For additional information, see the Direct Final Rule published in the final rules section of this Federal Register .

The NRC is also publishing this amendment as a direct final rule because it represents a limited and routine change to an existing CoC that is expected to be noncontroversial; adequate protection of public health and safety continues to be ensured. This amendment is not considered to be a significant amendment by the NRC staff. The direct final rule will become effective on February 20, 2001. However, if the NRC receives significant adverse comments on the direct final rule by January 4, 2001, then the NRC will publish a notice to withdraw the direct final rule. If the direct final rule is withdrawn, the NRC will address the comments received in response to the proposed revisions in a subsequent final rule. Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period for this action if the direct final rule is withdrawn.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 553; the NRC is proposing to adopt the following amendments to 10 CFR Part 72.

The International Banking Act of 1978 (12 U.S.C. 3101 et seq.) (the IBA) applies the national treatment principle to the regulation of foreign bank activities in the United States. Specifically, under the national treatment principle established by the IBA, the operations of a foreign bank conducted through a Federal branch or agency shall be conducted with the same rights, privileges, conditions, and limitations that apply to a national bank operating at the same location, subject to the OCC's regulations. 1 12 U.S.C. 3102(b). For example, the powers of national banks that are set forth in the National Bank Act, such as lending money and engaging in certain securities and insurance sales activities, are not expressly repeated in the IBA but are provided to Federal branches and agencies by operation of section 3102(b).

Congress has subsequently enacted other legislation that confirms that the IBA need not be amended each time there is a change to the banking laws that affects national banks, unless the IBA prohibits or limits that specific activity. For example, when Congress authorized broader leasing authority for national banks in 1987, Federal branches and agencies could avail themselves of this authority by operation of section 3102(b) of the IBA. Thus, it is not necessary to amend the IBA to authorize Federal branches and agencies to take advantage of powers authorized for national banks. Consistent with these principles, this proposal provides that a Federal branch or agency may establish an operating subsidiary to the same extent as a similarly situated national bank.

12 CFR 5.34 sets forth application or notice procedures for national banks engaging in activities through an operating subsidiary and lists the activities that qualify for the notice procedures. The proposal provides that § 5.34 applies to a Federal branch or agency that seeks to establish or maintain any subsidiary that a national bank would be authorized to establish or control under § 5.34. The procedures of § 5.34 apply to the Federal branch or agency with certain modifications that reflect the differences in the nature of Federal branches and agencies compared to national banks.

Section 5.34(e)(5)(iv) provides that a national bank that is well capitalized and well managed may acquire or establish an operating subsidiary, or perform a new activity in an existing operating subsidiary, by filing a notice with the OCC within 10 days after acquiring or establishing the subsidiary, or commencing the activity, if the activities are listed in § 5.34(e)(5)(v). National banks that do not meet the well capitalized and well managed criteria also may acquire or establish an operating subsidiary by filing an application with, and receiving approval from, the OCC. 12 CFR 5.34(e)(5)(i). Finally, § 5.34(e)(5)(vi) provides that a national bank may acquire or establish an operating subsidiary without filing an application or providing notice to the OCC, if the bank is adequately capitalized or well capitalized and the activities of the new subsidiary meet certain conditions.

Under the proposal, a Federal branch or agency is considered well capitalized for purposes of § 5.34 if it meets the definition of “well capitalized” that the OCC uses when authorizing an extended examination cycle for certain Federal branches and agencies. See 12 CFR 4.7(b)(1)(iii). 2 Section 4.7(b)(1)(iii) requires that: a foreign bank's most recently reported capital adequacy position consists of, or is equivalent to, Tier 1 and total risk-based capital ratios of at least 6 percent and 10 percent, respectively, on a consolidated basis; or the Federal branch or agency has maintained on a daily basis, over the past three quarters, eligible assets in an amount not less than 108 percent of the preceding quarter's average third party liabilities (determined consistent with applicable Federal and state law), and sufficient liquidity is currently available to meet obligations to third parties.

Under the proposal, a Federal branch or agency is well managed if: the Federal branch or agency has a composite Risk Management, Operational Controls, Compliance, and Asset Quality (ROCA) supervisory rating of 1 or 2 at its most recent examination; or in the case of a Federal branch or agency that has not been examined, the Federal branch or agency has and uses managerial resources that the OCC determines are satisfactory.

The OCC will apply other relevant regulatory standards to Federal branches and agencies that establish and maintain operating subsidiaries as appropriate in light of the differences in corporate structure between national banks and Federal branches and agencies. For example, current § 5.34(e)(4) requires that pertinent book figures of the parent bank and its operating subsidiary to be combined for the purpose of applying statutory limitations when combination is needed to effect the intent of the statute, e.g., for purposes of the statutory dividend restrictions, lending limits, or investments in bank premises. See 12 U.S.C. 56, 60, 84, and 371d. Any limitation or restriction based on the capital of a national bank ( e.g., the lending limit at 12 U.S.C. 84) refers, as applied to a Federal branch or agency, to the dollar equivalent of the capital of the foreign bank. See 12 U.S.C. 3102(b). For purposes of determining compliance with the limitation or restriction, pertinent book figures of the Federal branch or agency and its operating subsidiary shall be combined. If the foreign bank has more than one Federal branch or agency, pertinent book figures of all its Federal branches and agencies and their operating subsidiaries shall be combined.

The OCC requests comment on all aspects of this proposal.

The OCC requests comment on whether the proposal is written clearly and is easy to understand. On June 1, 1998, the President issued a Memorandum directing each agency in the Executive branch to write its rules in plain language. This directive applies to all new proposed and final rulemaking documents issued on or after January 1, 1999. In addition, Public Law 106-102 requires each Federal agency to use plain language in all proposed and final rules published after January 1, 2000. The OCC invites comment on how to make this rule clearer. For example, you may wish to discuss:

(1) Whether we have organized the material to suit your needs;

(2) Whether the requirements of the rule are clear; or

(3) Whether there is something else we could do to make the rule easier to understand.

Pursuant to section 605(b) of the Regulatory Flexibility Act, the Comptroller of the Currency certifies that this proposal will not have a significant economic impact on a substantial number of small entities.

Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L. 104-4 (Unfunded Mandates Act) requires that an agency prepare a budgetary impact statement before promulgating a rule that includes a Federal mandate that may result in 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 proposal will not result in expenditures by State, local, or tribal governments or by the private sector of $100 million or more. Accordingly, the OCC has not prepared a budgetary impact statement or specifically addressed the regulatory alternatives considered.

The Comptroller of the Currency has determined that this rule does not constitute a “significant regulatory action” for the purposes of Executive Order 12866.

Respondents are not required to respond to these collections of information unless they display a currently valid Office of Management and Budget (OMB) control number.

The collection of information requirements contained in this notice of proposed rulemaking have been submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). Comments on the collections of information should be sent to the Alexander Hunt, Desk Officer, Office of Management and Budget, Paperwork Reduction Project (1557-0215), Washington, DC 20503, with copies to the Jessie Dunaway, Legislative and Regulatory Activities Division (1557-0215, Office of the Comptroller of the Currency, 250 E Street, SW, Washington, DC 20219.

The collection of information requirements in this proposal are found in 12 CFR 5.34. The likely respondents are Federal branches and agencies of foreign banks.

Estimated average annual burden hours per Federal branch and agency respondent: 1 hour

Estimated number of Federal branch and agency respondents: 20

Estimated total annual reporting burden: 20 hours

The OCC invites comment on:

(1) Whether the collections of information contained in this notice of proposed rulemaking are necessary for the proper performance of the agency's functions, including whether the information has practical utility;

(2) The accuracy of the estimate of the burden of the proposed information collections;

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

(4) Ways to minimize the burden of the information collections on respondents, including the use of automated collection techniques or other forms of information technology; and

(5) Estimates of capital or start-up costs and costs of operation, maintenance, and purchases of services to provide information.

For the reasons set forth in the preamble, the OCC proposes to amend part 5 of chapter I of Title 12 of the Code of Federal Regulations as follows:

This rulemaking consists of two parts. First, the OCC, through an NPRM, proposes to codify recent OCC interpretations in which we analyzed the extent to which a national bank may, in states other than its home state, (a) have trust offices or trust representative offices, (b) engage in fiduciary activities, and (c) market its fiduciary services to customers. Second, we invite comments, through an ANPR, on whether the OCC should propose to add a new section to part 9 that would establish national standards for the conduct of fiduciary activities by national banks. These ideas are explained more fully below.

The OCC has issued three interpretive letters  1 addressing multi-state fiduciary activities. In IL 695, we concluded that a national bank with its main office in one state may act in a fiduciary capacity in any other state that permits its own in-state fiduciaries to act in that capacity, including at trust offices in other states. In IL 866 and IL 872, we further clarified that a national bank that acts in a fiduciary capacity in one state may market its fiduciary services to customers in other states, solicit business from them, and act as fiduciary for customers located in other states. The proposal codifies these interpretations, which affect several sections in part 9, as explained in the following discussion.

The second sentence in current § 9.2(g) provides that the extent of fiduciary powers is the same for out-of-state national banks as in-state national banks. This sentence is unnecessary in light of proposed new § 9.7, which sets forth the rules concerning multi-state fiduciary operations, and the proposal removes it.

Proposed §§ 9.2(j) and (k) define “trust office” and “trust representative office,” respectively. These terms are used in proposed new § 9.7. A “trust office” is defined as an office of a national bank, other than a main office or a branch, at which the bank acts in a fiduciary capacity. A trust representative office is an office of a national bank, other than a main office, branch, or trust office, at which the bank performs activities ancillary to its fiduciary business, but does not act in a fiduciary capacity. These ancillary activities might include, for instance, advertising, marketing, and soliciting for fiduciary business; contacting existing or potential customers, answering questions, and providing information about matters related to their accounts; acting as a liaison between the trust office and the customer ( e.g., forwarding requests for distribution or changes in investment objectives, or forwarding forms and funds received from the customer); or simply inspecting or maintaining custody of fiduciary assets.

Neither a trust office nor trust representative office is a branch for purposes of the McFadden Act, 12 U.S.C. 36, which governs the location of national bank branches. In order to be considered a branch under the McFadden Act, a bank facility must perform at least one of the core banking functions of receiving deposits, paying checks, or lending money. 12 U.S.C. 36(j). The locational limitations of 12 U.S.C. 36 are not intended to reach all activities in which national banks are authorized to engage, but only core banking functions. See Clarke v. Securities Industry Association, 479 U.S. 388 (1987) (considering securities brokerage powers). Proposed §§ 9.2(j) and (k) therefore state that a trust office or a trust representative office is not a branch unless it is also an office at which deposits are received, or checks paid, or money lent.

Current § 9.3(a) provides that “a national bank may not exercise fiduciary powers unless it obtains prior approval from the OCC to the extent required under 12 CFR 5.26.” Section 5.26(e)(5) currently provides that a national bank that has obtained the OCC's approval to exercise fiduciary powers does not need to obtain further approval to “commence fiduciary activities” in a state in addition to the state(s) described in the application for which it received OCC approval to exercise fiduciary powers. Instead, the bank is required only to provide written notice to the OCC within ten days after commencing expanded fiduciary activities.

As discussed in greater detail in the next section, proposed new § 9.7 codifies recent OCC interpretations clarifying national banks' authority to engage in multi-state fiduciary operations. Among other things, those interpretations, and new § 9.7, distinguish between acting in a fiduciary capacity and conducting other activities ancillary to the bank's fiduciary business. The proposal adds a new paragraph (b) to § 9.3 to clarify that a bank that has received OCC approval to exercise fiduciary powers does not need prior OCC approval each time it seeks to act in a fiduciary capacity in a new state or to conduct, in a new state, activities that are ancillary to its fiduciary business. Instead, paragraph (b) directs the bank to follow the notice procedures in § 5.26(e)(5). Current paragraph (b), which addresses the procedures for organizing a limited purpose trust bank, is redesignated as paragraph (c).

The statutory authority for national banks to exercise fiduciary power is contained in 12 U.S.C. §§ 92a(a) and (b). Under section 92a(a), the Comptroller may permit national banks, when not in contravention of State or local law, to exercise eight expressly identified fiduciary powers and to act in any other fiduciary capacity in which State banks, trust companies, or other corporations that come into competition with national banks are permitted to act under the laws of the State in which the national bank is located. Under section 92a(b), whenever state law permits state institutions that compete with national banks to exercise any of the fiduciary powers listed in section 92a(a), a national bank's exercise of those powers is deemed not to be in contravention of State or local law under section 92a.

Sections 92a(a) and (b) do not expressly address the extent to which a national bank may conduct a multi-state fiduciary business. The OCC, however, has issued several interpretive letters that address multi-state fiduciary activities. In IL 695, we concluded that a national bank with its main office in one state may have trust offices in another state. We also concluded that the bank may engage in (a) any of the eight fiduciary capacities listed in 12 U.S.C. 92a(a), unless the state prohibits its own state banks, trust companies, and other corporations that compete with national banks in that state from acting in that capacity; and (b) any other fiduciary capacity the state permits for its own state banks, trust companies, or other corporations that compete with national banks in that state. This conclusion applies even in a state that has laws prohibiting or restricting out-of-state fiduciaries from providing fiduciary services or having trust offices within their state. As explained in the interpretive letter, section 92a(b) makes it clear that, if a state permits its own state institutions to exercise certain fiduciary powers, then national banks are authorized to exercise those fiduciary powers in that state.

Proposed § 9.7(a) codifies this interpretation. Pursuant to that section, a national bank may act in any of the eight fiduciary capacities listed in the statute in any state in which a national bank “is located,” which we have interpreted for purposes of section 92a as the state in which a national bank acts in a fiduciary capacity. It may also act in any other fiduciary capacity that the state permits for its own state institutions, “when not in contravention of State or local law.” Thus, a national bank may act in any of the eight capacities listed in the statute unless the state affirmatively prohibits that activity for national banks and for its own institutions. If state law is silent on any of these eight capacities, it is permitted for a national bank by virtue of the direct grant of authority in section 92a(a). Further, if a state permits its own state institutions to exercise additional fiduciary powers, then national banks are authorized to exercise those fiduciary powers in that state. The state may not limit them, because the terms of section 92a(b) expressly deem the fiduciary powers that a state permits to its own institutions not to be in contravention of state law. Thus, under proposed § 9.7(a)(2), a national bank acting in a fiduciary capacity in a particular state may act in each of the eight fiduciary capacities listed in section 92a(a) (unless the state expressly prohibits the capacity for its own state institutions) and in any other fiduciary capacities permitted for state banks, trust companies, or other corporations that compete with national banks.

In IL 866 and IL 872, the OCC clarified that a national bank that acts in a fiduciary capacity in a given state under the authority of section 92a is authorized to market its services to customers in other states, to solicit business from them, and to act as fiduciary for customers located in other states. 2 A state may not prohibit or restrict out-of-state national banks from marketing to, or performing fiduciary functions for, customers in that state. Therefore, proposed § 9.7(b) provides that a national bank may market its fiduciary services to, and act as fiduciary for, customers located in any state and provides that the bank may use a trust representative office for these purposes. Proposed § 9.7(c) expressly authorizes a national bank with fiduciary powers to establish a trust office or trust representative office in any state. IL 866 and IL 872 also addressed where a national bank is deemed to be “acting in a fiduciary capacity” for purposes of section 92a. As explained in those letters, in order to determine in which state a bank “acts in a fiduciary capacity” for section 92a purposes, one looks to the state in which the bank performs key fiduciary functions. These key activities include executing the documents that create the fiduciary relationship, accepting the fiduciary appointment, and making decisions regarding the investment or distribution of fiduciary assets. Proposed § 9.7(d) codifies this position and further provides that if these key fiduciary activities take place in more than one state, then the state in which the bank acts in a fiduciary capacity for section 92a purposes will be the state that the bank and customer designate from among those states. We invite comment on ways to simplify the determination of where a bank with multi-state operations is acting in a fiduciary capacity.

The state in which the bank acts in a fiduciary capacity for an account, in turn, determines—with respect to that account—which state laws apply in the provisions of section 92a that refer to state law. 3 Thus, if a national bank acts in a fiduciary capacity in State A for a customer located in State B, the bank looks to the laws of State A in applying the provisions of section 92a that refer to state law. These include not only state laws affecting permissible fiduciary capacities (referred to in sections 92a(a) and (b)) but also state laws used in setting operational requirements for national banks as corporate fiduciaries (referred to in sections 92a(f), (g) & (i)) and those that grant state banking authorities limited access to OCC examination reports relating to national bank trust departments (referred to in section 92a(c)). Therefore, proposed § 9.7(e) clarifies that the references in section 92a to state law mean the law of the state in which the bank acts in a fiduciary capacity. The laws of other states where the bank is not acting in a fiduciary capacity, including states in which the bank's customers may reside or in which trust assets may be located, are not made applicable to national banks by section 92a.

Under section 92a(f) of the statute and current § 9.14 of our regulations, a national bank must comply with state laws that require corporations that act in a fiduciary capacity to deposit securities with state authorities for the protection of private or court trusts. The proposal makes a technical amendment to § 9.14 to conform to the terminology used in proposed § 9.7. Instead of saying that a bank “administers trust assets” in paragraph (b) of that section, the proposed language states that a bank “acts in a fiduciary capacity.” No substantive change is intended by this amendment.

The proposal also adds a second sentence to § 9.14(b) to clarify how a bank, which conducts fiduciary operations on a multi-state basis pursuant to proposed § 9.7, should compute the amount of deposit required by a state law that requires a deposit of securities on a basis other than assets (such as an amount equal to a percentage of capital). In such a state, the bank may compute the amount of deposit required on a pro-rated basis, according to the proportion of fiduciary assets for which the bank is acting in a fiduciary capacity at offices located in that state.

Consistent with the proposed changes discussed above, the proposal also would amend 12 CFR 5.26(e) to clarify that a national bank that plans to act in a fiduciary capacity in a state in addition to the state described in the application for fiduciary powers that the OCC has approved need only give after-the-fact notice of having commenced acting in a fiduciary capacity in a new state. The proposal revises current § 5.26(e)(5) so that it reflects the distinction between acting in a fiduciary capacity and conducting activities ancillary to the bank's fiduciary business. The ten-day, after the fact notice requirement would apply only to acting in a fiduciary capacity.

Twelve U.S.C. 92a, which authorizes national banks to act as fiduciaries, also governs the exercise of their fiduciary powers in certain respects. For example, the statute requires national banks to segregate the assets they hold in a fiduciary capacity from the “general assets” of the bank and to keep separate records of the transactions they engage in as fiduciary. 4 The statute does not set out general standards of care that apply to national banks acting in a fiduciary capacity; however, it expressly authorizes the OCC to issue regulations to enforce compliance with section 92a and “the proper exercise of the powers” that the statute grants. 5 Thus, the statutory scheme governing national bank fiduciary powers specifically permits the Comptroller to promulgate regulations necessary to the proper exercise of national bank fiduciary powers and to address any areas unique to national banks. 6

Trustees are responsible for performing a core set of fundamental duties when exercising the powers permitted under section 92a. These include the duty to administer the trust according to its terms; the duty of loyalty; the duty to be impartial where there is more than one beneficiary of a trust; the duty to be prudent with trust assets; and so on. These duties are embodied in most state trust codes, but the precise formulation and the elements of the applicable standards vary from state to state, causing a national bank that conducts an interstate fiduciary business to continually monitor the differing state laws and to develop different plans for compliance in each state where it operates.

One example of where state laws may differ is the investment management standard that applies to trustees. Trustees have always had the duty to manage trust assets prudently. In the first half of the twentieth century, most states enacted lists of specific types of investments that trustees were permitted to make, and trustees were required to assess the prudence of each individual investment in isolation. More recently, however, many states have applied a “prudent investor” rule, which focuses on the need to manage risk in the portfolio by balancing the role of a single asset or group of assets against that of the overall portfolio. Examples of other areas where the applicable standards might vary from one jurisdiction to another include the laws governing reasonableness of compensation of trustees; duties regarding trust accounting; the termination, modification, or reform of a trust; records retention; and purchases by a bank, in its capacity as trustee, of shares of proprietary mutual funds.

The lack of uniformity in applicable fiduciary standards may become more burdensome in light of the increase in national banks' interstate fiduciary operations following the enactment of the Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994 and in light of new technologies that greatly facilitate the marketing and delivery of fiduciary services to customers nationwide. National banks not only have trust customers and conduct fiduciary activities in many different states, but they also act as trustee for trusts governed by the laws of many different states.

For these reasons, in addition to inviting comments on the proposed amendments to part 9 as discussed in the previous portion of this notice, the OCC invites comments on whether we should adopt uniform standards of care governing fiduciary activities of national banks. The OCC is not proposing specific standards at this point; rather, we seek the views of interested persons on the need for such standards and, if there is a need, on what the standards should contain.

The OCC contemplates that any uniform standards would apply only to private trusts. As under current law, we envision that the uniform federal standard could be modified by the terms of the trust, but not by contrary or inconsistent state law.

The OCC invites comments on whether uniform, national standards in the areas noted (or other areas) would promote the efficient exercise of a national bank's fiduciary powers, consistent with the fulfillment of its fiduciary obligations. Specifically, the OCC seeks comments on the following:

• Does compliance with multiple state laws that establish separate fiduciary standards of care present a significant burden? If so, please identify the principal sources of that burden.

• How would a bank's administration of trusts or estates differ if there were a federal law creating a uniform standard of care?

• If the OCC were to adopt uniform standards, should those standards be modeled after the Uniform Trust Act prepared by the National Conference of Commissioners on Uniform State Laws? If so, which sections should we adopt?

• What other sources should the OCC rely upon in developing uniform, nationwide standards of care?

• Do most states already have substantially similar laws governing trust administration and investment of trust assets? Is adoption of the model uniform laws by additional states likely?

• What effect have the OCC's recent opinions on the applicability of state law to interstate fiduciary activities had on national banks' interstate fiduciary business?

• How could a federal standard work when there are specific state statutes (such as those governing the investment by trustees in proprietary mutual funds) that make investment explicitly subject to state laws?

• How should the OCC resolve issues that arise about the meaning or applicability of any uniform standards it issues? What would be the effect of a uniform standard on the common law that has developed over time in connection with state fiduciary standards?

• If uniform standards are adopted, how should the OCC manage the transition from the existing regulatory structure? Should new standards be applied only to fiduciary relationships formed after a date certain?

• Could uniform standards impose unanticipated burdens on national banks? If so, what would those burdens be? What could the OCC do to reduce the burden?

• Even if a uniform national approach to fiduciary standards proves beneficial over time, a change in applicable fiduciary standards may create near-term uncertainty about what rules govern national banks' fiduciary activities. What could the OCC do to reduce uncertainty, and any accompanying litigation risk, that may result from our adoption of uniform standards?

• Should the OCC adopt a uniform federal choice of law rule for determining what law governs the fiduciary relationship in the absence of a provision in the trust instrument specifying the governing law? This would address questions of applicable law that are not resolved by operation of section 92a.

This ANPR reflects our ongoing commitment to review and reevaluate our regulations periodically to ensure that they encourage national banks' efficiency and competitiveness, consistent with safety and soundness and fair treatment of bank customers. Based on the comments we receive, we may propose specific revisions to our rules for comment in a later rulemaking.

Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b) (RFA), the regulatory flexibility analysis otherwise required under section 604 of the RFA is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities and publishes its certification and a short, explanatory statement in the Federal Register along with its rule.

Pursuant to section 605(b) of the RFA, the OCC hereby certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities. The NPRM codifies caselaw and OCC interpretations, but adds no new requirements. Similarly, the ANPR merely invites comments on whether uniform federal standards would be appropriate. Accordingly, a regulatory flexibility analysis is not needed.

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

Section 202 of the Unfunded Mandates Reform act of 1995, 2 U.S.C. 1532 (Unfunded Mandates Act), requires that the 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 the agency to identify and consider a reasonable number of regulatory alternatives before promulgating the rule. For the reasons outlined above, the OCC has determined that this rulemaking 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, the OCC has not prepared a budgetary impact statement or specifically addressed any regulatory alternatives.

Executive Order 13132 requires Federal agencies, including the OCC, to certify their compliance with that Order when they transmit to the Office of Management and Budget any draft final regulation that has Federalism implications. Under the Order, a regulation has Federalism implications if it has “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.” In the case of a regulation that has Federalism implications and that preempts State law, the Order imposes certain consultation requirements with State and local officials; requires publication in the preamble of a federalism summary impact statement; and requires the OCC to make available to the Director of the Office of Management and Budget any written communications submitted to us by State and local officials. By the terms of the Order, these requirements apply to the extent that they are practicable and permitted by law and, to that extent, must be satisfied before the OCC promulgates a final regulation.

Certain provisions of this proposal and advance notice, including uniform federal standards if they were to be adopted, may have Federalism implications, as that term is used in the Order, or may be found by a Federal court to preempt state law. Therefore, before promulgating a final regulation based on this proposal, the OCC will, to the extent practicable and permitted by law, seek consultation with State and local officials, include a Federalism summary impact statement in the preamble to the final rule, and make available to the Director of OMB any written communications we receive from State or local officials.

For the reasons set forth in the preamble, part 5 and part 9 of chapter I of title 12 of the Code of Federal Regulations are proposed to be amended 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 shall 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.

Submit comments using the following format:

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

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

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

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the 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 comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2000-NM-118-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-118-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The Direction Ge ne rale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition may exist on certain Airbus Model A330 and A340 series airplanes. The DGAC advises that air pressurization units (“Pressurization Units, Air” or “PUA”) have failed on three Model A330 series airplanes. Two potential failure modes, linked to defects in the seal quality of the internal pressure reducing valve, have been identified on these air pressurization units. The simultaneous failure of two units could result in the loss of three hydraulic circuits and consequent reduced controllability of the airplane.

The same air pressurization units are installed on Model A330 and A340 series airplanes. Therefore, Model A340 series airplanes are also subject to the unsafe condition identified by this proposed AD.

Airbus has issued Service Bulletins A330-29A3073 and A340-29A4058, both Revision 01, including Appendix 01, dated April 10, 2000. The service bulletins describe procedures for a one-time special detailed visual inspection to identify the part and serial numbers of the pressure reducing valve on each air pressurization unit, testing affected valves and units, repairing a faulty valve by replacing either the valve or the entire unit with a new part, and reidentifying functional air pressurization units. These procedures are intended to detect air pressurization units that might contain defective pressure reducing valves. Replacing defective valves or units improves the reliability of the reservoir's pressurization system. Accomplishment of the actions specified in the service bulletins is intended to adequately address the identified unsafe condition. The DGAC classified these service bulletins as mandatory and issued French airworthiness directives 2000-138-118(B) and 2000-139-143(B), both dated March 22, 2000, in order to ensure the continued airworthiness of these airplanes in France.

The Airbus service bulletins refer to Le Bozec Filtration & Systems Service Bulletin 4020Q8-29-03, dated December 17, 1999, as an additional source of service information for accomplishment of the actions specified by this proposed AD.

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

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the service bulletins described previously. The actions would be required to be accomplished in accordance with the service bulletin described previously.

The FAA estimates that 5 airplanes of U.S. registry would be affected by this proposed AD. It would take approximately 1 work hour per airplane to inspect it, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this proposed AD on U.S. operators is estimated to be $60 per airplane. However, the FAA has been advised that all affected airplanes currently on the U.S. Register are in compliance with the actions of this proposed AD.

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

The regulations 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:

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 shall 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.

Submit comments using the following format:

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

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

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

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the 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 comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-224-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-224-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

On December 17, 1999, the FAA issued AD 99-26-18, amendment 39-11478 (64 FR 72531, December 28, 1999) applicable to all British Aerospace (Jetstream) Model 4101 airplanes, to require repetitive inspections to detect loose or migrated levers of the elevator cable tension regulators, and replacement of the regulator assembly with a new assembly, if necessary. That action was prompted by issuance of mandatory continuing airworthiness information by a foreign civil airworthiness authority. The requirements of that AD are intended to detect and correct loose or migrated regulator levers of the elevator cable tension regulators, which could result in reduced controllability of the airplane.

In the preamble to AD 99-26-18, the FAA indicated that the action required by that AD was considered “interim action” until final action was identified, at which time further rulemaking might be considered. Since the issuance of AD 99-26-18, British Aerospace has issued Jetstream Service Bulletin J41-27-059, dated May 31, 2000, which describes procedures for modification of the elevator cable tension regulator assembly, which eliminates the need for repetitive inspections of the regulator assembly. The modification involves removing the existing bolt, nut, cotter pin, and washers and installing a new locking clip, sleeves, bolt, nut, cotter pin, and washers. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Jetstream Service Bulletin J41-27-059 refers to Pacific Scientific Service Bulletin 25-1128, dated April 15, 2000, as an additional source of service information for accomplishment of the modification of the elevator cable tension regulators. Pacific Scientific Company has designed a secondary locking clip, which, when installed under the bolt, will prevent the elevator cable tension regulator from becoming detached from the splined shaft of the regulator assembly.

The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom, has classified the Jetstream service bulletin as mandatory and issued British airworthiness directive 006-05-2000 in order to assure the continued airworthiness of these airplanes in the United Kingdom.

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

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would supersede AD 99-26-18 to continue to require inspection of the elevator cable tension regulator lever assembly and to require modification of the elevator cable tension regulators. The modification would be required to be accomplished in accordance with Jetstream Service Bulletin J41-27-059.

There are approximately 57 airplanes of U.S. registry that would be affected by this proposed AD. The repetitive inspection that is currently required by AD 99-26-18 takes approximately 2 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the currently required actions on U.S. operators is estimated to be $120 per airplane, per inspection cycle.

The modification that is proposed in this AD would take approximately 6 work hours per airplane to accomplish at an average labor rate of $60 per work hour. There would be no charge for required parts. Based on these figures, the cost impact of the proposed requirements of this AD on U.S. operators is estimated to be $20,520, or $360 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

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:

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 shall 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.

Submit comments using the following format:

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

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

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

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the 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 comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-275-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-275-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA received a report indicating an in-flight engine fire occurred on a Model 747-400 series airplane powered by General Electric CF6-80C2 series engines. The fire was caused by a fuel leak in the Integrated Drive Generator fuel/oil heat exchanger and was ignited by fuel vapors coming in contact with the hot turbine case. The fire was located directly under the core cowls and caused significant damage to the cowls, which weakened the aluminum structure supporting the steel latches that hold the core cowls closed. Opening of the core cowls during an engine fire breaches the engine fire containment design features and could allow the engine fire to spread to the strut and wing. (Model 767 series airplanes powered by General Electric CF6-80C2 series engines have a similar design.) Such conditions, if not corrected, could result in separation of an engine core cowl and its strut fire barrier from the airplane.

The FAA has reviewed and approved Boeing Service Bulletins 747-71-2285 (for Model 747-400 series airplanes) and 767-71-0088 (for Model 767 series airplanes), both dated October 8, 1998, which describe procedures for modification of the left- and right-hand core cowl assemblies of the engines. The modification includes, but is not limited to, replacement of the aluminum forward and extension frames located between the forward hinge and the latch in each core cowl with inconel frames that provide fireproof reinforcement to the core cowl latches. The Boeing service bulletins reference ROHR Service Bulletin TBC/80C2-NAC-71-028, dated August 1, 1998, as an additional source of service information for accomplishment of the modification. Accomplishment of the actions specified in the service bulletins is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletins described previously, except as discussed below.

Operators should note that this proposed AD would require modification of the core cowl assemblies of the engines to be accomplished within 24 months after the effective date of this AD. The service bulletins recommend that this modification should be accomplished “as soon as manpower and facilities are available.” But in developing an appropriate compliance time for the proposed modification, the FAA considered not only the manufacturer's recommendation and the degree of urgency associated with addressing the subject unsafe condition, but also the average utilization of the affected fleet and the time necessary to perform the modification. The FAA has determined that 24 months represents an appropriate interval of time allowable wherein the modification can be accomplished during scheduled airplane maintenance and an ample number of required parts will be available for modification of the U.S. fleet within the proposed compliance period. The FAA also finds that such a compliance time will not adversely affect the safety of the affected airplanes.

There are approximately 563 airplanes of the affected design in the worldwide fleet.

The FAA estimates that 14 Model 747-400 series airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 168 work hours (42 per engine) per airplane to accomplish the proposed modification, and that the average labor rate is $60 per work hour. Required parts would cost approximately $84,732 ($21,183 per engine) per airplane. Based on these figures, the cost impact of the modification proposed by this AD on U.S. operators is estimated to be $1,327,368, or $94,812 per airplane.

The FAA estimates that 64 Model 767 series airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 84 work hours (42 per engine) per airplane to accomplish the proposed modification, and that the average labor rate is $60 per work hour. Required parts would cost approximately $42,366 ($21,183 per engine) per airplane. Based on these figures, the cost impact of the modification proposed by this AD on U.S. operators is estimated to be $3,033,984 or $47,406 per airplane.

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

The regulations 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:

The FAA invites comments on this proposed rule. You may submit whatever written data, views, or arguments you choose. You need to include the rule's docket number and submit your comments in triplicate to the address specified under the caption ADDRESSES . The FAA will consider all comments received on or before the closing date. We may amend the proposed rule in light of comments received. Factual information that supports your ideas and suggestions is extremely helpful in evaluating the effectiveness of the proposed AD action and determining whether we need to take additional rulemaking action.

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

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

If you want us to acknowledge the receipt of your comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 2000-CE-28-AD.” We will date stamp and mail the postcard back to you.

The FAA received a report of an accident involving a Fairchild Model SA226-TC airplane where the flight crew lost control of the airplane at low altitude during the final approach for landing. Prior to the accident, the flight crew reported a loss of hydraulic pressure and a fire on the left side of the airplane.

Investigation of this accident indicates the following:

The accident investigation shows that the brake shuttle valve may have caused the left wheel brake to drag and overheat.

Original design brake shuttle valves, if not replaced with improved design valves, could cause the wheel brakes to drag and overheat. This could result in hydraulic or fuel line damage if the overheated brake assembly is retracted into the main wheel wells. A consequent fire could occur if the hydraulic or fuel lines ruptured.

We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Fairchild Aircraft SA226 and SA227 series airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on August 3, 2000 (65 FR 47701). The NPRM proposed to replace each brake shuttle valve with a part number (P/N) MS28767-4 brake shuttle valve and install a shield over the hydraulic lines.

The FAA encouraged interested persons to participate in the making of this amendment. The following presents the comments received on the proposal and FAA's response to each comment:

One commenter recommends that the proposed AD apply to certain SA226 and SA227 series airplane regardless of whether they are equipped with anti-skid systems. The NPRM proposed to exempt those airplanes with an anti-skid system installed. The commenter states that the related service bulletins recommend the installation of Kevlar blankets around the hydraulic lines for all airplanes so airplanes with anti-skid systems should be included in order to protect the hydraulic lines.

After re-evaluating all information related to this issue, we concur that the AD action should also apply to airplanes equipped with anti-skid systems.

We are incorporating this change into the proposed rule.

One commenter requests that FAA remove all reference to “parking brake shuttle valves” from the proposed AD because SA226 and SA227 series airplanes do not have such equipment.

The FAA concurs. The correct terminology is “brake shuttle valves.”

We are incorporating this change into the proposed rule.

Fairchild Aircraft Service Bulletin No. 226-26-003 specifies replacing the rubber fuel hose with a metal device. When we issued the NPRM, parts were not available for this replacement. Since that time, Fairchild has stocked enough parts for this replacement.

We will now address the fuel hose replacement in the proposed AD.

After careful review of all available information related to the subject presented above, we have determined that:

Proposing that the NPRM apply to airplanes equipped with anti-skid systems and proposing to require replacement of the rubber fuel hose with a metal device on SA226 series airplanes present actions that go beyond the scope of what was already proposed. Therefore, we are issuing a supplemental NPRM and reopening the comment period to allow the public additional time to comment on the proposed AD.

The proposed AD would require you to:

Accomplishment of the proposed actions would be in accordance with the following, as applicable:

The FAA estimates that 2,344 airplanes in the U.S. registry would be affected by the proposed AD.

We estimate the following costs to accomplish the proposed installations and replacement.

The compliance time of this proposed AD is at whichever of the following that occurs later:

The affected airplanes are used in both general aviation and commuter operations. Those commuter operators may accumulate 500 hours TIS on the airplane in less than 2 months and many owners have numerous affected airplanes in their fleets. We have determined that the dual compliance time:

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 proposed rule would not have federalism implications under Executive Order 13132.

The FAA has determined that the proposed action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if adopted, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We have placed a copy of the draft regulatory evaluation prepared for this action in the Rules Docket. You may obtain a copy of it at the Rules Docket at the location provided under the caption ADDRESSES .

Accordingly, under 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:

We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all Bombardier Inc. Models DHC-6-1, DHC-6-100, DHC-6-200, and DHC-6-300 airplanes. The proposal was published in the Federal Register as a supplemental NPRM on April 1, 1997 (62 FR 15443).

The NPRM proposed to supersede both AD 80-13-11 R2 and AD 80-03-08, which currently require repetitive inspections of the flight control rods for cracks on the above-referenced airplanes, with replacement of any cracked flight control rods. The NPRM would have required replacement of these flight control rods with improved design parts and would have reduced the need for the number of repetitions of the inspections.

The FAA invited interested persons to participate in the making of this amendment. The comments, in most part, reflect the public's desire to have FAA withdraw the proposal and let the current AD's stand. The reason for this is because the need for repetitive inspections is not eliminated by replacing flight control rods with improved design parts.

After re-evaluating all information related to this subject, we have determined that:

Withdrawal of this action does not prevent us from taking or commit us to any future action.

Since this action only withdraws a proposed AD, it is not an AD and, therefore, is not covered under Executive Order 12866, the Regulatory Flexibility Act, or DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979).

Accordingly, FAA withdraws the supplemental notice of proposed rulemaking, Docket No. 91-CE-87-AD, published in the Federal Register on April 1, 1997 (62 FR 15443).

In the Federal Register of November 17, 1999 (64 FR 62746), FDA (we) proposed to amend our regulations on nutrition labeling to require that the amount of trans fatty acids present in a food, including dietary supplements, be included in the amount and percent Daily Value declared for saturated fatty acids. We also proposed that, wherever saturated fat limits are placed on nutrient content claims, health claims, or disclosure or disqualifying levels, the amount of trans fatty acids be limited as well. Finally, we proposed to define the nutrient content claim “ trans fat free.” In that document, we requested comments on the proposal by February 15, 2000. In the Federal Register of February 16, 2000 (65 FR 7806), we extended the comment period to April 17, 2000.

Ten comments responding to the proposal (see Docket 94P-0036, Comment numbers 1776, 2113, 2117, 2125, 2128, 2133, 2135, 2138, 2139, and EMC 475) requested that the final rule define the nutrient content claim “reduced trans fat.” We had not proposed a definition for this claim, and had suggested that persons who believe that such a claim is useful could petition the agency under § 101.69 (21 CFR 101.69) (64 FR 62746 at 62760). Other comments (see Docket 94P-0036, Comment numbers 2136 and 2139) suggested a criterion (i.e., 25 percent less saturated fat and trans fat combined) for the claim “reduced saturated fat” that we believe may be more appropriate as a criterion for the claim “reduced saturated and trans fats.”

We have considered these comments and believe that some members of the public may not have anticipated these issues and thus did not address them in comments. To ensure that all interested parties have had an opportunity to comment on whether the final rule should define the claims “reduced trans fat” and “reduced saturated and trans fats,” we are reopening the comment period for the November 17, 1999, proposed rule for a period of 45 days. Comments submitted during this period are to be limited to those that directly address the two claims identified above. We are not requesting comments on any other issue, and we do not intend to consider such comments if submitted.

Interested persons may submit to the Dockets Management Branch (address above) written comments by January 19, 2001. You may also send comments to the Dockets Management Branch at the following e-mail address: FDADockets@oc.fda.gov, or via the Internet at http://www.accessdata.fda.gov/scripts/oc/dockets/comments/commentdocket.cfm. You must submit two copies of comments, identified with the docket number found in brackets in the heading of this document, except that you may submit one copy if you are an individual. You may review received comments in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.

The Indian Gaming Regulatory Act (IGRA, or the Act), enacted on October 17, 1988, established the National Indian Gaming Commission (Commission). Under the Act, the Commission is charged with ensuring that tribal gaming facilities are constructed, maintained and operated in a manner, which adequately protects the environment and the public health and safety. The proposed regulations establish a process for carrying out this Commission responsibility. The Commissioners have been requested to allow additional time for preparation of comments on the proposed regulations. The Commission has determined that these regulations are of such significance that interested parties should be given additional time to determine and present their views.

On January 21, 1981, the Secretary of the Interior conditionally approved the West Virginia program. You can find background information on the West Virginia program, including the Secretary's findings, the disposition of comments, and the conditions of approval in the January 21, 1981, Federal Register (46 FR 5915-5956). You can find later actions concerning the conditions of approval and program amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

By letter dated October 30, 2000 (Administrative Record Number WV-1187), the WVDEP submitted an amendment to its program. The amendment concerns the addition to the West Virginia regulations of new Title 199, Series 1, entitled Surface Mine Blasting Rule. These regulations consist of new blasting provisions and blasting provisions that have been relocated or derived from previously approved West Virginia blasting provisions. We have identified in brackets in the proposed amendment below, those instances where the State has indicated that specific provisions have been relocated or derived from previously approved blasting provisions. On November 12, 1999 (Administrative Record Number WV-1143), we approved, with certain exceptions, revisions to the West Virginia Code (W. Va. Code) concerning blasting (64 FR 61507-61518). The current amendment is intended to revise the States blasting rules to implement the approved blasting statutes.

The new blasting regulations are presented below.

In accordance with the provisions of 30 CFR 732.17(h), OSM is seeking comments, on whether the proposed amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If the amendment is deemed adequate, it will become part of the West Virginia program.

If you submit written or electronic comments on the proposed amendment during the 30-day comment period, they should be specific, should be confined to issues pertinent to the notice, and should explain the reason for your recommendation(s). We may not be able to consider or include in the Administrative Record comments delivered to an address other than the one listed above (see ADDRESSES ).

Please submit Internet comments as an ASCII, Word Perfect, or Word file avoiding the use of special characters and any form of encryption. Please also include “Attn: SPATS NO. WV-087-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Charleston Field office at (304) 347-7158.

Our practice is to make comments, including names and home addresses of respondents, available for public review during our regular business hours at the OSM Administrative Record Room (see ADDRESSES ). Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

If you wish to speak at the public hearing, you should contact the person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m. (local time), on December 20, 2000. The location and time of the hearing will be arranged with those persons requesting the hearing. If no one requests an opportunity to speak at the public hearing, the hearing will not be held.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who testifies at a public hearing provide us with a written copy of his or her testimony. The public hearing will continue on the specified date until all persons scheduled to speak have been heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after all persons scheduled to speak and persons present in the audience who wish to speak have been heard.

Any disabled individual who has need for a special accommodation to attend a public hearing should contact the individual listed under FOR FURTHER INFORMATION CONTACT .

If only one person requests an opportunity to speak at a hearing, a public meeting, rather than a public hearing, may be held. If you wish to meet with OSM representatives to discuss the proposed amendment, you may request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT . All such meetings will be open to the public and, if possible, notices of meetings will be posted at the locations listed under ADDRESSES . A written summary of each meeting will be made a part of the Administrative Record.

This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart federal regulation.

This rule does not have federalism implications. SMCRA delineates the roles of the federal and state governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that state laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that state programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, to the extent allowed by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of state regulatory programs and program amendments since each such program is drafted and promulgated by a specific state, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed state regulatory programs and program amendments submitted by the states must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed state regulatory program provision does not constitute a major federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A).

This rule does not contain information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior has determined that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The state submittal which is the subject of this rule is based upon counterpart federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Accordingly, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the state. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart federal regulation.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million.

b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.

This determination is based upon the fact that the state submittal which is the subject of this rule is based upon counterpart federal regulations for which an analysis was prepared and a determination made that the federal regulation was not considered a major rule.

This rule will not impose a cost of $100 million or more in any given year on any governmental entity or the private sector.

It has been determined that this Privacy Act rule for the Department of Defense does not constitute ‘significant regulatory action’. Analysis of the rule indicates that it does not have an annual effect on the economy of $100 million or more; does not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; does not materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; does not raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866 (1993).

It has been determined that this Privacy Act rule for the Department of Defense does not have significant economic impact on a substantial number of small entities because it is concerned only with the administration of Privacy Act systems of records within the Department of Defense.

It has been determined that this Privacy Act rule for the Department of Defense imposes no information requirements beyond the Department of Defense and that the information collected within the Department of Defense is necessary and consistent with 5 U.S.C. 552a, known as the Privacy Act of 1974.

1. The authority citation for 32 CFR part 311 continues to read as follows:

2. Section 311.8 is amended by adding paragraph (c)(7) to read as follows:

The information in this section is organized as follows:

The EPA is proposing to grant Heritage's petition to have treated EAFD from the production of steel at Nucor excluded, or delisted, from the definition of a hazardous waste. Heritage petitioned EPA to exclude, or delist, the EAFD because Heritage believes that the petitioned waste does not meet the RCRA criteria for which EPA originally listed the waste. Heritage also believes there are no additional constituents or factors which could cause the waste to be hazardous.

Based on our review described below, we agree with the petitioner that the waste is nonhazardous with respect to the original listing criteria. Furthermore, EPA finds no additional constituents or factors which would cause the waste to be hazardous. If our review had found that the waste remained hazardous based on the factors for which we originally listed the waste, we would have proposed to deny the petition.

We believe that the petitioned waste does not meet the criteria for which the waste was originally listed and does not contain other constituents at levels which would cause it to be hazardous, and therefore, should be delisted. Our tentative decision to delist waste treated by Heritage at Nucor's Crawfordsville facility is based on the description of the process which generates the waste and the analytical data submitted to support today's proposed rule.

In reviewing this petition, we considered the original listing criteria and the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See 222 of HSWA, 42 U.S.C. 6921(f), and 40 CFR Part 260.22 (d)(2) through (4). We evaluated the petitioned waste against the listing criteria and factors cited in §§ 261.11(a)(2) and (3).

We also evaluated the waste for other factors or criteria which could cause the waste to be hazardous. These factors included: (1) Whether the waste is considered acutely toxic; (2) the toxicity of the constituents; (3) the concentration of the constituents in the waste; (4) the tendency of the hazardous constituents to migrate and to bioaccumulate; (5) persistence of the constituents in the environment once released from the waste; (6) plausible and specific types of management of the petitioned waste; (7) the quantity of waste produced; and (8) waste variability.

If the petitioned waste is delisted, Heritage must dispose of it in a Subtitle D landfill licensed or permitted by a State to manage industrial waste. Heritage may also dispose of the delisted waste in a permitted Subtitle C landfill.

HSWA specifically requires the EPA to provide notice and an opportunity for comment before granting or denying a final exclusion. Thus, EPA will not make a final decision or grant an exclusion until it has addressed all timely public comments (including any at public hearings,) on today's proposal.

Since this rule would reduce the existing requirements for a person generating hazardous wastes, the regulated community does not need a six-month period to come into compliance in accordance with Section 3010 of RCRA as amended by HSWA. Therefore, the exclusion would become effective upon finalization.

Because EPA is issuing today's exclusion under the federal RCRA delisting program, only states subject to federal RCRA delisting provisions would be affected. This exclusion may not be effective in states having a dual system that includes federal RCRA requirements and their own requirements, or in states which have received our authorization to make their own delisting decisions.

EPA allows states to impose their own non-RCRA regulatory requirements that are more stringent than EPA's, under section 3009 of RCRA. These more stringent requirements may include a provision that prohibits a federally issued exclusion from taking effect in the state. Because a dual system (that is, both federal (RCRA) and state (non-RCRA) programs) may regulate a petitioner's waste, we urge the petitioners to contact the state regulatory authority to establish the status of their waste under the state law.

EPA has also authorized some states to administer a delisting program in place of the federal program, that is, to make state delisting decisions. Therefore, this exclusion does not apply in those authorized states. If Heritage transports the petitioned waste to or manages the waste in any state with delisting authorization, Heritage must obtain delisting authorization from that state before it can manage the waste as nonhazardous in the state.

The EPA published an amended list of hazardous wastes from nonspecific and specific sources on January 16, 1981, as part of its final and interim final regulations implementing Section 3001 of RCRA. The EPA has amended this list several times and published it in 40 CFR 261.31 and 261.32.

We list these wastes as hazardous because: (1) They typically and frequently exhibit one or more of the characteristics of hazardous wastes identified in Subpart C of Part 261 (that is, ignitability, corrosivity, reactivity, and toxicity) or (2) they meet the criteria for listing contained in §§ 261.11(a)(2) or (3).

Individual waste streams may vary depending on raw materials, industrial processes, and other factors. Thus, while a waste described in these regulations generally is hazardous, a specific waste from an individual facility that meets the listing description may not be.

For this reason, 40 CFR 260.20 and 260.22 provide an exclusion procedure, called delisting, which allows a person to demonstrate that EPA should not regulate a specific waste from a particular generating facility as a hazardous waste.

A delisting petition is a request from a facility to EPA or an authorized state to exclude wastes from the list of hazardous wastes. In a delisting petition, the petitioner must show that the waste generated at a particular facility do not meet any of the criteria for listed wastes. The criteria for which EPA lists a waste are in 40 CFR 261.11 and in the background documents for the listed wastes.

In addition, a petitioner must demonstrate that the waste does not exhibit any of the hazardous waste characteristics and must present sufficient information for us to decide whether factors other than those for which the waste was listed warrant retaining it as a hazardous waste. (See § 260.22, 42 U.S.C. 6921(f) and the background documents for a listed waste.)

A generator remains obligated under RCRA to confirm that its waste remains nonhazardous.

Besides considering the criteria in 40 CFR 260.22(a), 42 U.S.C. 6921(f), and in the background documents for the listed wastes, EPA must consider any factors (including additional constituents) other than those for which we listed the waste if these additional factors could cause the waste to be hazardous. (See The Hazardous and Solid Waste Amendments (HSWA) of 1984.)

EPA must also consider as a hazardous waste, mixtures containing listed hazardous wastes and wastes derived from treatment of listed hazardous waste. See 40 CFR 261.3(a)(2)(iv) and (c)(2)(i), called the “mixture” and “derived-from” rules, respectively. These wastes are also eligible for exclusion but remain hazardous wastes until excluded.

August 3, 1999, Heritage petitioned EPA to exclude an annual volume of 30,000 cubic yards of K061 EAFD generated at Nucor Steel Corporation located in Crawfordsville, Indiana from the list of hazardous wastes contained in 40 CFR 261.32. K061 is defined as “emission control dust/sludge from the primary production of steel in electric arc furnaces.” The EPA reviews a petitioner's estimated volume and, on occasion, has requested a petitioner to re-evaluate the estimated waste generation rate. EPA accepts Heritage's estimate of annual volume of waste.

To support its petition, Heritage submitted (1) descriptions and schematic diagrams of the EAFD treatment system; (2) analyses for antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, nickel, selenium, silver, thallium, vanadium, and zinc (a) for total concentration, (b) by the Toxicity Characteristic Leaching Procedure (TCLP), SW-846 Method 1311, (c) by the Multiple Extraction Procedure (MEP), SW-846 Method 1312, and (d) using the TCLP and MEP procedures while substituting neutral and basic extraction fluids for the acidic extraction fluids specified in the method; (3) total constituent analyses for sulfide, and cyanide; (4) total constituent analyses for semivolatile organic compounds (SVOCs); (5) total constituent analyses for volatile organic compounds (VOCs); (6) total polychlorinated biphenyls (PCBs); and (7) total oil & grease.

The treated EAFD proposed for exclusion has been generated at Nucor since the facility began steel manufacturing in 1989. Carbon and stainless steel are manufactured from scrap metal using two electric arc furnaces. The exhaust from the furnaces is conveyed via a capture system designed to capture emissions from the furnaces and the associated building. Larger particles are removed in a dropout chamber while the capture system conveys the smaller particles for capture in air pollution control devices ( i.e., baghouses). EAFD captured in the baghouses is conveyed by a screw conveyor system to two aboveground, cone bottom silos that accumulate the dust prior to introduction into the treatment process. The EAFD is conveyed from the accumulation silos either by screw conveyor or by gravity, to the treatment equipment.

The computer controlled treatment system weighs a predetermined amount of EAFD into a mixing device. Treatment reagents are added proportionally in sequential manner to the mixing device. The mixing device thoroughly blends the EAFD and the treatment reagents in precise amounts based on certain dust characteristics. Once the mixing operation is completed, the waste is conveyed to a dump truck for transportation to a landfill.

In consultation with EPA Region 5, Heritage developed a list of analytical constituents based on a review of the EAFD and the treatment process. Three randomly collected composite samples of treated carbon steel EAFD were collected for testing each week over a four week period for a total of twelve samples during an initial round of sampling. Each composite sample was comprised of four grab samples that were collected immediately after loading from a roll-off box containing treated EAFD. Heritage conducted a second round of random sampling over a four week period similar to the first round with the exception of stainless steel. A total of eight samples were collected during the second round of sampling and analysis. Treated stainless steel samples were collected on two days when the facility was generating EAFD from stainless steel production. Treated stainless steel samples were randomly collected during the two days of stainless steel production.

To quantify the total constituent and extraction fluid concentrations, Heritage used the following SW-846 Methods: 7041/6010 for antimony; 6010B for arsenic, barium, beryllium, cadmium, chromium, lead, nickel, selenium, silver, thallium, vanadium, and zinc; 7470 for mercury; 9012 for total cyanide; 9034 for total sulfide; 8082 for PCBs; 8260 for volatile organic compounds, 8270 for semivolatile organic compounds, and 413.1 for Oil & Grease.

During the initial round of sampling and analysis, Heritage demonstrated that the treated EAFD was stable when using the TCLP. During the second round of sampling and analysis, Heritage demonstrated that the treated EAFD is stable over a range of pH values (acidic, neutral, and basic). In addition to the TCLP, Heritage analyzed the second round of samples using a modified TCLP procedure, in which the prescribed TCLP extraction fluid was substituted with (1) a neutral extraction fluid of reagent water (ASTM Type II water) adjusted to pH 6.5 ± 0.05 using 1 N NaOH and (2) a basic extraction fluid consisting of reagent water to which high calcium hydrated lime was added to reach a pH of 12.0 ± 0.05. Heritage removed dissolved oxygen from both the neutral and basic extraction fluids to less than 0.5 ppm by the addition of a stoichiometric amount of sodium hydrosulfite. Heritage believes it is appropriate to test stabilized waste using an oxygen depleted extraction fluid because it believes that the environment of a solid waste landfill is anaerobic or oxygen depleted. Furthermore, to more closely simulate the anaerobic environment of the landfill, Heritage performed the extraction procedure with zero headspace in the extraction vessel and performed the filtration step under a nitrogen blanket. Heritage submitted documentation to U.S. EPA supporting Heritage's belief that solid waste landfills are oxygen depleted. Heritage also submitted a summary of dissolved oxygen data for leachate from their two landfills in support of their assertion that the landfill environment is anaerobic. Heritage believes that the oxygen depleted environment of the buried waste in combination with appropriate stabilization reagents inhibits the mobilization of metallic species.

Heritage analyzed four samples following the Multiple Extraction Procedure (MEP), SW 846 method 1320, but substituting the TCLP procedure, Method 1311 for the EP Tox test, Method 1310. Heritage also analyzed four additional samples following the MEP method, but using a neutral extraction fluid for all ten extractions.

Table 1 presents the maximum total and leachate concentrations for 14 metals, total cyanide, and total sulfide. The concentrations of metals in the extract are the maximum obtained in any of the three extraction fluids (acidic, neutral, and basic).

Heritage analyzed one sample of petitioned waste for 57 volatile organic compounds, 72 semi-volatile organic compounds, and eight Arochlor mixtures of PCBs. There were no detections of these organic constituents in the treated EAFD samples. EPA does not generally verify submitted test data before proposing delisting decisions. The sworn affidavit submitted with the petition binds the petitioner to present truthful and accurate results. Heritage submitted a signed Certification of Accuracy and Responsibility statement presented in 40 CFR 260.22(i)(12).

For this delisting determination, we used information gathered to identify plausible exposure routes (i.e., ground water, surface water, air) for hazardous constituents present in the petitioned waste. We used a fate and transport model to predict the release of hazardous constituents from the petitioned waste once it is disposed to evaluate the potential impact of the petitioned waste on human health and the environment. To accomplish this, we used a Windows based software tool, the Delisting Risk Assessment Software Program (DRAS), to estimate the potential releases of waste constituents and to predict the risk associated with those releases using several EPA models including the EPACMTP (EPA's Composite Model for leachate migration with Transformation Products) fate and transport model for groundwater releases. For a detailed description of the DRAS program and the EPACMTP model, see 65 FR 58015, September 27, 2000. A technical support document for the DRAS program is available in the public docket.

Revisions have been made to the DRAS program in order to improve the modeling which are being implemented for the first time in a draft exclusion. Specifically, the groundwater inhalation pathway was revised to reflect recent advances in modeling household inhalation from home water use (e.g., showering). The basis for estimating the concentration of constituents in the indoor air is based on the mass transfer of constituent from water to shower air. The initial version of DRAS used a fate and transport model described in T.E. McKone and K.T. Bogen's 1992 Uncertainties in Health-Risk Assessment: An Integrated Case Study Based on Tetrachloroethylene in California Groundwater, Regulatory Toxicology and Pharmacology, 15: 86-103, which predicted the highest waste concentration emitted from the water into the air during a given water use period (e.g., 10-minute shower). This method was revised to more accurately predict the average concentration occurring during the exposure event.

The revised model used in this analysis is based on the equations presented in T.E. McKone's 1987 Human Exposure to Volatile Organic Compounds in Household Tap Water: The Indoor Inhalation Pathway, Environmental Science and Technology, 21(12): 1194-1201. The shower model estimates the change in the shower (or bathroom or household) air concentration based on the mass of constituent lost by the water (fraction emitted or emission rate) and the air exchange rate between the various model compartments (shower, the rest of the bathroom, and the rest of the house). The resulting differential equations were solved using finite difference numerical integration. The average air concentration in the shower and bathroom are obtained by averaging the concentrations obtained for each time step over the duration of the exposure event (shower and bathroom use). These concentrations and the durations of daily exposure are used to estimate risk from inhalation exposures to residential use of groundwater. Further, improvements were made to more accurately reflect the transfer efficiency of the waste constituent from the groundwater to the air compartment. The fraction emitted from the bathroom or household water use is a function of the input transfer efficiency (or maximum fraction emitted) and the driving force for mass transfer (the differential between air saturation concentration at air/water interface and bulk air concentration). For example, in the shower compartment, the constituent emission rate is estimated from the change in the shower water concentration as the water falls through the air. The shower emissions can be modeled based on falling droplets as a means of estimating the surface-area-to-volume ratio for mass transfer and the residence time of the water in the shower compartment, assuming the constituent concentration in the gas phase is constant over the time frame of the droplet fall. By assuming the drops fall at terminal velocity, the surface-area-to-volume ratio and the residence time can be determined based solely on droplet size. A droplet size of approximately 1 mm (0.1 cm) was selected. The terminal velocity for the selected droplet size is approximately 400 cm/s. The fraction of constituent emitted from a water droplet at any given time can then be calculated.

The equations used to predict surface volatilization from a landfill have been modified to more accurately reflect true waste concentration releases. The previous version of DRAS used Farmer's equation to estimate the emission rate of volatiles from the surface of the landfill. Farmer's equation assumes that the emission originates as volatiles in liquids trapped in the pore spaces between solid particles of waste. The volatiles evaporate from the liquid and are emitted from the landfill following gaseous diffusion through the solid waste particles and soil cover to the surface of the landfill. Farmer's equation requires the mole fraction of a given volatile constituent in the liquid in order to calculate the emission. The previous version of DRAS used the TCLP value of a volatile constituent in the waste to approximate the mole fraction of a given constituent in the pore liquid. Since the TCLP test includes a 20-fold dilution, the calculation might underestimate the available concentration of volatiles in freshly deposited waste. The DRAS has been revised to use Shen's modification of Farmer's equation, described in U.S. EPA Office of Air Quality Planning and Standards' 1984 Evaluation and Selection of Models for Estimating Air Emissions from Hazardous Waste Treatment, Storage, and Disposal Facilities, EPA-450/3-84-020. Shen took the simplified version of Farmer's equation for vapor flux from a soil surface and converted it to an emission rate by multiplying it by the exposed landfill area. Shen's modification uses the total waste constituent concentration (weight fraction in the bulk waste) to approximate the mole fraction of that constituent in the liquid phase.

In estimating the amount of a given waste constituent that is released to surface water and eventually becomes freely dissolved in the water column, previous delisting petitions and the earlier version of the DRAS used the maximum observed TCLP concentration in waste as the total amount of the waste constituent available for erosion. Further, the former method assumed that all of the constituent mass that reached the stream, based on TCLP, became dissolved in the aqueous phase. Assuming complete conversion to a dissolved state is overly conservative and not in agreement with recent Agency methodology. In the revised DRAS, the total waste constituent concentration is used to estimate the constituent mass that reaches the stream. The portion of the waste constituent that becomes freely dissolved is determined by an estimate of partitioning between suspended solids and the aqueous phase. This methodology is described in U.S. EPA's 1998 Human Health Risk Assessment Protocol for Hazardous Waste Combustion Facilities, Volume One. Peer Review Draft, EPA530-D-98-001A.

Recent developments in mercury partitioning described in the Mercury Report to Congress, Volume III: Fate and Transport of Mercury in the Environment, EPA-452/R-97-005, led to another revision to the surface water pathway. The DRAS was modified to account for bioaccumulation of methyl mercury as a result of the release of mercury into the surface water column. The primary human health hazard posed by the release of mercury into surface water is through bioaccumulation of methyl mercury in fish followed by human consumption of the contaminated fish. Biological processes in surface water cause the conversion, or methylation, of elemental mercury to methyl mercury. In accordance with the Human Health Risk Assessment Protocol for Hazardous Waste Combustion Facilities, Volume One. Peer Review Draft, 15% of mercury in the water column is assumed to be converted to methyl mercury. This fraction is then used, along with the current bioaccummulation factor, to determine the predicted concentration of methyl mercury in fish tissue.

The maximum allowable leachate concentrations and the point of exposure (POE) concentrations of concern in groundwater are also presented in Table 1. For inorganic constituents, the maximum reported leachate concentrations for metals in the treated EAFD were well below the health-based levels of concern used in decision-making for delisting. No organic constituents were detected. We believe that it is inappropriate to evaluate non-detectable concentrations of a constituent of concern in our modeling efforts if the non-detectable value was obtained using the appropriate analytical method. For constituents which are not detected in the extract but are detected as a total concentration, the DRAS model requires that the detection level be entered along with the other data. For these constituents, the DRAS uses one-half of the detection level to calculate risk.

We also considered the applicability of ground-water monitoring data during the evaluation of delisting petitions. In this case, we determined that it would be inappropriate to request ground-water monitoring data because the waste is currently disposed off-site. For a petitioner using off-site management, EPA believes that, in most cases, the ground water monitoring data would not be meaningful. Most commercial land disposal facilities accept waste from numerous generators. Any ground water contamination or leachate would be characteristic of the total volume of waste disposed of at the site. In most cases, EPA believes that it would be impossible to isolate ground water impacts associated with any one waste disposed of in a commercial landfill. Therefore, we did not request ground water monitoring data from Heritage. Potential impacts of the petitioned waste via air emission and storm water run-off are also addressed in the DRAS.

After reviewing Heritage's petition, the EPA concludes that (1) no hazardous constituents are likely to be present above health based levels of concern in the waste generated at Nucor Steel; and (2) the petitioned waste does not exhibit any of the characteristics of ignitability, corrosivity, reactivity, or toxicity. See 40 CFR 261.21, 261.22, 261.23, and 261.24, respectively.

The total cumulative risk posed by the waste is approximately 1.6×10  −5 . Although this value exceeds the Region 5 Delisting Program's target risk level of 1×10  −6 for delisting hazardous waste, EPA believes that this risk is acceptable because the estimated risk is almost entirely associated with a single contaminant/pathway which may be evaluated in more than one way. Furthermore, EPA has considered cancer risks in the range of 1×10  −4 to 1× 10  −6 to be acceptable in other programs and the Region 5 Delisting Program has considered risks in this range acceptable if there are reasons to do so.

In this case, exposure to carcinogenic arsenic through ingestion of contaminated drinking water accounted for almost all of the risk estimated from disposal of the petitioned waste at a Subtitle D landfill. If the POE target concentration was set at the Safe Drinking Water Act (SDWA) Maximum Contaminant Level (MCL), the maximum allowable waste leachate concentration would be 0.96 mg/L TCLP arsenic, over 60 times higher than the maximum observed leachate concentration in the waste. EPA's July 1996 Soil Screening Guidance: User's Guide, EPA/540/R-96/018, states that acceptable levels of contaminants in soils for the ground-water pathway could be derived from SDWA Maximum Contaminant Level Goals or MCLs. Given that the difference between the MCL for arsenic and the health-based POE concentration is three orders of magnitude and that, according to EPA's May 2000 Technical Fact Sheet: Proposed Rule for Arsenic in Drinking Water and Clarifications to Compliance and New Source Contaminants Monitoring, EPA 815-F-00-011, naturally occurring levels of arsenic are often higher than these levels, we believe that some allowance can be exercised in setting the allowable level for arsenic in the leachate. EPA proposes to set the allowable arsenic leachate level at a concentration which corresponds to a total waste cancer risk of 1×10  −4 (which is still within the generally acceptable range of 1Qtimes10  −4 to ×10  −6 ). Delisting levels for constituents other than arsenic will still be set at concentrations corresponding to the original Region 5 target of 1×10  −6 . By this method, the delisting level for leachable arsenic in this proposed exclusion will be set at a value which corresponds to a POE concentration of approximately one-tenth of the existing MCL. The EPA has recently proposed to lower the arsenic MCL to one-tenth its current value and thus, if finalized, it would correspond well with the delisting level we are setting.

The aggregate hazard index for this waste is estimated to be 0.965, which does not exceed the EPA Region 5 Delisting Program's target of 1.0. The majority of this aggregate hazard index, 0.774, occurs as a result of migration of mercury to surface water followed by ingestion of fish by humans. For this reason, a delisting level for total mercury in the waste will also be imposed. All other delisting levels imposed in this exclusion are based on the concentration of constituents in leachate.

We have reviewed the sampling procedures used by Heritage and have determined they satisfy EPA criteria for collecting representative samples of the treated EAFD. The descriptions of the hazardous waste treatment process and the analytical data, together with the proposed verification testing requirements, provide a reasonable basis for EPA to grant the exclusion. We believe the data submitted in support of the petition show that the waste will not pose a threat when disposed of in a Subtitle D landfill. We therefore, propose to grant Heritage an exclusion for the EAFD generated at Nucor.

If we finalize this proposed exclusion, the Agency will no longer regulate the petitioned waste under 40 CFR Parts 262 through 268 and the permitting standards of Part 270.

The following table summarizes delisting levels for Nucor's waste. The EPA calculated maximum allowable concentrations in the extract for detected constituents using the DRAS program. The allowable leachate concentrations were derived either from the health-based calculation within the DRAS program, from MCLs, treatment technique (TT), or toxicity characteristic values, whichever resulted in a lower delisting level, with the exception of arsenic as discussed in Section III. H. of this preamble. In addition, the concentration of total mercury in the waste shall not exceed 1 mg/kg.

Heritage must demonstrate on a monthly basis that the constituents of concern in the petitioned waste do not exceed the levels of concern in section IV.A. above. Heritage must collect two representative samples of the treated EAFD per month and analyze the samples using a) the TCLP method, b) the TCLP procedure with an extraction fluid of pH 12 ± 0.05 standard units and c) SW-846 Method 7470 for mercury. The alkaline extraction fluid will consist of reagent water to which high calcium hydrated lime is added to reach a pH of 12.0 ± 0.05. Appropriate detection levels and quality control procedures are required.

If Nucor significantly changes the manufacturing process or Heritage significantly changes the treatment process or the chemicals used in the treatment process, Heritage may not handle the EAFD generated from the new process under this exclusion until it has demonstrated to the EPA that the waste meets the levels set in Section IV.A and that no new hazardous constituents listed in Appendix VIII of 40 CFR Part 261 have been introduced. Heritage must manage wastes generated after the process change as hazardous waste until Heritage has received written approval from EPA.

Heritage must submit an annual summary of the data obtained through monthly verification testing to U.S. EPA Region 5, Waste Management Branch (DW-8J), 77 W. Jackson Blvd., Chicago, IL 60604, by February 1 of each year for the prior calendar year. Heritage must compile, summarize, and maintain on site for a minimum of five years records of operating conditions and analytical data. Heritage must make these records available for inspection. All data must be accompanied by a signed copy of the certification statement in 40 CFR 260.22(i)(12).

If Heritage violates the terms and conditions established in the exclusion, the Agency may start procedures to withdraw the exclusion.

If the monthly testing of the waste does not meet the delisting levels described in Section IV.A above, Heritage must notify the Agency according to Section IV.D. The exclusion will be suspended and the waste managed as hazardous until Heritage has received written approval for the exclusion from the Agency. Heritage may provide sampling results that support the continuation of the delisting exclusion.

The EPA has the authority under RCRA and the Administrative Procedures Act, 5 U.S.C. 551 (1978) et seq. (APA), to reopen a delisting decision if we receive new information indicating that the conditions of this exclusion have been violated.

Under Executive Order 12866, EPA must conduct an “assessment of the potential costs and benefits” for all “significant” regulatory actions.

The proposal to grant an exclusion is not significant, since its effect, if promulgated, would be to reduce the overall costs and economic impact of EPA's hazardous waste management regulations. This reduction would be achieved by excluding waste generated at a specific facility from EPA's lists of hazardous wastes, thus enabling a facility to manage its waste as nonhazardous.

Because there is no additional impact from today's proposed rule, this proposal would not be a significant regulation, and no cost/benefit assessment is required. The Office of Management and Budget (OMB) has also exempted this rule from the requirement for OMB review under Section (6) of Executive Order 12866.

Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, whenever an agency is required to publish a general notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis which describes the impact of the rule on small entities (that is, small businesses, small organizations, and small governmental jurisdictions). No regulatory flexibility analysis is required, however, if the Administrator or delegated representative certifies that the rule will not have any impact on small entities.

This rule, if promulgated, will not have an adverse economic impact on small entities since its effect would be to reduce the overall costs of EPA's hazardous waste regulations and would be limited to one facility. Accordingly, the Agency certifies that this proposed regulation, if promulgated, will not have a significant economic impact on a substantial number of small entities. This regulation, therefore, does not require a regulatory flexibility analysis.

Information collection and record-keeping requirements associated with this proposed rule have been approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1980 (Pub. L. 96-511, 44 U.S.C. 3501 et seq. ) and have been assigned OMB Control Number 2050-0053.

Under section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, which was signed into law on March 22, 1995, EPA generally must prepare a written statement for rules with federal mandates that may result in estimated costs to state, local, and tribal governments in the aggregate, or to the private sector, of $100 million or more in any one year.

When such a statement is required for EPA rules, under section 205 of the UMRA EPA must identify and consider alternatives, including the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. EPA must select that alternative, unless the Administrator explains in the final rule why it was not selected or it is inconsistent with law.

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

The UMRA generally defines a federal mandate for regulatory purposes as one that imposes an enforceable duty upon state, local, or tribal governments or the private sector.

The EPA finds that today's delisting decision is deregulatory in nature and does not impose any enforceable duty on any state, local, or tribal governments or the private sector. In addition, the proposed delisting decision does not establish any regulatory requirements for small governments and so does not require a small government agency plan under UMRA section 203.

Under Executive Order 12875, EPA may not issue a regulation that is not required by statute and that creates a mandate upon a state, local, or tribal government, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by those governments. If the mandate is unfunded, EPA must provide to the Office of Management and Budget a description of the extent of EPA's prior consultation with representatives of affected state, local, and tribal governments, the nature of their concerns, copies of written communications from the governments, and a statement supporting the need to issue the regulation. In addition, Executive Order 12875 requires EPA to develop an effective process permitting elected officials and other representatives of state, local, and tribal governments “to provide meaningful and timely input in the development of regulatory proposals containing significant unfunded mandates.” Today's rule does not create a mandate on state, local or tribal governments. The rule does not impose any enforceable duties on these entities. Accordingly, the requirements of section 1(a) of Executive Order 12875 do not apply to this rule.

The Executive Order 13045 is entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This order applies to any rule that EPA determines (1) is economically significant as defined under Executive Order 12866, and (2) the environmental health or safety risk addressed by the rule has 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 Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866.

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments.

If the mandate is unfunded, EPA must provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation.

In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to meaningful and timely input” in the development of regulatory policies on matters that significantly or uniquely affect their communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

Under Section 12(d) of the National Technology Transfer and Advancement Act, the Agency is directed to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical.

Voluntary consensus standards are technical standards (for example, materials specifications, test methods, sampling procedures, business practices, etc. ) that are developed or adopted by voluntary consensus standard bodies. Where EPA does not use available and potentially applicable voluntary consensus standards, the Act requires the Agency to provide Congress, through the OMB, an explanation of the reasons for not using such standards.

This rule does not establish any new technical standards, and thus the Agency has no need to consider the use of voluntary consensus standards in developing this final rule.

For the reasons set out in the preamble, 40 CFR Part 261 is proposed to be amended as follows:

Section 517 of Title V of the Act, requires the Secretary, not later than 90 days after the date of the enactment of the Act, to initiate procedures under the Negotiated Rulemaking Act, 5 U.S.C. 561 et seq. to negotiate and promulgate the regulations necessary to carry out Title V. The Act calls for a negotiated rulemaking committee to be established pursuant to 5 U.S.C. 565, comprised only of Federal and tribal representatives, with a majority of the tribal government representatives representing Self-Governance tribes. The Committee will confer with and allow representatives of Indian tribes, inter-tribal consortiums, tribal organizations, and individual tribal members to actively participate in the rulemaking process. The Act also authorizes the Secretary to adapt negotiated rulemaking procedures to the unique context of Self-Governance and the government-to-government relationship between the United States and Indian tribes.

Copies of the Committee's charter will be filed with the appropriate committees of Congress and with the Library of Congress in accordance with section 9(c) of the Federal Advisory Committee Act, (FACA), 5 U.S.C. Appendix.

The proposed rule generally will include provisions governing how DHHS/IHS carries out its responsibility to tribes under the Act and how tribes carry out their responsibility under the Act. Because of the detailed provisions contained in the Act, it is anticipated that regulations can be kept to a minimum. Examples of some areas where procedures may be required are for regulations waivers, appeals of rejection of final offers, or where regulations would be required, such as under sec. 507(a) which specifies that reporting requirements can only impose minimal burdens on a tribe and may only be imposed if they are contained in regulations developed under negotiated rulemaking. It is anticipated that the negotiated rulemaking committee will develop proposed regulations in any other areas that may be suggested during the process.

A limited number of identifiable interests will be significantly affected by the rule. Those parties are Indian tribes, tribal organizations as defined in section 4(1) of the Indian Self-Determination and Education Assistance Act, and individual tribal members.

It is the Secretary's intent to publish the proposed rule for notice and comment no later than 1 year after the date of the enactment of the Act (August 18, 2000 + 1 year), as required by section 517(a)(2) of the Act.

The charter will specify that a minimum of three meetings will be held. The first meeting will serve as an organizational meeting to establish procedures, deadlines and a work schedule in order for the 12-month time period to be met.

The following procedures and guidelines will apply to the negotiated rulemaking committee, unless they are modified as a result of comments received on this notice or during the negotiation process.

The committee may use a neutral facilitator. The facilitator will not be involved with the substantive development or enforcement of the regulation. The facilitator's role is to help the negotiation process run smoothly, and help participants define and reach consensus.

The members of the committee, with the assistance of the facilitator, may adopt procedures for committee meetings which they consider most appropriate.

The goal of the negotiating process is for the committee to reach consensus on the proposed rule. Consensus means unanimous concurrence among the interests represented unless the committee agrees to define such term to mean general but not unanimous concurrence, or agrees upon another specified definition.

If the committee reaches consensus on the proposed rule, the committee shall transmit a report containing the proposed rule to the Secretary at the conclusion of negotiations. If the committee does not reach consensus on the proposed rule, it may transmit a report specifying any areas in which it did reach consensus, and any other recommendation it considers appropriate, including dissenting views of committee members. The DHHS, to the maximum extent consistent with its legal obligations, will use the consensus of the committee as the basis for a proposed rule for notice and comment. Parties to the negotiation may withdraw at anytime. If this happens, the remaining committee members will evaluate whether the committee should continue or be reconstituted.

Meetings will be held in the Washington, DC area, or in another location, at the convenience of the committee. DHHS will announce committee meetings in the Federal Register . These meetings will be open to the public.

In accordance with the requirements of the Federal Advisory Committee Act. 5 U.S.C. Appendix, DHHS will keep a record of all committee meetings.

The Office of Tribal Self-Governance will provide funding for the costs of the committee, as well as administrative support and technical assistance, including logistical support services, for the activities of the committee.

The Act requires that the committee be comprised only of Federal and tribal government representatives and that a majority of the tribal committee members be representatives from Self-Governance tribes. The Secretary has determined in accordance with 5 U.S.C. 565(b) that for the proper functioning of the committee and in order to achieve balanced membership and representation from all geographic regions that the committee membership not be limited to 25 members.

The following are the proposed members of the Joint Tribal and Federal Self-Governance Negotiated Rulemaking Committee:

In addition to the tribal representatives identified above, DHHS solicits nominations of other tribal government representatives whose interest will be significantly affected by the rule.

Each application or nomination for committee membership shall include:

The DHHS will give full consideration to all applications and nominations timely submitted.

Members of the public are invited to submit comments on this proposal to establish the Joint Tribal and Federal Self-Governance Negotiated Rulemaking Committee, as well as on the proposed membership of the committee.

The Federal Emergency Management Agency proposes to make determinations of base flood elevations and modified base flood elevations for each community listed below, in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed base flood and modified base flood elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

National Environmental Policy Act. This proposed rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Associate Director for Mitigation certifies that this proposed rule is exempt from the requirements of the Regulatory Flexibility Act because proposed or modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This proposed rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This proposed rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This proposed rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

Manomet submitted an industry cooperative proposal on November 6, 2000, for two EFPs to conduct composite codend mesh selectivity studies to address bycatch and discard of incidental catch and sub-legal sized fish in the mixed-groundfish fisheries of the Northeast. The study would be conducted in that portion of the GOM/Georges Bank Regulated Mesh Area that extends east from the New Hampshire shoreline at 43° N. lat. to 43° N. lat./70° W. long., then following the 70° W. long. line south to the 42° N. lat. line, and then extending west to the Cape Cod shoreline.

This industry collaborative study involves Manomet, the Massachusetts Division of Marine Fisheries, and the Maine Department of Marine Resources as co-principal investigators, and proposes to field test two composite mesh combinations against two industry-standard codend mesh sizes as follows: (1) Two composite codends made of 6.5-inch (16.51-cm) square mesh on the top half, one with 6.5-inch (16.51-cm) diamond mesh on the bottom half and the other with 6-inch (15.24-cm) diamond mesh on the bottom half, and (2) Two industry-standard codends, one made entirely of 6-inch (15.24-cm) diamond mesh and one made entirely of 6.5-inch (16.51-cm) square mesh.

The purpose of the study is to compare the length frequencies (size classes) of the catch retained by the two industry-standard codends and the two composite mesh codend combinations. To accomplish this, 1-7/8 inch (4.78-cm) codends will be used to cover the four test codends in order to retain for analysis fish that pass through the larger-mesh codends. The catch data for each sample (tow) would be used to prepare species-specific mesh selectivity curves. That is, the research will determine the size of each fish species retained by each of the codends tested versus the fish that are excluded by the codends. Data would be pooled for each of the codends tested and the selective efficiency of each codend will be determined for each important target species. Manomet will also conduct a detailed behavioral analysis to ascertain the presence/absence of species-specific behavioral patterns that may explain observed differences in the selective efficiency of the experimental composite codend mesh.

The field trials would take place over a period of approximately 5 days, with a total sample size of 40 tows. The 40 tows will consist of 10 tows for each of four codend mesh sizes (standard and composite mesh), at eight tows per day. These commercial gear trials would operate in the designated study area outside the Western GOM Year Round Closure Area beginning in December 2000, until the 40 tows are obtained. However, the principal investigator may decide that access to the GOM seasonal closure areas is necessary to catch the desired species at the appropriate time, in order to achieve the optimal sample. This would only occur as a last resort, in the event that the required species cannot be caught outside of these areas. Should access to these areas be necessary, the GOM seasonal closures that may correspond in time and location with the proposed study are as follows: Rolling Closure Area I (March 1- March 31), Rolling Closure Area II (April 1- April 30), Rolling Closure Area III (May 1 - May 31), and Rolling Closure Area VI (February 1 - February 28).

The experimental sampling design (use of double codend) is intended to greatly minimize the number of tows necessary to yield the necessary amount of catch information; a minimum of 10 tows (1 hour in length) is required for satisfactory selectivity curve results. The target species are yellowtail flounder, winter flounder (blackback), summer flounder (fluke), American plaice (dab) and cod. The main incidental species are expected to be skates, smooth and spiny dogfish, sculpins, sea raven and sea robin. Any sub-legal sized fish would be processed by the researcher (e.g., measured) and returned immediately to the water. During the experimental trials, participating vessels would be instructed to conduct normal fishing operations. Therefore, the vessels may only retain fish for commercial sale in the amount allowed under their respective Federal fishery permits and Days-at-Sea allocations. Catch would be sampled on each trip by NMFS-certified observers and all data, including the weight and length of all fish caught, would be entered into NMFS logbooks and submitted to the Northeast Fisheries Science Center upon completion of a trip.

Manomet will train up to five commercial fishers as sea samplers for use during the course of this experiment. It is hoped that the newly trained sea samplers would be available to support other programs at the completion of the proposed experiment.

EFPs would be issued to two participating federally permitted Northeast multispecies vessels to exempt them from the gear restrictions and, if necessary, the GOM seasonal area closures of the Northeast Multispecies Fishery Management Plan, found at 50 CFR part 648, subpart F.

Regulations implementing the Fishery Management Plan for the Atlantic Mackerel, Squid, and Butterfish Fisheries (FMP), prepared by the Mid-Atlantic Fishery Management Council (Council), appear at 50 CFR part 648, subpart B. Regulations governing foreign fishing appear at 50 CFR part 600, subpart F. These regulations, at §§ 600.516(c) and 648.21, require that NMFS, based on the maximum optimum yield (Max OY) of each fishery as established by the regulations, annually publish a proposed rule specifying the initial amounts of the initial optimum yield (IOY), as well as the amounts for allowable biological catch (ABC), DAH, domestic annual processing (DAP), JVP, and total allowable levels of foreign fishing (TALFF) for the affected species managed under the FMP. The regulations also specify that there will be no JVP or TALFF specified for Loligo, Illex, or butterfish, except that a butterfish bycatch TALFF will be specified if TALFF is specified for Atlantic mackerel. Procedures for determining the initial annual amounts are found in § 648.21.

In addition to the annual specifications for each of the four species managed under the FMP, the Council recommended that, for several species managed by the Council, 2 percent of the 2001 total allowable landings (TAL) for each of these species be set aside for data collection purposes. Because no TAL is specified for Atlantic mackerel, squid, and butterfish, TAL is considered equivalent to IOY. The deduction would occur no later than December 31, 2000, upon notification to the Northeast Regional Administrator that the Council, in consultation with the Atlantic States Marine Fisheries Commission, has approved a specific data collection project that would use the set-aside allocation. If a project is not approved before December 31, 2000, then a set-aside deduction from the TAL would not occur. However, the set-aside recommendation cannot become effective until the Council adopts a framework measure, which in turn, is approved by NMFS, to establish the regulatory underpinnings of the process to allocate the set-aside.

Table 1 contains the proposed initial specifications for the 2001 Atlantic mackerel, Loligo and Illex squids, and butterfish fisheries.

Overfishing for Atlantic mackerel is defined by the FMP to occur when the catch associated with a threshold fishing mortality rate (F) of FMSY (the F that produces MSY (maximum sustainable yield)) is exceeded. When spawning stock biomass (SSB) is greater than 890,000 mt, the overfishing limit is FMSY (0.45), and the target F is 0.25. To avoid low levels of recruitment, the FMP adopted a control rule whereby the threshold F decreases linearly from 0.45 at 890,000 mt SSB to zero at 225,000 mt SSB (1/4 of the biomass level that would produce MSY on a continuing basis (B MSY )), and the target F decreases linearly from 0.25 at 890,000 mt SSB to zero at 450,000 mt SSB ( 1/2 B MSY ). Annual quotas are specified that correspond to the target F resulting from this control rule.

Since SSB is currently above 890,000 mt, the target F for 2001 is 0.25. The yield associated with that target F at the estimated stock size is 369,000 mt. The ABC recommendation of 347,000 mt represents the F=0.25 yield estimate of 369,000 mt, minus the estimated Canadian catch of 22,000 mt. The proposed IOY for the 2001 Atlantic mackerel fishery is 88,000 mt, which is equal to the proposed DAH plus TALFF. The specification for DAH is computed by calculating the estimated recreational catch, the proposed DAP and JVP. The recreational catch component of DAH is estimated to be 15,000 mt. DAP and JVP components of DAH have historically been estimated using the Council's annual processor survey, which is intended to obtain estimates of processing capacity in the domestic and joint venture (JV) fisheries. However, for the years 1994 through 2001, response to this voluntary survey was low and did not contain projections from some large processors. The Council still believes, based on the best data available, that the capacity of the domestic fleet to harvest mackerel greatly exceeds the domestic processors capacity to process mackerel. Additionally, the Council generally agreed that JVs have had a positive impact on the development of the U.S. Atlantic mackerel fishery. This assertion led to the Council recommendation that JVP be set at 20,000 mt in 2001 (10,000 mt more than 1999 and 2000; 5,000 mt more than in 1998; and 5,000 mt less than in 1997).

The Council has recommended, and NMFS proposes, a specification of 20,000 mt of JVP for the 2001 fishery, with a possible increase to 30,000 mt later in the year. If additional applications for JVP are received, NMFS could increase this allocation to 30,000 mt by publishing notification in the Federal Register . The Council also recommended, and NMFS proposes, a DAP of 50,000 mt, yielding a DAH of 85,000 mt, which includes the 15,000-mt recreational catch component.

A TALFF of 3,000 mt is recommended by the Council and proposed by NMFS for the 2001 Atlantic mackerel fishery. Several foreign nations have expressed their interest in JVP, with two applications already submitted by Lithuania and the Russian Federation. TALFF, which is foreign fishing, rather than just processing by foreign vessels, would be authorized only if U.S. vessels are unable to deliver product to foreign JV catcher/processor vessels for a period of time due to events such as bad weather. The Council’s intent is to encourage JV fisheries by allowing TALFF in special circumstances.

As authorized by §§ 600.501 and 600.520(b)(2)(ii), the Council also recommended, and NMFS proposes, that several special conditions be imposed on the 2001 Atlantic mackerel fishery, as follows: (1) JVs would be allowed south of 37° 30′ N. lat., but river herring bycatch may not exceed 0.25 percent of the over-the-side transfers of Atlantic mackerel; (2) directed foreign fishing for Atlantic mackerel would be prohibited south of 37° 30′ N. lat., north of 37° 30′ N. lat., directed foreign fishing for Atlantic mackerel would be prohibited landward of a line 20 nautical miles from shore and no bycatch TALFF of river herring is specified; (3) the Administrator, Northeast Region, NMFS (Regional Administrator) should ensure that impacts on marine mammals are reduced in the prosecution of the Atlantic mackerel fishery; (4) the mackerel optimum yield (OY) may be increased during the year, but the total should not exceed 347,000 mt; (5) applications from a particular nation for a Atlantic mackerel JV or TALFF allocation for 2001 may be based on an evaluation by the Regional Administrator of that nation's performances relative to purchase obligations for previous years; (6) no purchase ratios would be specified; upon approval of an application for TALFF, 50 percent of the foreign nation’s TALFF allotment would be released; additional TALFF would be released only when the foreign participant has purchased 25 percent of the JVP allotment to that nation; (7) foreign fishing vessels (FFV) would be required to purchase JVP-caught fish from contracted U.S. vessels; if a FFV were engaged in directed fishing and is approached by a contracted U.S. vessel, the FFV would be required to cease directed fishing and take the transfer from the U.S. vessel as soon as practicable; (8) no in-season adjustment in TALFF (i.e., TALFF not to exceed 3,000 mt) would be authorized, unless the Regional Administrator, with concurrence of the Council, determined that it is appropriate to increase IOY to provide additional TALFF, but the TALFF should not exceed a cap of 5,000 mt; an (9) directed foreign fishing for Atlantic mackerel would be limited to the use of mid-water trawl gear.

The FMP defines overfishing for Loligo as occurring when the catch associated with a threshold of the fishing mortality that produces the maximum sustainable level of yield per recruit (F MAX ) is exceeded (F MAX is a proxy for FMSY). When an estimate of F MSY becomes available, it will replace the current overfishing proxy F MAX . Max OY is specified as the catch associated with a F MAX . In addition, the biomass target is specified as B MSY .

The most recent stock assessment for Loligo (the 29th Northeast Regional Stock Assessment Workshop, August 1999 (SAW-29)) concluded that the stock is approaching an overfished condition and that overfishing is occurring. More recently, NMFS' Report to Congress: Status of Fisheries of the United States (October 1999) determined that the Loligo stock is overfished.

The Magnuson-Stevens Fishery Conservation and Management Act requires the Council to take remedial action to rebuild an overfished stock to a level that will produce B MSY . The control rule in the FMP specifies that the target F must be reduced to zero if biomass falls below 50 percent of B MSY . The target F increases linearly to 75 percent of F MSY as biomass increases to B MSY . However, projections made in SAW-29 indicate that the Loligo control rule appears to be overly conservative. The projections from SAW 29 indicated that the Loligo biomass could be rebuilt to levels approximating Bmsy in three years if fishing mortality was reduced to the target mortality rate specified in Amendment 8 of 75 percent of F MSY . The yield associated with this fishing mortality rate (75 percent of F MSY ) in 2000, assuming status quo F in 1999, was estimated to be 11,732 mt in SAW 29. The current regulations still specify Max OY as the yield associated F MAX , or 26,000 mt. In determining the specification of ABC for the year 2000, the Council considered advice offered by SAW 29 which indicated that the control rule adopted in Amendment 8 was too conservative. Model projections presented in the most recent assessment demonstrated that the stock could be rebuilt in a relatively short period of time, even at fishing mortality rates approaching F MSY . Based on the SAW 29 projections, the Council chose to specify ABC as the yield associated with 90 percent F MSY or 13,000 mt in 2000.

The most recent survey data for Loligo squid indicate that abundance of this species has increased significantly since the most recent assessment was conducted (i.e., SAW-29). Estimates of biomass based on NMFS’ Northeast Fisheries Science Center (NEFSC) fall 1999 and spring 2000 survey indices for Loligo indicate that the stock is currently at or near Bmsy. In fact, the 1999 fall survey index was the sixth highest value observed in the time series since 1967 and the second highest since 1987. The 2000 spring survey index for Loligo was the tenth highest in the time series since 1968 and the fifth highest since 1987. Based on the assumption that the stock will be at or near B MSY in 2001, the Council recommended that the 2001 quota be specified as the yield associated with 75 percent of F MSY . The yield associated with 75 percent of F MSY at B MSY is 17,000 mt, based on projections in SAW-29. The establishment of quarterly allocation periods spreads F out over the fishing year and is expected to protect spawners. The current regulations still specify Max OY as the yield associated with F MAX , or 26,000 mt.

Thus, the proposed Max OY for Loligo is 26,000 mt and the recommended ABC for the 2001 fishery is 17,000 mt. NMFS issued a notification in the Federal Register on October 10, 2000 (65 FR 60118), announcing an inseason action to adjust the 2000 annual specifications for Loligo squid, including ABC, IOY, DAH and DAP, from 13,000 mt to 15,000 mt. Therefore, the 2001 annual specifications represent an increase of 2,000 mt from the 2000 ABC of 15,000 mt. This ABC is based on the NEFSC fall 1999 and spring 2000 survey indices for Loligo and is determined to be a level that would allow the Loligo stock to rebuild to levels at or near BMSY within 3 to 5 years.

The Council recommended, and NMFS proposes, an IOY of 17,000 mt for Loligo squid, which is equal to ABC. Management advice from SAW-29 made special note of the fact that yield from this fishery should be distributed throughout the fishing year. Given that the current permitted fleet historically has demonstrated the ability to land Loligo in excess of the quota specified for 2001, the Council recommends, and NMFS proposes, that the annual quota be subdivided into quarterly periods. The quota would be allocated to each period based on the proportion of landings occurring in each 4-month period from 1994-1998. The directed fishery would be closed in Quarters I-III when 80 percent of that period’s allocation is harvested, with vessels restricted to a 2,500-lb (1,134-kg) Loligo trip limit until the end of the respective quarter. Additionally, when 95 percent of the total annual DAH has been harvested, the trip limit would be reduced to 2,500 lb (1,134 kg) of Loligo for the remainder of the year. When the 2,500-lb (1,134-kg) trip limit has been triggered, vessels will be prohibited from possessing or landing more than 2,500 lb in a single calendar day. Any quota overages in Quarter I would be deducted from the allocation in Quarter III, and any overage in Quarter II would be deducted from the allocation in Quarter IV. The quota allocation is shown in Table 2.

In Amendment 5 to the FMP, the Council concluded that U.S. vessels have the capacity to, and will harvest the OY on an annual basis, so DAH equals OY. The Council also concluded that U.S. fish processors, on an annual basis, can process that portion of the OY that will be harvested by U.S. commercial fishing vessels, so DAP equals DAH, and JVP is zero. Since U.S. fishing vessels have the capacity to harvest, and are expected to attempt to harvest, the entire OY, there is no portion of the OY that can be made available for foreign fishing, making TALFF zero. These determinations were made in Amendment 5 to the FMP. The proposed values of IOY, DAH, and DAP are 17,000 mt for the 2001 Loligo fishery, and represent an increase of 2,000 mt from the final 2000 Loligo IOY/DAH/DAP specifications (NMFS issued a notification in the Federal Register on October 10, 2000 (65 FR 60118), announcing an inseason action to adjust the 2000 annual specifications for Loligo squid, including ABC, IOY, DAH and DAP, from 13,000 mt to 15,000 mt).

The approved overfishing definition for Illex states that overfishing for Illex occurs when the catch associated with a threshold fishing mortality rate of F MSY is exceeded. Maximum OY is to be specified as the catch associated with a fishing mortality rate of F MSY . In addition, the biomass target is specified as B MSY . The minimum biomass threshold is specified as 1/2 B MSY .

The most recent assessment of the Illex stock (SAW-29) concluded that the stock is not overfished and that overfishing is not occurring. The previous assessment, the 21st Northeast Regional Stock Assessment (1996), had concluded that the U.S. Illex stock is fully exploited. Due to a lack of adequate data, the estimate of yield at F MSY was not updated in SAW-29. However, an upper bound on annual F was computed for the U.S. Exclusive Economic Zone portion of the stock, based on a model that incorporated weekly landings and relative fishing effort and mean squid weights during 1994-1998. These estimates of F were well below the biological reference points. Current absolute stock size is unknown and no stock projections were done in SAW-29.

Since data limitations did not allow an update of yield estimates at the threshold and target F values, the Council recommended, and NMFS proposes, that the specification of Max OY and ABC be specified as 24,000 mt (the yield associated with F MSY ). Under this option, the directed fishery for Illex would remain open until 95 percent of the ABC is taken (22,800 mt). Once 95 percent of the ABC is estimated to have been taken, the directed fishery would be closed and a 5,000-lb (2,268-kg) trip limit would remain in effect for the remainder of the fishing year. Similar to Loligo , when a trip limit is in effect, vessels are prohibited from possessing or landing more than 5,000 lb (2,268 kg) in a single calendar day. Amendment 5 to the FMP eliminated the possibility of JVP and TALFF for the Illex fishery because of the domestic fishing industry’s ability to harvest and to process the OY from this fishery.

The FMP set OY for butterfish at 16,000 mt. Based on the most current stock assessment, the Council recommends, and NMFS proposes, an ABC of 7,200 mt for the 2001 fishery. This represents no change in the specifications since 1996. Commercial landings of butterfish have been low at 2,798 mt, 1,964 mt, and 2,116 mt for the 1997 through 1999 fisheries, respectively. Lack of market demand and the difficulty in locating schools of market-sized fish have caused severe reductions in the supply of butterfish. Discard data from the offshore Illex fishery are lacking and high discard rates could be reducing potential yield.

The Council recommended, and NMFS proposes, an IOY for butterfish of 5,900 mt. The IOY is composed of a DAH of 5,897 mt and a bycatch TALFF that is equal to 0.08 percent of the allocated Atlantic mackerel TALFF. Amendment 5 eliminated the possibility of JVP or TALFF specifications for butterfish except for a bycatch TALFF specification if TALFF is specified for Atlantic mackerel. Since the Council has recommended TALFF for Atlantic mackerel, TALFF for butterfish is 3 mt. If the Regional Administrator, with concurrence of the Council, determines that it is appropriate to increase the current proposed TALFF of 3,000 mt for Atlantic mackerel up to a final 5,000 mt, then TALFF for butterfish would be increased from 3 mt to a final value of 4 mt.

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

The Council prepared an IRFA in section 5.0 of the RIR that describes the economic impacts this proposed rule, if adopted, would have on small entities. A summary of the analysis follows:

The IRFA describes the action, why it is being considered, and the legal basis for it. These are the same as appear at the beginning of this preamble and in the SUMMARY section of the preamble and are not repeated here.

The IRFA identifies the number of potential fishing vessels in the 2001 fisheries as 443 vessels fishing for Loligo , 77 vessels fishing for Illex , 443 vessels fishing for butterfish, and 1,980 vessels fishing for Atlantic mackerel. Many vessels participate in more than one of these fisheries; therefore, the numbers are not additive. The proposed ABC specifications of 347,000 mt and DAH of 85,000 mt for Atlantic mackerel, the DAH specifications of 24,000 mt for Illex squid, and the DAH specifications of 5,900 mt for butterfish, represent no constraint on vessels in these fisheries. The proposed specifications have not been achieved by landings for these species in recent years. Absent a constraint on the fisheries, no impacts on revenues are expected.

If the 2001 DAH specification of 17,000 mt for Loligo squid is not exceeded, the result would be a decrease in catch and revenue in the Loligo fishery relative to the 1999 landings and an increase from the average landings from 1996-1999 (i.e., if the status quo were maintained).

The first alternative action for Atlantic mackerel would be to set the 2001 specifications at the same level as 2000. Although it was rejected as inconsistent with the FMP because it would not meet the policy objectives of the Council relative to further development of the US domestic harvest of Atlantic mackerel, this alternative would place no constraints, and consequently no revenue impacts, on the fishery. The second alternative for mackerel was to set ABC at the long-term potential catch (LTPC), or 150,000 mt. This alternative was found inconsistent with the FMP because it would not allow for variations and contingencies in the status of the stock. For example, the current adult stock was recently estimated to exceed 2.1 million mt. The specification of ABC at LTPC would effectively result in an exploitation rate of only about 6 percent, well below the optimal level of exploitation. The level of foregone yield under this alternative was considered unacceptable and would not impact the IOY specifications. The third alternative considered for mackerel included the elimination of JVP, which would lower the specification of IOY to 68,000 mt, also far in excess of recent landings. These alternatives would not constrain the fishery and were determined to have no impact on revenues of participants in this fishery.

For Loligo , one alternative that was considered was to set the ABC, DAH, DAP, and IOY at 13,000 mt. This was the same level as 2000 until an inseason adjustment increased the ABC, DAH, DAP, and IOY to 15,000 mt (65 FR 60118, October 10, 2000). Under the scenario of a 13,000 mt DAH; if that value were not exceeded in 2001, 121 of the 443 impacted vessels would experience revenue reductions of greater than 5 percent. This would represent a 20.5-percent reduction in 1996-1999 average landings of 16,348 mt. The remaining 322 vessels would experience less than 5-percent reduction in revenue or an increase in revenue. A second alternative would set ABC, DAH, DAP, and IOY at 11,700 mt. This would represent a 28.4-percent reduction in 1996-1999 average landings. Under this scenario, 161 of the 443 impacted vessels would experience revenue reductions of greater than 5-percent. The remaining 282 vessels would experience less than a 5-percent reduction in revenue, or an increase in revenue.

For Illex , the first alternative that sets Max OY, ABC, IOY, DAH, and DAP of 30,000 mt and the second alternative that sets Max OY at 24,000 mt and ABC, IOY, DAH, and DAP at 19,000 mt far exceed recent landings in this fishery. Therefore, there would be no constraints, and, thus, no revenue reductions, associated with these specifications.

For butterfish, the Council considered a DAH, OY, and Max OY of 16,000 mt and a DAH and OY of 10,000 mt. These specifications would not constrain or impact the industry; however, they would lead to overfishing of the stock, and, thus, were rejected by the Council.

This rule does not duplicate, overlap, or conflict with other Federal rules. There are no recordkeeping or reporting requirements associated with this rule.

A copy of the IRFA is available from the Council (see ADDRESSES ).

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, the Regional Administrator (see ADDRESSES ).

NMFS proposes regulations to modify the Federal lobster conservation management measures issued as part of a Federal/state cooperative management effort under the authority of the Atlantic Coastal Fisheries Cooperative Management Act (ACFCMA). Section 804(b) of ACFCMA authorizes NMFS to issue regulations governing fishing in the Exclusive Economic Zone (EEZ) that are compatible with the effective implementation of the Atlantic States Marine Fisheries Commission’s American Lobster Interstate Fishery Management Plan and consistent with the national standards set forth in section 301 of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

On December 6, 1999, NMFS, in an effort to end overfishing of the American lobster resource, published a final rule (64 FR 68228) creating seven LMAs; imposing trap limits (800 traps/vessel in LMA 5), trap tagging requirements, and a maximum trap size; increasing the lobster escape vent size; restricting lobster trap fishers to their annually selected LMAs; and establishing a harvest limit for non-trap vessels. A Final Environmental Impact Statement/Regulatory Impact Review was prepared for the action and was published on May 28, 1999 (64 FR 29025).

The lobster management program uses a gear conservation and effort limitation strategy to control lobster mortality. Fishing effort is limited by limiting the access of new vessels to the fishery and the number and size of traps that may be fished per vessel. To enforce these measures, lobster traps must be tagged, and the tags must be traceable to the owner of each vessel. A minimum lobster size combined with a corresponding escape vent opening in traps helps control mortality on juvenile lobsters. A maximum trap size was imposed to preclude possible increases in trap efficiency. These measures are applied to all traps designed for, and capable of, catching lobster. NMFS does not consider traps targeting other species and fished by non-lobster permit holders to be “designed for” or “capable of” catching lobsters. This proposed rule would remove the present definition of trap and add a definition for lobster trap to in essence exclude those traps fished by vessels not eligible for limited access lobster permits (non-eligible vessels). Non-eligible vessels are prohibited from retaining, landing, or possessing American lobster.

The black sea bass fishery is managed under the Fishery Management Plan for Summer Flounder, Scup, and Black Sea Bass (FMP) developed by the Mid-Atlantic Fishery Management Council (Mid-Atlantic Council) under the Magnuson-Stevens Act. The black sea bass fishery was added to the FMP when Amendment 9 was approved and implemented in 1997 (61 FR 58461, November 15, 1996). Amendment 9 to the FMP established a limited access permit system for the entry of new vessels to the fishery.

Black sea bass ( Centropristis striata ) and American lobster ( Homarus americanus ) are often harvested using similarly configured fish traps or pots, although black sea bass traps are not usually baited. Black sea bass fishermen prefer to use as many as 1,500 traps/vessel but are now restricted by the lobster regulations under 50 CFR part 697 to 800 traps/vessel when fishing in LMA 5. Black sea bass fishermen also prefer to use traps with smaller escape vents than the lobster regulations allow. In the Mid-Atlantic where the two fisheries overlap considerably, the two management strategies come into conflict. Concerned about the impacts on commercial fishing enterprises from differing management systems, the Mid-Atlantic Council and the ASMFC requested that NMFS provide an exemption from the lobster gear requirements to black sea bass fishers when fishing in LMA 5. LMA 5, which is located in the Mid-Atlantic area, has historically represented less than 2 percent of the total annual lobster landings. The Mid-Atlantic Council and ASMFC recommended further that the non-trap lobster allowance that applies to non-trap lobster fishers be applied to exempted black sea bass fishers. As a result, NMFS prepared a DEA/RIR and this proposed rule to address this management issue.

This action would allow dual permit status vessels-vessels having limited access eligibility in the black sea bass and lobster fisheries- to elect to participate in a program that exempts them from the lobster gear restrictions while targeting black sea bass in LMA 5 but which limits them to the non-trap lobster allowance. The non-trap allowance is a landing limit of 100 lobsters per day and up to 500 lobsters per trip for trips 5 days or longer.

To participate in the proposed exemption, a vessel would obtain an “Area 5 Trap Waiver” category permit through the normal permitting process. A vessel with the waiver would be limited to the non-trap allowance and may only land lobsters in greater numbers by formally canceling the “Area 5 Trap Waiver” permit and switching to the commercial lobster category, again through the normal Federal permitting process. Cancellations of the “Area 5 Trap Waiver” permit would be treated administratively as a lobster permit category change and would not result in the loss of limited access eligibility in either the lobster or the black sea bass fisheries. Vessels would be required to comply with the regulations that are appropriate for the target fishery and with the category of permits presently issued.

The creation of this new permit category addresses a common problem in managing overlapping or mixed fisheries. Ideally, conservation restrictions should be tailored as closely as possible to the target fishery; for instance, lobster fishers would be required to comply with the lobster gear restrictions and black sea bass fishers with sea bass restrictions. In mixed fisheries, tailoring becomes more difficult because the least restricted fishery can be used as a loophole for the other; in this case, black sea bass traps can become a loophole in the lobster conservation program. This proposed rule isolates and prohibits the problematic trips, namely, those that would target lobster with black sea bass traps. Only incidental amounts of lobster could be retained from such trips.

NMFS has prepared a DEA/RIR that discusses the impacts of this proposed rule as well as the impacts of the reasonable alternatives. Because access to both the lobster and black sea bass fisheries is closed to new entrants, the universe of vessels that may be affected by this rule is estimated as the number of vessels from states bordering LMA 5 that are currently eligible to fish in both fisheries, or 204 vessels. Fewer vessels actually land both species in 1 year or have selected LMA 5 to fish in.

The impacts on the lobster resource, essential fish habitat, or protected resources from the exemption are expected to be neutral, while a positive economic benefit should accrue to some fishers. The exemption provides an opportunity for dual permit status vessel owners to maintain their limited access eligibility in the fisheries in which they have historically participated. Although there is an additional administrative burden imposed on NMFS and on those opting for this exemption, NMFS believes this is an important and necessary trade-off for enforceability and conservation effectiveness.

This alternative preserves the ability to fish in both fisheries in a single year under rules appropriate to the fisher’s preferred target and without the loss of limited access status in either fishery. Detection of violations is simplified through the permit mechanism because an agent would need only to compare the observed landings with the rules associated with the permit.

Environmental benefits to marine habitat, mammals, and other protected species are generally considered to increase as the amount of gear in the water decreases. A change in the number of traps deployed as a result of this or of any alternative would depend on whether dual status vessels previously used separate traps for the lobster and black sea bass fisheries and on the individual decisions made by the affected fishers in reaction to the measures imposed. If a lobster/black sea bass vessel historically fished a separate set of traps for each fishery, the preferred alternative would potentially restore this dual ability, but would not allow simultaneous fishing of both types of traps. While data is not available on the number of dual status vessels fishing separate traps for each fishery, environmental impacts are expected to be neutral.

This proposed rule is published under the authority of the ACFCMA. Paragraphs (A) and (B) of section 804(b)(1) of the ACFCMA authorize the Secretary of Commerce (Secretary) to issue regulations in the EEZ that are compatible with the effective implementation of a coastal fishery management plan and consistent with the national standards set forth in section 301 of the Magnuson-Stevens Act. This authority has been delegated to the Assistant Administrator for Fisheries, NOAA (AA). The AA has preliminarily determined that these actions are consistent with the national standards of the Magnuson-Stevens Act. The AA, before making the final determinations, will take into account the data, views, and comments received during the comment period.

An updated Biological Opinion under section 7 of the Endangered Species Act (ESA) was issued for the American Lobster fishery on December 17, 1998. A formal consultation concluded that the continued operation of the American lobster fishery operating under new measures implemented to reduce entanglements, “may affect but is not likely to jeopardize the continued existence of the northern right whale, humpback whale, fin whale, blue whale, sperm whale, sei whale, leatherback sea turtle, and loggerhead sea turtle and is not likely to destroy or adversely modify critical habitat that has been designated for the northern right whale.”

As a result of entanglement events in 1999, including one mortality of a right whale, NMFS is currently revising the Atlantic Large Whale Take Reduction Plan (ALWTRP) to determine what changes or additional measures are necessary to meet the plan objectives. NMFS has re-initiated consultation on the lobster fishery to determine whether the revised ALWTRP will be an acceptable reasonable and prudent alternative to remove the likelihood of jeopardy to right whales caused by the lobster fishery.

As a result of the proposed measures, traps targeting black sea bass in the waters of LMA 5 could potentially increase to levels in place prior to the imposition of lobster trap limits. However, there have been no observed takes of ESA or Marine Mammal Protection Act listed species in the black sea bass trap fishery, and these measures are expected to affect only a small number of fishers. Therefore, this proposal would not change the basis of the Biological Opinion made on December 17, 1998, or affect any ongoing consultation for this fishery under section 7 of the ESA.

The proposed measures for a LMA 5 Black Sea Bass Trap Waiver fall within the scope of consultations on previous American lobster and Black Sea Bass FMP actions. Given the number of vessels affected by these proposed measures, the limited presence of protected species most susceptible to trap gear (i.e., right whales, humpback whales) in the area, and the application of ALWTRP measures to black sea bass trap fishers, none of the proposed measures is expected to result in the addition of adverse impacts that would change the basis for the determinations in those consultations. Should activities under this action change or new information become available that changes the basis for this determination, consultation will be re-initiated.

NMFS has prepared a DEA/RIR, supplemented by the preamble to this proposed rule that describes the impact this proposed rule, if adopted, would have on small entities. A copy of this analysis is available from NMFS (see ADDRESSES ). All participants in the lobster and black sea bass fisheries are considered to be small entities.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. This certification is based on the analysis in the DEA/RIR, which takes into account the applicable criteria established by the agency for determining whether economic impacts on small entities are “significant” under the Regulatory Flexibility Act. The factual basis for the certification is as follows:

NMFS found no significant impact on small entities because the proposed rule would relieve a restriction on black sea bass fishers who concurrently hold limited access lobster and limited access black sea bass permits and are thus subject to the more restrictive gear requirements in the lobster regulations. The intent of these regulations is to relieve unintended restrictions without compromising lobster conservation goals. Participating vessels in the LMA 5 trap waiver program would be exempt from the 800 lobster traps per vessel limit and the trap tagging requirements, the maximum trap size requirement, and the increased lobster escape vent size requirement. Because of not being subject to the smaller vent size requirement, they would be able to harvest black sea bass and because of not being subject to the 800 traps/vessel limitation some may even catch a greater number of lobsters. Participating vessels would be allowed to land the non-trap allowance of lobster (100 lobsters per day and up to 500 lobsters per trip for trips of over 5 days). In addition, to the extent that a black sea bass vessel is relieved from the lobster gear restrictions, compliance costs reductions of up to $1180 per inshore vessel may be experienced. Eligible vessels will not have to incur the costs of converting black sea bass traps to conform to the lobster regulations, will not be forced to use less efficient lobster gear when targeting black sea bass, and will have greater flexibility to fish under regulations and possession limits appropriate to the target fishery. Eligible vessels will also not be forced to incur the cost of switching from trap gear to towed gear. While these savings are not considered substantial in terms of their proportion to overall operating costs per inshore vessel, each of these considerations will enable participating vessels to achieve higher levels of gross revenue. The prospects for higher gross revenue resulting from this regulatory action, as well as the ability to maintain and possibly improve the relative competitive position for each affected business, will result in a net improvement in distributive impacts of regulatory action.

The preferred alternative would also allow dual permit holders to retain their dual limited access status and to alternately fish in the black sea bass and lobster fisheries under appropriate regulations for each of those species. The need to permanently cancel access to one or the other limited access fisheries to avoid a conflicting regulatory regime would be eliminated, allowing fishers flexibility to adjust to changing economic conditions in one or the other fishery.

As a result, an initial regulatory flexibility analysis was not prepared.

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

This proposed rule contains collection-of-information requirements subject to the PRA. The following are the proposed new collection-of-information requirements and their respective estimated response times that have been submitted to OMB for approval:

1. Initiate a permit category change and select the LMA 5 Trap Waiver Permit category (15 minutes);

2. Return a suspended limited access lobster trap permit to NMFS (2 minutes); and