Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and this rule would have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under ADDRESSES . In your comment, explain why you think your business, organization, or governmental jurisdiction qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction, and you have questions concerning its provisions or options for compliance, please consult with: Mr. Bob Gauvin, Project Manager, Office of Operating and Environmental Standards, Commandant (G-MSO-2), U.S. Coast Guard, at 202-267-1053, by facsimile 202-267-4570, or by email at rgauvin@comdt.uscg.mil.

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).

For vessels complying with SOLAS, this proposed rule has collection-of-information requirements already covered by the SOLAS Cargo Ship Safety Equipment Certificate (CG-3347), approved under the Office of Management and Budget (OMB) control number 2115-0056. For vessels that must comply with U.S-certification requirements, this proposed rule has collection-of-information requirements already covered under the U.S. Coast Guard's Certificate of Inspection (CG-841), approved under OMB control number 2115-0517.

We have analyzed this proposed rule under Executive Order 13132, Federalism.

It is well settled that States are precluded from regulating in categories that are reserved for regulation by the Coast Guard. It is also well settled, now, that all of the categories covered in 46 U.S.C. 3306 (design, construction, alteration, repair, maintenance, operation, and equipping of vessels, and cargo handling) are within the field foreclosed from State regulation. See United States v. Locke 120 S. Ct. 1135 (2000); Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978). The exercise of State authority would conflict with the exercise of Federal authority under Federal Statute. Also see International Association of Independent Tank Vessel Owners (Intertanko) v. Locke, 148 F.3d 1053 (9th Cir. 1998). Thus, this rule falls into the above-mentioned categories, thereby precluding States from regulating. Because States may not promulgate rules within these categories, preemption is not an issue under Executive Order 13132.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their regulatory actions not specifically required by law. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

We considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraph (34)(e), of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation. The intent of these proposed rules is to ensure proper securing of cargoes to stop losses overboard of materials that can cause damage to the environment. We expect these regulations to have an indirect, positive effect on the environment, by reducing the frequency of accidental discharges of general and hazardous material cargoes in the ports and waterways of the U.S. and the world. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES .

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR Chapter I as follows:

To meet customer ease-of-use needs, the Postal Service is developing a publication to help mailers design shipping labels for expedited and package products. Currently, a mailer or their vendor may design their own shipping labels providing they include all format elements specified in the DMM. Because of the expense involved in modifying mailing systems to conform to DMM requirements, mailers have requested that this information be made available in a single publication that is similar to other Postal Service publications used for designing letter, flat, and reply mail. By placing these standard requirements and guidelines into a single publication, it will be easier for mailers to create shipping labels that conform to DMM requirements. This, in turn, will improve the Postal Service's ability to process and deliver mailed items.

The DMM currently provides specifications for postage, identifying class of mail, addressing standards, and requirements for adding special services on shipping labels. The Postal Service is recommending the addition of service indicators to identify the class of mail, and modifications to the Delivery Confirmation and other customer printed special services barcode formats. These changes apply only to Priority Mail and Standard Mail (B).

The service indicators contain two elements, a service icon and a service banner. These new elements will satisfy the marking requirements for identifying the class of mail. The service icon appears in a 1-inch square in the upper left corner of the shipping label. Each of the supported services has a unique service icon to aid in handling the package. The letter “P” will be used to identify Priority Mail. All Standard Mail (B) subclasses (Parcel Post, Parcel Select, Bound Printed Matter, Special Standard Mail, and Library Rate) will be identified by a solid black box.

The service icon parameters are as follows:

• 1-inch (1″) square.

• Minimum 1-point light lines bordering area.

• Class of mail icon must be 0.75 inch ( 3/4 ″) or greater.

• “P” for Priority Mail or solid black box for Standard Mail (B).

The service banner appears below the permit imprint indicia or postage area and service icon and is centered across the shipping label. The mail class or subclass is bordered above and below by separator lines to distinguish it from the surrounding elements.

The service banner parameters are as follows:

• The mail class or subclass for Standard Mail (B) must be printed in minimum 20-point bold sans serif typeface.

• Text must be in uppercase letters and centered on label.

• Minimum 1/16 -inch clearance above and below text.

• Minimum 1-point separator lines above and below class of mail text.

There are two modifications recommended to the existing Delivery Confirmation barcode format. These changes will help postal employees recognize Delivery Confirmation and other special services barcodes when printed on mailer shipping labels. The changes include extending the horizontal identification bars across the width of the label and adding identifiers to the Delivery Confirmation barcode format to help distinguish the retail from the electronic option barcodes when the postage amount is evident on the mailpiece ( e.g., meter stamps, PC postage, adhesive postage stamps).

Currently, DMM S918 requires the length of the horizontal identification bars above and below the Delivery Confirmation barcode to be equal to the length of the barcode. This specification is being modified to recommend that the identification bars extend across the width of the label. The identification bars may be used only when a special services barcode is printed on the label. Additionally, mailers who print their own Delivery Confirmation barcodes will be required to identify on the label if they are using the electronic option. This change will be required only for items on which the postage amount is evident on the mailpiece. Labels must be identified with the following information:

(a) “e/” in front of the “USPS DELIVERY CONFIRMATION” text ( i.e., “e/ USPS DELIVERY CONFIRMATION”).

(b) At the mailers option, the text “ELECTRONIC RATE APPROVED #[D-U-N-S®]” (where D-U-N-S® is the customer certification number) may be added below the bottom horizontal identification bar.

Mailers will be required to add the electronic identifier(s) by September 14, 2001.

Although exempt from the notice and comment requirements of the Administrative Procedure Act (5 U.S.C. 553(b), (c)) regarding proposed rulemaking by 39 U.S.C. 410(a), the Postal Service invites comments on the following proposed revisions of the DMM, incorporated by reference in the Code of Federal Regulations. See 39 CFR Part 111.

In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 (“CERCLA” or “the Act”), in response to the dangers of uncontrolled releases of hazardous substances. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act (“SARA”), Pub. L. 99-499, 100 Stat. 1613 et seq.

To implement CERCLA, EPA promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets guidelines and procedures for responding to releases and threatened releases of hazardous substances, pollutants, or contaminants under CERCLA. EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666).

As required under section 105(a)(8)(A) of CERCLA, the NCP also includes “criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable, taking into account the potential urgency of such action for the purpose of taking removal action.” “Removal” actions are defined broadly and include a wide range of actions taken to study, clean up, prevent or otherwise address releases and threatened releases (42 U.S.C. 9601(23)).

The NPL is a list of national priorities among the known or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States. The list, which is appendix B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B) of CERCLA, as amended by SARA. Section 105(a)(8)(B) defines the NPL as a list of “releases” and the highest priority “facilities” and requires that the NPL be revised at least annually. The NPL is intended primarily to guide EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances. The NPL is only of limited significance, however, as it does not assign liability to any party or to the owner of any specific property. Neither does placing a site on the NPL mean that any remedial or removal action necessarily need be taken. See Report of the Senate Committee on Environment and Public Works, Senate Rep. No. 96-848, 96th Cong., 2d Sess. 60 (1980), 48 FR 40659 (September 8, 1983).

For purposes of listing, the NPL includes two sections, one of sites that are generally evaluated and cleaned up by EPA (the “General Superfund Section”), and one of sites that are owned or operated by other Federal agencies (the “Federal Facilities Section”). With respect to sites in the Federal Facilities section, these sites are generally being addressed by other Federal agencies. Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each Federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody, or control, although EPA is responsible for preparing an HRS score and determining whether the facility is placed on the NPL. EPA generally is not the lead agency at Federal Facilities Section sites, and its role at such sites is accordingly less extensive than at other sites.

There are three mechanisms for placing sites on the NPL for possible remedial action (see 40 CFR 300.425(c) of the NCP): (1) A site may be included on the NPL if it scores sufficiently high on the Hazard Ranking System (“HRS”), which EPA promulgated as a appendix A of the NCP (40 CFR part 300). The HRS serves as a screening device to evaluate the relative potential of uncontrolled hazardous substances to pose a threat to human health or the environment. On December 14, 1990 (55 FR 51532), EPA promulgated revisions to the HRS partly in response to CERCLA section 105(c), added by SARA. The revised HRS evaluates four pathways: Ground water, surface water, soil exposure, and air. As a matter of Agency policy, those sites that score 28.50 or greater on the HRS are eligible for the NPL; (2) Each State may designate a single site as its top priority to be listed on the NPL, regardless of the HRS score. This mechanism, provided by the NCP at 40 CFR 300.425(c)(2) requires that, to the extent practicable, the NPL include within the 100 highest priorities, one facility designated by each State representing the greatest danger to public health, welfare, or the environment among known facilities in the State ( see 42 U.S.C. 9605(a)(8)(B)); (3) The third mechanism for listing, included in the NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed regardless of their HRS score, if all of the following conditions are met:

• The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service has issued a health advisory that recommends dissociation of individuals from the release.

• EPA determines that the release poses a significant threat to public health.

• EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the release.

EPA promulgated an original NPL of 406 sites on September 8, 1983 (48 FR 40658). The NPL has been expanded since then, most recently on July 27, 2000 (65 FR 46096).

A site may undergo remedial action financed by the Trust Fund established under CERCLA (commonly referred to as the “Superfund”) only after it is placed on the NPL, as provided in the NCP at 40 CFR 300.425(b)(1). (“Remedial actions” are those “consistent with permanent remedy, taken instead of or in addition to removal actions. * * *” 42 U.S.C. 9601(24).) However, under 40 CFR 300.425(b)(2) placing a site on the NPL “does not imply that monies will be expended.” EPA may pursue other appropriate authorities to remedy the releases, including enforcement action under CERCLA and other laws.

The NPL does not describe releases in precise geographical terms; it would be neither feasible nor consistent with the limited purpose of the NPL (to identify releases that are priorities for further evaluation), for it to do so.

Although a CERCLA “facility” is broadly defined to include any area where a hazardous substance release has “come to be located” (CERCLA section 101(9)), the listing process itself is not intended to define or reflect the boundaries of such facilities or releases. Of course, HRS data (if the HRS is used to list a site) upon which the NPL placement was based will, to some extent, describe the release(s) at issue. That is, the NPL site would include all releases evaluated as part of that HRS analysis.

When a site is listed, the approach generally used to describe the relevant release(s) is to delineate a geographical area (usually the area within an installation or plant boundaries) and identify the site by reference to that area. As a legal matter, the site is not coextensive with that area, and the boundaries of the installation or plant are not the “boundaries” of the site. Rather, the site consists of all contaminated areas within the area used to identify the site, as well as any other location to which contamination from that area has come to be located, or from which that contamination came.

In other words, while geographic terms are often used to designate the site ( e.g., the “Jones Co. plant site”) in terms of the property owned by a particular party, the site properly understood is not limited to that property ( e.g., it may extend beyond the property due to contaminant migration), and conversely may not occupy the full extent of the property ( e.g., where there are uncontaminated parts of the identified property, they may not be, strictly speaking, part of the “site”). The “site” is thus neither equal to nor confined by the boundaries of any specific property that may give the site its name, and the name itself should not be read to imply that this site is coextensive with the entire area within the property boundary of the installation or plant. The precise nature and extent of the site are typically not known at the time of listing. Also, the site name is merely used to help identify the geographic location of the contamination. For example, the “Jones Co. plant site,” does not imply that the Jones company is responsible for the contamination located on the plant site.

EPA regulations provide that the “nature and extent of the problem presented by the release” will be determined by a Remedial Investigation/Feasibility Study (“RI/FS”) as more information is developed on site contamination (40 CFR 300.5). During the RI/FS process, the release may be found to be larger or smaller than was originally thought, as more is learned about the source(s) and the migration of the contamination. However, this inquiry focuses on an evaluation of the threat posed; the boundaries of the release need not be exactly defined. Moreover, it generally is impossible to discover the full extent of where the contamination “has come to be located” before all necessary studies and remedial work are completed at a site. Indeed, the boundaries of the contamination can be expected to change over time. Thus, in most cases, it may be impossible to describe the boundaries of a release with absolute certainty.

Further, as noted above, NPL listing does not assign liability to any party or to the owner of any specific property. Thus, if a party does not believe it is liable for releases on discrete parcels of property, supporting information can be submitted to the Agency at any time after a party receives notice it is a potentially responsible party.

For these reasons, the NPL need not be amended as further research reveals more information about the location of the contamination or release.

EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met: (i) Responsible parties or other persons have implemented all appropriate response actions required; (ii) All appropriate Superfund-financed response has been implemented and no further response action is required; or (iii) The remedial investigation has shown the release poses no significant threat to public health or the environment, and taking of remedial measures is not appropriate. As of November 20, 2000, the Agency has deleted 227 sites from the NPL.

In November 1995, EPA initiated a new policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and available for productive use. As of November 20, 2000, EPA has deleted portions of 21 sites.

EPA also has developed an NPL construction completion list (“CCL”) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Inclusion of a site on the CCL has no legal significance.

Sites qualify for the CCL when: (1) Any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved; (2) EPA has determined that the response action should be limited to measures that do not involve construction ( e.g. , institutional controls); or (3) The site qualifies for deletion from the NPL.

As of November 20, 2000, there are a total of 757 sites on the CCL. For the most up-to-date information on the CCL, see EPA's Internet site at http://www.epa.gov/superfund .

Yes, documents that form the basis for EPA's evaluation and scoring of the sites in this rule are contained in dockets located both at EPA Headquarters in Washington, DC and in the Regional offices.

You may view the documents, by appointment only, in the Headquarters or the Regional dockets after the appearance of this proposed rule. The hours of operation for the Headquarters docket are from 9 a.m. to 4 p.m., Monday through Friday excluding Federal holidays. Please contact the Regional dockets for hours.

Following is the contact information for the EPA Headquarters docket: Docket Coordinator, Headquarters, U.S. EPA CERCLA Docket Office, Crystal Gateway #1, 1st Floor, 1235 Jefferson Davis Highway, Arlington, VA 22202, 703/603-9232. (Please note this is a visiting address only. Mail comments to EPA Headquarters as detailed at the beginning of this preamble.)

The contact information for the Regional dockets is as follows:

Ellen Culhane, Region 1 (CT, ME, MA, NH, RI, VT), U.S. EPA, Records Center, Mailcode HSC, One Congress Street, Suite 1100, Boston, MA 02114-2023; 617/918-1225.

Ben Conetta, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway, New York, NY 10007-1866; 212/637-4435.

Dawn Shellenberger (GCI), Region 3 (DE, DC, MD, PA, VA, WV), U.S. EPA, Library, 1650 Arch Street, Mailcode 3PM52, Philadelphia, PA 19103; 215/814-5364.

Joellen O'Neill, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 61 Forsyth Street, SW., 9th floor, Atlanta, GA 30303; 404/562-8127.

Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA, Records Center, Waste Management Division 7-J, Metcalfe Federal Building, 77 West Jackson Boulevard, Chicago, IL 60604; 312/886-7570.

Brenda Cook, Region 6 (AR, LA, NM, OK, TX), U.S. EPA, 1445 Ross Avenue, Mailcode 6SF-RA, Dallas, TX 75202-2733; 214/665-7436.

Michelle Quick, Region 7 (IA, KS, MO, NE), U.S. EPA, 901 North 5th Street, Kansas City, KS 66101; 913/551-7335.

David Williams, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 999 18th Street, Suite 500, Mailcode 8EPR-SA, Denver, CO 80202-2466; 303/312-6757.

Carolyn Douglas, Region 9 (AZ, CA, HI, NV, AS, GU), U.S. EPA, 75 Hawthorne Street, San Francisco, CA 94105; 415/744-2343.

Robert Phillips, Region 10 (AK, ID, OR, WA), U.S. EPA, 11th Floor, 1200 6th Avenue, Mail Stop ECL-110, Seattle, WA 98101; 206/553-6699.

You may also request copies from EPA Headquarters or the Regional dockets. An informal request, rather than a formal written request under the Freedom of Information Act, should be the ordinary procedure for obtaining copies of any of these documents.

The Headquarters docket for this rule contains: HRS score sheets for the proposed sites; a Documentation Record for the sites describing the information used to compute the score; information for any sites affected by particular statutory requirements or EPA listing policies; and a list of documents referenced in the Documentation Record.

The Regional dockets for this rule contain all of the information in the Headquarters docket, plus, the actual reference documents containing the data principally relied upon and cited by EPA in calculating or evaluating the HRS score for the sites. These reference documents are available only in the Regional dockets.

Comments must be submitted to EPA Headquarters as detailed at the beginning of this preamble in the ADDRESSES section. Please note that the addresses differ according to method of delivery. There are two different addresses that depend on whether comments are sent by express mail or by postal mail.

EPA considers all comments received during the comment period. Significant comments will be addressed in a support document that EPA will publish concurrently with the Federal Register document if, and when, the site is listed on the NPL.

Comments that include complex or voluminous reports, or materials prepared for purposes other than HRS scoring, should point out the specific information that EPA should consider and how it affects individual HRS factor values or other listing criteria ( Northside Sanitary Landfill v. Thomas , 849 F.2d 1516 (D.C. Cir. 1988)). EPA will not address voluminous comments that are not specifically cited by page number and referenced to the HRS or other listing criteria. EPA will not address comments unless they indicate which component of the HRS documentation record or what particular point in EPA's stated eligibility criteria is at issue.

Generally, EPA will not respond to late comments. EPA can only guarantee that it will consider those comments postmarked by the close of the formal comment period. EPA has a policy of not delaying a final listing decision solely to accommodate consideration of late comments.

During the comment period, comments are placed in the Headquarters docket and are available to the public on an “as received” basis. A complete set of comments will be available for viewing in the Regional docket approximately one week after the formal comment period closes.

In certain instances, interested parties have written to EPA concerning sites which were not at that time proposed to the NPL. If those sites are later proposed to the NPL, parties should review their earlier concerns and, if still appropriate, resubmit those concerns for consideration during the formal comment period. Site-specific correspondence received prior to the period of formal proposal and comment will not generally be included in the docket.

With today's proposed rule, EPA is proposing to add 13 new sites to the NPL; 12 to the General Superfund Section of the NPL and one site to the Federal Facilities Section. (Please note that the Del Amo site in California is being reproposed to the NPL.) The sites in this proposed rulemaking are being proposed based on HRS scores of 28.50 or above. The sites are presented in Table 1 and Table 2 which follow this preamble.

A final rule published elsewhere in today's Federal Register finalizes 8 sites to the NPL; resulting in an NPL of 1,231 final sites; 1,071 in the General Superfund Section and 160 in the Federal Facilities Section. With this proposal of 13 new sites, there are now 63 sites proposed and awaiting final agency action, 57 in the General Superfund Section and 6 in the Federal Facilities Section. Final and proposed sites now total 1,294. (These numbers reflect the status of sites as of November 20, 2000. Site deletions occurring after this date may affect these numbers at time of publication in the Federal Register .)

EPA is withdrawing the American Bemberg site in Elizabethton, Tennessee from proposal to the NPL. Refer to the Superfund docket for supporting documentation regarding this action.

Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the Agency must determine whether a regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

No, the Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866 review.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal Agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Before EPA promulgates a rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

No, EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments in the aggregate, or by the private sector in any one year. This rule will not impose any federal intergovernmental mandate because it imposes no enforceable duty upon State, tribal or local governments. Listing a site on the NPL does not itself impose any costs. Listing does not mean that EPA necessarily will undertake remedial action. Nor does listing require any action by a private party or determine liability for response costs. Costs that arise out of site responses result from site-specific decisions regarding what actions to take, not directly from the act of listing a site on the NPL.

For the same reasons, EPA also has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. In addition, as discussed above, the private sector is not expected to incur costs exceeding $100 million. EPA has fulfilled the requirement for analysis under the Unfunded Mandates Reform Act.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq. , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996) whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e., small businesses, small organizations, and small governmental jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

No. While this rule proposes to revise the NPL, an NPL revision is not a typical regulatory change since it does not automatically impose costs. As stated above, adding sites to the NPL does not in itself require any action by any party, nor does it determine the liability of any party for the cost of cleanup at the site. Further, no identifiable groups are affected as a whole. As a consequence, impacts on any group are hard to predict. A site's inclusion on the NPL could increase the likelihood of adverse impacts on responsible parties (in the form of cleanup costs), but at this time EPA cannot identify the potentially affected businesses or estimate the number of small businesses that might also be affected.

The Agency does expect that placing the sites in this proposed rule on the NPL could significantly affect certain industries, or firms within industries, that have caused a proportionately high percentage of waste site problems. However, EPA does not expect the listing of these sites to have a significant economic impact on a substantial number of small businesses.

In any case, economic impacts would occur only through enforcement and cost-recovery actions, which EPA takes at its discretion on a site-by-site basis. EPA considers many factors when determining enforcement actions, including not only a firm's contribution to the problem, but also its ability to pay. The impacts (from cost recovery) on small governments and nonprofit organizations would be determined on a similar case-by-case basis.

For the foregoing reasons, I hereby certify that this proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. Therefore, this proposed regulation does not require a regulatory flexibility analysis.

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), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

No. This proposed rulemaking does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

Under Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” as well as through EPA's April 1995, “Environmental Justice Strategy, OSWER Environmental Justice Task Force Action Agenda Report,” and National Environmental Justice Advisory Council, EPA has undertaken to incorporate environmental justice into its policies and programs. EPA is committed to addressing environmental justice concerns, and is assuming a leadership role in environmental justice initiatives to enhance environmental quality for all residents of the United States. The Agency's goals are to ensure that no segment of the population, regardless of race, color, national origin, or income, bears disproportionately high and adverse human health and environmental effects as a result of EPA's policies, programs, and activities, and all people live in clean and sustainable communities.

No. While this rule proposes to revise the NPL, no action will result from this proposal that will have disproportionately high and adverse human health and environmental effects on any segment of the population.

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

This proposed rule is not subject to E.O. 13045 because it is not an economically significant rule as defined by E.O. 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this proposed rule present a disproportionate risk to children.

According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., an agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under the PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations, after initial display in the preamble of the final rules, are listed in 40 CFR part 9. The information collection requirements related to this action have already been approved by OMB pursuant to the PRA under OMB control number 2070-0012 (EPA ICR No. 574).

No. EPA has determined that the PRA does not apply because this rule does not contain any information collection requirements that require approval of the OMB.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

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

Under section 3(b) of Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian Tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the Tribal governments, or EPA consults with those governments. In this case, the addition of the site to the NPL will not impose any substantial direct compliance costs on the Tribes. While the Tribes may incur costs from participating in the investigations and cleanup decisions, those costs are not compliance costs. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this proposed rule.

Number of Sites Proposed to General Superfund Section: 12.

Number of Sites Proposed to Federal Facilities Section: 1.

This is a synopsis of the Commission's Notice of Proposed Rule Making, MM Docket No. 00-233, adopted November 22, 2000, and released November 24, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center 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.

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

This is a summary of the Commission's Notice of Proposed Rule Making, MM Docket No. 00-228, adopted November 1, 2000, and released November 9, 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 Twelfth Street, SW, Washington, DC 20554. 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.

Provisions of the Regulatory Flexibility Act of l980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contact.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

You may read the materials placed in the docket for this notice ( e.g., the comments submitted in response to this notice by other interested persons) by going to the DMS at the street address given above under ADDRESSES . The hours of the DMS are indicated above in the same location.

You may also read the materials on the Internet. To do so, take the following steps:

(1) Go to the Web page of the Department of Transportation DMS ( http://dms.dot.gov/ ).

(2) On that page, click on “search” near the top of the page or scroll down to the words “Search the DMS Web” and click on them.

(3) On the next page ( http://dms.dot.gov/search/ ), scroll down to “Docket Number” and type in the four-digit docket number shown in the title at the beginning of this notice. After typing the docket number, click on “search.”

(4) On the next page (“Docket Summary Information”), which contains docket summary information for the materials in the docket you selected, scroll down to “search results” and click on the desired materials. You may download the materials.

The Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act, Pub. L. 106-414, requires the agency to address numerous matters through rulemaking. One of these matters, set forth in section 11 of the Act, is the improvement of the labeling of tires required by section 30123 of title 49, United States Code, to assist consumers in identifying tires that may be the subject of a recall. Section 11 provides that the agency must initiate a rulemaking proceeding for that purpose within 30 days after the enactment of the Act and must complete it not later than June 1, 2002.

Additionally, that section provides that the agency may take whatever additional action it deems appropriate to ensure that the public is aware of the importance of observing motor vehicle tire load limits and maintaining proper tire inflation levels for the safe operation of a motor vehicle. Section 11 states that such additional action may, for example, include a requirement that the manufacturer of motor vehicles provide the purchasers of the motor vehicles information on appropriate tire inflation levels and load limits if the agency determines that requiring such manufacturers to provide that information is the most appropriate way that information can be provided.

NHTSA's existing labeling requirements for new passenger car tires are set forth in Federal Motor Vehicle Safety Standard (FMVSS) No. 109, New Pneumatic Tires—Passenger Cars (49 CFR 571.109). Specifically, paragraph S4.3 of FMVSS No. 109 sets forth information labeling requirements for tires, including requirements regarding the positioning of the information on the sidewall to ensure that it is readily visible and to minimize the possibility that it will be scuffed off if the sidewall hits a curb or similar object. It provides that the information listed in paragraphs S4.3 (a) through (e) ( e.g., number of plies and maximum permissible inflation pressure) must appear, on at least one sidewall, in an area between the maximum section width and the bead of the tire, unless the maximum section width of the tire falls between the bead and one-fourth of the distance from the bead to the shoulder of the tire. For tires for which the maximum section width falls in that area, all required labeling must be located between the bead and a point one-half the distance from the bead to the shoulder of the tire. 1 Paragraphs S4.3.1 and S4.3.2 provide more extensive location requirements for other information ( e.g., the DOT certification and the name of the manufacturer or brand name and number assigned to the manufacturer) to be placed on passenger car tires. They provide that the labeling must be done “in the manner specified in Part 574.”

NHTSA's labeling requirement for retreaded passenger car tires is set forth in FMVSS No. 117, Pneumatic Retreaded Tires (49 CFR 571.117). FMVSS No. 117 requires that each new retreaded tire have molded into its sidewall information similar to that required in FMVSS No. 109, plus the words “bias belted” or “radial,” as applicable. FMVSS No. 117 does not, though, require that the name of the manufacturer or brand name and number assigned to the manufacturer be placed on retreaded tires as is required on new passenger car tires by FMVSS No. 109.

NHTSA's labeling requirements for new tires for vehicles other than passenger cars are set forth in FMVSS No. 119, New Pneumatic Tires for Vehicles other than Passenger Cars (49 CFR 571.119). Paragraph S6.5 of FMVSS No. 119 specifies that all tires for vehicles other than passenger cars must have certain markings on the sidewalls. Among other things, these tires must show the actual number of plies in the tire, the composition of the ply cord material (S6.5(f)), and a letter designating the load range (S6.5(j)). S6.5 also provides that the designated information must appear, on at least one sidewall, in an area between the maximum section width and bead of the tire, unless the maximum section width of the tire falls between the bead and one-fourth of the distance from the bead to the shoulder of the tire. For tires for which the maximum section width falls in that area, all required labeling must be located between the bead and a point one-half the distance from the bead to the shoulder of the tire. Additionally, S6.5(b) requires that each tire be marked with the “tire identification number required by part 574 of this chapter” and that this number “may be marked on only one sidewall.”

NHTSA's labeling requirements for new temporary spare non-pneumatic tires for passenger cars are set forth in FMVSS No. 129, New non-pneumatic tires for passenger cars (49 CFR 571.129). Paragraph S.4 of FMVSS No. 129 specifies that each non-pneumatic tire must have certain markings on the sidewalls including the non-pneumatic tire identification code (“NPTIC”), the load rating, and the tire identification number. These labeling requirements also specify that the labeling information must appear on both sides of the tire, except that in the case of a tire that has a particular side that must always face outward, the information must appear on the outward-facing side.

Section 574.5 of Title 49, CFR, Tire Identification Requirements, sets forth the methods by which new tire manufacturers and new tire brand name owners must identify tires for use on motor vehicles. The section also sets forth the methods by which tire retreaders and retreaded tire brand name owners must identify tires for use on motor vehicles. One purpose of these requirements is to facilitate efforts by tire manufacturers to notify purchasers of defective or nonconforming tires and by such purchasers to identify those tires so that purchasers can take appropriate action in the interest of motor vehicle safety.

Specifically, section 574.5 requires each new tire manufacturer and each tire retreader to mold a TIN into or onto the sidewall of each tire produced, in the manner and location specified in the section and as depicted in Figures 1 and 2 of that section. The TIN is composed of four groups of symbols:

1. The first group represents the manufacturer's identification mark assigned to such manufacturer by this agency in accordance with section 574.6;

2. The second group represents the tire size for new tires; for retreaded tires, the second group represents the retread matrix in which the tire was processed or, if no matrix was used, a tire size code;

3. The third group may, at the option of the manufacturer, be used as a descriptive code for identifying significant characteristics of the tire. If the tire is produced for a brand name owner, the third grouping must identify such brand name owner; and

4. The fourth group identifies the week and year of manufacture. The first two symbols identify the week, starting with “01” to represent the first full week of the calendar year; the second two symbols represent the year. For example, “2198” represents the 21st week of 1998.

NHTSA originally proposed these requirements in response to the May 22, 1970 amendments to the National Traffic and Motor Vehicle Safety Act of 1966. 2 Those amendments, among other things, required manufacturers and brand name owners of new and retreaded motor vehicle tires to maintain records of the names and addresses of the first purchasers of tires (other than dealers or distributors) in order to facilitate notification of such purchasers in the event tires were found to be defective or not to comply with applicable Federal motor vehicle safety standards.

The agency believed that an effective method of tire identification was essential to an effective defect or noncompliance notification system for tire owners. Accordingly, on July 23, 1970, NHTSA published a Notice of Proposed Rulemaking (NPRM) (35 FR 11800) proposing to establish a tire identification system to provide a means to identify the manufacturer of the tire, the date of manufacture, the tire size, and, at the option of the manufacturer, additional information to further describe the type or other significant characteristics of the tire. The agency proposed a TIN composed of four groups of symbols: the first group would contain the manufacturer's identification mark which would be assigned by NHTSA; the second group would identify the tire size; the third group would identify the date of manufacture of the tire; and the fourth group would be the manufacturer's optional description of the tire. The symbols would be a minimum of 6 millimeters (mm) ( 1/4 inch) high and would appear on both sidewalls of the tire.

In a final rule published on November 10, 1970 (35 FR 17257), the agency revised the requirements proposed in the NPRM in response to the suggestions of various commenters. Specifically, NHTSA reversed the order of the manufacturer's optional information and the date of manufacture, so that the latter would appear in the fourth grouping and the manufacturer's optional information would appear in the third grouping. NHTSA also stated that the TIN need only appear on one sidewall in response to concerns relating to worker safety, and that the symbols need only be 4 mm ( 5/32 inch) high on tires with a bead diameter of less than 13 inches. 3 Many commenters requested that the date code be expressed in alpha-numeric form in order to reduce the date symbols to two digits. NHTSA declined to adopt the alpha-numeric system because it could be confusing to the public and because retreaders may not be able to easily determine the age of the casing to be retreaded. In order to shorten the stencil plate, however, NHTSA dropped one of the two digits representing the decade of manufacture, thereby reducing the date of manufacture group from four digits to three. The date of manufacture grouping was later expanded to four digits (64 FR 36807; July 8, 1999).

As stated above, the TIN originated with the May 22, 1970 amendments to the National Traffic and Motor Vehicle Safety Act of 1966. Prior to that time, there were no tire labeling requirements in effect. Tire manufacturers simply followed standard industry practices.

In the early 1980's, NHTSA granted a petition for rulemaking filed by the Center for Auto Safety (the Center) requesting that 49 CFR Part 574, Tire Identification and Recordkeeping, be amended to require that the TIN be placed on the outside sidewall ( i.e. , the sidewall visible when a tire is mounted on a vehicle) of whitewall tires and on both sides of blackwall tires. The Center stated that the current tire industry practice of placing the TIN on the inside sidewall of whitewall tires and on only one side of blackwall tires made it very difficult for most motorists to find and read the TINs on their tires once they are mounted on vehicles.

Prior to publishing an NPRM (45 FR 82293; December 15, 1980), the agency sent special orders to nine tire manufacturers who together represented 84 percent of world tire production and 90 percent of domestic production of tires for use in this country to gather information on the feasibility and costs of implementing the proposed requirements. Among the questions in the special orders were ones asking whether the tire presses were operated 24 hours a day seven days a week and, if so, what measures could be taken to ensure that workers could safely change the identification number plates in the presses. (A tire press generally works like a clam shell. The lower half of the press remains in a fixed horizontal position, while the upper half is movable. The tire mold, which also has upper and lower halves, fits inside the press.) None of the respondents suggested that changing the number plates would present insurmountable safety problems. 4 Further, based on its evaluation of these responses, NHTSA determined that such a requirement would impose costs of between $4.25 million and $5.9 million.

On April 9, 1981, the agency published a notice of intent listing 17 actions that the agency said it intended to take to reduce unnecessary regulatory burdens upon the motor vehicle and related manufacturing industries (46 FR 21203). Among them was terminating rulemaking on the location of the TIN.

Subsequently, the agency terminated the rulemaking (48 FR 19761; May 2, 1983). The agency stated that it was taking that action because it was unable to determine that the adoption of the proposal would significantly contribute to motor vehicle safety and because the compliance costs would be $4.25 to $5.9 million. Although the agency anticipated that the adoption of the amendment would increase the response to tire recall campaigns and that ultimately the action would reduce the chance of potentially unsafe tires being used on public roads, it was not able to provide a quantified estimate of the benefits to be gained from the proposed amendment. The data relied upon by the agency in issuing the proposal consisted solely of anecdotal comments by 13 consumers on difficulties they experienced in locating TINs. These 13 comments were among about 9,500 responses received by the agency in response to a survey in which it sent questionnaires to approximately 100,000 consumers. Thus, only 0.013 percent of the questionnaire recipients and 0.14 percent of the respondents reported this type of difficulty. Prior to issuing the proposal, the agency did not have any data or perform any analysis regarding the extent to which the proposed requirement would increase the number of people who find the identification number on their tires, the number of those people who respond to a tire recall, or the number of defective or noncomplying tires that would be removed from service. No additional data regarding benefits were obtained by the agency as a result of the comment process.

In response to petitions for a rulemaking, the agency amended NHTSA's tire identification and recordkeeping regulation in 1999 to require the date of manufacture to be expressed in four digits, instead of the previously required three, so that consumers would be able to determine the decade of manufacture of their tires (64 FR 36807; July 8, 1999). This rule also reduced the minimum size of the digits from the then-currently required minimum of 6 mm ( 1/4 inch) to 4 mm ( 5/32 inch) to relieve the manufacturers and retreaders of the burden they might otherwise have incurred by having to redesign their tire molds to accommodate the additional digit.

In that rulemaking, all commenters supported adding a fourth digit to the date code. Two of the commenters, though, opposed reducing the size of the numbers in the TIN on the basis that such reduction would make it more difficult for consumers to see, especially those with visual pathologies. These commenters did not, however, provide any data showing that drivers cannot read 4 mm ( 5/32 inch) symbols. NHTSA said that its experience to date with 4 mm ( 5/32 inch) symbols on tires suggest that symbols of that size do not present a problem. 5 As discussed in the final rule, 4 mm ( 5/32 inch) is approximately the equivalent of font size 16 in Windows 95, which is approximately double the font size used in the Federal Register and also approximately double the size of the largest letters found on the U.S. quarters being minted then. Additionally, this agency pointed out that the size of the Uniform Tire Quality Grading Standards tire grades marked on tire sidewalls has always been 4 mm ( 5/32 inch) and the agency had not received any complaints that those letters or numbers were too small to read. Finally, Part 574 permits tires of less than 13 inches in diameter or those that have less than a 6-inch cross section width to have a letter/number size of 4 mm ( 5/32 inch). Again, the agency had not received any complaints about the size of those letters/numbers.

Labeling requirements are also contained in 49 CFR part 567, Certification, 49 CFR part 575, Consumer Information Regulations, FMVSS No. 110, Tire Selection and Rims, applicable to passenger cars and to non-pneumatic spare tire assemblies for use on passenger cars, and FMVSS No. 120, Tire Selection and Rims for Motor Vehicles Other Than Passenger Cars.

Section 567.4 requires vehicle manufacturers to affix to each vehicle a label bearing, among other things, the Gross Vehicle Weight Rating (GVWR), which must not be less than the sum of the unloaded vehicle weight, rated cargo load, and 150 pounds times the vehicle's rated seating capacity; and the Gross Axle Weight Rating (GAWR), which is the value specified by the manufacturer as the load carrying capacity of a single axle system.

Section 30123(e) of Title 49, U.S. Code, requires the Secretary of Transportation to prescribe a uniform quality grading system for motor vehicle tires to help consumers make an informed choice when purchasing tires. NHTSA implemented this statutory mandate by issuing the Uniform Tire Quality Grading Standards (UTQGS) at 49 CFR 575.104, which are applicable to new passenger car tires. 6 The UTQGS require passenger car and tire manufacturers and tire brand name owners to provide consumers with information with respect to the treadwear, traction, and temperature resistance performance of their tires. Excluded from the UTQGS are deep-tread, winter-type snow tires, space-saver or temporary-use spare tires, tires with nominal rim diameters of 12 inches or less and limited production tires as described in 49 CFR 575.104(c)(2).

Section 575.6(a) of Title 49, CFR, requires that when a motor vehicle is delivered to the first purchaser for purposes other than resale, the vehicle manufacturer must provide, in writing and in the English language, the information specified in section 575.103 applicable to that vehicle, and in the owner's manual, the information specified in section 575.104.  7 Section 575.104(d)(1)(iii) requires vehicle manufacturers to list all possible grades for traction and temperature resistance and restate verbatim the explanation of each of the three graded aspects of performance. The information must also contain a statement referring the reader to the tire sidewall for the specific graded performance of the tires with which the vehicle is equipped. Section 575.6(c) requires that each vehicle manufacturer, brand name owner of tires, and manufacturer of tires for which there is no brand name owner to provide the information specified in subpart B of Part 575 to prospective purchasers at each location at which its vehicles or tires are offered for sale.

Paragraph S4.3 of FMVSS No. 110 requires manufacturers to affix a placard to each passenger car's glove compartment door or an equally accessible location showing the vehicle's capacity weight, designated seating capacity, the manufacturer's recommended cold tire inflation pressure for maximum loaded vehicle weight, the manufacturer's recommended tire size designation, and, for a vehicle equipped with a non-pneumatic spare tire assembly, the non-pneumatic identification code required by FMVSS No. 129, New Non-Pneumatic Tires for Passenger Cars. The required information is intended to promote the vehicle's safe performance by preventing overloading of the tires or the vehicle itself. 8

Paragraph S5.3 of FMVSS No. 120 requires that each vehicle show, on the label required by section 567.4, or on a tire information label, the following information: the recommended tire size designation appropriate for the GAWR; the size and type designation of rims appropriate for those tires; and the recommended cold inflation pressure for those tires such that the sum of the load ratings of the tires on each axle (when the tires' load carrying capacity at the specified pressure is reduced by dividing by 1.10, in the case of a tire subject to FMVSS No. 109, i.e., a passenger car tire, installed on a multipurpose passenger vehicles (MPVs), truck, bus or trailer) is appropriate for the GAWR. The reduction in load rating is intended to provide a safety margin for the generally harsher treatment, such as heavier loading and possible off-road use, that passenger car tires receive when installed on a MPV, truck, bus or trailer instead of on a passenger car.

To aid the agency in conducting this rulemaking, the agency is seeking answers from the public to the following questions:

(1) Are consumers being given the information they need to maintain their tires properly, to determine how much weight (passengers plus cargo) they can safely place in their vehicles, and to identify tires that have been determined to be defective or noncompliant? What tire information is most important for consumers to have for safety and recall purposes?

(2) Do consumers read and correctly understand the information that they are currently receiving? For example, do consumers understand the factors that contribute to tire failure (such as speed, tire inflation pressure, and weight) and the steps they can take to reduce the possibility of tire failure? Do consumers know where to locate tire information in their vehicles, particularly recommended cold tire inflation pressure and maximum load information? Do consumers read the information in the owner's manual regarding proper tire care? Are consumers confused when they find a difference between the recommended tire inflation pressure labeled on their vehicle and the maximum inflation pressure labeled on the tire? Which of those two pressures do they follow in inflating their tires? Do consumers understand the relationship/interaction between tire inflation pressure and the load that a vehicle and its tires can safely carry? Do consumers understand how and when to measure cold inflation pressure? Do consumers understand and use the tire labeling information that currently appears on the tires and in the vehicle?

(3) Do consumers routinely use and correctly follow the guidance included in that information? For example, do they typically inflate their own tires? How often? To what level?

(4) What tire information do consumers want, how do they want it expressed, and where would they prefer to see that tire information located on their tires or in their vehicles? If any focus group studies have been conducted by manufacturers or other organizations regarding the consumers' needs in this area, should the agency use them to aid in assessing how to meet those needs? Should the agency supplement these studies by conducting its own focus group study? If so, what questions should be presented to the focus groups?

The continued use of tires determined to be unsafe poses a safety risk not only for the occupants of the vehicles equipped with those tires, but also for other highway users near those vehicles. To the extent that it is difficult and inconvenient to check the TINs, the percentage of people who respond to a tire recall campaign may be reduced, and motorists unknowingly could continue to drive their vehicles with unsafe tires.

The side of a tire bearing the TIN is often mounted so that it faces inward. In the case of whitewall tires, this occurs because the TIN is almost always molded on the blackwall ( i.e., inside sidewall) of the tire. 9 Whitewall tires account for a small and declining percentage (currently about 5 percent or less) of original equipment tire sales in this country, but about 40 percent of replacement tires. The ratio of original equipment tires to replacement tires is about 1 to 3. Blackwall tires have the TIN on one sidewall. The agency believes that blackwall tires (other than those with white raised lettering) are as likely to be mounted with the number side facing in as out. Thus, it appears that a substantial percentage of tires are mounted with their TINs not readily visible. We would appreciate information from commenters that would help us to estimate the percentage of tires with the TIN facing inward.

When the TINs appear on the inside sidewalls of the tires mounted on vehicles, motorists have three inconvenient ways of finding the TINs. They must either: (1) Slide under the vehicle with a flashlight, pencil and paper and search the inside sidewalls for the TINs; (2) remove each tire, find the TIN, and then replace the tire; or (3) enlist the aid of a garage or service station attendant or tire retailer.

Improved access to the TIN would enhance the owner's ability to determine if his or her tires have been recalled. Requiring that the TIN be placed on the outside sidewall of whitewall and raised-letter tires and on both sides of blackwall tires would significantly facilitate finding the TIN and thus should increase the ability of consumers to know whether their tires are covered by recall campaigns.

(5) Based on the above discussion, how should the current requirements regarding the location of the TIN be modified, if at all, to make it easier for consumers to determine whether their tires are covered by a safety recall?

(6) The agency originally proposed in an NPRM published July 23, 1970 (35 FR 11800) that the TIN be marked on both sidewalls. As discussed above in the background section, one of the objections raised by the industry and others to that proposal was a safety hazard said to be associated with positioning the TIN on both sidewalls during the manufacturing process. Ten years later, in its 1980 NPRM, the agency concluded, based on new information from tire manufacturers, that the potential safety hazard had been eliminated or at least reduced to a manageable level. Was this conclusion correct? Is there any remaining significant hazard that is not addressable at reasonable cost? Please describe any manufacturing process changes that have been made that make it safer now than it was in 1970 to position the TIN manufacturing plates during tire assembly. Are there any additional changes that could be made to improve the safety of this operation?

(7) What are the economic costs of requiring that the TIN appear on both sidewalls of some types of tires? Are there alternative available methods of manufacture that would facilitate placing the TIN on both sidewalls? If so, please describe these processes in detail.

(8) Where, in relation to the bead and the shoulder of the tire, should the TIN be positioned on the sidewall to ensure that it can be easily located by consumers? Should the current requirements regarding TIN location in FMVSS Nos. 109 and 119 be changed to improve the visibility of the TIN to consumers? How would your answer to the immediately preceding question be affected by the considerations of manufacturing feasibility and the vulnerability of the TIN to abrasion in certain sidewall locations as a result of contact with curbs and other hard objects?

(9) Should all of the information currently required in the TIN be retained or should the agency cease to require some of it? Should the agency require that any information be added to the TIN or otherwise be required to be shown on the sidewalls of the tire? For instance, would it be helpful for the plant location, manufacturer's name, date of manufacture or country of manufacture to be shown on the sidewalls of the tire? Should the number, format, and type of symbols be revised? Should any of the information currently required to be included in the TIN be deleted? Please provide examples.

(10) The current labeling requirement allows, at the option of the manufacturer, the use of up to four symbols in the TIN for marketing information. Should these optional symbols be either prohibited or separated from the mandatory portion of the TIN to shorten it? Would this facilitate reading the TIN and identifying recalled tires?

(11) What type of changes to the appearance of the lettering and numbering would make it easier for consumers to read the TIN? Should raised letters with contrasting colors be required? If not, should other methods ( e.g., reflectivity) be used to increase the readability of the TIN?

(12) What minimum should NHTSA specify for the height of the symbols in the TIN? Currently, the required minimum height for the symbols in the first three groups of the TIN is 1/4 inch (0.25 inch or 6.35 mm), while the required minimum height for the symbols in the fourth group of the TIN is 5/32 inch (0.16 inch or 4 mm). Should one height be specified for all four groups of symbols? If so, what height? Please provide data to support your suggestions regarding the appropriate height for the symbols. Please discuss how your answer to this question would be affected by the adoption of any of the types of appearance changes mentioned in the immediately preceding question.

(13) Should the maximum load rating  10 in kilograms (kg)/pounds (lbs) at the maximum permissible inflation pressure in pounds per square inch (psi), as is currently required by FMVSS Nos. 109 and 119, continue to be shown on the tire? If the maximum load rating were replaced by a load index number (a numerical code associated with the maximum load a tire can carry at the speed indicated by its speed symbol under specified service conditions), would it be more effective or less effective in conveying the load limits of the tire to consumers?  11

(14) Do consumers understand and effectively use the load index values that are now provided on some tires?  12 When purchasing replacement tires, do consumers typically refer to the maximum load rating and/or the load index for their vehicle? Do they sometimes replace extra load capacity tires with standard capacity tires? Please provide data to support your responses to this question.

(15) What assistance do tire retailers provide consumers in selecting a tire with the correct load rating or load index for their vehicle? Is this assistance provided to all customers or only to those customers who ask about the rating or index? How much information do the retailers provide to ensure that a consumer chooses a tire that is right for his or her vehicle? Do the retailers routinely check the certification label information for gross vehicle weight rating (GVWR) or gross axle weight rating (GAWR) to ensure that the load capacity of the tires selected by the purchaser exceeds the GAWR/GVWR of the vehicle?

(16) When motorists load a light vehicle ( i.e., a passenger car, pickup truck, sport utility vehicle (SUV) or a minivan with a GVWR of 10,000 lbs. or less), how do they determine whether the vehicle is capable, given the pressure to which the vehicle's tires are inflated, of safely carrying the load? How frequently do they use the load rating information on the tires to make this determination? When they do use it, how do they do so? Do they make the determination correctly?

(17) Do consumers often overload their light vehicles? If so, to what extent? What factors contribute to overloading? Do consumers accurately estimate the loaded weight of their vehicles? If overloading frequently occurs, what allowance for such overloading should be included in passenger car tire load ratings? FMVSS No. 120 currently specifies that if passenger car tires are used on vehicles other than passenger cars, each tire's load rating is to be reduced by dividing by 1.10. The requirement is intended to provide a safety margin for the generally harsher treatment, such as heavier loading and possible off-road use, that passenger car tires receive when installed on a MPV, truck, bus, or trailer, instead of on a passenger car.

(18) FMVSS Nos. 109 and 119 currently require that the actual number of plies used in the tread area and in the sidewall be labeled on both sidewalls. FMVSS No. 109 also requires that the generic name of each cord material used in the plies be indicated on the label. Should this information continue to be marked on the tire? What is the safety value of providing consumers with this information? How do they actually make use of the information? Should any descriptive/qualitative information, such as the tire manufacturer's “mileage warranty,”  13 be added to tires?

(19) FMVSS Nos. 109 and 119 require that tires be equipped with a tread wear indicator that enables motorists to determine visually whether tires have worn to a tread depth of 2/32 inch.  14 Notwithstanding the inclusion of information about the tread wear indicator in the owner's manual, should any information also be placed on a label in the vehicle to inform consumers about the tread wear indicator and its purpose? If so, what information should be provided? Should markings be placed on the sidewall of the tire to pinpoint the location of the tread wear indicator on the tread surface? If yes, what type and size of marking would be most effective?

(20) The UTQGS provides consumer information on the treadwear, traction and temperature performance of passenger car tires. What changes to the UTQGS ratings should the agency consider in order to make the ratings more easily understood and more useful for consumers?

(21) Section 575.104(c) provides that the UTQGS apply to new pneumatic passenger car tires. UTQGS does not apply, however, to deep tread, winter-type snow tires, space-saver or temporary use spare tires, tires with nominal rims of 12 inches or less, or “limited production” tires. Should any of these types of tires, such as deep tread tires which are frequently used on SUVs/MPVs, be required to be labeled with the UTQGS information? Should UTQGS also apply to light truck tires (LT-metric) since these tires are also used on SUVs, MPVs, and light trucks? Please be specific in your response and provide a basis for your answer.

(22) The speed rating of a tire is generally indicated on the tire although not required by either FMVSS Nos. 109 and 119. Should steps be taken to increase the likelihood that consumers purchase replacement tires with a speed rating at least as high as the rating specified by the vehicle manufacturer? If so, what steps should be taken and why? Do tire retailers routinely assist consumers to ensure that the selected tires have the correct speed rating for their vehicles?

(23) Should run-flat or extended mobility tires have that capability identified on the tire and/or on the vehicle certification label to ensure that consumers know that a tire is categorized as such? If so, how should that capability be identified?

(24) What changes, if any, should be made in the labeling requirements applicable to retreaded tires? Please provide the basis for your response.

(25) With respect to passenger cars, a placard containing the vehicle manufacturer's recommended cold tire inflation pressure is required by FMVSS No. 110 to be affixed to the glove compartment door or an equally accessible location, e.g., the driver's door pillar. With respect to motor vehicles other than passenger cars, similar information is required by FMVSS No. 120 to appear on the vehicle certification label or on the tire information label. What other pertinent tire information ( e.g., tire size and speed rating) should be considered for the placard or the labels? What other locations, such as the inside of the fuel tank access door, should be considered to ensure that the tire information contained on the placard and the labels is conspicuous to vehicle users and why? The fuel tank access door is regularly seen by drivers who fill their own fuel tanks and at such times when an air pump is generally available nearby. Please provide the basis for your responses.

(26) The maximum cold inflation pressure value provided on the sidewalls of the tire appears to mislead some consumers, who use it as the vehicle's recommended inflation pressure. 15 Should the maximum inflation pressure value (and the corresponding maximum load rating for tires subject to FMVSS No. 120) be removed from the tire sidewall? What would be the potential safety impact? If no inflation pressure value appeared on the tire, would users take the time to seek the vehicle manufacturer's recommended cold inflation pressure on the glove compartment door, the door pillar, or the owner's manual?

(27) Maintaining proper inflation pressure in motor vehicle tires is important to the safe and efficient use of motor vehicles. Maintaining tires at their proper inflation pressure, instead of allowing them to become underinflated, reduces heat build up, minimizes tire wear, contributes to good vehicle handling, and improves fuel economy through decreasing the rolling resistance of the tires. In light of the trend toward self-service gasoline stations, the responsibility for maintaining proper inflation pressure falls increasingly on motorists. Surveys indicate that a significant number of vehicles are being operated with underinflated, overloaded and/or damaged tires and that the public needs to be reminded to inspect and properly maintain their tires. What type of tire safety information should be provided? Where and how should it be presented so that it is readily noticed and easily understood? Should a tire inflation warning label be placed in a conspicuous location such as on the exterior of the glove box door? In answering these questions, please consider the requirement in section 13 of the TREAD Act that the agency complete a rulemaking to require a warning system in new motor vehicles to indicate to the operator when a tire is significantly underinflated.

(28) Paragraph S5.1.1 of FMVSS No. 120 specifies that each motor vehicle shall be equipped with tires that meet the requirements of FMVSS No. 109 or 119. What are the merits of including or excluding trailer tires, motorcycle tires, etc., from any amendments to the tire information labeling requirements that may be proposed and adopted in this rulemaking? Please be specific in your response and provide a basis for your answer.

(29) Currently, the various tire labeling requirements specify the height of letters, numbers, etc., used to convey the required information. For instance, FMVSS Nos. 109 and 119 require that symbols be not less than 0.078 inches (1.98 mm) in height, while the date of manufacture symbols for the TIN under Section 574.4 and the UTQGS figures under Section 575.104 are required to be not less than 5/32 inch (0.16 inch or 4 mm) in height. Is there any reason for the agency to continue to specify different minimum heights for different types of required information or should it require one height for all required symbols? What height should be chosen? Please provide a basis for your answer. Please explain how your answer to this question would be affected by the adoption of a requirement to use contrasting colors or other means to increase the readability of the symbols.

The agency is participating in the development of a global tire standard as part of a cooperative worldwide effort, through the United Nations Economic Commission for Europe, to establish best safety and environmental practices for motor vehicle regulations. The issue of tire labeling is one of the issues being addressed in ongoing negotiations to develop worldwide labeling requirements.

(30) Are there any voluntary consensus standards or requirements of other countries or regions which address the issues raised in this ANPRM? Do they provide effective ways of accomplishing the purposes of this rulemaking?

(31) What opportunities are there to accomplish the purposes of this rulemaking in ways that minimize any unnecessary differences between NHTSA's requirements and those of other countries and regions?

This advance notice was not reviewed under Executive Order 12866 and under the Department of Transportation's regulatory policies and procedures. Due to the preliminary nature of this document, NHTSA has identified few specific changes that it might propose to its standards and regulations. Further, it has limited current cost information that might be relevant to any potential changes. Accordingly, NHTSA is unable now to evaluate the economic impacts that this rulemaking might ultimately have. At this time, it does not appear that the rule resulting from this rulemaking will be significant. However, NHTSA will reassess this rulemaking in relation to the Executive Order, the DOT Regulatory Policies and Procedures, the Unfunded Mandates Reform Act of 1995 and other requirements for analyzing rulemaking impacts after using the information received in response to this advanced notice to select specific proposed changes. To that end, the agency solicits comments, information, and data useful in assessing the impacts of making changes to the various requirements discussed in this document.

In an effort to recover CI beluga whales to its Optimum Sustainable Population, NMFS issued proposed regulations under the Marine Mammal Protection Act (MMPA) that would limit the subsistence harvest of the whales by Alaska Natives. Section 101(b) of the MMPA provides an exemption to the general moratorium on the taking of marine mammals and permits Alaska Natives to harvest marine mammals for subsistence purposes or for the purpose of creating traditional Native handicrafts and clothing. However, the Federal government may regulate Native subsistence harvest of marine mammals if the stock in question is designated as depleted after regulations specific to the depleted stock are issued and an opportunity for notice and hearing on the record has been provided.

After a depleted determination was made on May 31, 2000 (65 FR 34590), NMFS issued a proposed rule on October 4, 2000 (65 FR 59164), to regulate subsistence harvest of CI beluga whales by Alaska Natives. The proposed regulation provides that:

(1) Subsistence harvest can only occur under an agreement between NMFS and an Alaska Native organization pursuant to section 119 of the MMPA;

(2) Subsistence harvest shall be limited to no more than two strikes annually until the stock is no longer considered depleted under the MMPA;

(3) The sale of CI beluga whale products shall be prohibited;

(4) All hunting for subsistence purposes shall occur after July 15 each year; and

(5) The harvest of newborn calves, or adult whales with maternally dependent calves shall be prohibited.

All interested persons or parties have been given an opportunity to file a notice of intent to participate in the hearing that will be conducted in accordance with section 103(d) of the MMPA. Such interested persons or parties have also been given an opportunity to file direct testimony and documentary exhibits. Parties who submitted notice of intent to participate in the hearing were advised to submit rebuttal testimony by Novenber 28, 2000. Pursuant to the procedural regulations governing the formal rulemaking hearing that was reinstated on June 27, 2000 (65 FR 39560), Judge Parlen McKenna issued the following notice identifying the participants and the final agenda as follows:

1. What numbers are appropriate to use for:

a. Carrying capacity (K)

b. Current Population size (N 2000 )

c. Intrinsic rate of growth (R max )

d. The lower bound of the optimum sustainable population level (Maximum Net Productivity Level or MNPL) relative to the carrying capacity

2. Whether 2000 Survey Data will be available. If so, why aren't they being used?

3. Whether the recovery times projected by the National Marine Fisheries Service (NMFS) under different harvest regimes are appropriate?

a. Whether recovery factor used by the NMFS is too conservative? If so, what is the appropriate recovery factor?

b. Whether there is a consistent formula for estimating the recovery time?

c. Have past formulas for population been developed? If so, what are the formulas and why weren't they adopted?

4. What factors, other than Native harvest of Cook Inlet beluga whales, possibly contributed to the observed declines or slower than projected potential recovery of the stock?

a. Whether the estimate of annual removals by Alaska Native subsistence hunters in Cook Inlet is accurate? Is the Cook Inlet Marine Mammal Council's report on 1998 harvest levels available?

b. Whether NMFS has adequately accounted for risks to the population from orca predation, strandings, oil spills, and other stochastic events in calculating potential harvest removals and recovery times?

c. Is there an Inlet-based decline in the availability of food or prey for the Beluga? If so, in what way has this affected the decline and potential recovery of the population?

5. Whether a more flexible model that accounts for uncertainty in key population parameters is available? If so, why wasn't it used?

6. What resources are available for monitoring beluga population and harvest?

a. Will the beluga population be evaluated on an annual basis?

b. Whether the regulations should contain a provision for altering the number of Native harvest strikes if new, valid information changes the analysis of Cook Inlet beluga population?

7. Should a more flexible harvest regime be adopted? If so, what should it be?

1. What is the definition of the term “Alaska Native Organization (ANO)?”

a. How is an ANO recognized?

b. Are there any ANOs in Cook Inlet with area-wide tribal authority to enforce laws against all members of the area tribes and enter into agreements on behalf of said tribes? How many exist and who are they? Which ANO(s) can enter into co-management agreement with NMFS?

2. What mechanisms are available to enforce the Native harvest limitation and prohibition on the sale of products and foodstuff from Cook Inlet beluga whales?

a. Who has authority to enforce the proposed regulations, if adopted? Will enforcement authority be shared between NMFS and the ANO(s)?

b. What effect, if any, does the recent ruling in Alaska v. Native Village of Venetie Tribal Government , 522 U.S. 520 (1998) have on a tribal government's ability to enforce tribal laws on individuals?

c. How will the strikes under the proposed regulation be allocated? Who will monitor the harvest of Cook Inlet beluga whales to ensure that the season is concluded as soon as the second strike has been made? How will the hunters and tribes be notified of season’s closure?

The 23rd Northeast Regional Stock Assessment Workshop (SAW 23), in March 1997, identified high fishing mortality rates, low stock size, and lack of significant recruitment in the Atlantic sea scallop (scallop) fishery. Based on this finding, scientists involved with SAW 23 determined that fishing effort should be reduced immediately and significantly in the Mid-Atlantic region to preserve spawning stock biomass and improve the yield per recruit. To achieve this, NMFS implemented an interim final rule on April 3, 1998 (63 FR 15324), that established two areas in the Mid-Atlantic region that were closed to all scallop fishing. The closure of these two areas, the Hudson Canyon South and Virginia Beach Closed Areas, was based on a finding that the areas contained large concentrations of small and juvenile scallops that could provide for future recruitment. The interim final rule was subsequently extended for 180 days (63 FR 51862, September 29, 1998) and on March 29, 1999, Amendment 7 to the Atlantic Sea Scallop Fishery Management Plan (FMP) (64 FR 14835) extended the effective date of the closures through March 1, 2001.

While there are still concentrations of small scallops in the Hudson Canyon South and Virginia Beach Closed Areas, recent surveys by the NMFS Northeast Fisheries Science Center and Virginia Institute of Marine Science indicate that a large portion of the protected scallops have grown and could be of considerable value to the fishing industry. Because of the vulnerability of these scallops to fishing upon the re-opening of the closed areas on March 1, 2001, concern was expressed by scientists in the recent Sea Scallop Stock Assessment and Fishery Evaluation report that a high amount of fishing effort in these areas would increase fishing mortality rates beyond management thresholds, would contribute to overfishing, and would compromise future recruitment of scallops. To address this concern, the New England Fishery Management Council (Council) is currently developing Framework 14 to the FMP, the annual framework adjustment, with the intention of including an area access program for the Mid-Atlantic closed areas. This program would restrict scallop vessels when fishing in the re-opened Mid-Atlantic closed areas to a scallop possession limit and a limited amount of trips, among other measures. Because the Council is preparing a Supplemental Environmental Impact Statement for Framework 14 to assess the impacts of the fishery on the human environment, it is highly unlikely that the framework can be implemented by March 1, 2001, the date that the Mid-Atlantic closed areas are scheduled to re-open. An extension of the closures is therefore necessary to ensure that the areas do not open prior to protective measures being in place. Without such action, overfishing would likely occur before Framework 14 can be implemented, and the ability to maximize scallop yields from the areas and ensure that recruitment potential is maintained could be compromised. If that were to occur, long-term benefits to the scallop fishery could be significantly reduced.

The proposed rule would delay the re-opening of the Hudson Canyon South and Virginia Beach scallop closed areas for 180 days or until such time that new measures to prevent overfishing in the areas are implemented, whichever is sooner. This action is authorized by section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act and may be extended for an additional 180-day period.

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

NMFS prepared an IRFA as part of an RIR that describes the economic impact this action, if adopted, would have on small entities. A copy of the IRFA is available from NMFS (see ADDRESSES ). A summary of the analysis follows:

The IRFA describes this action, sets forth why it is being taken, and the legal basis for it. A description of the action, why it is being considered, and the legal basis for this action appear in the beginning of this section in the preamble and in the SUMMARY section and is not repeated here.

The IRFA considered the impacts that this action will have on small entities, which includes all holders of active scallop permits, since none have reported gross annual revenues greater than $3 million. The 1999 fishing season, March 1, 1999, to February 28, 2000, was the last full year of scallop fishing activity available for analysis. During that season, there were 345 qualified permits in the Limited Access fishery. Two-hundred and ninety of these permits were on vessels that landed scallops. The remaining 55 Limited Access permits were in Confirmation of Permit History, a category of permit for vessels that were destroyed or that were sold and the permit eligibility retained by the seller. In addition, 2,095 permits were issued to vessels in the open access General Category, but only 190 of these vessels could be identified in the dealer reports as having landed scallops. The proposed action to extend the closures of the Hudson Canyon South and Virginia Beach Closed Areas for 180 days from March 1, 2001, or until Framework 14 can be implemented (currently estimated to be May 2001), whichever is sooner, should have a positive net impact on small business entities during the next few years and is not expected to impact segments of the fishery differentially. Without this proposed action, the most likely outcome would be that Framework 14 would have to prevent further access to these closed areas during 2001 because the vessels would have exceeded the target fishing mortalities and total allowable catch by the time Framework 14 becomes effective. One alternative considered by NMFS but rejected would have allowed the Hudson Canyon South and Virginia Beach Closed Areas to re-open, as scheduled, on March 1, 2001. Under this alternative, overfishing would likely occur in the areas, and the ability to maximize scallop yields from the areas and ensure that recruitment potential is maintained could be compromised, thereby reducing long-term benefits to the scallop fishing industry. Depending on the amount of fishing that has occurred in the absence of this interim action, access during the 2002 season might also have to be reduced substantially in order to rebuild the stock.

The proposed action is not expected to reduce overall access to the closed areas in 2001 and will protect the growth potential of more young scallops for 2002, provided that Framework 14 is implemented in a timely fashion, as anticipated by the Council. The Scallop Plan Development Team (PDT), in preparing analyses for Framework 14, has estimated that each limited access permit holder will be allocated between three and five trips into the Mid-Atlantic areas, depending on their effort category and the fishing mortality scenario selected by the Council. Although 10 days at sea would be charged to each trip, the scallop resource density in the areas to be re-opened is high enough that trip limits that meet fishing mortality targets may be able to be taken in 3 to 5 days, as estimated by the PDT. Thus, there may still be time in the 2001 season for vessels to fish in the re-opened areas and to take their allotted limits. Moreover, vessels would be free to use their effort allocation outside the closed areas until Framework 14 goes into effect. Thus, any short-term negative impacts caused by delaying the re-opening of the two Mid-Atlantic areas to scallop fishing are expected to be offset by access to those areas in the remainder of 2001 and by future recruitment of scallops.

This proposed rule has no projected reporting, recordkeeping, or compliance requirements. Also, there are no relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule.

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