The Office of Government Ethics is amending its FOIA regulation to indicate a restructuring of decisional authority for handling FOIA requests, appeals and related matters that OGE receives as a Federal agency. The OGE FOIA Officer (instead of the OGE General Counsel) now will decide initial access requests and related matters such as fees. Further, the OGE General Counsel (instead of the OGE Deputy Director) will decide administrative FOIA appeals.

Pursuant to 5 U.S.C. 553(b) and (d), as Director of the Office of Government Ethics, I find good cause exists for waiving the general notice of proposed rulemaking, opportunity for public comment and 30-day delay in effectiveness as to these amendments.

The notice, comment and delayed effective date provisions are being waived because these technical FOIA regulation amendments concern matters of agency organization, practice and procedure.

In promulgating these minor amendments, OGE has adhered to the regulatory philosophy and the applicable principles of regulation set forth in section 1 of Executive Order 12866, Regulatory Planning and Review. These amendments have not been reviewed by the Office of Management and Budget under that Executive order, since they are not deemed “significant” thereunder.

As Director of the Office of Government Ethics, I have reviewed this final amendatory regulation in light of section 3 of Executive Order 12988, Civil Justice Reform, and certify that it meets the applicable standards provided therein.

As Director of the Office of Government Ethics, I certify under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this rulemaking will not have a significant economic impact on a substantial number of small entities.

The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply because this amendatory rulemaking does not contain information collection requirements that require the approval of the Office of Management and Budget.

The Office of Government Ethics has determined that this amendatory rulemaking is a nonmajor rule under the Congressional Review Act (5 U.S.C. chapter 8) and has provided a report thereon to the Senate, House of Representatives and General Accounting Office in accordance with that law.

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Public Law No. 104-208, section 343, 110 Stat. 3009, 636-37 (1996) created a new ground of inadmissibility now codified at 8 U.S.C. 1182(a)(5)(C), section 212(a)(5)(C) of the Immigration and Nationality Act (Act). It provides that an alien who seeks to enter the United States for the purpose of performing labor as a health care worker, other than a physician, is inadmissible unless the alien presents a certificate from CGFNS or an equivalent independent credentialing organization approved by the Attorney General in consultation with the Secretary of Health and Human Services (HHS) verifying:

(1) that the alien's education, training, license, and experience meet all applicable statutory and regulatory requirements for admission into the United States under the classification specified in the application; are comparable with that required for an American health care worker of the same type; are authentic and, in the case of a license, unencumbered;

(2) the alien has the level of competence in oral and written English considered by the Secretary of HHS, in consultation with the Secretary of Education, to be appropriate for health care work of the kind in which the alien will be engaged, as shown by an appropriate score on one or more nationally recognized, commercially available, standardized assessments of the applicant's ability to speak and write English; and,

(3) if a majority of States licensing the profession in which the alien intends to work recognize a test predicting an applicant's success on the profession's licensing or certification examination, the alien has passed such a test, or has passed such an examination. Section 212(r) of the Act mandates separate certification procedures for certain aliens.

Section 212(a)(5)(C) of the Act became effective upon enactment on September 30, 1996. Shortly thereafter, the Service met and conferred with HHS, the Department of Labor (DOL), the Department of Education (DOE), the Department of Commerce (DOC), the Office of the United States Trade Representative (USTR), and the Department of State (DOS) to reach consensus on the best approach for implementation. In addition to meetings among the affected agencies, several meetings were held with interested organizations including CGFNS, the American Occupational Therapists Association, the National Board for Certification in Occupational Therapy (NBCOT), the Federated State Board of Physical Therapy, and the American Physical Therapy Association.

The Service in consultation with HHS initially identified, on the basis of the legislative history, seven categories of health care workers subject to the provisions of 8 U.S.C. 1182(a)(5)(C). The seven categories are nurses, physical therapists, occupational therapists, speech-language pathologists, medical technologists (also known as “clinical laboratory scientist”), medical technicians (also known as “clinical laboratory technicians”) and physician assistants. Upon the suggestion of HHS, this rule lists the alternative terms “clinical laboratory scientist” and “clinical laboratory technician” to reflect both the legislative history and current health professions categorizations.

After weighing the complexity of the implementation issues, anticipating the length of time for rule making, and considering the need for health care facilities across the country to remain fully staffed and provide a high quality of service to the public, the DOS and the Service agreed to exercise their statutory discretion under 8 U.S.C. 1182(d)(3), section 212(d)(3) of the Act, and have granted a blanket waiver of inadmissibility to nonimmigrant health care workers until final regulations are promulgated. The blanket waiver of inadmissibility applies to nonimmigrant health care workers already in possession of nonimmigrant visas and visa exempt aliens, including Canadians applying for classification pursuant to 8 U.S.C. 1184(e), section 214(e) of the Act (TN classification). The Service published an interim rule (First Interim Rule) in the Federal Register on October 14, 1998 at 63 FR 55007 in which the adoption of this policy regarding nonimmigrant health care workers was announced. The First Interim Rule amended 8 CFR part 212 and 245. A formal application or fee is not required for a nonimmigrant health care worker to obtain the waiver. Nonimmigrant health care workers are admitted on a multiple entry Form I-94 for 1 year. In addition, otherwise admissible dependents are also authorized admission into the United States for the specific dates of stay authorized for the principal alien. A new waiver is not required if the nonimmigrant health care worker makes an application for admission to the United States during the validity period of the previously issued Form I-94. Nonimmigrants applying for TN classification are not required to pay the admission fee described at 8 CFR 214.6(f) when applying for admission during the validity period of the previously issued Form I-94. Finally, nonimmigrant health care workers are eligible for extensions of the waiver and corresponding extensions of stay in increments of 1 year.

The Services has issued two interim rules implementing the certification requirements of section 212(a)(15)(C) of the Act with respect to immigrant health care workers. The First Interim Rule, previously referenced, and a Second Interim Rule which was published in the Federal Register on April 30, 1999 at 64 FR 23174. The Second Interim Rule also amended 8 CFR part 212.

The First Interim Rule temporarily enabled CGFNS to issue certificates to immigrants coming to the United States to work in the field of nursing, and temporarily authorized NBCOT to issue certificates in the field of occupational therapy. The Service adopted the First Interim Rule without the notice and comment period ordinarily required by 5 U.S.C. 553 because it found that delay in the implementation of 8 U.S.C. 1182(a)(5)(C) could adversely affect the provision of health care, particularly in medically under-served areas for nursing and occupational therapy. Given this context, the Service identified two criteria for the selection of certifying organizations on a temporary basis:

(1) That a sustained level of demand for foreign workers for the particular occupation exists; and

(2) That an organization with an established track record in providing credentialing services exists.

The First Interim Rule defined the term “sustained level of demand” as the presence of an existing demand for foreign health care workers in a particular occupation that is expected to continue in the foreseeable future. The term “organizations with an established track record” was defined as an organization which has a record of issuing actual certificates, or documents similar to a certificate, that are generally accepted by the state regulatory bodies as certificates that an individual has met certain minimal qualifications. The Service found, on the basis of information provided by DOL, that there was a sustained level of demand for foreign workers in nursing and occupational therapy. After consultation with HHS, CGFNS and NBCOT were found to qualify as organizations with an established track record in providing credentialing services for nursing and occupational therapy respectively. As required by 8 U.S.C. 212(a)(5)(C), the rule also established the appropriate English language competency levels for foreign nurses and occupational therapists, and specified exemptions from English language proficiency testing.

The First Interim Rule provided that the Service would apply the two criteria to other organizations seeking authorization to issue certificates while the interim rule remained in effect. Finally, the Service deferred consideration of whether CGFNS is authorized to issue certificates for other health care occupations.

The Second Interim Rule temporarily enabled CGFNS to issue certificates to immigrants coming to the United States to work in the fields of occupational therapy and physical therapy, and temporarily authorized the Foreign Credentialing Commission on Physical Therapy (FCCPT) to issue certificates in physical therapy. As with the First Interim Rule, the Service adopted the Second Interim Rule without the notice and comment period ordinarily required by 5 U.S.C. 553 because it found that delay in the implementation of 8 U.S.C. 1182(a)(5)(C) could adversely affect the provision of health care in medically under-served areas. The Service, in consultation with HHS, evaluated CGFNS' and FCCPT's applications for authorization to issue certificates under the criteria promulgated by the First Interim Rule. The Service found that both CGFNS and FCCPT met the “establishment or proven track record” criterion. With respect to the second criterion, the Service relied on its findings in the First Interim Rule to conclude that there was a sustained level of demand for occupational therapists. In addition, after considering data compiled by DOL, the Service concluded that there was a sustained level of demand for physical therapists that could adversely affect the provision of health care in medically under-served areas. The Second Interim Rule also established the appropriate English language competency levels for physical therapists.

After careful consideration, the Service believes that it is in the public interest to temporarily adopt this rule without notice and comment procedures, and that it would be impracticable to do otherwise. The Service will invite post promulgation comments to this temporary rule. In addition the Service anticipates publishing a Notice of Proposed Rule Making (NPRM) within the next 6 months.

The IIRIRA was a major, complex legislative scheme, which significantly changed existing immigration law and imposed many administrative duties upon the Service. Many provisions of the IIRIRA, including section 343 became immediately effective. The Service had a tremendous responsibility to rapidly promulgate numerous regulations implementing the new provisions of the law. Since enactment of the IIRIRA, the Service has diligently worked on an NPRM to implement 8 U.S.C. 1182(a)(5)(C) via ordinary notice and comment procedure, but has experienced considerable administrative difficulty in coordinating the needs and concerns of the large number of federal agencies and private interested parties affected by 8 U.S.C. 1182(a)(5)(C). Several substantive issues require the technical expertise of other agencies and further consultation before they can be definitively addressed. For example, the provisions of 8 U.S.C. 1182(a)(5)(C) may affect United States obligations under international treaties to facilitate the movement of professionals. Second, the Service is required to further define which, if any, other health care occupations fall under the ambit of the statute. Because of the delays in promulgating the larger rule, the Service believes the promulgation of this regulation as an interim rule is imperative to enable the Service to execute its adjudicative functions and to eliminate a growing backlog of pending immigrant applications filed by aliens seeking to immigrate to the United States as speech language pathologists and audiologists, medical technologists, physicians assistants and medical technicians. The Service has held such immigrant petitions in abeyance until promulgation of implementing regulations and as a result, certain immigrant health care workers have suffered extended periods of separation from family members and petitioning employers have been forced to operate without needed employees.

The Service will continue to use the “proven track record” criterion previously promulgated in the First and Second Interim Rules. The legislative history of the IIRIRA indicates that the factors to be considered for selection of credentialing organizations are the following (1) the independence and freedom of material conflicts of interest of the organization regarding whether an alien receives a visa; (2) whether the organization has the ability to evaluate credentials and English competency; (3) whether the organization maintains comprehensive and current information on foreign educational institutions; and (4) whether the organization can conduct examinations outside of the United States. See H.R. REP. NO. 104-828 at 227 (1996). The Service intends to fully address each of these factors in the NPRM. However since this is a temporary rule, the Service believes that the “proven track record” criterion adequately addresses the factors outlined in the legislative history.

After careful consideration, the Service has decided it will not use the “sustained level of demand” criterion utilized in the First and Second Interim Rules. As discussed supra, the Service promulgated those interim rules under the rationale that failure to process immigrant petitions for certain health care occupations would adversely affect the provision of health care in medically under-served areas. Given that rationale for promulgation of those interim rules, “sustained level of demand” was initially an important consideration in the approval of credentialing organizations. In contrast, the Service is promulgating this interim rule because it has experienced tremendous administrative difficulty in promulgating permanent regulations due to the complexity of the issues to be addressed, and because the Service is unable to execute its adjudicative functions with respect to a growing backlog of petitions without an implementing regulation. Therefore, “sustained level of demand” is not a relevant consideration at this time because the Service is unable to execute its adjudicative function with respect to these occupations.

The purpose of this interim rule is to provide notice that CGFNS may issue certificates pursuant to section 212(a)(5)(C) of the Act, on a temporary basis, to foreign health care workers coming to the United States as immigrants or applicants for adjustment of status to work in the occupations of speech-language pathologists and audiologists, medical technologists (clinical laboratory scientists), physician assistants, and medical technicians (clinical laboratory technicians).

This rule does not establish procedures for the Service to accept certificates issued by CGFNS or equivalent credentialing organizations to aliens seeking temporary admission to the United States to perform services in a health care occupation. An alien's application for admission as a nonimmigrant will be processed pursuant to the Service's temporary policies previously described.

This interim rule also lists the passing scores for the English language tests for the occupations of speech-language pathologists and audiologists, medical technologists (clinical laboratory scientists), physician assistants, and medical technicians (clinical laboratory technicians). This interim rule also amends the regulations concerning what organizations may administer the English language tests to reflect recent changes concerning one of the testing organizations.

Based on consultations with HHS, the Service finds that CGFNS has an established track record in issuing certificates for speech-language pathologists and audiologists, medical technologists (clinical laboratory scientists), physician assistants and medical technicians (clinical laboratory technicians). In addition to 20 years of experience in evaluating the credentials of foreign nurses, CGFNS has experience beyond nursing with regard to educational comparability and credentials evaluation. CGFNS has an extensive database covering health-related academic programs in foreign countries, much of which is applicable beyond nursing. Finally CGFNS, through their credential evaluation service, has evaluated foreign credentials, including educational degrees and foreign licenses for psychiatric technicians, physician assistants, emergency medical technicians and other occupations. With the establishment of “Professional Standards Committees” CGFNS has developed certification standards that may be used to assess comparability for the occupations of speech language pathologists and audiologists, medical technologists (clinical laboratory scientists), physician assistants and medical technicians (clinical laboratory technicians).

In order to obtain a certificate, the alien must demonstrate to the credentialing organization that he or she has passed either the English tests given by the Educational Testing Service or the Michigan English Language Assessment Battery (MELAB). In order to obtain a certificate an alien must be competent in written, oral, and spoken English.

The HHS has determined that speech-language pathologists and audiologists, medical technologists (clinical laboratory scientists), and physician assistants must obtain the following scores on the English tests administered by the Educational Testing Service (ETS): Test of English as a Foreign Language (TOEFL): paper-based 540, computer-based 207; Test of Written English (TWE): 4.0; Test of Spoken English (TSE): 50.

The HHS has determined that speech-language pathologists and audiologists, medical technologists (clinical laboratory scientists), and physician assistants must obtain the following scores on the English tests administered by the Michigan English Language Assessment Battery (MELAB): Final Score 79; Oral Interview 3+. It is noted that, effective June 30, 2000, the MELAB Oral Interview Speaking Test is no longer being given overseas and is only being administered in the United States and Canada. Applicants may take MELAB Parts 1, 2 and 3, plus the TSE offered by the ETS. In addition, the exemptions for the English language tests described in § 212.15(g)(2) apply to the occupations of speech-language pathologists and audiologists, medical technologists (clinical laboratory scientists), and physician assistants.

In order to obtain a certificate, the alien must demonstrate to the credentialing organization that he or she has passed either the English tests given by the Educational Testing Service or the Michigan English Language Assessment Battery (MELAB). In order to obtain a certificate an alien must be competent in written, oral, and spoken English.

The HHS has determined that medical technicians (clinical laboratory technicians) must obtain the following scores on the English tests administered by ETS: TOEFL: paper-based 530, computer-based 197; TWE: 4.0; TSE: 50.

The HHS has determined that medical technicians (clinical laboratory technicians) must obtain the following scores on the English tests administered by the MELAB: Final Score 77; Oral Interview 3+. Again, the MELAB Oral Interview Speaking Test is no longer being given overseas and is only being administered in the United States and Canada. Applicants may take MELAB Parts 1, 2 and 3, plus the TSE offered by the ETS. In addition, the exemptions for the English language tests described in § 212.15(g)(2) apply to the occupation of medical technicians (clinical laboratory technicians).

According to § 212.15(g)(1), aliens who have graduated from a college, university, or professional training school located in Australia, Canada, (except Quebec), Ireland, New Zealand, the United Kingdom, and the United States are exempt from the English language requirement.

No, this rule enables CGFNS to issue certificates to foreign health care workers seeking admission as immigrants or adjustment of status in the occupations previously discussed. It does not alter any of the Service's policies with respect to the admission of nonimmigrant aliens coming to perform services in health care occupations that were described in the first interim rule.

This interim rule amends the regulation at § 212.15(c) by adding the occupations of speech-language pathologists and audiologists, medical technologists (clinical laboratory scientists), physician assistants, and medical technicians (clinical laboratory technicians) to the list of occupations.

This interim rule also amends the regulation at § 212.15(e) to add the occupations of speech-language pathologists and audiologists, medical technologists (clinical laboratory scientists), physician assistants, and medical technicians (clinical laboratory technicians) to the list of occupations for which CGFNS can issue certificates.

Finally, this interim rule amends the regulation at § 212.15(g) to list the passing English scores for the occupations of speech-language pathologists and audiologists, medical technologists (clinical laboratory scientists), physician assistants, and medical technicians (clinical laboratory technicians). This interim rule further amends the regulations at § 212.15(g) by describing the changes in testing that have been instituted by MELAB.

This interim rule is effective 60 days from the date of publication in the Federal Register , and the Service invites post-promulgation comments to be weighed and considered in the forthcoming NPRM. For the following reasons, the Service for good cause finds that it is in the public interest to temporarily adopt this rule without notice and comment procedures, and that it would be impracticable to do otherwise.

First, the Service has diligently worked on an NPRM for 8 U.S.C. 1182(a)(5)(C), but has experienced considerable administrative difficulty in coordinating the needs and concerns of the large number of federal agencies and private interested parties affected by 8 U.S.C. 1182(a)(5)(C). Several substantive issues, including how the provisions of 8 U.S.C. 1182(a)(5)(C) affect United States obligations under international treaties, and how to define which occupations fall under the ambit of the statute, require the technical expertise of other agencies and further consultation before they can be definitively addressed.

Second, the Service believes that promulgation of this regulation as an interim rule is imperative to enable the Service to execute its adjudicative functions with respect to pending immigrant applications filed by aliens seeking to immigrate to the United States as speech language pathologists, medical technologists, physician assistants and medical technicians. Such immigrant applications have been held in abeyance until promulgation of implementing regulations resulting in a backlog. Further, because these immigrant applications have been held in abeyance, certain immigrant health care workers have unfortunately suffered extended periods of separation from family members and petitioning employers have been forced to operate without needed employees. In the long term, the Service's continued policy with respect to these immigrants could have the unintended consequence of chilling future immigration of alien health care workers in these occupations.

While the Service plans to issue an NPRM in 6 months that covers more than this interim rule, it does not anticipate speedy promulgation of a final rule due to the numerous public comments expected in response to the NPRM. In light of this, the Service finds that it would be contrary to the public interest to continue to hold these immigrant applications in abeyance pending final rules when the admission or adjustment of these aliens under temporary procedures will only serve to benefit the public health.

The Commissioner of the Immigration and Naturalization Service, in accordance with 5 U.S.C. 605(b), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule has been drafted in a way to minimize the economic impact that it has on small business while meeting its intended objective. The health care workers who will be issued certificates are not considered small entities as the term is defined in 5 U.S.C. 601(6).

This rule will not 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 1 year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

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

This rule is considered by the Department of Justice, Immigration and Naturalization Service, to be a “significant regulatory action” under E.O. 12866, section 3(f), Regulatory Planning and Review. Accordingly, this rule has been submitted to the Office of Management and Budget (OMB) for review.

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

The information required on the certificate for health care workers showing that the alien possesses proficiency in the skills that affect the provision of health care services in the United States (as provided in § 212.15(f)) is considered an information collection that has been approved for use by the Office of Management and Budget (OMB) under OMB control number 1115-0226. It is estimated that the number of respondents will increase as a result of adding the five additional health care occupations listed in § 212.15(c). Accordingly, the Service will submit an adjustment form to OMB increasing the total annual burden hours.

Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended (NWPA), requires that “[t]he Secretary [of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 218(a) for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the NRC approved dry storage of spent nuclear fuel in NRC-approved casks under a general license, publishing a final rule in 10 CFR part 72 entitled “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new Subpart L within 10 CFR part 72 entitled, “Approval of Spent Fuel Storage Casks,” containing procedures and criteria for obtaining NRC approval of dry storage cask designs.

This rule will add the FuelSolutions cask system to the list of approved spent fuel storage casks in 10 CFR 72.214. Following the procedures specified in 10 CFR 72.230 of subpart L, BNFL Fuel Solutions submitted an application for NRC approval with the Safety Analysis Report (SAR) entitled, “Final Safety Analysis Report for the FuelSolutions Spent Fuel Management System.” The NRC evaluated the BNFL Fuel Solutions submittal and issued a preliminary Safety Evaluation Report (SER) and a proposed Certificate of Compliance (CoC) for the FuelSolutions cask system. The NRC published a proposed rule in the Federal Register (65 FR 42647; July 11, 2000) to add the FuelSolutions cask system to the listing in 10 CFR 72.214. The comment period ended on September 25, 2000. Two comment letters were received on the proposed rule.

Based on NRC review and analysis of public comments, the NRC has modified, as appropriate, the CoC, SER, SAR, and the Technical Specifications (TS) for the FuelSolutions cask system.

The NRC finds that the FuelSolutions cask system, as designed and when fabricated and used in accordance with the conditions specified in its CoC, meets the requirements of 10 CFR Part 72, Subpart L. Thus, use of the FuelSolutions cask system as approved by the NRC will provide adequate protection of public health and safety and the environment. With this final rule, the NRC is approving the use of the FuelSolutions cask system under the general license in 10 CFR part 72, Subpart K, by holders of power reactor operating licenses under 10 CFR part 50. Simultaneously, the NRC is issuing a final SER and CoC that will be effective on February 15, 2001. Single copies of the final CoC and SER will be available by January 30, 2001 for public inspection and/or copying for a fee at the NRC Public Document Room (PDR),11555 Rockville Pike, Rockville, Maryland 20852 and electronically at http://ruleforum.llnl.gov.

Documents created or received at the NRC after November 1, 1999, are also available electronically at the NRC's Public Electronic Reading Room on the Internet at http://www.nrc.gov/NRC/ADAMS/index.html. The public can gain entry from this site into the NRC's Agency wide Document Access and Management System (ADAMS), which provides text and image files of the NRC's public documents. An electronic copy of the final CoC, Technical Specifications, and SER for the FuelSolutions cask system can be found in ADAMS under Accession No. ML003759247. However, because the NRC must incorporate the date of publication of this Federal Register notice into the CoC, these documents are not yet publicly available. The NRC will make these documents publically available by January 30, 2001. Contact the NRC PDR reference staff for more information. PDR reference staff may be reached at 1-800-397-4209, 301-415-4737, or by e-mail at pdr@nrc.gov.

The NRC received two comment letters from one commenter within the nuclear industry on the proposed rule. Copies of the public comments are available for review in the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD 20852 and electronically at http://ruleforum.llnl.gov.

The comments and responses have been grouped into four subject areas: Safety Evaluation Report (SER), Certificate of Compliance (CoC), Technical Specifications (TS), and Safety Analysis Report (SAR). The NRC's decision to list the FuelSolutions cask system within 10 CFR 72.214, “List of approved spent fuel storage casks,” has not been changed as a result of the public comments. A review of the comments and the NRC's responses follow:

Comment A-1: The commenter requested that within the Draft Safety Evaluation Report, Section 4.1, under BFS Methodology for Calculating Maximum Allowable Cladding Temperature, a clarifying statement be added, stating that for PWR and BWR fuel assemblies with burnups under 45,000 MWD/MTU cladding oxide thickness measurement is not required. The commenter remarked that the last sentence in the sixth paragraph of this section notes that the strain limit is defendable for spent fuels having oxide thicknesses less than 70 micrometers, irrespective of burnup. The last paragraph of this section states that for fuel with burnups between 45,000 and 60,000 MWD/MTU the cladding thickness must be measured. A statement that this is not required for fuels with burnups less than 45,000 MWD/MTU would clarify the requirements for lower burnup fuels.

Response: The NRC agrees with the proposed clarification, and the SER has been revised to add a sentence stating that oxide measurements are not required for burnups below 45,000 MWD/MTU.

Comment A-2: The commenter requested an editorial clarification within the Draft Safety Evaluation Report, Section 5.1.1, noting that in the first sentence of the first paragraph, the term “steel-lead-water-steel” includes a redundant term “steel.” The composite shielding of the transfer cask includes the three materials listed ( i.e., steel-lead-water).

Response: The NRC agrees with the proposed clarification and the SER has been revised accordingly.

Comment A-3: The commenter requested an editorial clarification within the Draft Safety Evaluation Report, Section 5.3.1, where under Adjoint Model, the word “discrete” is misspelled.

Response: The misspelled word has been corrected.

Comment A-4: The commenter stated that within the Draft Safety Evaluation Report, Section 8.1.4, the time values listed in the fifth, sixth, and seventh sentences are for the W21 canister. The values for the W74 canister are seven hours, four hours, and four hours, respectively. The commenter requested that the SER be revised either to clarify that the values shown are for the W21 canister or to report the values for both canisters explicitly.

Response: NRC agrees with the comment. Section 8.1.4 of the SER has been revised for clarity. Values for both canisters have been stated explicitly.

Comment A-5: The commenter stated that within the Draft Safety Evaluation Report, Section 8.3, the general actions for canister unloading listed in the second sentence are not in the actual sequence of operations as reported in the WSNF-200 SAR, Section 8.2.3. The commenter requested that to avoid confusion, the sentence be revised to list the actions in sequence, as follows:

(a) Move the action “lowering the cask into the pool” to after the action “removing the canister lid.”

(b) Change “removing the canister lid” to “removing the canister lids” (note that there are two lids—inner and outer).

(c) Add “removing the shield plug” before “and removing the fuel assemblies from the storage basket.”

Response: The NRC agrees with the comment and the SER has been revised to clarify the sequence of actions.

Comment A-6: The commenter requested that within the Draft Safety Evaluation Report, editorial clarifications be made in Section 10.3.2, third paragraph as follows:

(A) Fourth sentence—per WSNF-200 SAR Table 10.4-8, the dose rate listed is calculated for one year. The dose for 30 days would need to be factored from the values presented as follows: Take 1/12 of the 64 cask accident direct and of the 63 cask normal release, then add the 1 cask accident release (approx. 931 mrem for 30 days). This comment also affects the conclusion statement in the eighth sentence.

(B) Fifth sentence—per WSNF-200 SAR Section 10.4.3, the maximum transfer cask loss of neutron shield accident dose is 25.3 mrem per 24 hours, not per hour.

(C) Sixth sentence—delete the words “of the WSNF-200 SAR” from the end of the sentence. The NRC staff's review is documented in the SER, not the WSNF-200 SAR.

(D) Seventh sentence—the 751 mrem dose was calculated for the bone, not the lung.

Response: The NRC agrees with the comments:

(A) The dose rate was calculated for a one year period. The SER has been revised to state that the maximum dose at 100 meters is about 2900 mrem from the storage cask array, assuming an individual is present for a year, for accident conditions. This sentence is now in agreement with the eighth sentence.

(B) The SER has been revised to state that the maximum dose from the transfer cask for a loss of neutron shield accident is 25.3 mrem for a 24-hour period.

(C) The SER has been revised to state that the NRC staff's review is discussed in Section 7 of the SER.

(D) The SER has been revised to state that the 751 mrem dose was calculated for the bone.

Comment B-1: The commenter requested that within the Draft Certificate of Compliance, in 1.b, second paragraph, that the statement “The ten unfueled guide tube positions are mechanically blocked to prevent loading in these positions” be revised to read “The ten unfueled cell locations are mechanically blocked to prevent loading in these positions.” The commenter stated that this terminology agrees with that in the previous sentence, and reflects the fact that there are no guide tubes in the unfueled cell locations.

Response: The NRC agrees with the comment and the CoC has been revised to clarify the statement.

Comment C-1: The commenter requested that LCO 3.3.2 (Storage Cask Temperatures During Storage) for the W21 Canister be revised to modify REQUIRED ACTION B.2 to allow for the use of alternative means to be developed by the licensee to bring the CASK into compliance with the LCO. Alternatively, REQUIRED ACTION B.2 should be deleted and replaced with a requirement for the licensee to develop the means to meet the LCO and notify NRC of the action taken. The commenter's logic was that the specification of a specific method to meet the LCO when there are other alternatives available is overly restrictive and may not be feasible in some conditions. This will permit decommissioning facilities to meet the LCO in the absence of a spent fuel pool. In addition, the additional flexibility can better satisfy ALARA by mitigating the personnel exposure associated with the removal of spent fuel from the CANISTER.

Response: The NRC disagrees with the comment. Currently, no alternative means of complying with the LCO have been proposed by the licensee or evaluated by the staff for acceptability. Any alternative means to meet the LCO shall be approved by the staff prior to implementation.

Comment C-2: The commenter requested that LCO 3.3.3 (Storage Cask Temperatures During Horizontal Transfer) for the W21 Canister be revised to modify REQUIRED ACTION C.1 to allow for the use of alternative means to be developed by the licensee to bring the CASK into compliance with the LCO. Alternatively, REQUIRED ACTION C.1 should be deleted and replaced with a requirement for the licensee to develop the means to meet the LCO and notify NRC of the action taken. The commenter's logic was that the specification of a specific method to meet the LCO when there are other alternatives available is overly restrictive and may not be feasible in some conditions. This will permit decommissioning facilities to meet the LCO in the absence of a spent fuel pool. In addition, the additional flexibility can better satisfy ALARA by mitigating the personnel exposure associated with the removal of spent fuel from the CANISTER.

Response: The NRC disagrees with the comment. Currently, no alternative means of complying with the LCO have been proposed by the licensee or evaluated by the staff for acceptability. Any alternative means to meet the LCO shall be approved by the staff before implementation.

Comment C-3: The commenter requested that LCO 3.3.2 (Storage Cask Temperatures During Storage) for the W74 Canister be revised to modify REQUIRED ACTION B.2 to allow for the use of alternative means to be developed by the licensee to bring the CASK into compliance with the LCO. Alternatively, REQUIRED ACTION B.2 should be deleted and replaced with a requirement for the licensee to develop the means to meet the LCO and notify NRC of the action taken. The commenter's logic was that the specification of a specific method to meet the LCO when there are other alternatives available is overly restrictive and may not be feasible in some conditions. This will permit decommissioning facilities to meet the LCO in the absence of a spent fuel pool. In addition, the additional flexibility can better satisfy ALARA by mitigating the personnel exposure associated with the removal of spent fuel from the CANISTER.

Response: The NRC disagrees with the comment. Currently, no alternative means of complying with the LCO have been proposed by the licensee or evaluated by the staff for acceptability. Any alternative means to meet the LCO would be approved by the staff prior to implementation.

Comment C-4: The commenter requested that LCO 3.3.3 (Storage Cask Temperatures During Horizontal Transfer) for the W74 Canister be revised to modify REQUIRED ACTION C.1 to allow for the use of alternative means to be developed by the licensee to bring the cask into compliance with the LCO. Alternatively, REQUIRED ACTION C.1 should be deleted and replaced with a requirement for the licensee to develop the means to meet the LCO and notify NRC of the action taken. The commenter's logic was that the specification of a specific method to meet the LCO when there are other alternatives available is overly restrictive and may not be feasible in some conditions. This will permit decommissioning facilities to meet the LCO in the absence of a spent fuel pool. In addition, the additional flexibility can better satisfy ALARA by mitigating the personnel exposure associated with the removal of spent fuel from the CANISTER.

Response: The NRC disagrees with the comment. Currently, no alternative means of complying with the LCO have been proposed by the licensee or evaluated by the staff for acceptability. Any alternative means to meet the LCO shall be approved by the staff prior to implementation.

Comment C-5: The commenter requested that the Technical Specification for the FuelSolutions Storage System, Section 4.2.2.1 (Storage Cask), be revised to add a note clarifying the requirements for site-specific pad designs that have different values from those listed. The following is requested to be added at the end of Section 4.2.2.1: “Any site-specific pad design with parameters that differ from those listed must be evaluated by the licensee to confirm that the design basis deceleration loads for the storage cask and canister are not exceeded. This evaluation must be performed using the same methodology as described in WSNF-200 SAR Section 3.7.3.1.”

Response: The NRC agrees with the comment. The Technical Specification for the FuelSolutions Storage System, Section 4.2.2.1 (Storage Cask) has been revised accordingly.

Comment C-6: The commenter requested that the Technical Specification for the FuelSolutions Storage System, Section 4.2.2.2 (Transfer Cask), be revised to add a note clarifying the requirements for site-specific pad designs that have different values from those listed. The following is requested to be added at the end of Section 4.2.2.2: “Any site-specific pad design with parameters that differ from those listed must be evaluated by the licensee to confirm that the design basis deceleration loads for the transfer cask and canister are not exceeded. This evaluation must be performed using the same methodology as described in WSNF-200 SAR Section 3.7.5.1.”

Response: The NRC agrees with the comment. The Technical Specification for the FuelSolutions Storage System, Section 4.2.2.2 (Transfer Cask) has been revised accordingly.

Comment D-1: The commenter requested that editorially, within the Safety Analysis Report in WSNF-200 SAR Table 12.1-1, the following references to the Technical Specifications be revised:

(a) Under Radiological Protection, 3.4.1 should be 5.3.5, and 3.6.1 should be 3.5.1.

(b) Under Structural Integrity, 3.5.1 should be 3.4.1.

Response: The NRC agrees with the comment. The editorial corrections were made to Table 12.1-1.

Based on the responses above, the CoC, the TSs, the SAR, and the SER have been modified as follows:

1. The SER has been revised (Comments A-1 through and including A-6).

2. The CoC has been revised (Comment B-1).

3. The Technical Specification for the FuelSolutions Storage System, Section 4.2.2.1 (Storage Cask) has been revised. (Comment C-5).

4. The Technical Specification for the FuelSolutions Storage System, Section 4.2.2.2 (Transfer Cask) has been revised (Comment C-6).

5. Editorial corrections were made to Table 12.1-1 of the SAR (Comment D-1).

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the NRC on June 30, 1997, and published in the Federal Register on September 3, 1997 (62 FR 46517), this rule is classified as compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended (AEA), or the provisions of Title 10 of the Code of Federal Regulations. Although an Agreement State may not adopt program elements reserved to NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws, but does not confer regulatory authority on the State.

The National Technology Transfer Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this final rule, th NRC is adding the FuelSolutions cask system to the list of NRC-approved cask systems for spent fuel storage in 10 CFR 72.214. This action does not constitute the establishment of a standard that establishes generally-applicable requirements.

Under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR part 51, the NRC has determined that this rule is not a major Federal action significantly affecting the quality of the human environment and therefore, an environmental impact statement is not required. This final rule adds an additional cask to the list of approved spent fuel storage casks that power reactor licensees can use to store spent fuel at reactor sites without additional site-specific approvals from the NRC. The environmental assessment and finding of no significant impact on which this determination is based are available for inspection at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD 20852 and electronically at http://ruleforum.llnl.gov. Single copies of the environmental assessment and finding of no significant impact are available from Stan Turel, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 415-6234, e-mail spt@nrc.gov.

This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing requirements were approved by the Office of Management and Budget, approval number 3150-0132.

If a means used to impose an information collection does not display a currently valid OMB control number, the NRC may not conduct or sponsor, and a person is not required to respond to, the information collection.

On July 18, 1990 (55 FR 29181), the Commission issued an amendment to 10 CFR part 72. The amendment provided for the storage of spent nuclear fuel in cask systems with designs approved by the NRC under a general license. Any part 50 nuclear power reactor licensee can use cask systems with designs approved by the NRC to store spent nuclear fuel if it notifies the NRC in advance, the spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. In that rule, four spent fuel storage casks were approved for use at reactor sites and were listed in 10 CFR 72.214. That rule envisioned that storage casks certified in the future could be routinely added to the listing in 10 CFR 72.214 through the rulemaking process. Procedures and criteria for obtaining NRC approval of new spent fuel storage cask designs were provided in 10 CFR part 72, subpart L.

The alternative to this action is to withhold approval of this new design and issue a site-specific license to each utility that proposes to use the casks. This alternative would cost both the NRC and utilities more time and money for each site-specific license. Conducting site-specific reviews would ignore the procedures and criteria currently in place for the addition of new cask designs that can be used under a general license, and would be in conflict with Nuclear Waste Policy Act (NWPA) direction to the Commission to approve technologies for the use of spent fuel storage at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site reviews. This alternative also would tend to exclude new vendors from the business market without cause and would arbitrarily limit the choice of cask designs available to power reactor licensees. This final rule will eliminate the above problems and is consistent with previous NRC actions. Further, the rule will have no adverse effect on public health and safety.

The benefit of this rule to nuclear power reactor licensees is to make available a greater choice of spent fuel storage cask designs that can be used under a general license. The new cask vendors with casks to be listed in 10 CFR 72.214 benefit by having to obtain NRC certificates only once for a design that can then be used by more than one power reactor licensee. The NRC also benefits because it will need to certify a cask design only once for use by multiple licensees. Casks approved through rulemaking are to be suitable for use under a range of environmental conditions sufficiently broad to encompass multiple nuclear power plants in the United States without the need for further site-specific approval by NRC. Vendors with cask designs already listed may be adversely impacted because power reactor licensees may choose a newly listed design over an existing one. However, the NRC is required by its regulations and NWPA direction to certify and list approved casks. This rule has no significant identifiable impact or benefit on other Government agencies.

Based on the above discussion of the benefits and impacts of the alternatives, the NRC concludes that the requirements of the final rule are commensurate with the Commission's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and thus, this action is recommended.

In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. This rule affects only the licensing and operation of nuclear power plants, independent spent fuel storage facilities, and BNFL Fuel Solutions. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR part 121.

The NRC has determined that the backfit rule (10 CFR 50.109 or 10 CFR 72.62) does not apply to this rule because this amendment does not involve any provisions that would impose backfits as defined in the backfit rule. Therefore, a backfit analysis is not required.

In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs, Office of Management and Budget.

The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for Germany, recently notified the Federal Aviation Administration (FAA) that an unsafe condition may exist on BMW RR GmbH models BR700-710A1-10 and BR700-710A2-20 turbofan engines. The LBA received a report of severe engine oil loss, caused by oil leaking from a defective oil filter differential pressure switch, resulting in an in-flight engine shutdown. BMW RR has identified and provided in a list, serial numbers for pressure switches that are not defective. BMW RR has determined that for pressure switches with less than 200 flight hours-since-new, that are not one of the listed switches, and are not leaking, 50 flight hours will be allowed after the effective date of this AD before the required replacement with a serviceable switch. For pressure switches with 200 or more flight hours-since-new, 150 flight hours will be allowed after the effective date of this AD before the required replacement with a serviceable switch. This is based on calculations that pressure switches with 200 or more flight hours-since-new have successfully passed a threshold for failure. An analysis conducted by BMW RR revealed that the engine shutdown rate due to oil leaking from defective oil filter differential pressure switches is unacceptable, and could result in multiple engine in-flight shutdowns. The actions specified in this AD are intended to prevent defective oil filter differential pressure switches from causing severe engine oil loss, resulting in in-flight engine shutdowns.

RR has issued Service Bulletin No. SB-BR700-79-900215, Revision 2, dated August 2, 2000, which specifies procedures for inspecting, marking, and if necessary replacing oil filter differential pressure switch P/N 21SN04-419 or P/N 21SN04-431 with a serviceable switch. The LBA issued AD No. 2000-257/2, in response to the service bulletin to assure the airworthiness of these engines in Germany.

These engine models are manufactured in Germany and are 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 LBA has kept the FAA informed of the situation described above. The FAA has examined the findings of the LBA, 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 engines of the same type design registered in the United States, this AD is being issued to prevent defective oil filter differential pressure switch P/N 21SN04-419 or P/N 21SN04-431 from causing severe engine oil loss, resulting in in-flight shutdown. The actions would be required to be accomplished in accordance with the service bulletin described previously.

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NE-44-AD.” The postcard will be date stamped and returned to the commenter.

This action does not have federalism implications, as defined in Executive Order 13132, because it 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 responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this proposal.

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

The final rule for Fisheries of the Exclusive Economic Zone off Alaska; License Limitation Program for the Scallop Fishery (65 FR 78110, December 14, 2000) established permit requirements to implement Amendment 4 to the Fishery Management Plan for the Scallop Fishery off Alaska. The permit requirements were approved by OMB but the control number was not added to § 902.1(b).

In rule FR Doc 00-31649, published on December 14, 2000 (65 FR 78110) make the following correction. On page 78115, in the third column, after the signature, add the following text:

In addition to publishing the full text of this document in the Federal Register , the Commission also provides all interested persons an opportunity to inspect or copy the contents of this document during normal business hours in the Public Reference Room at 888 First Street, NE., Room 2A, Washington, DC 20426.

The Commission Issuance Posting System (CIPS) provides access to the texts of formal documents issued by the Commission. CIPS can be accessed via Internet through FERC's Home Page (http://www.ferc.fed.us) using the CIPS link or the Energy Information Online icon. The full text of this document will be available on CIPS in ASCII, WordPerfect 6.1 and WordPerfect 8.0 format. User assistance is available at 202-208-2222 or by E-mail to CipsMaster@ferc.fed.us.

This document is also available through the Commission's Records and Information Management System (RIMS), an electronic storage and retrieval system of documents submitted to and issued by the Commission after November 16, 1981. Documents from November 1995 to the present can be viewed and printed. RIMS is available in the Public Reference Room or remotely via Internet through FERC's Homepage using the RIMS link or the Energy Information Online icon. User assistance is available at 202-208-2222, or by E-mail to RimsMaster@ferc.fed.us.

Finally, the complete text on diskette in WordPerfect format may be purchased from the Commission's copy contractor, RVJ International, Inc. RVJ International, Inc., is located in the Public Reference Room at 888 First Street, NE., Washington, DC 20426.

The Federal Energy Regulatory Commission (Commission) is issuing this notice to update filing fees that the Commission assesses for specific services and benefits provided to identifiable beneficiaries. Pursuant to § 381.104 of the Commission's regulations, the Commission is establishing updated fees on the basis of the Commission's Fiscal Year 1999 costs. The adjusted fees announced in this notice are effective February 15, 2001. The Commission has determined with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget, that this final rule is not a major rule within the meaning of section 251 of Subtitle E of SBREFA. [5 U.S.C. § 804(2)] The Commission is submitting this final rule to both Houses of Congress and to the Comptroller General.

The new fee schedule is as follows:

The regulation makes more clear the process that is followed by the Secretary in the exercise of this discretionary authority. The regulation also makes clear that we will follow a process which reflects (1) a presumption in favor of the acquisition of trust title when an application involves title to lands located inside the boundaries of a reservation (“on-reservation lands”), and (2) a more demanding standard for the acquisition of title when the application involves title to lands located outside the boundaries of a reservation (“off-reservation lands”). The delineation of these differing processes will better enable the Secretary to carry out the responsibility for assisting Indian tribes in re-establishing jurisdiction over land located within their own reservations. It also creates a framework that more adequately addresses concerns non-Indian governments may have about the potential ramifications of placing off-reservation lands into trust.

This regulation also describes the procedure for mandatory acquisitions of title. The general statutory authority giving the Secretary discretion to acquire title to lands in trust is found in section 5 of the Indian Reorganization Act (IRA) of 1934, 25 U.S.C. 465. Occasionally, Congress enacts more narrow legislation granting the Secretary discretionary authority to acquire title to land into trust for some specific purpose. Acquisitions of trust title under the IRA and other more narrow statutes that grant discretionary authority to the Secretary are referred to as “discretionary acquisitions” of title. Mandatory acquisitions of title are those that Congress has directed the Secretary to complete by removing any discretion in the administrative decision making process. The processing of these mandated acquisitions has not always been well-understood. The rule identifies the types of acquisitions that we consider mandatory and defines the process by which we acquire the title.

Finally, this regulation establishes a process to address the unique difficulties encountered by Indian tribes which have no reservations, have no trust land or have trust land the character of which renders it incapable of being developed. The process enables such tribes to designate a “Tribal Land Acquisition Area” (TLAA) in which it plans to acquire land. The TLAA requires approval of the Secretary and, when approved, will enable the tribe to acquire title to the lands within the TLAA into trust under the on-reservation provision of this regulation for a prescribed period of time.

On April 12, 1999, the proposed rule for the acquisition of title to land in trust was published in the Federal Register (Vol. 64, No. 69, pages 17574-17588). The initial deadline for receipt of comments was July 12, 1999, but extensions to the comment period were granted to allow additional time for comments on the proposed rule. The comment period expired on December 29, 1999. Comments were received from a wide variety of Indian tribes and individuals, tribal groups, local and state governments and other interested groups and individuals. The development of this final rule making was achieved through formal consultation on the record with affected tribal governments. A panel discussion meeting with federal, state and local governments, Indian tribes and various organizations was held in Washington, DC in May, 1999. Panel members included persons from California Indian Lands Office, attorneys representing various tribal and municipal clients, Minority Staff Director and Counsel of House Resources Committee for Indian Affairs, Majority Staff Director of Senate Committee on Indian Affairs, two tribal chairpersons, Deputy Attorney General of South Dakota and National Association of Convenience Stores. In addition, in accordance with the government-to-government relationship with Indian tribes, formal consultations were held throughout the United States during the comment period to explain and provide interested parties with an opportunity to understand and comment on the final rule. Five nationwide consultation meetings with Indian tribes and individuals were conducted during the comment period. These meetings were held in Albuquerque, New Mexico in May 1999; St. Paul, Minnesota in May 1999; Sacramento, California in June 1999; Mesa, Arizona in June 1999 and Portland, Oregon in August 1999. In total, comments were received from 342 Indian tribes, 335 individuals, 65 state and local governments, 9 congressional offices and 7 federal agencies. Tribal participation was also achieved by consultation with the National Congress of American Indians (NCAI) for its member tribes. NCAI established a working group to assist in the development of the comments on the proposed regulations.

This notice is published in exercise of the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs pursuant to Part 290, Chapter 8, of the Departmental Manual.

The following narrative and discussion of comments is keyed to specific subparts of the rule.

This subpart addresses the purpose and scope of the regulation and provides interpretation for the key terms of the regulation. Subpart A also addresses the types of transactions affecting this regulation, how to apply to have title to land placed in trust, how requests are processed, what occurs after a decision is made on a request, when title to land attains trust status and the taking of fractional interests of land into trust.

Comments were received regarding the implementation of the proposed regulation, with some comments requesting that the rule be withdrawn. The suggestion was not accepted because the Secretary must ensure that his authority over the acquisition of title to land into trust is implemented in an orderly and fair manner.

There were several comments concerning the definition of “reservation.” One suggestion was that term the “reservation” should be defined the same as the statutory term “Indian country.” Another suggestion was that the definition of “reservation” should remain the same as in the existing regulation. Other comments suggested that “reservation” include a provision for Pueblo grant lands, others suggested that it include hunting and fishing treaty areas. The comments were duly considered and accepted to clarify that Pueblo lands within the exterior boundaries of lands granted or confirmed to, or acquired by, the Pueblo as reported by the Pueblo Lands Board under section 2 of the Act of June 7, 1924, ch. 331, 43 Stat. 636, plus any other lands reserved, set aside, or held in trust by the United States for the use of the Pueblo or its members are reservation lands for purposes of this regulation. Also, the term “reservation” is clarified to include lands created by federal agreement, Secretarial proclamation or final judicial determination. Further, the term “reservation” is clarified to include lands established by Executive or Secretarial proclamation in the State of Oklahoma. These changes to the definition of reservation appear in § 151.2 of the rule.

There were many comments suggesting that lands contiguous to a reservation should be treated as on-reservation acquisitions. To define contiguous lands as on-reservation lands would enable applicants to use the less burdensome process which reflects a presumption in favor of the acquisition of trust title to on-reservation lands. The comments were considered but rejected and the rule remains as proposed that land(s) contiguous to reservation land will be treated as off-reservation acquisitions for purposes of this regulation, although because of their proximity to an existing reservation, the tribe will receive more favorable consideration than if the lands were more remote.

There were several comments regarding the type of acquisition transactions covered by the regulation. Comments suggested that only those acquisitions of title from fee simple to trust or restricted fee to trust or exchanges involving fee simple to trust should be governed by this regulation. The proposed rule included trust to trust, restricted fee to restricted fee, restricted fee to trust and land exchange acquisitions. The comments have been accepted and the rule is amended in § 151.3 to provide that the requirements of the rule only apply to conveyances from fee simple to trust, fee simple to restricted fee and land exchanges involving fee simple land. The rationale for excluding the other types of acquisitions from the regulation is that trust to trust and restricted fee to restricted fee, restricted fee to trust and land exchanges not involving fee land do not have an impact on the local governments because these lands are not already under their jurisdiction. We accepted the comments and have revised § 151.3(b) of the regulation to exclude these transfers.

There were comments suggesting that the final rule should establish special treatment for government-to-government trust transfers, because these lands already are exempt from local taxation and jurisdiction and because the federal transfer process involves similar criteria as the Part 151 process, and requiring another regulatory review would be duplicative and burdensome. These comments were accepted and § 151.3(b) has been amended to exempt federal agency transfers of title of land from one federal agency to the BIA or tribe.

There were numerous comments suggesting that a time frame should be established for issuance of a decision to accept title to land in trust. The comments were accepted and the rule amended to provide that the applicant will be notified when an application is complete. Once an applicant is notified that their application is complete, the BIA will issue a decision on the request within 120 working days. Subsection (f) has been added to § 151.5 to reflect this change.

There were several comments seeking clarification regarding the treatment of applications that are pending when the regulation becomes final. The comments were considered and the regulation now provides a definition of “Complete application” in § 151.2. A new subsection (e) is added to § 151.5 that establishes the standard for a request to be considered a complete application. Applications that satisfy the definition of complete application at the time this rule becomes final, will be processed under the previous rule. If it is determined that an application is not complete at the time the rule becomes final, the application will be processed in accordance with the requirements of this rule.

There were several comments concerning the authority to take land into trust in Alaska. The preamble to the proposed rule addressed in some detail the question of whether to continue the bar in the existing regulations to the acquisition of trust title in land in Alaska (other than for the Metlakatla Indian Community or its members). See 64 FR 17577-78 (1999). As the discussion there indicated, the Department had earlier received, and invited public comment on (See 60 FR 1956(1995)), a petition by Native groups in Alaska which requested that the Department initiate a rulemaking to remove the prohibition in the regulations on taking Alaska land in trust. That discussion also noted that the Associate Solicitor for Indian Affairs had concluded, in a brief September 15, 1978 Opinion, that the Alaska Native Claims Settlement Act (ANSCA) precluded the Secretary from taking land into trust for Natives in Alaska (except for Metlakatla).

The Solicitor has considered the comments and legal arguments submitted by Alaska Native governments and groups and by the State of Alaska and two leaders of the Alaska State Legislature on whether the 1978 Opinion accurately states the law. The Solicitor has concluded that there is substantial doubt about the validity of the conclusion reached in the 1978 Opinion. Among other things, the Associate Solicitor found “significant” that in 1976 Congress repealed section 2 of the Indian Reorganization Act (IRA). That section had extended certain provisions of the IRA to Alaska, and had given the Secretary the authority to designate certain lands in Alaska as Indian reservations. See 43 U.S.C. 704(a), 90 Stat. 2743, repealing 49 Stat. 1250, 25 U.S.C. 496. The 1978 Opinion gave little weight to the fact that Congress has not repealed section 5 of the IRA, which is the generic authority by which the Secretary takes Indian land into trust, and which Congress expressly extended to Alaska in 1936. See 25 U.S.C. 473a. The failure of Congress to repeal that section, when it was repealing others affecting Indian status in Alaska, five years after Congress enacted the Alaska Native Claims Settlement Act, raises a serious question as to whether the authority to take land in trust in Alaska still exists. Accordingly, the Solicitor has signed a brief memorandum rescinding the 1978 Opinion.

At the same time, the position of the Department has long been, as a matter of law and policy, that Alaska Native lands ought not to be taken in trust. Therefore, the Department has determined that the prohibition in the existing regulations on taking Alaska lands into trust (other than Metlakatla) ought to remain in place for a period of three years during which time the Department will consider the legal and policy issues involved in determining whether the Department ought to remove the prohibition on taking Alaska lands into trust. If the Department determines that the prohibition on taking lands into trust in Alaska should be lifted, notice and comment will be provided.

This subpart describes the information that must be included in a request involving land located inside a reservation boundary or an approved TLAA. This subpart also establishes the criteria that will be used to evaluate requests for the acquisition of title to lands located inside the reservation or an approved TLAA. Further, this subpart defines the consent needed of the recognized governing body when an Indian tribe or individual acquires land inside another tribe's reservation or approved TLAA.

One comment suggested that the regulation require applicants to address potential impacts to local governments when the land being acquired is located on-reservation. The comment was rejected because state and local governments already are invited to submit comments on a proposed acquisition and may address such impacts in their comments. One comment suggested that the final rule clarify the distinction between on-reservation and off-reservation land. We believe the regulation already clearly defines the terms of “reservation” and “TLAA” which are used for on-reservation acquisitions. There were a few comments concerning appropriate land use of a proposed acquisition. Comments suggested that the rule should require clarification of anticipated future uses after acquisition in trust, describe how appropriate use will be enforced and propose strict criteria for future uses of the land. These comments were rejected because the IRA allows Indian tribes to manage and control their lands in accordance with tribal policy. Therefore, the regulation provides that anticipated future uses are those identified that are reasonably foreseeable and achievable. There were a few comments suggesting that the regulation should allow acquisitions for cultural, religious, or ceremonial uses. The proposed regulation continues the existing practice of accepting applications for the acquisition of title to lands in trust for these purposes. There were comments suggesting that the Secretary more thoroughly consider the impact on the state and local governments by the taking of title to land into trust, loss of tax revenue, and that he resolve jurisdictional issues and impact to municipal and local services prior to deciding to take land into trust. The regulation provides state and local governments with the opportunity to comment on potential impacts of the proposed acquisition, and the Secretary may fully consider the potential impacts prior to making a decision to take title to land into trust.

There were numerous comments suggesting that the final rule should require objective standards for the Secretary to use in making decisions to take on-reservation land into trust. The comments were accepted and the regulation has been amended to provide clearer standards to evaluate on-reservation requests. Section 151.10 is amended to provide that once an application is complete, we will accept title to land into trust on-reservation or inside a TLAA if the application facilitates tribal self-determination, economic development, Indian housing, land consolidation or natural resource protection. We will deny applications to accept on-reservation lands in trust if the acquisition will result in severe negative impact to the environment or severe harm to the local government. Evidence of such harm must be clear and demonstrable and supported in the record.

There were several comments suggesting that the rule should encourage tribes to make payments in lieu of taxes. These comments were rejected. While it is the Department's policy to encourage tribes to work with local communities, the decision to consider in lieu contributions to the local governments is a matter for the tribe, not the United States. A few comments suggested that applicants not be required to provide an explanation or reason for the need for the trust acquisition. The comments stating that no documentation need be submitted were rejected because the information is needed by the Secretary in order to make an informed and supportable decision. Under the final rule, there is a presumption in favor of accepting land into trust for on-reservation acquisitions but the Secretary still requires basic information in order to make his determination. One comment suggested that the regulation should include an economic analysis of the intended use of the property. The comment was rejected because the Secretary must consider many factors in the decision making process, and the decision as to the economics of the tribal use of land is for the tribe to resolve, not the Secretary.

This subpart describes the information that must be included in an off-reservation request, that is, involving land located outside a reservation or TLAA. This subpart also sets forth the criteria that will be used to evaluate an off-reservation request. Further, this subpart establishes exceptions to the prohibition for individual Indians acquiring land that is located outside an individual Indian's reservation.

One comment suggested that the Department should recognize the benefits of off-reservation acquisitions. We agree. The Department has always, and continues to recognize such benefits. There were comments suggesting that the notification requirement as well as the public comment period be expanded. We believe the regulation provides adequate notification and comment periods. There were several comments suggesting that the regulation limit off-reservation acquisitions in a number of ways, such as treating disputed lands as off-reservation, limiting off-reservation acquisitions to former tribal lands, not allowing off-reservation trust acquisitions, securing Congressional approval for off-reservation acquisitions and creating a presumption against trust status for off-reservation lands. We believe these approaches are inconsistent with the Secretary's responsibilities under existing laws and the IRA. Affected parties are given the opportunity to comment on these proposed off-reservation acquisitions and such comments are thoughtfully considered in the decision-making process. There were numerous comments suggesting that the final rule should require objective standards for the Secretary to use in making decisions to take off-reservation land into trust. The comments were accepted and § 151.14 has been amended to provide clear standards to evaluate off-reservation requests. Once an application is complete, we will accept title to land in trust outside a reservation or outside an approved TLAA only if the application shows that the acquisition is necessary to facilitate tribal self-determination, economic development, Indian housing, land consolidation or natural resource protection and that meaningful benefits to the tribe outweigh any demonstrable harm to the local community. Furthermore, we will not accept title to land in trust outside a reservation or outside an approved TLAA if the acquisition would result in severe negative impacts to the environment or significant harm to the local community. Evidence of the harm must be clear and demonstrable and supported in the record.

This subpart describes the information that is required to process a mandatory transfer of title to trust and how the request will be processed. Further, this subpart provides for an appeal of a determination that an acquisition is mandatory.

One comment suggested that the Department should treat an acquisition as mandatory only if Congress has mandated the Secretary to accept title to specific tracts of land. This comment was rejected because the Department cannot administratively limit Congress' authority to direct the Department to accept land into trust, and there clearly have been situations in which Congress has directed the Secretary to acquire land into trust, but does not specify clearly the parcel or parcels of land to be acquired. There were a few comments suggesting that the Secretary should view lands acquired under certain specific statutes as mandatory acquisitions. These comments were rejected as each mandatory acquisition must be reviewed on a case-by-case basis. Several comments were received that suggested that the term “mandatory” acquisition should be broadened to include “on-reservation” acquisitions, permit mandatory acquisition for the first 150,000 acres of land and make mandatory the acquisition of title to land in approved TLAAs. These suggestions were rejected since only Congress has the authority to mandate an acquisition and the Secretary cannot mandate acquisitions through these regulations. Each determination of whether an acquisition is mandatory or not must be made on a case-by-case basis, based on specific statutory direction provided by Congress.

One comment suggests that applicants should be permitted to file an appeal of a determination on whether or not an acquisition is mandatory. The comment is accepted and section § 151.16 has been amended to reflect that denials or approvals of a determination that an acquisition is mandatory may be appealed under the provisions of part 2. One comment suggested that the appeal process outlined in 25 CFR part 900 be used. This comment was rejected as part 900 applies to contracts issued under the Indian Self-Determination and Education Assistance Act, 25 U.S.C. 450 et. seq., and, thus, is inapplicable to the provisions of this rule.

There were a couple of comments suggesting that the Department of Justice title evidence standards should not apply to on-reservation gifts of lands, nor should the warranty deed requirement apply when tribes have purchased land through a quit claim deed and the title is accompanied by title insurance. These suggestions were rejected as the standards imposed by the Department of Justice must be met for the United States to acquire land into trust for a tribe or individual Indian.

The subpart defines a TLAA, describes the information that must be included in a request for approval of a TLAA, describes how the request will be processed, identifies the criteria that will be used to evaluate requests and describes how to apply to modify an approved TLAA. This subpart also clarifies under what circumstances an Indian tribe can include in its TLAA land located inside another Indian tribe's reservation or TLAA. Further, this subpart establishes that an Indian tribe is not prohibited from acquiring land off-reservation if its request for a TLAA is denied. Lastly, this subpart clarifies that land acquired within an approved TLAA does not automatically attain reservation status.

Federal policy has for many decades viewed the existence of a tribal land base as integral to the cultural, political, and economic well-being of Indian tribes. Because of the overwhelming importance of a tribal land base, this rule facilitates acquisitions by landless Indian tribes. The process to address these situations is the use of a TLAA. Upon approval of a TLAA by the Secretary, tribes will be able to benefit from the on-reservation acquisition provisions to create a homeland, and strive for tribal self-determination and economic self-sufficiency.

Several comments suggested that the final rule should be expanded to include not just reservation-less tribes but also Indian tribes which do not have trust land or which have a trust land base of which is incapable of being developed to create a homeland and strive for tribal self-determination and economic self-sufficiency. The comments were accepted and the definition of a TLAA at § 151.17 is amended to include Indian tribes that have no trust land or have trust land the character of which renders it incapable of being developed to take advantage of the TLAA. A new § 151.18 was added to make more clear what tribes are eligible to apply for a TLAA. One comment suggested that existing tribal consolidation areas approved pursuant to the current acquisition regulation should be grand-fathered and treated as a TLAA while another comment suggested that the rule should clarify whether or not tribes with existing approved tribal consolidation areas must reapply under the final rule for a TLAA. While this final rule eliminates the ability of tribes to obtain tribal consolidation areas as provided under the existing regulation, this rule provides an alternative mechanism in the form of a TLAA. Tribal consolidation areas approved under the existing regulation will remain in force and effect for the purposes for which they were approved, but such tribal consolidation areas are not deemed to constitute a TLAA under these regulations. In the event a tribe wants to amend or modify an existing approved tribal consolidation area to include the provisions of a TLAA, the proposed amendment or modification must be reviewed under the requirements of approval for a TLAA under the final rule. One comment suggested that TLAA receive congressional approval. We believe that the Secretary has the authority, and indeed the responsibility to prescribe procedures to fulfill the purposes of the IRA.

There were comments expressing the views that tribes should not be required to submit documentation that was different from that required for discretionary acquisitions; information documenting the history of the tribe, and information about the tribe; such as taxes, revenues and services; or other information that was viewed as impractical, unwarranted, or imposes a financial burden or is not readily available. We believe the information required under the final rule is reasonable, necessary, relevant to the decision making process and not burdensome upon the applicant as it may be readily obtained from existing sources. Further, the information is consistent with the kinds of information requested by applicants seeking off-reservation acquisitions. One comment suggested that the rule should clarify the requirements for notifying other governmental entities. We believe the rule provides sufficient notice requirements. One comment suggested that the 50-mile radius for notice be re-evaluated. The comment was rejected because the defined radius is considered a reasonable area that could be impacted by a trust acquisition and will provide sufficient notice to others.

There were a few comments concerning the 10 year term for an approved TLAA. The comments suggested that 10 years was an insufficient amount of time to acquire lands within the TLAA due the requirements for completing and securing approval to an acquisition. The comments were accepted and § 151.17 is amended to provide for a 25-year term for a TLAA.

There were several comments concerning the establishment of criteria or standards for evaluating requests for the approval of a TLAA. We believe that the regulation provides clear criteria for the Secretary to use in determining whether to approve a tribe's request for a TLAA. The criteria used for approving a TLAA is separate and distinct from the criteria and standards used to evaluate an on-or off-reservation acquisition request. Once a TLAA is approved by the Secretary, the on-reservation criteria will be used to determine whether to accept the title to land in trust. One comment suggested that a formal appeal process should be established when a request for a TLAA is denied. Section 151.6(a) sets out the process for the appeal of a decision under this part. One comment suggested that tribal trust land should be equivalent to reservation status. The comment was rejected because it was not within the scope of this rule and is governed by principles of Indian law. One comment suggested that the rule should clearly define a streamlined process for modification of approved tribal consolidation areas. The comment was rejected because the final rule establishes the criteria for the TLAA and eliminates the process to obtain a tribal consolidation area. Approved tribal consolidation areas, however, may form the basis for the development of a TLAA.

This subpart describes the penalties for making false statements pertaining to a request. This subpart also describes the record keeping and reporting requirements under this part as well as the information collection requirements.

One comment received suggested that Indian tribes should not be penalized for making false statements and another comment suggested the penalty for false statements should also apply to non-Indians. The first comment was rejected, and the second deemed already addressed because the False Statements Accountability Act of 1996 (18 U.S.C. 1001) applies to all statements submitted in connection with a trust title acquisition whether such statements are made by the applicant or interested parties. Section 151.27 was amended to clarify who owns the records associated with this part and a new § 151.28 was added to clarify how records associated with this part will be preserved.

Executive Order 12866 requires each agency to write regulations that are easy to understand. This regulation has been written in a question and answer format, arranged in a manner to make it easier to follow, with technical language or jargon eliminated to make it is easier to understand.

In accordance with the criteria in Executive Order 12866, this rule is not a significant regulatory action and is not subject to review by the Office of Management and Budget.

(a) The amendments to this rule basically conform to the policies and practices that currently guide the Department's decision making on land into trust applications. The rule does not have an annual effect of $100 million or more on the economy. It does not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. This rule simply identifies a “minimum standard” of criteria and requirements to be considered in the exercise of the Secretary's discretion to place lands in trust for individual Indians and tribes.

Looking at the overall picture of how much land we have taken into trust historically, the annual number of requests to place lands in trust has been small. Based on the BIA's Annual Report of Indian Lands for 1996, only 35 States have Indian lands, four of which have fewer than 1,000 acres of Indian lands. The 1996 report indicated that there were 6,941 total applications (fee-to-trust; trust-to-trust; restricted-to-restricted; restricted-to-trust) involving 212,000 acres cumulatively, i.e., the average amount of land involved in an application was only about 30 acres. Based on the annual caseload report for FY 1996, the total dollar amount Tribes and individual Indians paid for acquisitions of land in trust is $19,420,303.81. The trust-to-trust, restricted-fee-to-restricted fee, and restricted fee-to-trust land acquisitions do not impact local and state governments because these lands are not presently subject to state or local jurisdiction or taxation. Some States and local governments may have a decrease in revenues derived from taxes from the Secretary's determination to accept title to land in trust. However, the loss in annual revenues for State and local jurisdictions is only be a fraction of the value of the land involved. Moreover, some tribes may choose to offset this loss by making payments in lieu of taxes, or supplying services to the local communities. Finally, any losses or gains to State or local tax rolls would be spread over several states and many local governments. Thus, overall, the net changes in tax revenues due to this rule are minimal, and do not significantly affect State or local governments.

(b) This rule does not create a serious inconsistency or otherwise interfere with an action taken or planned by another Federal agency. Actions taken by this rule affect tribal or individual Indian land titles. The Department of the Interior, Bureau of Indian Affairs is the only governmental agency that makes the determination whether to take land into trust.

(c) This rule does not alter the budgetary effects or entitlement, grants, user fees, or loan programs or the rights or obligations of their recipients. This rule sets out the criteria and procedures the Secretary uses in determining whether to accept title of certain Indian lands to the United States, as trustee, for the benefit of an individual Indian or a tribe.

(d) OMB has determined that this rule does not raise novel legal or policy issues and is therefore not subject to review under Executive Order 12866.

The Department of the Interior certifies that this regulation does not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). A Regulatory Flexibility analysis is not required. See our initial analysis above item 1(a) under Regulatory Planning and Review. The effect on small entities is minimal.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. See the initial analysis above, item 1(a) under Regulatory Planning and Review. This rule:

(a) Does not have an annual effect on the economy of $100 million or more. An economic analysis is not required.

(b) Does not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. Actions under this rule only affect title to tribal or individual Indian owned lands.

(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. Actions under this rule only affect title to tribal or individual Indian owned lands.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ):

(a) The rule does not significantly or uniquely affect small governments, or the private sector. A Small Government Agency Plan is not required. Additional expenses may be incurred by the requesting tribe or individual Indian to provide information to the Secretary. Tribes or an individual Indian provide information in order to receive a benefit.

(b) This rule does not produce a federal mandate of a $100 million or greater in any year. The overall effect of this rule is likely not to be significant to the State, local, or tribal governments or the private sector.

With respect to Executive Order 12630, the rule does not have significant takings implications. A takings implication assessment is not required because actions under this rule do not constitute a taking. Tribes or individual Indians are voluntarily transferring title to the United States for their own benefit.

With respect to Executive Order 13123, the rule does not have significant federalism implications to warrant the preparation of a Federalism Assessment. The local tax base may be affected. Actions in this rule apply only to a relatively small amount of land. Due to the loss of tax revenue, the relationship between the State and local governments with tribes and/or the Federal Government may be affected. However, the loss of revenue overall is likely to be minimal and the vast majority of the land to be acquired will likely be within the boundaries of reservations where there is already a measure of Indian sovereignty. Therefore, the effects are “insignificant” within the meaning of Executive Order 13123.

With respect to Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the order. This rule contains no drafting errors or ambiguity and is written to minimize litigation, provides clear standards, simplifies procedures, reduces burden, and is clearly written. These regulations do not preempt any statute. They do supersede the current land acquisition regulations and the current procedure for establishing Indian Land Consolidation Areas. They would not be retroactive with respect to any land already taken into trust, but would apply to applications that are determined not be complete at the time of final publication of this rule.

This regulation requires an information collection from ten or more parties and a submission under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ). The information collection requirements in §§ 151.9, 151.12, 151.15, 151.19, and 151.28 under 44 U.S.C. 3501 et seq. were submitted to the Office of Management and Budget (OMB) for approval. We will publish a notice in the Federal Register when OMB approves this collection. This information is required from Indian tribes and individual Indians who wish to convey land into trust status.

Information is collected from Indian tribes and individuals to support their request to the Secretary to acquire title to land in trust for their benefit. The Secretary uses the information to evaluate the request and forms the basis of a decision to accept or deny a request for the taking of title to land in trust.

The total average annual burden hours for the collection of information for the above specified sections of the regulation is broken down as follows.

We invite the public to provide any comments concerning the accuracy of the burden estimate and any suggestions for reducing the burden. Submit comments to the Bureau of Indian Affairs, Director, Office of Trust Responsibilities, 1849 C Street, NW., MS-4513-MIB, Washington, DC 20240.

The collection of information is voluntary in order for an Indian tribe or individual to obtain a benefit, acquiring title to land in trust. None of the solicited information is confidential. However, if the applicant submits an application that contains financial information, it is covered by the Privacy Act.

A Federal agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 is not required because this rule is of an administrative, technical, and procedural nature.

In accordance with the President's memorandum of May 14, 1998, “Consultation and Coordination with Indian Tribal Governments” (FR Vol. 63, No. 96, Pages 27655-27657) and 512 DM 2, we evaluated any potential effects upon Federally recognized Indian tribes and have determined that there are no potential adverse effects. No action is taken under this rule unless a tribe or an individual Indian voluntarily requests that the United States place land in trust for their benefit. Tribes were asked for comments prior to publication as a final regulation of this rule and their comments were considered prior to publication.

The Coast Guard received a letter by fax from the contractor on December 1, 2000, requesting a temporary deviation from the current operating schedule of the Route 9/Beesleys Point Bridge. The draw currently is required to open on signal at all times. This requirement is included in the general operating regulations at 33 CFR 117.5. The contractor intends to install a new deck on the bascule span of the bridge. To facilitate the installation, the bascule span will be bolted down in the closed position so that the old deck can be removed and a new deck installed. This work requires completely immobilizing the operation of the bascule span. In the event of an emergency, openings of the span will be provided as quickly as possible, but may take up to 48 hours to accomplish. Requests for emergency openings can be made by calling the bridge manager at (609) 390-3190 or (609) 624-0949.

In accordance with 33 CFR 117.35, the District Commander approved the contractor's request for a temporary deviation from the governing regulations in a letter dated December 12, 2000.

The Coast Guard has informed the known commercial users of the waterway of the bridge closure so that these vessels can arrange their transits to minimize any impact caused by the temporary deviation.

The temporary deviation allows the Route 9/Beesleys Point Bridge across Great Egg Harbor, mile 3.5, between Somers Point and Beesleys Point, New Jersey to remain closed from 7 a.m. on January 22, 2001, until 5 p.m. on March 22, 2001.

EPA Regions, as well as States, Territories, and Tribes, are authorized to implement the National Pollutant Discharge Elimination System (NPDES) program and issue permits that comply with the technology-based and water quality-based requirements of the Clean Water Act. In doing so, the NPDES permitting authority, including authorized States, Territories, and Tribes, make a number of discretionary choices associated with permit writing, including the selection of pollutants to be measured and, in many cases, limited in permits. If EPA has “approved” ( i.e., promulgated through rulemaking) standardized testing procedures for a given pollutant, the NPDES permit must specify one of the approved testing procedures or an approved alternate test procedure. Permitting authorities may, at their discretion, require the use of any method approved at 40 CFR part 136 in the permits they issue. Therefore, dischargers with NPDES permits could be affected by the standardization of testing procedures in this rulemaking, because NPDES permits may incorporate the testing procedures in today's rulemaking. In addition, when a State, Territory, or authorized Tribe provides certification of Federal licenses under Clean Water Act section 401, States, Territories, and Tribes are directed to use the standardized testing procedures. Categories and entities that may ultimately be affected include:

Public water systems are the regulated entities required to conduct analyses to measure for contaminants in water samples. However, EPA Regions, as well as States, local, and tribal governments with primacy to administer the regulatory program for public water systems under the Safe Drinking Water Act, sometimes conduct analyses to measure for contaminants in water samples. If EPA has established a maximum contaminant level (“MCL”) for a given drinking water contaminant, the Agency also “approves” ( i.e., promulgates through rulemaking) standardized testing procedures for analysis of the contaminant. Once EPA standardizes such test procedures, analysis using those procedures (or approved alternate test procedures) is required. Public water systems required to test water samples must use one of the approved standardized test procedures. Categories and entities that may ultimately be regulated include:

C. These tables are not intended to be exhaustive, but rather provide a guide for readers regarding entities potentially regulated by this action. The tables list the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the tables could also be regulated. To determine whether your facility is regulated by this action, you should carefully examine the applicability language at 40 CFR 141.2 (definition of public water system) and 40 CFR 136.1 (NPDES permits and CWA). If you have questions regarding the applicability of this action to a particular entity, consult the appropriate person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

This regulation is promulgated under the authority of sections 301, 304(h), and 501(a) of the Clean Water Act (CWA), 33 U.S.C. 1311, 1314(h), 1361(a) (the “Act”). Section 301 of the Act prohibits the discharge of any pollutant into navigable waters unless the discharge complies with a National Pollutant Discharge Elimination System (NPDES) permit, issued under section 402 of the Act. Section 304(h) of the Act requires the EPA Administrator to “promulgate guidelines establishing test procedures for the analysis of pollutants that shall include the factors which must be provided in any certification pursuant to section 401 of this Act or permit applications pursuant to section 402 of this Act.” Section 501(a) of the Act authorizes the Administrator to “prescribe such regulations as are necessary to carry out his functions under this Act.” EPA publishes CWA analytical method regulations at 40 CFR part 136. The Administrator also has made these test procedures applicable to monitoring and reporting of NPDES permits (40 CFR part 122, §§ 122.21, 122.41, 122.44, and 123.25), and implementation of the pretreatment standards issued under section 307 of the Act (40 CFR part 403, §§ 403.10 and 403.12).

The Safe Drinking Water Act (SDWA), as amended in 1996, requires EPA to promulgate national primary drinking water regulations (NPDWRs) which specify maximum contaminant levels (MCLs) or treatment techniques for drinking water contaminants (SDWA section 1412 (42 U.S.C. 300g-1)). NPDWRs apply to public water systems pursuant to SDWA section 1401 (42 U.S.C. 300f(1)(A)). According to SDWA section 1401(1)(D), NPDWRs include “criteria and procedures to assure a supply of drinking water which dependably complies with such maximum contaminant levels; including quality control and testing procedures.* * *” (42 U.S.C. 300f(1)(D)). In addition, SDWA section 1445(a) authorizes the Administrator to establish regulations for monitoring to assist in determining whether persons are acting in compliance with the requirements of the SDWA (42 U.S.C. 300j-4). EPA's promulgation of analytical methods is authorized under these sections of the SDWA as well as the general rulemaking authority in SDWA section 1450(a), (42 U.S.C.300j-9(a)).

EPA has promulgated analytical methods for all currently regulated wastewater and drinking water pollutants and contaminants. In most cases, EPA has approved use of more than one analytical method for measurement of a contaminant, and laboratories may use any approved method for determining compliance with a monitoring requirement. After any regulation is published, EPA may amend the regulations to approve new methods or modifications to approved methods.

Many of the analytical methods already promulgated by EPA have been published by other organizations, including the American Society for Testing Materials (ASTM), United States Geological Survey (USGS), and United States Department of Energy (DOE). In addition, three other organizations (American Public Health Association, American Water Works Association and Water Environment Federation) jointly publish Standard Methods for Examination of Water and Wastewater (referred to as “Standard Methods”). This rule approves use of updated versions of currently promulgated ASTM Methods, Standard Methods, and USGS methods at 40 CFR part 136 for compliance with wastewater standards and monitoring requirements. This rule also approves updated versions of currently promulgated methods in the tables of analytical methods listed at 40 CFR parts 141 and 143 for analyses of drinking water contaminants. The drinking water methods included in this rule are published by ASTM, Standard Methods, and DOE. These organizations publish updated manuals of methods from time to time. Some of the methods in the updated manuals contain no change from previously published editions. Other methods contain no significant changes, only minor technical improvements that make the methods safer and/or easier to use. Today's amendments contain only methods that have no changes or only minor technical improvements. No EPA methods are being updated.

This rule does not withdraw from use any currently promulgated method. For an NPDES permit, the permitting authority should decide the appropriate method based on the nature of the particular water sample to be tested and based on the measurement level of concern.

Today's amendments allow use of updated versions of methods, as outlined below. Each write-up uniquely defined by an identifying method number is counted as a single updated method, regardless of the nature of changes. Even if the only change to the method is its inclusion in a more recent published edition of a methods manual (e.g, 19th Edition of Standard Methods), it is considered an updated method.

Today's amendments allow use of 19 updated methods published by the American Society for Testing and Materials (ASTM) in the 1999 Annual Book of ASTM Standards, Vols. 11.01 and 11.02 for determinations of chemical and radionuclide contaminants, and physical parameters. Previously published versions of these methods, if already promulgated by EPA, remain approved.

Today's amendments also allow use of 189 updated methods published by the Standard Methods Committee in Standard Methods for the Examination of Water and Wastewater, 19th edition, 1995, and 20th edition, 1998, for determinations of chemical, microbiological and radionuclide contaminants, and physical parameters.

EPA is also amending 40 CFR Part 136 to update USGS Method I-1472-85 to Method I-4471-97 for determination of cadmium, and 21 methods published by USGS in open file reports and method compendiums. The 21 USGS methods are for the determination of one or more analytes . These methods employ the same analytical procedures and technologies that are employed in promulgated EPA and VCSB methods. These USGS methods will give the analytical community a greater selection of methods.

Finally, today's amendments correct typographical errors in the tables of methods, table footnotes, and sources.

Today's amendments allow use of 12 updated methods that are published in the 1999 Annual Book of ASTM Standards, Vols. 11.01 and 11.02, for determinations of chemical and radionuclide contaminants, and physical parameters. Use of previously promulgated versions of ASTM methods that are published in these volumes, but have not been revised from previous editions, is also allowed.

Today's amendments also allow use of 62 updated methods published by the Standard Methods Committee in Standard Methods for the Examination of Water and Wastewater, 20th edition, 1998, for determinations of chemical, microbiological and radionuclide contaminants, and physical parameters.

Today's amendments allow use of six updated methods published by DOE in the document “EML Procedures Manual,” 28th Edition, Volume 1, 1997, for determinations of radionuclide contaminants.

Today's amendments list an updated version of one chemistry method (D 4327-97) published in the 1999 Annual Book of ASTM Standards, Vol. 11.01.

Today's amendments also list updated versions of 12 methods published by the Standard Methods Committee in Standard Methods for the Examination of Water and Wastewater, 20th edition, 1998, for determinations of secondary chemical contaminants and physical parameters.

The Agency is promulgating these amendments as a “direct final” rule. EPA is publishing this rule without prior proposal because we view this as noncontroversial amendments and anticipate no adverse comment. Today's action approves updated versions of analytical methods published by several organizations in recent editions of methods manuals or recent publications. These updated versions contain no significant changes, only minor technical improvements that make the methods safer and/or easier to use. However, in the “Proposed Rules” section of today's Federal Register , we are publishing a separate document that will serve as the proposal to update these methods if adverse comments are filed. This rule will be effective on May 16, 2001 without further notice unless we receive adverse comment by March 19, 2001. If EPA receives adverse comment on one or more distinct amendments, paragraphs, or sections of this rulemaking, we will publish a timely withdrawal in the Federal Register indicating which provisions will become effective and which provisions are being withdrawn due to adverse comment. Any distinct amendment, paragraph, or section of today's rulemaking for which we do not receive adverse comment will become effective on the date set out above, notwithstanding any adverse comment on any other distinct amendment, paragraph, or section of today's rule. We will address all public comments in a subsequent final rule based on the companion proposed rule published elsewhere in today's Federal Register . We will not institute a second comment period on the action. Any parties interested in commenting must do so at this time.

The Agency is amending the tables of methods at 40 CFR Parts 136, 141 and 143 to include recently updated versions of certain analytical methods and to correct typographical errors as explained below.

The updated versions of methods listed at 40 CFR Parts 136, 141, and 143 discussed in this section contain updates of currently promulgated methods that interested parties, such as public water systems, NPDES permit writers, pretreatment coordinators, laboratory personnel, certification officials, and regulatory authorities, will consider to be noncontroversial and generally useful.

In today's rule, EPA is amending 40 CFR Parts 136, 141, and 143 to include updated ASTM methods that are published in Vols. 11.01 and 11.02 of the ASTM's Annual Book of Standards [ASTM 1999]. The changes, if any, in the updated ASTM methods that are included in today's rule are editorial changes or minor technical clarifications. An example of an editorial change is the replacement of the unit for the measurement of radioactivity, picocurie, with the unit, Becquerel; 1 Becquerel equals 27 picocuries. The change to Becquerel conforms the ASTM methods to the unit of radioactivity measurement that is recommended by the International Union for Pure and Applied Chemistry (IUPAC), which is an international organization that recommends standards for units of measurement.

Examples of minor technical changes are recommendations for the safe handling of hazardous materials and safer or better ways to conduct certain hazardous or complicated analytical procedures. Some of the ASTM methods have been augmented with additional tables of method performance data. The updated ASTM methods do not contain substantive changes in procedures or instrumentation. Because EPA is not withdrawing approval of the currently approved version of any ASTM method, approval of the revised methods should have no adverse effect on users.

Nineteen ASTM methods that are published in the 1999 Annual Book of Standards (ASTM 1999) and that have been updated from previous versions of these methods are approved in today's rule at 40 CFR Part 136 for wastewater compliance monitoring. Table 1 lists the 19 revised ASTM wastewater methods.

Twelve ASTM methods that are published in the 1999 Annual Book of Standards (ASTM 1999) and that have been updated from previous versions of these methods are approved in today's rule at 40 CFR part 141 for drinking water compliance monitoring. Because one of the updated methods, D 4327-97, is also applicable to determinations of both chloride and sulfate, this method is also recommended in the table at 40 CFR part 143 for monitoring of these secondary contaminants. Three methods, D 3972 for uranium, and D 2460 and D 3454 for radium, have been updated to describe an optional computation of a total propagated uncertainty (TPU). EPA is approving these updated radionuclide methods. Although the TPU computation is technically satisfactory, it requires more effort than the uncertainty computation for radionuclide measurements specified at 40 CFR 141.25(c) and 141.26(a). EPA does not preclude use of the TPU computation, but the Agency believes that this computation is not necessary to obtain an accurate determination of uncertainty. Therefore, use of the computation specified in the CFR is recommended. Table 2 lists the 12 revised ASTM drinking water methods.

In today's rule, EPA is amending 40 CFR part 136 to include 189 updated methods that are published in the 19th (APHA 1995) and 20th (APHA 1998) Editions of Standard Methods. 40 CFR Part 136 currently includes only methods listed in the 18th Edition (APHA 1992). Because EPA is not withdrawing approval of the currently promulgated version of any Standard Method, approval of these methods in this rulemaking should have no adverse effect on users.

Thirty of the 189 Standard Methods being approved contain minor technical and/or editorial revisions to the corresponding promulgated 18th Edition versions. The revisions are intended to improve method usability. Examples of these changes include: better explanations on conducting a specific step in the method; recommendations for safer handling or disposal of hazardous reagents; and options to use alternative procedures, reagents, or equipment (such as the option to use capillary columns in Method 6200 C, and the merger of Methods 6220 B and 6230 B into one method, 6200 C).

The other 159 methods remain unchanged from the currently promulgated methods. The only difference is that they are included in a more recent edition of Standard Methods and in some cases contain a different identifying method number. Method number changes between the 18th, 19th, and 20th editions occurred in 27 instances. These changes in numbering are provided in Table 3.