The regulations in 9 CFR part 94 (referred to below as the regulations) govern the importation of specified animals and animal products into the United States in order to prevent the introduction of various animal diseases including rinderpest, foot-and-mouth disease (FMD), African swine fever, hog cholera, and swine vesicular disease. These are dangerous and destructive communicable diseases of ruminants and swine. Section 94.1 of the regulations lists regions of the world that are declared free of rinderpest or free of both rinderpest and FMD. Rinderpest or FMD exists in all other regions of the world not listed. Section 94.11 of the regulations lists regions of the world that have been declared free of rinderpest and FMD, but are subject to certain restrictions because of their proximity to or trading relationships with rinderpest- or FMD-affected regions.

On November 2, 2000, we published in the Federal Register an interim rule (65 FR 65728-65729, Docket No. 00-104-1) to remove KwaZulu-Natal, a province in the Republic of South Africa, from the list of regions considered to be free of rinderpest and FMD because FMD had been confirmed there. Prior to the publication of that interim rule, the Republic of South Africa, except the FMD-controlled area that includes Kruger National Park, was among the regions listed in §§ 94.1 and 94.11 as regions considered to be free of rinderpest and FMD.

On November 29, 2000, another suspected outbreak of FMD was detected in the Republic of South Africa, this time in the province of Mpumalanga. Subsequently, on November 30, 2000, the Republic of South Africa's National Department of Agriculture notified the U.S. Department of Agriculture and the Office International des Epizooties (OIE) with clinical confirmation of the FMD diagnosis.

The FMD outbreak in the province of Mpumalanga is unrelated to the previous outbreak in the province of KwaZulu-Natal and, as noted above, is the second introduction of the virus into South Africa in 3 months. The Republic of South Africa's National Department of Agriculture is still investigating the virus' mode of introduction into the FMD-free area and is conducting extensive serological surveillance outside the quarantined area to ensure that the disease is confined to the outbreak farm. Until the results of the epidemiological investigation and the surveillance program are known, we believe that it is necessary to impose restrictions on the entire Republic of South Africa to protect the livestock of the United States from FMD.

Therefore, we are amending the regulations in § 94.1 by removing the Republic of South Africa from the list of regions considered to be free of rinderpest and FMD. We are also removing the Republic of South Africa from the list of regions in § 94.11 that are considered to be free of these diseases, but are subject to certain restrictions because of their proximity to or trading relationships with rinderpest-or FMD-affected regions. As a result of this action, the importation into the United States of any ruminant or swine and any fresh (chilled or frozen) meat and other products of ruminants and swine from any part of the Republic of South Africa is prohibited or restricted. We are making these amendments effective retroactively to November 6, 2000, because the disease may have been present in the province of Mpumalanga for some time before it was detected on November 29, 2000.

Although we are removing the Republic of South Africa from the list of regions considered to be free of rinderpest and FMD because of two separate outbreaks of FMD within a short period, we recognize that the Republic of South Africa's National Department of Agriculture responded immediately to the detection of the disease by imposing restrictions on the movement of ruminants, swine, and ruminant and swine products from the affected areas and by initiating measures to eradicate the disease. At the time of publication of this interim rule, it appears that the outbreak is well controlled and currently confined to one farm only. Because of the Republic of South Africa's National Department of Agriculture's efforts to ensure that FMD does not spread beyond the previously affected province of KwaZulu-Natal and the newly affected area in the province of Mpumalanga, we intend to reassess the situation in accordance with the standards of the OIE. As part of that reassessment process, we will consider all comments received on this interim rule. This future reassessment will enable us to determine whether it is necessary to continue to prohibit or restrict the importation of ruminants or swine and any fresh (chilled or frozen) meat and other products of ruminants or swine from the Republic of South Africa, or whether we can restore portions of the Republic of South Africa to the list of regions considered free of rinderpest and FMD.

This rulemaking is necessary on an emergency basis to prevent the introduction of FMD into the United States. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register.

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

This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review process required by Executive Order 12866.

We are amending the regulations governing the importation of certain animals, meat, and other animal products by removing the Republic of South Africa from the list of regions considered to be free of rinderpest and FMD. We are taking this action because the existence of FMD has been confirmed in two provinces in the Republic of South Africa. The effect of this action is to prohibit or restrict the importation of any ruminant or swine and any fresh (chilled or frozen) meat and other products of ruminants or swine into the United States from the Republic of South Africa.

FMD is among the most infectious and destructive of all animal diseases. While it rarely kills adult animals, the virus may kill young and weak animals. Production losses are substantial, and costs to eradicate the disease are high. A single outbreak of FMD in the United States has the potential to close our major livestock export markets overnight. During the eradication process, most exports of meat, animals, and animal byproducts would be curtailed. Additionally, if the early signs of an outbreak were not immediately recognized, eradication could take years. Therefore, efforts to reduce the risk of the entry of FMD into the United States continue to be a high priority.

Imports of infected animal products pose the greatest risk of entry for FMD into the United States. The virus can survive in chilled, frozen, salted, cured, and partially cooked meats.

Additionally, the virus can also be present in cheese, since the pasteurization process does not completely kill the virus. Strict quarantine regulations minimize the risk of any infected products entering the United States. With the exception of North and Central America (north of Panama), Australia, New Zealand, Great Britain, and the majority of the European Union (EU) countries, FMD is still present in many areas of the world. FMD was last reported in the United States in 1929, in Canada in 1952, and in Mexico in 1954.

The United States livestock industry plays a significant role in international trade. Maintaining favorable trade conditions depends, in part, on continued aggressive efforts to prevent the entry of FMD into the United States. In 1999, the total earnings from exports of live cattle, swine, beef and veal, pork, and dairy products were approximately $4.818 billion, while the value of imports was $5.671 billion. Livestock and related product exports generated about $11.7 billion in output sales and created about 100,000 jobs in the United States.

However, the value of live animals and animal products imported from the Republic of South Africa represents less than 0.06 percent of total U.S. imports of these products.1 Therefore, U.S. price and supply are not expected to be affected by this rule. Further, any shortfall of supply could easily be met from domestic or other sources, without any significant effect on producer or consumer prices. Therefore, this rule can be expected to produce economic benefits by minimizing the risk of FMD entering the United States with little to no effect on supply or consumer prices.

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has retroactive effect to November 6, 2000; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

This rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq).

The Caribbean Basin Economic Recovery Act (19 U.S.C. 2701-2707) (CBERA) establishes an economic recovery program for nations of the Caribbean and Central America. Under the CBERA, also referred to as the Caribbean Basin Initiative (CBI), the President is authorized to proclaim duty-free treatment for all eligible articles of a beneficiary country (19 U.S.C. 2701).

A beneficiary country under the CBI refers to any country listed in 19 U.S.C. 2702(b) with respect to which there is in effect a proclamation by the President designating the country as a beneficiary country for purposes of the CBI (19 U.S.C. 2702(a)(1)(A)). A rule of origin specifies under what conditions an article will be considered to be a product of a beneficiary country—in brief, the article must be wholly the growth, product or manufacture of a beneficiary country, or must be a new or different article of commerce that has been grown, produced, or manufactured in the beneficiary country (19 U.S.C. 2703(a)).

Sections 10.191 through 10.198b of the Customs Regulations (19 CFR 10.191-10.198b) currently implement the duty-free aspects of the CBI.

In pertinent part, in order to be entitled to duty-free treatment under the CBI, an article otherwise eligible for such treatment must be imported directly from a beneficiary country into the customs territory of the United States (19 U.S.C. 2703(a)(1)(A); 19 CFR 10.193).

Accordingly, in the case of rum produced in a beneficiary country and then imported into Canada for processing into a rum beverage, the beverage would not be eligible for duty-free treatment under the CBI because it is not imported directly from a beneficiary country into the United States. At the same time, the beverage would also be ineligible for duty-free treatment under the North American Free Trade Agreement Implementation Act (19 U.S.C. 3301 et seq.) (NAFTA) because the processing it undergoes in Canada would not be sufficient to qualify it as a NAFTA originating good (19 U.S.C. 3332; General Note 12, Harmonized Tariff Schedule of the United States (HTSUS); 19 CFR 181.131; and the appendix to 19 CFR part 181).

To address the foregoing circumstances, the Caribbean Basin Economic Recovery Act has now been further amended by section 212 of the Trade and Development Act of 2000 (Pub. L. 106-200, 114 Stat. 251, enacted on May 18, 2000) (Act). Section 212 of this Act adds a new paragraph (a)(6) to section 213(a) of the CBERA (19 U.S.C. 2703(a)(6)), in order to provide for duty-free entry under certain conditions for liqueurs and spirituous beverages that are produced in the territory of Canada from rum that is the growth, product, or manufacture either of a beneficiary country under the CBI or of the U.S. Virgin Islands.

Specifically, under 19 U.S.C. 2703(a)(6), a liqueur or spirituous beverage that is imported directly into the Customs territory of the United States from the territory of Canada and that is classifiable under subheading 2208.90 or 2208.40, Harmonized Tariff Schedule of the United States (HTSUS), will be entitled to duty-free entry under the CBERA if such liqueur or beverage is produced in the territory of Canada from rum, provided that the rum: (1) Is the growth, product, or manufacture of a beneficiary country or of the U.S. Virgin Islands; (2) is imported directly into the territory of Canada from a beneficiary country or from the U.S. Virgin Islands; and (3) accounts for at least 90 percent by volume of the alcoholic content of the liqueur or spirituous beverage.

In order to implement the provision allowing for duty-free admission for liqueurs and spirituous beverages produced in the territory of Canada from Caribbean rum, Customs is issuing an interim regulation (§ 10.199) which prescribes the certification and supporting documentary requirements and recordkeeping responsibilities that must be observed in order to afford duty-free admission for those beverages that properly qualify for such treatment, and to otherwise ensure compliance with the requirements of the statutory law.

In this latter regard, the importer must be prepared to submit to the port director, if requested, documentary evidence that the liqueurs or rum beverages were imported into the U.S. directly from the territory of Canada. This evidence may include documents such as a bill of lading, invoice, air waybill, freight waybill, or cargo manifest. Likewise, the port director may require that the importer submit documentary evidence that the rum used in producing the liqueurs or spirituous beverages was imported directly into the territory of Canada from a beneficiary country or from the U.S. Virgin Islands. This evidence may include documents such as a Canadian customs entry, Canadian customs invoice, Canadian customs manifest, cargo manifest, bill of lading, landing certificate, airway bill, or freight waybill. In either case, any evidence of direct shipment, as described, may be subject to such verification as deemed necessary by the port director.

In addition, the importer must be ready to present directly to the port director, if requested, a declaration prepared by the producer or manufacturer of the rum in the beneficiary country (or in the U.S. Virgin Islands, if applicable) that attests to the specific origin of the rum. Any records, including production records, supporting the declaration must likewise be available for submission to the port director, and the declaration and supporting records may be subject to any verification believed necessary by the port director.

Moreover, the importer must be prepared to submit directly to the port director, if requested, a declaration prepared by the Canadian processor who produced the liqueur(s) or spirituous beverage(s) for which duty-free entry is claimed under section 213(a)(6) of the Caribbean Basin Economic Recovery Act (19 U.S.C. 2703(a)(6)). The declaration must affirm, among other things, that the processor received the rum from the exporter or owner in the CBI beneficiary country or the U.S. Virgin Islands, as applicable; and that the processor used the rum in producing the liqueurs or other spirituous beverages. Production records, for each lot of liqueur/beverage produced, must establish the quantity of rum qualifying under 19 U.S.C. 2703(a)(6) that is used in producing the liqueur/beverage (non-qualifying rum may not be substituted for use in producing the liqueurs or beverages); the alcoholic content by volume of the finished liqueur/beverage; and the specific alcoholic content by volume of the processed liqueur/beverage that is attributable to the qualifying rum.

The importer must be prepared to submit to the port director, if requested, the declaration and/or the underlying documentation, including any supporting documents and records, necessary for the preparation of the declaration, for a period of 5 years from the date of entry of the related liqueurs or spirituous beverages, as provided in § 163.4(a), Customs Regulations (19 CFR 163.4(a)). If requested during this time, the importer must submit to the port director the declaration and/or any underlying documentation within 60 calendar days of the date of the request or any additional period as the port director may allow for good cause shown. The declaration and related documentation may be subject to such verification as the port director deems necessary.

Also, the foregoing time periods apply to the retention and submission of documentary evidence concerning the origin of the rum, its direct shipment into the territory of Canada and the direct shipment of the corresponding finished liqueurs and spirituous beverages from Canada into the United States.

Furthermore, the importer must establish and implement a system of internal controls which demonstrate that reasonable care was exercised in the claim for duty-free treatment under the CBI. These controls should include tests to assure the accuracy and availability of records that evidence: the origin of the rum; the direct shipment of the rum from a beneficiary country or from the U.S. Virgin Islands to Canada; the alcohol content of the finished liqueur/beverage imported from Canada; and the direct shipment of the finished liqueur/beverage from Canada to the United States.

Before adopting this interim regulation as a final rule, consideration will be given to any written comments that are timely submitted to Customs. Customs specifically requests comments on the clarity of this interim rule and how it may be made easier to understand. Comments submitted will be available for public inspection in accordance with the Freedom of Information Act (5 U.S.C. 552), § 1.4, Treasury Department Regulations (31 CFR 1.4), and § 103.11(b), Customs Regulations (19 CFR 103.11(b)), on regular business days between the hours of 9:00 a.m. and 4:30 p.m. at the Regulations Branch, U.S. Customs Service, 1300 Pennsylvania Avenue, NW., 3rd Floor, Washington, DC.

Pursuant to the provisions of 5 U.S.C. 553(b)(B), Customs has determined that good cause exists for dispensing with prior public notice and comment procedures on these interim regulations. The interim regulations afford a preferential tariff benefit to the importing public; they reflect, and provide a necessary and reasonable means for enforcing, statutory requirements that are already in effect; and they closely parallel existing regulatory provisions that implement similar trade preference programs. Also, for these same reasons, there is no need for a delayed effective date under 5 U.S.C. 553(d). Because no notice of proposed rulemaking is required for interim regulations, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply. Nor does this document meet the criteria for a “significant regulatory action” as specified in E.O. 12866.

The collection of information involved in this interim rule has already been approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) and assigned OMB Control Number 1515-0194 (Documentation requirements for articles entered under various special tariff treatment provisions). This collection includes a claim for duty-free entry of eligible articles under the Caribbean Basin Initiative. This rule does not present any substantive changes to the existing approved information collection. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by OMB.

Part 178, Customs Regulations (19 CFR part 178), containing the list of approved information collections, is revised to make reference to new § 10.199.

(2) Availability of supporting documents. The information, including any supporting documents and records, necessary for the preparation of the declaration, as described in paragraph (f)(1) of this section, must be available for submission to the port director, if requested. The declaration and any supporting evidence may be subject to such verification as deemed necessary by the port director. The specific documentary evidence necessary to support the declaration consists of those documents and records which satisfactorily establish:

(i) The receipt of the rum by the Canadian processor, including the date of receipt and the name and address of the party from whom the rum was received (the owner or exporter in the beneficiary country or the U.S. Virgin Islands); and

(ii) For each lot of liqueur/beverage produced and included in the declaration, the specific identification of the production lot(s) involved; the quantity of qualifying rum that is used in producing the finished liqueur/beverage, including a description of the processing and of the finished products; the alcoholic content by volume of the finished liqueur/beverage; and the alcoholic content by volume of the finished liqueur/beverage, expressed as a percentage, that is attributable to the qualifying rum.

(g) Importer system for review of necessary recordkeeping. The importer will establish and implement a system of internal controls which demonstrate that reasonable care was exercised in its claim for duty-free treatment under the CBI. These controls should include tests to assure the accuracy and availability of records that establish:

(1) The origin of the rum;

(2) The direct shipment of the rum from a beneficiary country or from the U.S. Virgin Islands to Canada;

(3) The alcohol content of the finished liqueur/beverage imported from Canada; and

(4) The direct shipment of the finished liqueur/beverage from Canada to the United States.

(h) Submission of documents to Customs. The importer must be prepared to submit directly to the port director, if requested, those documents and/or supporting records as described in paragraphs (d), (e) and (f) of this section, for a period of 5 years from the date of entry of the related liqueurs and spirituous beverages under section 213(a)(6) of the Caribbean Basin Economic Recovery Act (19 U.S.C. 2703(a)(6)), as provided in § 163.4(a) of this chapter. If requested, the importer must submit such documents and/or supporting records to the port director within 60 calendar days of the date of the request or such additional period as the port director may allow for good cause shown.

Merchandise processing fees are fees the Secretary of the Treasury charges and collects for the processing of merchandise that is formally entered or released into the United States. See 19 U.S.C. 58c(a)(9)(A). A merchandise processing fee is assessed in an amount equal to 0.21 percent of the value of the imported merchandise, as determined under 19 U.S.C. 1401a. Merchandise processing fees are subject to two monetary limits:

(1) A cap of $485 is imposed by 19 U.S.C. 58c(a)(9)(B)(i) for any release or entry, including weekly Free Trade Zone entries (see section 410 of the Trade and Development Act of 2000, Pub. L. 106-200, 114 Stat. 251, enacted on May 18, 2000), for which the value of merchandise subject to the fee exceeds $230,952.38 ($485 ÷ .0021 = $230,952.38); and

(2) For certain monthly entries, as prescribed by Pub. L. 101-382, section 111(f), as amended, and implemented by § 24.23(d) of the Customs Regulations (19 CFR 24.23(d)), the merchandise processing fee is limited to the lesser of the following:

(i) A cap of $400 where the value of the merchandise subject to the fee exceeds $190,476.19 ($400 ÷ .0021 = $190,476.19); or

(ii) The amount determined by applying the ad valorem rate under paragraph (b)(1)(i)(A) of § 24.23 to the total value of such daily importations.

Section 313 of the Tariff Act of 1930, as amended (19 U.S.C. 1313), concerns drawback and refunds. Drawback is a refund of certain duties, taxes and fees paid by the importer of record and granted to a drawback claimant under specific conditions. There are several types of drawback. Section 1313(j) concerns drawback for “unused merchandise,” and provides, pursuant to specific conditions set forth therein, that a refund of 99 percent of each duty, tax, or fee “imposed under Federal law because of [an article's] importation” will be refunded as drawback.

The issue of whether a merchandise processing fee is “imposed under Federal law because of [an article's] importation,” and therefore eligible to be claimed as unused merchandise drawback pursuant to the terms of section 1313(j), was recently examined by the Court of Appeals for the Federal Circuit in Texport Oil v. United States, 185 Fd. 3d 1291 (Fed. Cir. 1999). In that case, the court held that as merchandise processing fees are “assessed under Federal law” (pursuant to 19 U.S.C. 58c(a)(9)) and “explicitly linked to import activities,” they are imposed by reason of importation and therefore subject to unused merchandise drawback by application of the statute.

To implement the court's interpretation of 19 U.S.C. 1313(j), it is necessary to amend the Customs Regulations to provide that merchandise processing fees are now subject to unused merchandise drawback, and to add apportionment language. Apportionment language is necessary because in order for a drawback claimant to correctly calculate the amount of drawback due, the claimant must apportion the merchandise processing fee to that merchandise that provides the basis for unused merchandise drawback.

In this document, Customs is amending the regulations to reflect the holding in Texport and to provide examples of apportionment calculations. Amendments are made to §§ 191.2(u), 191.3, and 191.51 of the Customs Regulations. Section 191.3 is amended to reflect that a merchandise processing fee is now subject to unused merchandise drawback. Section 191.51 is amended to reflect how a claimant is to calculate the portion of a merchandise processing fee that is eligible to be claimed as unused merchandise drawback. A conforming change is made to § 191.2(u). A more detailed explanation of the amendments is set forth below.

Section 191.3 of the Customs Regulations (19 CFR 191.3) identifies those duties and fees that are subject to, or ineligible for, drawback. Paragraph (a) of this section enumerates those duties that are subject to drawback. Paragraph (b) sets forth those duties and fees that are deemed ineligible for drawback. In paragraph (b)(2), merchandise processing fees are specifically identified as ineligible for drawback.

In view of the recent judicial interpretation of section 1313(j)(2) in which merchandise processing fees were deemed subject to unused merchandise drawback, §§ 191.3(a) and (b)(2) of the Customs Regulations are amended to reflect that determination. A new paragraph (a)(4) is added to provide that merchandise processing fees are eligible to be claimed as unused merchandise drawback. Paragraph (b)(2) is amended so as to provide that merchandise processing fees are ineligible for drawback except when unused merchandise drawback is claimed.

Section 191.51(b) of the Customs Regulations requires a drawback claimant to correctly calculate the amount of drawback due when completing a drawback entry.

As stated above, the court's interpretation of 19 U.S.C. 1313(j) requires that a drawback claimant apportion a merchandise processing fee to that merchandise that provides the basis for unused merchandise drawback in order to correctly calculate the amount of drawback due.

In order for a drawback claimant to be able to ascertain what portion of a merchandise processing fee is eligible to be claimed as unused merchandise drawback, a four-step apportionment calculation is necessary. First, as with any drawback claim where not all of the merchandise in a particular entry provides a basis for drawback, it is necessary for a claimant to calculate the value of each line item of entered merchandise subject to the fee, relative to the value of the entire entry subject to the fee. The resulting figure constitutes the “relative value ratio”. Second, the relative value ratio for each line item is multiplied by the amount of merchandise processing fee paid in connection with the entry. The resulting figures represent the amount of merchandise processing fee attributable to each line item. Third, the amount of merchandise processing fee attributable to each line item that provides the basis for unused merchandise drawback is multiplied by 99 percent. The resulting figure represents that portion of the merchandise processing fee attributable to each line item that is eligible to be claimed as unused merchandise drawback, as per section 1313(j). Lastly, in order to calculate the amount of merchandise processing fee eligible for drawback per unit of merchandise, the amount of fee that is eligible to be claimed as unused merchandise drawback per line item is divided by the number of units covered by that line item.

As § 191.51(b) requires that a drawback claimant correctly calculate the amount of drawback due, and a claim for unused merchandise drawback for a merchandise processing fee will necessarily involve an apportionment calculation, this provision is amended to reflect that fact and to provide examples of the manner by which such apportionment calculations are to be made.

Section 191.2(u) of the Customs Regulations (19 CFR 191.2(u)) sets forth the definition of the term “relative value” for purposes of part 191.

A drawback claimant is required to calculate the “relative value ratio” when determining what portion of a merchandise processing fee is eligible for unused merchandise drawback. See the amended text of § 191.51(b) of the Customs Regulations (19 CFR 191.51(b)), discussed below. As the term “relative value ratio,” as used in § 191.51(b), as amended, does not share the same meaning as the term “relative value” as set forth in § 191.2(u), and the two terms are similar enough to potentially cause confusion, § 191.2(u) is amended so as to exclude applicability to § 191.51(b).

Before adopting this interim regulation as a final rule, consideration will be given to any written comments timely submitted to Customs, including comments on the clarity of this interim rule and how it may be made easier to understand. Comments submitted will be available for public inspection in accordance with the Freedom of Information Act (5 U.S.C. 552), § 1.4 of the Treasury Department Regulations (31 CFR 1.4), and § 103.11(b) of the Customs Regulations (19 CFR 103.11(b)), on regular business days between the hours of 9 a.m. and 4:30 p.m. at the Regulations Branch, Office of Regulations and Rulings, U.S. Customs Service, 1300 Pennsylvania Avenue, NW., 3rd Floor, Washington, DC.

Pursuant to the provisions of 5 U.S.C. 553(b)(B), Customs has determined that prior public notice and comment procedures on this regulation are unnecessary and contrary to public interest. The regulatory changes conform the Customs Regulations to reflect a recent decision by the Court of Appeals for the Federal Circuit. In addition, the regulatory changes benefit the public by allowing merchandise processing fees to be claimed as unused merchandise drawback, and by providing specific information as to how a drawback claimant is to correctly calculate that portion of a merchandise processing fee that is eligible to be claimed as unused merchandise drawback. For these reasons, pursuant to the provisions of 5 U.S.C. 553(d)(1) and (3), Customs finds that there is good cause for dispensing with a delayed effective date.

This document does not meet the criteria for a “significant regulatory action” as specified in Executive Order 12866.

Because no notice of proposed rulemaking is required for this rule, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply.

The principal author of this document was Suzanne Kingsbury, Regulations Branch, Office of Regulations and Rulings, U.S. Customs Service. However, personnel from other offices participated in its development.

Blue Ridge Pharmaceuticals, Inc., 4249-105 Piedmont Pkwy., Greensboro, NC 27410, filed ANADA 200-281 that provides for use of WORMEXX® (pyrantel pamoate) Chewable Tablets for the removal of certain gastrointestinal parasites and prevention of reinfection in puppies and dogs. Blue Ridge's WORMEXX® Chewable Tablets is approved as a generic copy of Farnam Co.'s D-WORM® (pyrantel pamoate) Dog Wormer Chewable Tablets, approved under NADA 139-191. ANADA 200-281 is approved as of January 3, 2001, and 21 CFR 520.2041 is amended to reflect the approval. The basis for approval is discussed in the freedom of information summary.

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

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

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

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 520 is amended as follows:

On October 30, 2000, the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001 (Pub. L. 106-398) was signed into law. This interim final rule implements provisions of this Act that were effective upon the date of enactment or a date within 180 days thereafter. Specifically, this rule implements the following sections of this Act:

Section 703, school required physicals, which was effective on the date of enactment;

Section 704, two-year extension of benefits for survivors, which was effective on the date of enactment;

Section 706, benefits for Medal of Honor recipients, which was effective on the date of enactment;

Section 711, TRICARE Senior Pharmacy Program, which is effective April 1, 2001;

Section 722, that portion of TRICARE Prime Remote for Family Members that was effective on the date of enactment;

Section 752, elimination of copayments for Active Duty Dependents in TRICARE Prime, which the statute requires be implemented within 180 days;

Section 758, reimbursement of certain travel expenses for TRICARE Prime beneficiaries, which was effective on the date of enactment; and

Section 759, reduction of retiree catastrophic cap, which was effective on the date of enactment.

In addition, because of the effect on the overall pharmacy program of the new TRICARE Senior Pharmacy Program and the change in TRICARE Prime active duty dependent copayments, this rule also partially implements the Pharmacy Benefits Program, as authorized by Section 1074g of title 10, United States Code, as a significant step toward expected implementation late in 2001 of the comprehensive Pharmacy Benefits Program.

This rule implements Section 703 of the National Defense Authorization Act for Fiscal Year 2001 which extends coverage of physical examinations to CHAMPUS eligible beneficiaries ages 5 through 11 that are required in connection with school enrollment. The scope of the legislative provision encompasses all programs and beneficiary categories (i.e., coverage extends to active duty dependents, retirees and their dependents under TRICARE Prime, Standard and Extra plans). These newly covered school physicals will be recognized as preventive services, and as such, subject to the same cost-sharing/copayment and referral/authorization requirements as prescribed under TRICARE Prime and Standard/Extra clinical preventive benefits. TRICARE Prime enrollees will not be required to pay copayments or seek referral/authorization from their primary care managers (PCMs) unless they go to a non-network provider. While Standard and Extra beneficiaries will not require referral and/or authorization, they will have to pay the applicable cost-sharing and deductibles for preventive services as prescribed under their respective plans.

School physicals for TRICARE Prime enrollees ages 5 through 11 will be covered under the enhanced benefit provision of the CHAMPUS administering regulation (32 CFR 199.18(b)(3)), which allows benefit enhancements and waiver or relaxation of benefit restrictions under the Uniform HMO Benefit at the discretion of the Assistant Secretary of Defense (Health Affairs). However, since coverage also extends to both Standard and Extra beneficiaries, an exception will be added to the preventive care general exclusion (32 CFR 199.4(g)(37)) that will allow school physicals for these beneficiary categories (i.e., active duty family members, retirees and their family members that are seeking care under Standard or Extra plans).

This rule implements Section 704 of the National Defense Authorization Act for Fiscal Year 2001 which amended chapter 55 of title 10, United States Code, replacing the one-year period with an additional two-year extension for survivors of deceased active-duty members to remain eligible for TRICARE medical and dental benefits at active-duty dependent rate. Before the Authorization Act, survivors of members who die while on active duty were allowed to continue participation in TRICARE Prime, Extra, or Standard as active-duty dependent family members for a period of one year following the date of death of the deceased member. At the end of the one-year period, these family members continued eligibility for care under TRICARE, but faced higher out-of-pocket costs as non-active-duty dependents. With respect to the TRICARE dental insurance benefits, family members enrolled in the TRICARE Dental Program (TDP) at the time of the member's death, continued to receive benefits for one year from the member's date of death, with the Government paying 100 percent of the TDP premiums.

This rule implements Section 706 of the National Defense Authorization Act for Fiscal Year 2001 which amended chapter 55 of title 10, United States Code, by adding a new Section 1074h. Section 1074h expands eligibility to Medal of Honor recipients who are not otherwise entitled to medical and dental care including their immediate dependents. They are entitled to the same medical and dental benefit that is provided to former members who are entitled to military retired pay and the dependents of those former members. To receive TRICARE/CHAMPUS benefits, they must register in the Defense Enrollment Eligibility Reporting System (DEERS).

The Secretary of Defense is required under title 10, United States Code, Section 1074g, to establish an effective, efficient, and integrated Pharmacy Benefits Program. The Secretary may establish cost sharing requirements under the Pharmacy Benefits Program as a percentage and/or fixed dollar amount for generic, formulary (non-generic), and non-formulary pharmaceutical agents. Designation of pharmaceutical agents as non-formulary will be based upon an evaluation of the agent's clinical and cost-effectiveness in comparison to other agents in the therapeutic class by the Department of Defense (DoD) Pharmacy and Therapeutics Committee and the comments of that evaluation by the Uniform Formulary Beneficiary Advisory Committee. The Department is unable to implement the portion of the Pharmacy Benefits Program that allows classification of a drug as non-formulary until Proposed and Final Rules fully implementing the Pharmacy Benefits Program have been published and required Committees become operational. However, partial implementation of the Pharmacy Benefits Program, including reform of cost sharing requirements under Section 1074g should proceed now in connection with the April 1, 2001, start date of the TRICARE Senior Pharmacy Program and overall reform of TRICARE Prime active duty dependent copayments.

The prescription drug and medicine benefit under CHAMPUS includes the Food and Drug Administration approved drugs and medicines that by United States law require a physician's or other authorized individual professional provider's prescription (acting within the scope of their license) that has been ordered or prescribed by them. The benefit does not include prescription drugs for medical conditions that are expressly excluded from the TRICARE benefit by statute or regulation. Pharmaceutical agents are subject to preauthorization or utilization review requirements to assure medical necessity. Until full implementation of the Pharmacy Benefits Program under which all authorized drugs will be classified as generic, formulary, or non-formulary, during this period of partial implementation, drugs and medicines shall be designated as either generic drugs and medicines, which are those that have the identical chemical composition of a name brand drug or medicine, or non-generic (or brand name) drugs.

Up to now, cost sharing requirements have been based upon beneficiary status, enrollment or non-enrollment in TRICARE Prime, and the location where the drug or medicine is purchased, i.e., the point of sale, such as a military treatment facility, network or non-network pharmacy, or the National Mail Order Pharmacy (NMOP). This led to a complex set of cost sharing requirements, difficult for beneficiaries to understand, lacking in clear incentives for appropriate use, and inconsistent with evolving industry practice. DoD is implementing new cost sharing requirements in this regulation, consistent with the Congressional direction to modernize the pharmacy program. Cost sharing requirements will no longer be based upon beneficiary status, except for active duty members who never pay copays. Cost sharing requirements of prescription drugs and medicines based upon their status as generic or non-generic are being implemented through this interim final rule. Cost sharing requirements will no longer be based upon a beneficiary's enrollment or non-enrollment in TRICARE Prime (except point of service charges will still apply), but will be based upon the drug or medicine's status as generic or non-generic and its point of sale.

The new cost sharing structure is based on commercial industry practices in pharmacy benefit design and benefit management. Cost sharing amounts were selected to assure that all beneficiaries could obtain a reduction in their current cost sharing through use of generic products, and that brand-name cost sharing was substantially higher than generic without unduly penalizing beneficiaries in relation to their current cost sharing levels.

Active duty members do not pay a cost-share. Cost sharing requirements for pharmaceutical agents for all other beneficiaries will be based upon the generic/non-generic status and the point of sale (i.e., network pharmacy, non-network pharmacy, NMOP) from which the agent was acquired. There is a $9.00 copay per prescription required under the retail pharmacy network program for up to a 30-day supply of a non-generic drug or medicine, and a $3.00 copay for up to a 30-day supply of a generic drug or medicine. There is a $9.00 copay per prescription required under the NMOP program for up to a 90-day supply of a non-generic drug or medicine, and a $3.00 copay for up to a 90-day supply of a generic drug or medicine. There is a 20 percent or $9.00 (whichever is greater) copay per prescription required for all drugs obtained under the retail pharmacy non-network program for up to a 30-day supply. The TRICARE Standard annual deductible of $150 individual/$300 family (or $50 individual/$100 family for lower grade enlisted families) applies to services obtained from non-network pharmacies. The TRICARE annual catastrophic cap of $1,000 for active duty families and $3,000 for retiree families (as reduced by the Fiscal Year 2001 National Defense Authorization Act) also applies. TRICARE Prime enrollees generally face higher “point-of-service” cost sharing when they obtain non-network services, as described in § 199.17(n). With regard to pharmacy services, TRICARE Prime beneficiaries who use non-network pharmacies will face point-of-service cost sharing rather than the 20 percent cost sharing which applies to TRICARE Standard beneficiaries. This point-of-service cost sharing includes a deductible of $300 individual or $600 family, and a 50 percent cost share. No deductibles apply to prescription drugs acquired from network retail pharmacies and NMOP.

The revised co-pay amounts simplify the cost share structure and are consistent with the best business practices used in the private sector. The co-pay amounts were selected because they provide an equitable adjustment across the current co-pay matrix, will encourage the use of cost effective sources of pharmaceuticals for both the beneficiaries and the government, and will encourage the use of generic products where clinically appropriate. For most beneficiaries and in most circumstances, cost sharing will be reduced under the new cost sharing structure; in all cases beneficiaries will have lower costs if they use generic products. The pricing structure reflects a reduction for active duty dependents using the National Mail Order Pharmacy. In some cases, beneficiaries will pay more than at present if they obtain brand-name products: active duty family members will pay $4 to $5 more for brand-name products, and retirees and their family members will pay $1.00 more for mail order brand-name products. We solicit comment on the structure and amount of pharmacy cost sharing described above.

This rule implements Section 711 of the National Defense Authorization Act for Fiscal Year 2001, which establishes the TRICARE Senior Pharmacy Program for DoD beneficiaries who are 65 years of age and older, effective April 1, 2001. Under the TRICARE Senior Pharmacy Program, the Act requires the same coverage for pharmacy services and the same requirements for cost sharing and reimbursement as are applicable under Section 1086 of title 10, United States Code.

As specified further in the regulation, to be eligible for the TRICARE Senior Pharmacy Program, a person is required to be a retiree, dependent, or survivor who is Medicare eligible, 65 years of age or older, and enrolled in Medicare Part B (except for a person who attained age 65 prior to April 1, 2001).

To receive benefits under the TRICARE Senior Pharmacy Program, beneficiaries must register in the Defense Enrollment and Eligibility Reporting System (DEERS). Currently, the TRICARE Senior Pharmacy Program beneficiaries are not eligible to enroll in TRICARE Prime.

The benefit under the TRICARE Senior Pharmacy Program includes the Basic Program pharmacy benefit as found under 32 CFR 199.4(d)(vi). The senior beneficiaries are entitled to the same pharmacy benefit that was found at 32 CFR 199.17(k), but it is no longer limited to the Base Realignment and Closure (BRAC) sites and access to non-network retail drugstores is included. These beneficiaries will have access to retail network pharmacies, non-network pharmacies, and the National Mail Order Pharmacy (NMOP) program with the associated revised copays and cost-shares as described under Partial Implementation of Pharmacy Benefits Program, above. For prescription drugs acquired from non-network retail pharmacies, the Senior Pharmacy Program beneficiaries are subject to TRICARE Standard annual deductible of $150 individual/$300 family. The catastrophic cap of $3000.00 per federal fiscal year, as reduced by the Fiscal Year 2001 National Defense Authorization Act, will apply to beneficiaries who are eligible under the TRICARE Senior Pharmacy Program.

The double coverage rules in 32 CFR 199.8 are applicable to services provided to all beneficiaries under the retail pharmacy network, retail pharmacy non-network, or NMOP programs. For this purpose, to the extent they provide a prescription drug benefit, Medicare supplemental insurance plans or Medicare HMO plans are double coverage plans and will be the primary payor.

The TRICARE Senior Pharmacy Program will replace the BRAC pharmacy benefit and the Pharmacy Redesign Pilot Program in accordance with Section 711 of the Act.

This interim final rule implements Section 722(b)(2) of the National Defense Authorization Act for Fiscal Year 2001 (Public Law 106-398) which modified Section 731(b) of the National Defense Authorization Act for Fiscal Year 1998 (Public Law 105-85). This rule provides a waiver of charges for TRICARE eligible family members residing with their active duty uniformed services, TRICARE Prime Remote eligible sponsor who are not enrolled in TRICARE Prime.

Full implementation of the TRICARE Prime Remote program for active duty family members will be subject of a proposed rule to be published soon. The TRICARE Prime Remote program will supplant the waiver of charges described in this rulemaking, effective October 30, 2001 or later. In order to obtain coverage under the follow-on TRICARE Prime Remote program, it will be proposed that eligible beneficiaries will be required to enroll in TRICARE Prime and be subject to many of the rules of TRICARE Prime. Full details will be provided in the proposed rule to be published soon.

Some Active Duty Service Members (ADSM) are assigned Permanent Change of Station Orders to locations where Military Treatment Facilities are unavailable. TRICARE Prime Remote (TPR) was established by Section 731(b) of the National Defense Authorization Act for Fiscal Year 1998 to provide a TRICARE Prime-like benefit. As defined by 10 U.S.C. 1074(c)(3) the benefit is for ADSM assigned to remote locations, who pursuant to that assignment, work and reside at a location that is more than 50 miles, or approximately one hour of driving time to the nearest military medical treatment facility. ADSM who are TPR eligible are required to enroll in TPR. Starting October 30, 2000, TRICARE eligible Active Duty Family Members residing with TPR eligible ADSM sponsors within a TRICARE Prime Remote designated area, have copayments, cost-shares, and deductibles waived for CHAMPUS covered benefits, except for pharmacy benefits, until the implementation of TRICARE Prime Remote for Family Members or October 30, 2001 whichever is later. Non-covered CHAMPUS benefits are not waived and shall be processed according to current requirements. The claims processor will pay the waived portion of the claim to the eligible family member or the provider, as appropriate. If the claims processor is able to determine the eligible family member has already paid the waived portion of the claim the processor shall reimburse the family member. Retrospective payments of waived charges for dates of service on or after October 30, 2000 are authorized.

Eligible family members will be able to access authorized providers without preauthorization. However, when accessing care, eligible family members are required to use network providers where and when available within the TRICARE access standards to obtain the waiver of charges. If a network provider cannot be identified within the access standards established under TRICARE, the eligible family member shall use an authorized provider to be eligible for the waiver. Existing specialty care preauthorization requirements remain in affect for eligible family members enrolled in TRICARE Prime. To the greatest extent possible, contractors will assist eligible family members in finding a TRICARE network, participating, or authorized provider.

Section 752 of the National Defense Authorization Act for Fiscal Year 2001 provides that no copayment shall be charged for care provided under TRICARE Prime to a dependent of a member of the uniformed services. Copayments for prescriptions and point-of-service (POS) charges are not covered by this provision and will continue to be applied. Copayments for prescriptions will be in accordance with those authorized by 10 U.S.C. 1074g, partially implemented by this rule. This is consistent with the Conference Committee Report statement that “it is not the intent of the conferees to eliminate copayments for pharmaceutical benefits under the mail order pharmacy program or such similar cost shares.” (H. Conf. Rept. No 106-945, p. 819-20.) Point-of-service charges are not covered by Section 752 because they are not for care provided under TRICARE Prime, but rather for care provided outside the TRICARE Prime network structure under the POS option. The POS option allows enrollees to self-refer for non-emergency health care services to any TRICARE authorized civilian provider. The elimination of copayments applies to all CHAMPUS-covered services received by a TRICARE Prime active duty family member on or after April 1, 2001.

Section 758 of the National Defense Authorization Act for Fiscal Year 2001 provides reimbursement of reasonable travel expenses for TRICARE Prime beneficiaries referred by their primary care manager to a specialty care provider who provides services more than 100 miles from the primary care manager's office.

Section 759 of the National Defense Authorization Act for Fiscal Year 2001 modified chapter 55 of title 10, United States Code, by amending Section 1086(b)(4) and reducing the catastrophic cap on payments from $7,500 to $3,000 for retirees, their family members and survivors.

Executive Order 12866 requires certain regulatory assessments for any significant regulatory action, defined as one which would result in an annual effect on the economy of $100 million or more, or have other substantial impacts. The Regulatory Flexibility Act (RFA) requires that each Federal agency prepare, and make available for public comment, a regulatory flexibility analysis when the agency issues a regulation which would have a significant impact on a substantial number of small entities.

This Interim Final Rule is a significant regulatory action under Executive Order 12866, as it would add over $200 million for DoD in annual healthcare benefit costs. This cost estimate is based on historical TRICARE costs and an assessment of potential users times average benefit costs per person for each of the provisions addressed. Benefits of the interim final rule include an increased level of health care, particularly pharmacy coverage for Medicare-eligible beneficiaries of the Department of Defense military health system. It has been determined to be major under the Congressional Review Act. However, this rule does not require a regulatory flexibility analysis as it would have no significant economic impact on a substantial number of small entities. This interim final rule will not impose additional information collection requirements on the public under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3511).

This rule is being issued as an interim final rule, with comment period, as an exception to our standard practice of soliciting public comments prior to issuance. The Acting Assistant Secretary of Defense (Health Affairs) has determined that following the standard practice in this case would be impracticable, unnecessary, and contrary to the public interest. This rule implements statutory requirements which became effective on the date of enactment of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001 (Pub. L. 106-398), October 30, 2000, or within 180 days thereafter. Public comments could not be solicited and considered within the period allowed by law.

Public comments are invited. All comments will be carefully considered. A discussion of the major issues received by public comments will be included with the issuance of the final rule.

To the extent that 5 U.S.C. section 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. section 553(b)(A). Alternatively, the Coast Guard's implementation of this action without opportunity for public comment, effective immediately upon publication today in the Federal Register, is based on the good cause exceptions in 5 U.S.C. section 553(b)(B) and 553(d)(3). Seeking public comment is impracticable, unnecessary and contrary to the public interest. The temporary 60-day delay in effective date is necessary to give Department officials the opportunity for further review and consideration of new regulations, consistent with the Assistant to the President's memorandum of January 20, 2001. Given the imminence of the effective date, seeking prior public comment on this temporary delay would have been impracticable, as well as contrary to the public interest in the orderly promulgation and implementation of regulations. The imminence of the effective date is also good cause for making this action effective immediately upon publication.

To the extent that 5 U.S.C. 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. 553(b)(A). Alternatively, the Coast Guard's implementation of this action without opportunity for public comment, effective immediately upon publication today in the Federal Register, is based on the good cause exceptions in 5 U.S.C. 553(b)(B) and 553(d)(3). Seeking public comment is impracticable, unnecessary, and contrary to the public interest. The temporary 60-day delay in effective date is necessary to give Department officials the opportunity for further review and consideration of new regulations, consistent with the Assistant to the President's memorandum of January 20, 2001. Given the imminence of the effective day, seeking prior public comment on this temporary delay would have been impractical, as well as contrary to the public interest, in the orderly promulgation and implementation of regulations. The imminence of the effective date is also good cause for making this action effective immediately upon publication.

We are changing the dates in 33 CFR 100.15(d) and (e), Submission of application, to delay them for 60 days. The original dates were keyed to the effective date of the final rule. Therefore, because of the 60-day delay in the effective date of the final rule, we are changing, in § 100.15(d) and (e), “July 10, 2001,” to “September 8, 2001,” and, in § 100.15(e), “September 24, 2001,” to “November 23, 2001.”

The Chelsea Street Bridge, at mile 1.2, across the Chelsea River, has a vertical clearance of 9 feet at mean high water, and 19 feet at mean low water in the closed position. The existing drawbridge operating regulations require the bridge to open on signal at all times.

The bridge owner, the City of Boston, requested a temporary deviation from the drawbridge operating regulations to facilitate emergency structural maintenance and repairs to the alternate operating system at the bridge.

This deviation from the operating regulations allows the bridge owner to keep the bridge in the closed position from 6 a.m. on February 7, 2001 through 6 a.m. on February 8, 2001 and from 6 a.m. on February 21, 2001 through 6 a.m. on February 22, 2001.

Thirty days notice to the Cost Guard for approval of this maintenance repair was not given by the bridge owner and was not required because this work involves vital, unscheduled maintenance that must be performed without undue delay.

Vessels that can pass under the bridge without an opening may do so at all times during the closed period.

In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Brorein Street Bridge across the Hillsborough River at Tampa, has a vertical clearance of 15 feet above mean high water (MHW) measured at the fenders in the closed position with a horizontal clearance of 80 feet. On January 31, 2001, Acutec, Inc., acting as an agent for the drawbridge owner, requested a deviation from the current operating regulation in 33 CFR 117.291(a) which requires the drawbridge to open on signal if at least two hours notice is given. This temporary deviation was requested to allow necessary repairs to the drawbridge in a critical time sensitive manner.

The District Commander has granted a temporary deviation from the operating requirements listed in 33 CFR 117.291(a) for the purpose of repair completion of the drawbridge. Under this deviation, the Brorein Street Bridge need not open from 7 a.m. February 26, 2001 until 12 p.m. March 2, 2001. The deviation is effective for five days.

The Sanibel Causeway Bridge across San Carlos Bay at Punta Rassa, is a double leaf bridge with a vertical clearance of 26 feet above mean high water (MHW) measured at the fenders in the closed position with a horizontal clearance of 90 feet. The current operating regulation in 33 FR 117.317(j) requires the bridge to open on signal; except that from 11 a.m. to 6 p.m., the draw need open only on the hour, quarter hour, half hour, and three quarter hour. From 10 p.m. to 6 p.m. the draw will open on signal if at least a five-minute advance notice is given.

On November 28, 2000, the drawbridge owner requested a deviation from the current operating regulations to allow the owner to conduct a study of the bridge openings and vehicular traffic patterns which are exacerbated during the winter tourist season. The temporary schedule will require the bridge to open on signal; except that from 7 a.m. to 6 p.m., the draw need open only on the hour and half-hour. The five-minute notice from 10 p.m. to 6 a.m. will remain in effect.

The District Commander has granted a temporary deviation from the operating requirements listed in 33 CFR 117.317(j) for the purpose of conducting this study. Under this deviation, the Sanibel Causeway Bridge need only open on the hour and half hour, 7 a.m. to 6 p.m., from March 1, 2001 until April 30, 2001. From 10 p.m. to 6 a.m. the draw will open on signal if at least a five-minute advance notice is given. The deviation is effective from March 1, 2001 to April 30, 2001.

We encourage you to participate in this evaluation of the test schedule by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this deviation [CGD07-01-005], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying. If you would like to know if they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period.

The temporary 60-day delay in effective date is necessary to give Agency officials the opportunity for further review and consideration of new regulations, consistent with the Assistant to the President's memorandum of January 20, 2001. This action involves matters relating to grants and under 5 U.S.C. 553(a)(2) is thus exempt from the notice and comment requirements of the Administrative Procedure Act.

This Supplementary Information section is organized as follows:

In this action we are approving the submittal of an enhanced motor vehicle inspection and maintenance (I/M) program submitted by Rhode Island as a formal SIP revision on January 19, 2001. We are also approving an interim level of emission reduction credit for Rhode Island to use for planning purposes. This action was proposed on December 18, 2000 in the Federal Register (65 FR79040) and no comments were received on the proposal.1

In order to meet certain requirements of EPA's I/M rule, Rhode Island was required to include in its final submittal: (1) a commitment to maintain a 96% compliance rate (or revise the SIP accordingly), (2) the appropriate enforcement oversight provisions for the Department of Motor Vehicles (DMV), and (3) a demonstration of the performance of its test-and-repair network. The final SIP submittal from Rhode Island address each of these requirements. Section 2 of the SIP narrative entitled “I/M Performance Standard,” now includes the appropriate commitment, as required by 40 CFR 51.361—Motorist Compliance Enforcement, to a 96% compliance rate. In section 14 of the SIP narrative entitled “Motorist Compliance Enforcement,” information on training, auditing, and oversight of enforcement personnel which meets the requirements of 40 CFR 51.362—Motorist Compliance Enforcement Oversight has been added. Lastly, as required in the notice of proposed rulemaking, Rhode Island has submitted information on failure rate by model year, number of waivers issued by month for the first six months of the program, and station audit sheets for a typical month of the program. The failure rates are almost identical to a nearby state utilizing the same equipment and test method. The waiver rate is 2.8% which is below the 3% in the plan, and the station audits show a very high rate of compliance. See supplemental technical support document dated January 24, 2001 for more specific information on this evaluation. EPA has concluded that Rhode Island's I/M program performance is sufficiently effective to meet the low enhanced performance standard. Rhode Island has met the requirements of section 40 CFR 51.353. (See III. below for information on interim credit.)

As discussed in detail in the proposed rulemaking notice, we are approving the use of 75% of I/M 240 credit for future air quality planning in Rhode Island. Once the comparison study results are available from the Massachusetts study on this same test type which Rhode Island will be relying on to verify its credit, EPA will establish appropriate credit for the BAR31 test done on NYTEST equipment. If the emission reduction credits assigned do not meet or exceed the credit assumed by Rhode Island, Rhode Island and EPA will take appropriate action to correct any SIP shortfall in any SIP demonstrations that may rely on credit from the I/M program.

Other specific requirements of the EPA I/M rule and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR.

EPA is approving the Rhode Island enhanced motor vehicle inspection and maintenance program as a revision to the Rhode Island SIP.

Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any State implementation plan. Each request for revision to the State implementation plan shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as addressing Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 10, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On November 16, 2000, we solicited public comment on a proposal to find that the Wallula nonattainment area has not attained the National Ambient Air Quality Standards (NAAQS) for particulate matter with an aerodynamic diameter of less than or equal to 10 microns (PM-10) by the attainment date of December 31, 1997, as required by the Clean Air Act. Such a finding would result in the reclassification of the Wallula PM-10 nonattainment area as a serious PM-10 nonattainment area by operation of law. In the proposal, we stated that EPA would accept public comments on the proposal until December 1, 2000. See 65 FR 69275.

During the public comment period that ended December 1, 2000, numerous commenters asked for an extension of the public comment period. In light of the significant public interest in the proposal and in response to the numerous request for an extension, EPA reopened the public comment period to December 27, 2000, resulting in a public comment period of at least 30 days. See 65 FR 77544 (December 12, 2000). In addition, in conjunction with other public agencies in the Wallula area, EPA held an informational meeting regarding the proposal at the Walla Walla County Airport on December 15, 2000. The purpose of the meeting was to provide an opportunity for EPA to explain to the community the basis for its proposal and an opportunity for the community to ask questions of EPA. See 65 FR at 77545. EPA also accepted written comments at the meeting.

EPA received written comments on the proposal from more than 30 commenters. After carefully reviewing and considering all comments received, EPA finds that the Wallula nonattainment area has not attained the PM-10 NAAQS by the attainment date of December 31, 1997, as required by the Clean Air Act. Copies of all written comments received by EPA are in the docket.

The following is a summary of the major issues raised in comments on the proposal, along with a summary of EPA's responses to those issues. A separate document containing responses to all comments on the proposal (Response to Comments) is in the docket.

Almost every commenter requested that the original 15-day public comment period be extended to provide more opportunity for public review of EPA's proposal and more opportunity for public input. Many requested that the public comment period be extended to as long as 120 days and several commenters requested that EPA hold a public hearing before taking final action.

This action is subject to the requirements of the Administrative Procedures Act (APA) regarding notice and public comment. 5 U.S.C. 551-559. The APA requires EPA to provide notice of all proposed rulemakings in the Federal Register and to provide interested persons an opportunity to participate in the rulemaking through the submission of written data, views, or arguments, with or without the opportunity for oral presentation. 5 U.S.C. 553(b) and (c). As discussed above, in response to the many requests for an extension of the public comment period, EPA reopened the public comment period on the proposal, providing at least 30 days for public comment. The issues involved in the proposal are relatively straightforward: Whether the available air monitoring data shows that the Wallula PM-10 nonattainment area attained the PM-10 NAAQS by the attainment date of December 31, 1997. As discussed in more detail below, the air quality data on which EPA is relying in this action has been certified by State of Washington, Department of Ecology (Ecology), as valid data and was put into a publicly available data system several years ago. EPA believes that, under the circumstances, a public comment period of at least 30 days provided an adequate opportunity for interested parties to participate in the rulemaking process.

With respect to the requests for a hearing, the APA does not require a public hearing before final action. Rather, it makes clear that the requirement to provide interested persons an opportunity to participate in the rulemaking process through the submission of written data, views, or arguments may be “with or without opportunity for oral presentation.” 5 U.S.C. 553(c). In this case, EPA determined that an informational meeting, rather than a public hearing, would more appropriately respond to the public's request for information and explanation regarding the basis for EPA's action than would a public hearing. EPA notes that, of the seven commenters submitting comments on the proposal after the original public comment period was reopened and the informational meeting held, only one person requested that EPA hold a public hearing before taking final action.

Many commenters, including Ecology, commented that the Wallula PM-10 monitoring site is not properly located and does not meet siting criteria. A primary concern noted by many commenters was that there is no year-round vegetative ground cover near the monitor to keep the impact of wind blown dust to a minimum.

EPA's monitoring criteria are specified in 40 CFR 58, appendix D and appendix E (2000). Appendix D describes the monitoring objectives and general criteria for establishing the State and Local Air Monitoring Stations (SLAMS) network. Appendix E contains specific siting criteria for the placement of ambient air quality sampling probes and samplers for measuring air quality. As early as the mid 1980s, EPA evaluated the Wallula site and found that it met all of the EPA siting criteria. More recently, in response to concerns raised during the public comment period on this action, EPA again visited the Wallula monitoring site, reviewed the Federal siting criteria, and confirmed that the Wallula monitoring site meets the criteria in both appendices D and E of 40 CFR 58. See Memorandum from Steven K. Body to Files, “Evaluation of the Wallula PM-10 Monitoring Site, Wallula, Washington,” (January 11, 2001).

It is important to note that the criteria providing that monitoring sites should not be located in an unpaved area unless there is vegetative ground cover year round is stated as a “should,” and thus is a goal for consistency of data among monitoring sites across the country, but is not a requirement. See 40 CFR part 58, appendix E, section 8.4. In any event, although the Wallula monitoring site is located in an area of very fine soil that is easily entrained by wind, the surrounding area does have some limited natural vegetation of Russian Thistle, sage and grass providing some protection from wind erosion. Moreover, the soil and vegetation near the Wallula monitor is representative of large areas of the Wallula PM-10 nonattainment area and is not unique to the area surrounding the monitoring site. It is thus representative of population exposure in the area. Some areas near the Wallula monitoring site do not have any ground cover. In general, these areas are areas that are impacted by human (anthropogenic) activities, and include off-road motor vehicle tracks, the monitoring site service access road, a fertilizer composting facility, and a cattle feedlot. Thus, to the extent the monitor is impacted by windblown dust, the dust is attributable in part to human activities and therefore appropriately measured by the monitor.

Although Ecology has recently asserted that the Wallula monitor is not properly sited, Ecology has entered air quality data from the monitor into EPA's national air data base for more than a decade. By entering the data into this data base, Ecology certified that the data is valid data that meets Federal quality control/quality assurance requirements. See 40 CFR 58.35(d). Ecology used the data from the Wallula monitor in preparing a State Implementation Plan for the Wallula PM-10 nonattainment area, which it submitted to EPA in November 1991. See State Implementation Plan for Particulate Matter in the Wallula Study Area (November 1991) (1991 Wallula SIP). In addition, Ecology specifically stated in a 1993 letter to a local citizen that the monitor is in a good location. See Letter from Claude W. Sappington to Randy Buchanan, dated August 5, 1993. Finally, as recently as June 1998, Ecology included the Wallula monitor in its SLAMS network description for EPA approval.

Several commenters stated that additional analysis of the filters that were collected on June 3, 1997, and July 23, 1999, should be conducted to determine the extent of filter contamination due to “flying ant infestations.” These commenters asserted that there was a correlation between flying ant infestations and the days on which these exceedances were recorded at the Wallula monitoring site. According to the commenters, additional analysis could show that the data was contaminated and should be invalidated.

In response to these concerns, Ecology's Manchester Laboratory, in cooperation with Bacon Donaldson Laboratory in Richmond, British Columbia, conducted additional analysis of the filter samples collected on July 3, 1997, and June 23, 1999, to determine if the filter samples had been contaminated by swarms of flying ants on those days. According to Ecology, the filters were examined using light microscopy and scanning electron microscopy (SEM). The light microscopy found possible insect parts. The more definitive SEM found no obvious insect fragments. Most of the particles on the filters consisted of small mineral grains or clumps of small mineral grains. Pollen grains were found scattered throughout as a minor fraction of the dust samples. Ecology has concluded, and EPA agrees, that filters for July 3, 1997, and June 23, 1999, were not compromised by contamination with insect fragments and are valid. See Letter from Mary Burg, Washington Department of Ecology, to Donna Deneen, EPA, Region 10, dated December 27, 2000. Therefore, the concentrations of 210 μg/m3 and 297 μg/m3 stand as the PM-10 concentrations monitored in Wallula, Washington, for July 3, 1997, and June 23, 1999, respectively.

Several commenters stated that the Wallula monitoring site was established as a special study site and should have been discontinued. The purpose for which the site was originally established is irrelevant, however, so long as the monitor meets Federal siting criteria. Even if the Wallula monitor was originally established as a special study site, Ecology has included the site in its statewide PM-10 SLAMS network and has submitted air quality data from the monitor to the national air data base for more than a decade. In short, regardless of the purpose or objective for which a monitoring site was established, if the site meets EPA siting criteria, meets quality assurance requirements, and reports valid data, that data can be used for determining compliance with the NAAQS.

Several commenters stated that the boundaries of the Wallula PM-10 nonattainment area are arbitrary because the boundaries were set as a 12 mile square box centered on the monitoring site, which includes portions of both Benton and Walla Walla County. These commenters asserted that the boundaries were not based on any evidence indicating sources from Benton County are causing or contributing to the nonattainment problem. Moreover, because Benton County has its own regulatory authority for air (the Benton Clean Air Authority or BCAA), whereas Walla Walla County does not and is subject to Ecology's jurisdiction, these commenters argue it is inappropriate for any portion of Benton County to be included in the nonattainment area.

The boundaries of the Wallula PM-10 nonattainment area were established based on information provided by Ecology to EPA in the late 1980s and early 1990s and a description of the nonattainment area was included in the 1991 Wallula SIP. The SIP states that “A major area of concern is the Horse Heaven Hills, * * * a vast area of dry-land wheat farming.” 1991 Wallula SIP, pg. 52. The Horse Heaven Hills area is located in Benton County across the Columbia River from the Wallula monitoring site and a portion of the area is included in the Wallula PM-10 nonattainment area. During the public comment period on the 1991 Wallula SIP at the state level, no one asserted that Benton County should be excluded from the nonattainment area. In fact, one commenter asserted that progressive tillage practices were needed on farms in the Horse Heaven Hills area because dust from that area blows into the Wallula area. 1991 Wallula SIP, appendix J, pg. 3. In responding to this comment, Ecology agreed that progressive farming practices may be needed in the Horse Heaven Hills area. 1991 Wallula SIP, appendix J, pg. 3.1 Under section 107(d)(1) of the CAA, nonattainment areas are to include, not only areas that do not meet the NAAQS, but also areas that contribute to ambient air quality in a nearby area that does not meet the NAAQS. The available technical information indicates that emissions from portions of Benton County may cause or contribute to NAAQS violations in Walla Walla County. Although the commenters suggest that sources from Benton County are not causing or contributing to the nonattainment problem in Walla Walla County, they provided no technical information to support this position.

It is true that Benton County has a local air pollution control authority with primary planning responsibilities for air quality in the County, whereas Walla Walla County does not, and Ecology therefore has the primary planning responsibilities for Walla Walla County. This fact does not, however, support the exclusion of Benton County from the nonattainment area, especially in light of available information showing that sources in portions of Benton County may cause or contribute to PM-10 NAAQS violations in Walla Walla County. Indeed, there are many other examples of nonattainment areas where more than one air planning authority has jurisdiction. See, e.g., 40 CFR 81.305 (PM-10 for Searles Valley planning area in California); 81.318 (ozone for Louisville in Kentucky); 81.331 (New York City metropolitan area in New York, New Jersey, and Connecticut). Indeed, because local air authorities in Washington do not have jurisdiction over pulp and paper mills and aluminum plants, it is often the case that Ecology will have primary regulatory authority over some sources in a nonattainment area and a local air authority will have primary regulatory authority over other sources in the nonattainment area. Coordination between Ecology and the local air pollution control authority with jurisdiction over Benton County was required for the development of the 1991 Wallula SIP and coordination between Ecology and BCAA will continue to be required in future planning efforts as well.

Many commenters stated that the proposed reclassification of the Wallula PM-10 nonattainment area is not appropriate and not the best way to address potential air problems in the area for a variety of reasons. Some commenters stated that EPA should not take action because the exceedances are caused by wind blown dust, not human actions, and that EPA must first determine the cause of the exceedances before finding the Wallula area has not attained the PM-10 standards. Others raised concerns with the economic impact of a serious designation on the area's economic development and with Ecology's limited resources to address air quality issues throughout the State of Washington. Many commenters stated that EPA should use its discretion to avoid reclassifying the area to serious. Several noted that the Wallula area is sparsely populated.

The Wallula area has been designated nonattainment for PM-10 and classified as a moderate PM-10 nonattainment area since 1990, with an original attainment date of December 31, 1994. This attainment date was later extended to December 31, 1997. Pursuant to sections 179(c)(1) and 188(b)(2) of the CAA, EPA has the responsibility to determine, within six months of the applicable attainment date, whether PM-10 nonattainment areas attained the PM-10 NAAQS by the attainment date. If EPA determines that an area is not in attainment of the PM-10 NAAQS after the attainment date, “the area shall be reclassified by operation of law as a Serious Area.” CAA section 188(a)(2)(A). Therefore, once EPA makes a finding of nonattainment after the attainment date, reclassification to serious occurs by operation of law, without further action by EPA. EPA's discretion in this regard is constrained by the requirements of the Clean Air Act.

Findings of attainment or nonattainment under section 179(c)(1) of the Act are to be based upon an area's “air quality as of the attainment date.” CAA section 188(b)(2) is consistent with this requirement. With two exceptions discussed below, the cause of the exceedances is not relevant to the determination of whether air quality in an area is meeting the PM-10 NAAQS. Similarly, factors such as the economic impact of a reclassification, the number of people living in the nonattainment area, the planning authority's resources needed to address a serious designation, whether the moderate area SIP is being implemented, or the best means of controlling the sources of PM-10 emissions are not relevant to the determination of whether air quality in a nonattainment area meets air quality standards. Under the statutory scheme enacted by Congress, these factors may to some extent be considered by authorities during the process of planning how to bring an area into attainment, but Congress has not included them as appropriate for consideration in determining whether the air quality of an area is meeting Federal standards.

There are two circumstances in which the cause of an exceedance is an appropriate consideration in determining the air quality of an area. First, section 188(f) of the Clean Air Act gives EPA authority to waive a specific date for attainment of the standards where EPA makes certain findings regarding the relative impact on air quality of anthropogenic sources of PM-10 (resulting from human activities) versus nonanthropogenic sources of PM-10 (activities where the human role in the cause of such emissions is highly attenuated). As discussed in section II.E below, the Wallula area does not qualify for a permanent waiver of the attainment date. Second, under section 107(d)(4)(B)(ii) of the CAA and 40 CFR part 50, appendix K, section 2.4, specific exceedances due to uncontrollable natural events may be discounted or excluded entirely from decisions regarding an area's air quality status. See also Memorandum from EPA's Assistant Administrator for Air and Radiation to EPA Regional Air Directors entitled “Areas Affected by Natural Events,” dated May 30, 1996 (EPA's Natural Events Policy). As discussed in section II.F. below, even if some of the data from the Wallula monitoring site are considered uncontrollable natural events and excluded from consideration in determining the air quality status of the area, the remaining data still show that the Wallula area has not attained the PM-10 NAAQS.

EPA agrees with the commenters that additional evaluation of the data and cause of the high PM-10 readings in the Wallula area would help to better identify the sources and activities resulting in the high PM-10 levels recorded on the Wallula monitor. This information would in turn assist in developing a control strategy that would bring the Wallula area into attainment with the PM-10 NAAQS as expeditiously as possible and with the best use of limited resources. EPA encourages Ecology to work with BCAA, local government, PM-10 sources, and the public in the Wallula area to conduct such evaluation.

One commenter stated that EPA's determination that the Wallula area failed to attain the PM-10 NAAQS should not be based on data collected after the attainment date of December 31, 1997. In the case of Wallula with an attainment date of December 31, 1997, EPA first reviewed data for calendar years 1995, 1996, and 1997. During that period, there were two recorded exceedances, one on June 21, 1997, and one on July 3, 1997. As discussed in more detail in section II.F below, although Ecology has claimed that the June 21, 1997, exceedance was due to a natural event and should not be considered in an attainment determination, Ecology has made no such claim for the exceedance on July 3, 1997. Because the Wallula monitor is scheduled to sample once every six days, each measured exceedance is generally counted as six expected exceedances and represents a violation of the 24-hour PM-10 standard. Thus, the data shows that, even if only the data available on or before the attainment date of December 31, 1997, is considered and Ecology's natural events flagging is accepted, the Wallula area was still not in attainment of the 24-hour PM-10 NAAQS as of the attainment date. EPA disagrees, however, that data collected after the attainment date of December 31, 1997, is not relevant to EPA's decision. The exceedances occurring after the attainment date provide confirmation that the Wallula area has not attained the 24-hour PM-10 standard.

Several commenters stated that EPA used its discretion in the case of the Kennewick/Richland/Pasco Tri-Cities area in neighboring Benton and Franklin Counties to designate the area as “unclassifiable” because of the occurrence of natural events similar to those that occur in the Wallula area. These commenters urged EPA to do the same for the Wallula area.

As noted above, the Wallula area has been designated nonattainment for PM-10 and classified as moderate since 1990. Pursuant to sections 179(c)(1) and 188(b)(2) of the CAA, EPA is required to determine, within six months of the applicable attainment date, whether PM-10 nonattainment areas attained the PM-10 NAAQS by the attainment date. If EPA determines that an area is not in attainment of the PM-10 NAAQS after the attainment date, “the area shall be reclassified by operation of law as a Serious Area.” See CAA section 188(a)(2)(A).

In contrast, the Kennewick/Richland/Pasco Tri-Cities area was designated unclassifiable under the Clean Air Act of 1990. As a result, CAA section 107(d)(3)(B) (instead of sections 179(c)(1) and 188(b)(2)) applies to the area. Section 107(d)(3)(B) allows the EPA to consider air quality data, planning and control considerations, or any other air quality-related considerations the Administrator deems appropriate in determining whether an area's designation should be revised. EPA used this statutory discretion to use a different approach in the case of the Kennewick/Richland/Pasco Tri-Cities area. EPA does not have discretion under the Clean Air Act to designate the Wallula PM-10 nonattainment area as “unclassifiable” for PM-10. Section 107(d)(3)(F) of the Act expressly states that, “The Administrator shall not promulgate any redesignation of any area (or portion thereof) from nonattainment to unclassifiable.”

Several commenters stated that Wallula should receive a permanent waiver of the attainment date under section 188(f) of the CAA due to the significant contribution of nonanthropogenic sources. These commenters stated that identifying and evaluating the relative contributions of anthropogenic and nonanthropogenic sources to the PM-10 exceedances was a primary objective of the Columbia Plateau project and that EPA cannot find the Wallula area has not attained the PM-10 NAAQS until EPA determines that windblown dust was not significantly contributing to the measured 1997 PM-10 concentrations.

Congress recognized that there may be areas where the NAAQS may never be attained because of PM-10 emissions from nonanthropogenic sources, and that the imposition in such areas of certain state planning requirements may not be justified. Therefore, under section 188(f) of the Act, Congress provided a means for EPA to waive a specific date for attainment and certain control and planning requirements when certain conditions are met in the nonattainment area. Section 188(f) provides two types of waivers. First, EPA may, on a case-by-case basis, waive any PM-10 nonattainment planning requirement applicable to any serious nonattainment area where EPA determines that anthropogenic sources of PM-10 do not contribute significantly to violation of the standards in the area. Second, EPA may waive a specific date for attainment of the standards where EPA determines that nonanthropogenic sources of PM-10 contribute significantly to the violation of the standards in the area. Thus, section 188(f) contains two different legal tests. The first test applies to a waiver of the serious area requirements and requires that EPA determine that anthropogenic sources do not contribute significantly before EPA grants such a waiver. The second test applies to a waiver of an area's attainment date and requires that EPA determine that nonanthropogenic sources contribute significantly before waiving the attainment date. The first test is more stringent than the second.

EPA has issued guidance addressing implementation of section 188(f) and reconciling the two legal tests set out in that provision and cited above. See 59 FR 41998 (August 16, 1994) (“State Implementation Plans for Serious PM-10 Nonattainment Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990”, referred to hereafter as “Serious Area Guidance”). In particular, EPA noted that the disparity between the legal tests set out in section 188(f) could lead to an absurd result. If, for example, a moderate area was granted a permanent waiver because nonanthropogenic sources contribute significantly to violations of the PM-10 NAAQS, the attainment date for the area would be vacated. Therefore, the moderate area would not be subject to reclassification under section 188(b) because there simply would be no attainment date that the area cannot practicably meet or that the area fails to meet. The result would be that a moderate area would be effectively relieved from the serious area requirements without having met the more stringent test that Congress expressly required to be met as a prerequisite to a waiver of such requirements in the first sentence of section 188(f)—a determination that anthropogenic sources of PM-10 do not contribute significantly to violation of the PM-10 NAAQS. In such an event, the more stringent test for determining whether to waive serious area requirements would be rendered meaningless.

To avoid this absurd result and only grant a waiver of the serious area requirements consistent with the legal standard set out in the Act, EPA has construed section 188(f) to provide that a moderate area may only qualify for an attainment date waiver if it also qualifies for a waiver of the serious area requirements under the first sentence of section 188(f). Therefore, EPA must determine that anthropogenic sources in the area do not contribute significantly to the violation of the PM-10 NAAQS, and that the serious area requirements should be waived, before EPA can grant an attainment date waiver for a moderate area. If such a determination is made, then the attainment date may be waived and the area would not be reclassified.2 See 59 FR at 42005; 58 FR 18190, 18192 (April 8, 1993) (proposal to grant a waiver of the attainment date for Anthony, New Mexico).

In the Serious Area Guidance, EPA set forth threshold levels for determining whether areas qualify for waivers under section 188(f). Where emissions from all anthropogenic sources as a whole contribute less than or equal to 5 μg/m3 to 24-hour average design concentrations and less than or equal to 1 μg/m3 to annual mean design concentrations in a nonattainment area, after all reasonably available control measures (RACM) have been implemented,3 EPA will generally regard such contributions as insignificant for purposes of waiving requirements applicable to serious PM-10 nonattainment areas pursuant to section 188(f). In addition, if an area meeting this test has not yet been reclassified as serious and the area would qualify under this test for a waiver of certain serious area requirements as deemed appropriate by EPA, then EPA will generally not require reclassification, since that action would have no practical effect. In contrast, if the contribution of anthropogenic emissions to the 24-hour design concentration exceeds 5 μg/3, or if the contribution to the annual design concentration exceeds 1 μg/3, even after the application of all RACM, then the area should be reclassified as serious, and serious area requirements, including best available control measures (BACM), should be implemented. See 59 FR at 42004-42005; 58 FR 47383 (September 9, 1993) (final action granting waiver of the attainment date for Anthony, New Mexico). If evidence in a given nonattainment area suggests that anthropogenic source contributions are relatively small but not less than 5 μg/m3, then EPA will review the situation on a case-by-case basis taking into account relevant information such as the relative contribution of nonanthropogenic emissions/anthropogenic emissions and the effects of applying additional controls to both types of sources.

In the Serious Area Guidance, EPA also discussed temporary waivers of the attainment date for moderate areas. In cases where preliminary data (emission inventory, filter analysis, etc.) persuasively indicate that anthropogenic emissions may be insignificant and that nonanthropogenic emissions may be significant in an area, but such data are not decisive, then EPA has stated it will consider granting a temporary or conditional waiver of the moderate area attainment date for no more than three years to allow further evaluation of the situation. See 59 FR at 42005-42006. In the case of Wallula, EPA granted a temporary waiver to extend the attainment date for Wallula to December 31, 1997, based on preliminary information that nonanthropogenic sources of PM-10 may be significant in the Wallula area. See 60 FR 63109 (December 6, 1995)(proposed action); 62 FR 3800 (January 27, 1997) (final action). The temporary waiver was intended to provide Ecology time to evaluate further the Wallula nonattainment area and to determine the significance of the anthropogenic and nonanthropogenic sources impacting the area. Once these activities were complete or the temporary waiver expired, EPA stated it would make a decision on whether the area was eligible for a permanent waiver under section 188(f) of the CAA or whether the area had attained the 24-hour PM-10 standard by the extended attainment date. See 62 FR at 3802.

Because Wallula is currently classified as a moderate PM-10 nonattainment area, EPA must find that anthropogenic sources in the area do not contribute significantly to violation of the PM-10 NAAQS before EPA will grant a permanent waiver of the moderate area attainment date for Wallula, which in turn would forestall reclassification of the area to serious. Although more than three years have elapsed since expiration of Wallula's temporary waiver, Ecology has not submitted a request for a permanent waiver under section 188(f) of the CAA. Nor has Ecology submitted any information to support a finding that anthropogenic sources in the area do not contribute significantly to violation of the PM-10 NAAQS in the Wallula PM-10 nonattainment area.

In addition, information available to EPA does not support such a finding. First, a review of the location of the monitor itself strongly suggests that the impact of anthropogenic sources is not insignificant. Within a two kilometer radius of the Wallula monitor lie a pulp mill, a feed lot with capacity for over sixty thousand cattle, a beef processor, a composting facility, a tree farm, and a highway, which collectively emit more than 631 tons of PM-10 each year. Second, based on the 1991 Wallula SIP, although 95% of the PM-10 emissions in the nonattainment area are classified by the State as “wind blown dust,” the State characterizes the emissions as “agricultural wind blown dust,” that is, dust from crop land subject to agricultural practices. The SIP also states that “A major source of windblown dust in the area are agricultural fields lying fallow or bare.” Of the approximately 92,160 acres in the Wallula PM-10 nonattainment area, approximately 41,420 acres are under cultivation for wheat, corn, or alfalfa.

Ecology and EPA have participated in a research project to better understand the causes and impacts of wind erosion and windblown dust on the Columbia Plateau, which includes the Wallula area, and to develop strategies for minimizing impacts. This project is known as the Columbia Plateau Particulate Matter Research Project (the Columbia Plateau Project). The Columbia Plateau Project supports the conclusion that the ambient impact of anthropogenic sources of PM-10 in the Wallula area is not insignificant. As part of the project, researchers specifically evaluated the question of whether the air is significantly more dusty in the Columbia Plateau since the beginning of systematic farming (an anthropogenic activity), about 120 years ago. Beginning in about the 1880s, the record shows there is a marked increase in the mineral content of the sediment, a change that has remained consistent to the present. The researchers attributed this increase to an increase in dust deposition. The report further states that specific characteristics of the dust (i.e., the mean diameter and the amount of PM-10) corroborate the assumption that agricultural activity led to this increase. See Columbia Plateau Particulate Matter Research Project, Final Report: Executive Summary (March 1998). Moreover, the overall tenor of the project focuses on the impacts of the wind on farming and best management practices for reducing those impacts. In fact, a publication published by the Columbia Plateau Project, “Farming with the Wind,” maintains that, in the Columbia Plateau, fine particulates in the air are usually attributed to wind erosion of field soils. See Farming with the Wind (1998). Here and throughout the document, this publication makes clear the connection between wind and farming and, in promoting best management practices, suggests that agricultural activities exacerbate the effects of the wind. For these reasons we believe that anthropogenic sources of PM-10 can not be characterized as contributing only insignificantly to violation of the 24-hour PM-10 standard in the Wallula area.

The information regarding the mix of anthropogenic and nonanthropogenic sources in the Wallula area is in marked contrast to the information provided by New Mexico, in seeking a permanent waiver of the moderate attainment date under section 188(f) for Anthony, New Mexico. In that case, New Mexico submitted information showing that, in the Anthony nonattainment area, there are no point sources emissions and only 37.4 tons/year of PM-10 emissions from area sources (mostly roads) and that, in the county in which the nonattainment area is located, there are 72.1 tons/year of PM-10 emissions from point sources. In contrast, there are more than 500,000 tons/year of nonanthropogenic emissions from the desert and well-maintained rangeland in the county which could not be feasibly controlled. EPA noted that no agricultural tilling takes place in the Anthony nonattainment area and most farmlands in the surrounding county are located along the Rio Grange flood plain in an area containing more rich, well developed soil. New Mexico also showed that RACM and RACT had been implemented for all anthropogenic sources of PM-10 in the nonattainment area and the surrounding county. Based on the emissions inventory information, dispersion modeling, filter analysis, and other information provided by New Mexico, EPA agreed that point source and all other anthropogenic sources in the nonattainment area and the surrounding county were insignificant, and that nonanthropogenic emissions from the surrounding desert and rangelands were overwhelmingly the dominant sources of PM-10 ambient concentrations in the Anthony PM-10 nonattainment area. Therefore, EPA waived the moderate attainment date for the Anthony PM-10 nonattainment area pursuant to section 188(f) of the CAA. See 58 FR at 18192-18194. EPA does not believe that a waiver of the moderate area attainment date is appropriate in the case of the Wallula PM-10 nonattainment area because it has not been established that anthropogenic sources of PM-10 in the area contribute only insignificantly to violation of the PM-10 NAAQS.

Numerous commenters stated that the exceedances of the PM-10 NAAQS at the Wallula monitoring site are caused by windblown dust, which is considered a “natural event,” and should be excluded in determining the attainment status of the Wallula area. In addition to the waiver provisions of section 188(f) of the CAA, the Clean Air Act provides for the exclusion of certain data attributable to uncontrollable natural events from attainment determinations. See CAA section 107(d)(4)(B)(ii) and 40 CFR part 50, appendix K, section 2.4. Appendix K provides, in part, that measured exceedances of the PM-10 NAAQS in an area may be discounted from determinations regarding nonattainment status if the data are shown to be influenced by uncontrollable events caused by natural sources of particulate matter. EPA has issued guidance addressing three categories of natural events: (1) Volcanic and seismic activity; (2) wildland fires; and (3) high wind events. See Memorandum from EPA's Assistant Administrator for Air and Radiation to EPA Regional Air Directors entitled “Areas Affected by Natural Events,” (May 30, 1996) (Natural Events Policy).

There are important distinctions between waivers under section 188(f) of the CAA and the exclusion of exceedances due to uncontrollable natural events from attainment determinations under section 107(d)(4)(B)(ii) of the CAA and 40 CFR part 50, appendix K, section 2.4, although there is some overlap. In the case of a waiver under section 188(f) of the CAA, a determination is made that the area cannot attain the 24-hour PM-10 standard because of the ambient impact of nonanthropogenic sources of PM-10. The focus is on the source of the particulate—anthropogenic or nonanthropogenic. In the case of natural event determinations under 107(d)(4)(B)(ii) of the CAA and 40 CFR part 50, appendix K, section 2.4, the focus is on a time-limited event that causes elevated PM-10 levels on a specific day or days: a volcanic or seismic event, a wildfire, or high winds. The source of the PM-10 can be anthropogenic or nonanthropogenic.

In the case of high winds, EPA has stated that it will consider ambient PM-10 concentrations due to dust raised by unusually high winds as due to uncontrollable natural events (and thus excludable from attainment determinations) if either (1) the dust originated from nonanthropogenic sources or (2) the dust originated from anthropogenic sources controlled with best available control measures (BACM). See Natural Events Policy, pg. 7. EPA's Natural Events Policy sets forth a process for declaring an exceedance as due to natural events and for documenting a natural events claim. If natural events cause ambient concentrations of PM-10 that exceed the NAAQS, the State is responsible for developing a Natural Events Action Plan (NEAP) to address future exceedances due to natural events, which includes commitments to: (1) establish public education and notification programs; (2) minimize public exposure to high concentrations of PM-10 due to future natural events; (3) abate or minimize contributing controllable sources of PM-10, which includes the application of BACM to any sources of soil that have been disturbed by anthropogenic activities; (4) identify, study, and implement practical mitigating measures as necessary; and (5) periodically reevaluate the NEAP. See Natural Events Policy, pp. 7-10.

With respect to a specific claim of natural event, when air quality data affected by a natural event are submitted for inclusion in the national air data base, the State should request that a flag be placed on the data to indicate that a natural event was involved and to submit documentation to support the flag. To support a natural event claim for high winds, the State is responsible for documenting, among other things: (1) a clear and causal relationship between the measured exceedance and the natural event; (2) that BACM were required for sources of anthropogenic dust and that the sources were in compliance at the time of the high wind event; and 3) that the documentation of natural events and their impact on air quality is available for public review. EPA is then to acknowledge receipt of the natural events documentation and confirm the flagging of the exceedance as a natural event.

In EPA's November 14, 2000, proposal finding that the Wallula area had not attained the 24-hour PM-10 standard as of the attainment date, EPA discussed four exceedances of the standard recorded at the Wallula monitor during calendar years 1995 through 1999:

As discussed in EPA's November 16, 2000, proposal, Ecology flagged the June 21, 1997, exceedance in the national air data base as an exceedance caused by high winds under EPA's Natural Events Policy, although it is unclear if EPA received Ecology's documentation of this exceedance as a natural event before the summer of 2000. 65 FR at 69276. In addition, Ecology originally flagged the July 10, 1998, exceedance as due to a natural, high wind event. In response to a specific inquiry from EPA in January 2000, however, Ecology notified EPA that, after further investigation, it did not consider the July 10, 1998, exceedance to be due to high winds and that it would be removing the flag. None of the other exceedances were flagged by Ecology when the data was entered into the national air data base.

In response to EPA's November 16, 2000, proposal to find that the Wallula area had not attained the PM-10 NAAQS as of the attainment date, Ecology again reviewed the meteorology for the July 10, 1998, exceedance and now asserts that, despite its earlier conclusion, the July 10, 1998, exceedance was in fact attributable to a natural, high wind event and should not be considered in determining the attainment status of the Wallula PM-10 nonattainment area. Ecology also submitted information to show that the June 23, 1999, exceedance was due to a natural, high wind event. Ecology has not flagged or submitted information to show that a natural, high wind event caused either the July 3, 1997, exceedance or the more recent August 10, 2000, exceedance. Because of the one-in-every-six day sampling schedule at the Wallula monitor, either one of these exceedances precludes a finding that the Wallula area has attained the 24-hour PM-10 standard. The July 3, 1997, exceedance alone is sufficient to establish that the Wallula area had not attained the 24-hour PM-10 standard by the December 31, 1997, attainment date. The August 10, 2000, exceedance establishes that the Wallula area has not attained the 24-hour PM-standard as of the end of the most recent three-year period (1998 through 2000).

EPA is still reviewing the documentation submitted to support Ecology's flagging of the June 21, 1997, July 10, 1998, and June 23, 1999, exceedances as attributable to uncontrollable natural events (high winds). Once EPA has completed its review, EPA will notify Ecology regarding whether EPA will confirm the flagging of the June 21, 1997, July 10, 1998, and June 23, 1999, exceedances as due to natural events.

Although EPA is not determining in this action whether the events were properly flagged as natural, high wind events and qualify for exclusion from consideration under EPA's Natural Events Policy, EPA does have preliminary concerns with the documentation submitted by Ecology to support these natural event claims. First, Ecology has not yet identified threshold wind conditions for the Wallula area which would be expected to overcome BACM controls and entrain dust. In addition, Ecology has only provided meteorology for the days on which it has claimed the occurrence of natural events, and has not provided a similar meteorological analysis showing wind conditions were below a threshold on days when measured values were low. The Natural Events Action Plan submitted by Ecology in March 1998 for the Columbia Plateau, which includes the Wallula area, indicates spring planting and late summer/fall harvest are the times that agricultural soil is most exposed and subject to wind erosion. See Natural Events Action Plan for High Wind Events in the Columbia Plateau (March 1998) (Columbia Plateau NEAP). These time frames do not coincide with the measured exceedances recorded on the Wallula monitor in June through August, a time when vegetative cover (i.e., crops) would be expected to be the highest for providing protection of the soil from wind erosion.

Ecology has also not provided information to show that BACM has been implemented on all anthropogenic sources of PM-10 that contributed to the exceedances at the Wallula monitoring site and that such sources were in compliance with BACM at the time of the exceedances. In the Columbia Plateau NEAP, Ecology states that BACM will be applied to windblown dust from anthropogenic sources to mitigate the impact of high wind events and states that a time line for identifying and implementing BACM will be developed by May 1998. Columbia Plateau NEAP, pp. 11 and 16. Although more than two and one half years have elapsed since Ecology submitted its NEAP, EPA has received no information regarding implementation of BACM in the Wallula area except for the State's assertion that the Food Securities Act of 1996 constitutes implementation of BACM on agricultural lands. There is no discussion of Ecology's commitment in its NEAP to study and develop additional BACM for agricultural sources on the Columbia Plateau in cooperation with Washington State University and U.S. Department of Agriculture. Ecology also has not provided documentation of implementation of BACM for the other sources of dust that are near the Wallula monitoring site, such as the cattle feedlot, the fertilizer composting facility, and off-road recreational vehicle activity. Without documentation that BACM was in effect on these sources at the time of each event, EPA cannot conclude that the wind conditions were sufficient to overcome BACM controls. Finally, EPA does not have evidence of Ecology's public information and outreach efforts with respect to the exceedances recorded in the Wallula area that are claimed to be due to natural events. During the December 15, 2000, informational meeting held in Walla Walla to discuss EPA's proposed finding for the Wallula area, comments by several attendees indicated that there had not been wide-spread knowledge of the exceedances.

Several commenters noted that during the period from 1997 to the present when the Wallula PM-10 monitoring site recorded five exceedances of the 24-hour PM-10 standard, the Kennewick monitoring site also recorded five exceedances, four of which qualified as “natural events due to high winds” under EPA's Natural Event's Policy. These commenters state that the Wallula exceedances should also be classified as natural events because the Wallula and Kennewick monitoring sites are less than 20 miles apart.

As discussed above in this section II.F, even if some of the exceedances recorded on the Wallula monitor can be characterized as natural events, two of them have not been flagged as natural events. Because of the sampling frequency at the Wallula monitor, either one of these exceedances requires a finding that the Wallula area has not attained the 24-hour PM-10 standard.

In any event, each exceedance of the 24-hour PM-10 standard and the documentation to support it needs to be assessed independently based on the criteria outlined in EPA's Natural Events Policy to determine whether the exceedances can be attributable to a natural event and thus qualify for exclusion from consideration in attainment determinations for the area. EPA notes that it has confirmed only three of the flags—the exceedances recorded on March 30, 1997, September 23, 1999, and September 25, 1999. Moreover, as shown in the summary table below, the exceedances recorded on the Kennewick monitor since 1997 have not been recorded on the same days as the exceedances recorded on the Wallula monitor.

The fact that there is no correlation between the occurrence of PM-10 exceedances at the two monitors suggests that the mix of PM-10 sources that contribute to PM-10 concentrations above the NAAQS, as well as any natural events that may impact those PM-10 sources, appear to be different in the Kennewick area and the Wallula area.

A review of meteorological data for July 10, 1998, clearly demonstrates that wind conditions can be significantly different in the Kennewick area as compared to the Wallula area. An article in the Tri-City Herald on July 11, 1998, reported that a thunder storm with peak winds of 66 to 69 miles per hour and heavy rain passed through the Kennewick area on July 10 causing significant damage. The Kennewick monitor reported a PM-10 concentration of 45 μg/m3 for July 10, 1998, whereas the Wallula monitor reported a PM-10 value of 215 μg/m3. The article also notes that Prosser police (Prosser is located approximately 30 miles east of Kennewick) and Hermiston police (Hermiston, Oregon is located approximately 30 miles south of Kennewick) reported relatively calm weather at the time of the storm. Wind measured at Wallula for July 10, 1998, had an average speed of 7.7 miles per hour, with a one-hour maximum wind measurement of 26 miles per hour. Thus, it is not possible to conclude that, because PM-10 exceedances during the period from 1997 through 2000 in the Kennewick area were caused by natural events, exceedances recorded during the same period but on different days at the Wallula monitoring site were also caused by natural events.

A few comments raised issues relating to a Consent Decree EPA entered into in response to a law suit alleging that, among other things, EPA had failed to make a finding regarding whether the Wallula PM-10 nonattainment area had attained the PM-10 standards by the attainment date as provided in CAA section 188(b)(2). Under that Consent Decree, which was lodged with the court on January 12, 2001, EPA agreed to sign a notice on or before January 16, 2001, for publication in the Federal Register containing EPA's final determination regarding whether the Wallula PM-10 nonattainment area attained the NAAQS for PM-10 by the applicable attainment date. The commenters requested a copy of the Consent Decree so that they could comment on the decree. The commenter also asserted that the Consent Decree incorrectly referred to Wallula as one of the “Group 2 PM-10 nonattainment area,” when in fact it was designated as a Group 1 PM-10 planning area after promulgation of the 1987 PM-10 NAAQS. The commenter suggested that EPA would delay taking action regarding whether the Wallula PM-10 area had attained the PM-10 standard if Wallula had been properly characterized as a Group 1 area in the Consent Decree.

EPA has provided a copy of the Consent Decree as requested by the commenter and a copy is in the docket. Pursuant to section 309(g) of the CAA, the Consent Decree will be subject to public notice and comment. EPA does not believe, however, the Consent Decree is relevant to the finding made by EPA in this action, because the Consent Decree only specified a time by which EPA was required to make a finding under CAA section 188(b)(2) with respect to the Wallula area, not the substance of the finding. In addition, although it is true that the Wallula PM-10 nonattainment area was identified as a “Group 1 PM-10 planning area” after promulgation of the 1987 PM-10 standards, the reference in the Consent Decree to “Group 2 PM-10 nonattainment areas” was not intended to refer to the planning areas for purposes of the 1987 PM-10 NAAQS but rather was a category created for purposes of the Consent Decree only.

As stated above, EPA is finalizing its proposed action to find that the Wallula PM-10 nonattainment area failed to attain the PM-10 NAAQS by December 31, 1997, the CAA attainment date for the area. As a result, the Wallula area will be reclassified by operation of law as a serious PM-10 nonattainment area on the effective date of this final rule.

PM-10 nonattainment areas reclassified as serious under section 188(b)(2) of the CAA are required to submit, within 18 months of the area's reclassification, SIP revisions providing for the implementation of BACM no later than four years from the date of reclassification. The SIP also must contain, among other things, a demonstration that the implementation of BACM will provide for attainment of the PM-10 NAAQS no later than December 31, 2001.4 In addition, the terms “major source” or “major stationary source” include any stationary source or group of stationary sources located within a contiguous area and under common control that emit, or have the potential to emit, at least 70 tons per year of PM-10. See CAA sections 188(c)(2) and 189(b).

EPA has issued specific guidance on developing serious area PM-10 SIP revisions in the Serious Area Guidance. See 59 FR 41998 (August 16, 1994). The serious area requirements are in addition to the moderate PM-10 nonattainment requirements of RACT/RACM.

Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), EPA is required to determine whether regulatory actions are significant and therefore should be subject to Office of Management and Budget (OMB) review, economic analysis, and the requirements of the Executive Order. The Executive Order defines a “significant regulatory action” as one that is likely to result in a rule that may meet at least one of the four criteria identified in section 3(f), including, under paragraph (1), that the rule may “have an annual effect on the economy of $100 million or more or adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities.”

The Agency has determined that the finding of failure to attain would result in none of the effects identified in section 3(f) of the Executive Order. Under section 188(b)(2) of the CAA, findings of failure to attain are based upon air quality considerations and the resulting reclassifications must occur by operation of law. They do not, in and of themselves, impose any new requirements on any sectors of the economy. In addition, because the statutory requirements are clearly defined with respect to the differently classified areas, and because those requirements are automatically triggered by classifications that, in turn, are triggered by air quality values, findings of failure to attain and reclassification cannot be said to impose a materially adverse impact on State, local or tribal governments or communities.

Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be economically significant as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This action is not subject to Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866.

On November 6, 2000, the President issued Executive Order 13175 (65 FR 67249) entitled, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 took effect on January 6, 2001, and revokes Executive Order 13084 (Tribal Consultation) as of that date. EPA developed this final rule, however, during the period when Executive Order 13084 was in effect; thus, EPA addressed tribal considerations under Executive Order 13084. Under Executive Order 13084, Consultation and Coordination with Indian Tribal Governments, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide OMB, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.

Today's finding of failure to attain does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this finding of failure to attain.

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

Findings of failure to attain and the resulting reclassification of nonattainment areas by operation of law under section 188(b)(2) of the CAA do not in and of themselves create any new requirements. Instead, this rulemaking only makes a factual determination, and does not directly regulate any entities. Therefore, pursuant to 5 U.S.C. 605(b), I certify that today's final action does not have a significant impact on a substantial number of small entities within the meaning of those terms for RFA purposes.

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

EPA believes, as discussed above, that the finding of failure to attain is a factual determination based upon air quality considerations and that the resulting reclassification of the area must occur by operation of law. Thus, the finding does not constitute a Federal mandate, as defined in section 101 of the UMRA, because it does not impose an enforceable duty on any entity.

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

This finding of failure to attain and the resulting reclassification of a nonattainment area by operation of law will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because this action does not, in-and-of-itself, impose any new requirements on any sectors of the economy, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to these actions.

As noted in the proposed rule, section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Pub L. No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 10, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2).

In accordance with the memorandum of January 20, 2001, from the Assistant to the President and Chief of Staff, entitled “Regulatory Review Plan,” published in the Federal Register on January 24, 2001, the Department has postponed for 60 days the effective dates of a number of final rules that were published before January 20, 2001, but have not yet gone into effect. The four rules mentioned in this notice were published before January 20, 2000 and have not yet gone into effect. However, for the reasons stated below, we are not postponing their effective dates.

The Department published its new drug and alcohol testing regulation (49 CFR part 40) on December 19, 2000. A portion of this rulemaking went into effect on January 18, 2001, and it consequently is not subject to the withdrawal requirement of the Chief of Staff's memorandum. The remainder of this rule goes into effect August 1, 2001. The Department does not believe that it is necessary, in order to comply with the intent of the memorandum, to extend the effective date of the rule to a date 60 days after August 1. The time between now and August 1 affords ample opportunity for the Department to review the rule before it becomes effective. In addition, since the August 1 effective date was selected, in part, to coincide with the date on which use of a new Department of Health and Human Services drug test collection form becomes mandatory, postponing the effective date could lead to confusion and mistakes in the administration of drug tests.

The National Highway Traffic Safety Administration (NHTSA) rule on metric conversion of tire standards was published May 27, 1998. The rule converts English measurements in NHTSA rules concerning tire standards to metric measurements. Voluntary compliance was authorized upon publication. The final rule becomes effective May 27, 2003. Because of the very long period of time before this rule becomes effective, the Department does not believe that it is necessary, in order to comply with the intent of the memorandum, to extend the effective date of the rule to a date 60 days after May 27, 2003. The time between now and May 27, 2003, affords ample opportunity for the Department to review the rule before it becomes effective.

The United States Coast Guard (USCG) Interim Final Rule on licensing and manning for officers of towing vessels was published on November 19, 1999. The rule creates new licenses, with levels of qualification and enhanced training and operating experience requirements for these personnel. On October 27, 2000, the effective date of the rule was delayed until May 21, 2001, in order to allow time to issue guidance for new licenses and revised training criteria. Because of the period of time before this rule becomes effective, and the fact that the effective date has already been postponed beyond 60 days from today's date, the Department does not believe that it is necessary, in order to comply with the intent of the memorandum, to extend the effective date of the rule to a date 60 days after May 21, 2001.

The USCG rule on citizenship standards for vessel ownership and financing was issued on December 7, 2000, and becomes effective on October 1, 2001. Here again, there is a substantial period of time before this rule becomes effective, and the Department does not believe that it is necessary to extend the effective date of the rule further, in order to comply with the intent of the memorandum. The time between now and October 1, 2001, affords ample opportunity for the Department to review the rule before it becomes effective.

All of these rules will be subject to review by the Department on the same basis as the rules the effective dates of which were postponed pursuant to the Chief of Staff's memorandum.

This is a summary of the Commission's Third Report and Order and Order on Reconsideration in CC Docket No. 92-105, FCC 00-256 (Third Report and Order), in the matter of the use of N11 Codes and other abbreviated dialing arrangements, adopted July 21, 2000, and released July 31, 2000. The full text of the item is available for inspection and copying during the weekday hours of 9 a.m. to 4:30 p.m. in the Commission's Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554, or copies may be purchased from the Commission's duplicating contractor, ITS, Inc., 445 12th Street, SW, Suite CY-B400, Washington, DC 20554, phone (202) 857-3800. This Order contains no new or modified information collections subject to the Paperwork Reduction Act of 1995, Public Law 104-13.

1. N11 codes are abbreviated dialing arrangements that allow telephone users to connect with a particular node in the network by dialing only three digits. There are only eight possible N11 codes, making N11 codes among the scarcest of numbering resources under our jurisdiction. Of the eight N11 codes available, the Commission has already assigned two for nationwide use, and has been directed by Congress to assign another. In addition, three other N11 codes are widely used by carriers across the country, but have not been assigned by the Commission for such nationwide use. Thus, at this time, the 211 and 511 codes are the only two N11 codes that can be assigned and deployed immediately.

2. The network must be pre-programmed to translate the three-digit code into the appropriate seven or ten-digit telephone number and route the call accordingly. Among abbreviated dialing arrangements, “N11” codes are three-digit codes of which the first digit can be any digit other than 1 or 0, and the last two digits are both 1.

3. Prior to the 1996 Act, incumbent local exchange carriers (LECs), state commissions, Bellcore and the Commission performed the functions relating to numbering administration, including administration of abbreviated dialing codes. Section 251(e) of the Communications Act of 1934, as amended by the Telecommunications Act of 1996 (1996 Act), gives the Commission exclusive jurisdiction over numbering administration, and over those portions of the North American Numbering Plan (NANP) that pertain to the United States. This section also provides that the Commission may delegate all or part of its numbering administration authority to state commissions or other entities. In 1992, the Commission adopted a Notice of Proposed Rulemaking (N11 NPRM), 7 FCC Rcd 3004, proposing that incumbent local exchange carriers be required to provide abbreviated dialing arrangements. Subsequent to the N11 NPRM, various parties asked the Commission to designate N11 codes to facilitate network access to Telecommunications Relay Service (TRS) for individuals with hearing or speech disabilities, to federal government services, to state government services, and to non-emergency police services.

4. In 1997, the Commission released the N11 First Report and Order and FNPRM, 12 FCC Rcd 5572, in which it authorized the incumbent LECs, states, and Bellcore to continue to perform N11 code administrative functions that they performed prior to the time of enactment of the 1996 Act. In the N11 First Report and Order and FNPRM, the Commission assigned 311 on a nationwide basis for non-emergency police services, but allowed existing non-compliant uses of 311 to continue until the local government in that area was prepared to activate a non-emergency police 311 service. In addition, at the discretion of local jurisdictions, the Commission allowed 311 to be used to access other government services, but declined to assign a separate N11 for this purpose. The Commission also granted the request for an N11 code to reach Telecommunications Relay Services (TRS), assigning 711 nationwide for this use. Finally, the Commission declined to: (1) Mandate that N11 numbers be made available for access to information services; (2) mandate that an N11 code be designated for access to federal government agencies; or (3) disturb the current uses of 911, 411, 611 and 811 for access to emergency services, directory assistance, and LEC repair and business offices, respectively.

5. The Commission in the N11 First Report and Order and FNRPM also requested comment on a number of issues. Specifically, the issues to be addressed related to deployment of TRS, the sale or transfer of N11 codes, and administration of N11 codes. Subsequently, several parties filed requests for reconsideration and/or clarification of certain matters discussed in the N11 First Report and Order and FNPRM. Specifically, the International Association of Fire Chiefs and International Municipal Signal Association (IAFC Petitioners) opposed any expanded use of N11 codes for non-emergency and commercial uses. BellSouth sought reconsideration and/or clarification regarding the status of non-conforming uses of N11 service codes, including 311 and 711, the “six-month” implementation requirement for 311, and requirements placed on CMRS providers with respect to handling 311 calls. It also sought clarification regarding incumbent LECs' obligations to provide 611 and 811 for access to repair and business offices.

6. The U.S. DOT and the Information and Referral Petitioners requested assignment of N11 codes to provide gateway access to travel information services and community service organizations, respectively. The U.S. DOT does not request a specific N11 dialing code, whereas the Information and Referral Petitioners seek assignment of 211, specifically, for their proposal. Both petitioners contend that the provision of services using toll-free numbers or local numbers is not only inefficient, but limits the widespread use of travel information or community services information, and also limits the accessibility to these services. Both proposals enjoy widespread support from a variety of organizations, state and local governments, and other interested parties.

7. This Third Report and Order resolves issues raised in the petitions for reconsideration that relate to the manner in which N11 codes are assigned, and grants the two petitions for assignment of N11 codes filed by the U.S. DOT and the Information and Referral Petitioners. Issues raised in the N11 First Report and Order regarding the implementation of 711 are being addressed in the Second Report and Order. 15 FCC Rcd 15188. Similarly, the Commission will address matters dealing with designation of 911 as the national emergency number throughout the United States in a separate order.

8. In the Third Report and Order the Commission assigns abbreviated dialing code 511 to be used for access to traveler information services, and assign the abbreviated dialing code 211 to be used for access to community information and referral services. The Commission believes that these two proposals meet the “pubic interest” standards for assignment of N11 codes established in the N11 First Report and Order, and this need is demonstrated by the wide support for the two petitions. Both petitioners propose to provide access to their services without an additional charge to callers, and each has demonstrated that its service provides a substantial public benefit. The Commission denied petitions for reconsideration of the N11 First Report and Order filed by the International Association of Fire Chiefs and International Municipal Signal Association (IAFC Petitioners) and BellSouth. The Commission also resolved issues raised in the N11 FNPRM, and concluded that the sale or transfer of N11 codes through private transactions should not be allowed at this time. The Commission also concluded that the Commission should continue to make assignments of N11 codes, rather than delegate this authority to the North American Numbering Plan Administrator (NANPA) or any other entity.

9. Several commenters contended that the Commission should initiate a comprehensive review of our rules and practices relating to abbreviated dialing arrangements, due in part to the “competing” petitions, and other existing users. We decline, at this time, to do so because we find such a rulemaking proceeding to be unnecessary. In this Third Report and Order, we resolve issues that pertain to the two pending requests for assignment of N11 codes. With the exception of one outstanding petition, we also have resolved in this Order Third Report and Order most of the outstanding issues relating to the N11 proceeding. We also note that in the three-year period following the N11 First Report and Order, we have received only two petitions for assignment of the remaining N11 codes, both of which are resolved in this Order, and both had overwhelming support. We therefore decline to initiate a rulemaking and review of Commission rules and practices relating to abbreviated dialing codes at this time.

10. As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the N11 First Report and Order and FNPRM. The Commission sought written public comment on the proposals in the N11 First Report and Order, including comment on the IRFA. The IRFA requested written public comment on two issues: (1) The technical feasibility of implementing 711 access for telecommunications relay services and (2) the proprietary nature of N11 codes and the transfer of the administration of N11 codes.

11. The first issue concerning the technical feasibility of implementing 711 access is being addressed in a companion proceeding captioned the Second Report and Order. Therefore, the Commission did not address that issue in this proceeding. The second issue concerning the sale or transfer of N11 codes and the administration of N11 is addressed in this proceeding. We conclude that the sale or transfer of the N11 codes through private transactions should not be allowed at this time, and that the Commission should continue to make assignments of N11 codes, rather than delegate this authority to another entity. Therefore, we decline to make any revisions or modifications to our rules at this time. The RFA requires that a Final Regulatory Flexibility Analysis (FRFA) be completed “[w]hen an agency promulgates a final rule * * * ”. 5 U.S.C. 604(a). Because we are not adopting any new rules and are not making any changes to existing rules, a FRFA is not required.

12. Accordingly, it is ordered, pursuant to Sections 1, 4(i), and 251(e)(1) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), and 251(e)(1), that this Third Report and Order and Order on Reconsideration is hereby adopted.

13. The Petition for assignment of an N11 for access to travel information services filed by the U.S. Department of Transportation is granted, and that the Petition for assignment of 211 for access to community information and referral services filed by the Information and Referral providers is granted.

14. The Petitions for Reconsideration and/or Clarification filed by Arch, BellSouth, Interactive Services Association, and International Association of Fire Chiefs and International Municipal Signal Association are denied.

15. 511 is assigned as a national abbreviated dialing code to be used exclusively for access to travel information services as of the effective date of this Third Report and Order.

16. That 211 is assigned as a national abbreviated dialing code to be used for access to community information and referral services as of the effective date of this Third Report and Order.

This is a synopsis of the Commission's Memorandum Opinion and Order in MM Docket No. 97-188. Adopted January 24, 2001, and released January 26, 2001. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals 11, CY-A257, 445 12th Street SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Service, Inc., (202) 857-3805, 1231 M Street NW., Washington, DC 20036.

This is a synopsis of the Commission's Memorandum Opinion and Order, MM Docket Nos. 96-7, 96-12, adopted January 24, 2001, and released January 26, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street NW, Washington, Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

To the extent that 5 U.S.C. section 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. section 553(b)(A). Alternatively, FRA's implementation of this action without opportunity for public comment, effective immediately upon publication today in the Federal Register, is based on the good cause exceptions in 5 U.S.C. section 553(b)(B) and 553(d)(3). Seeking public comment is impracticable, unnecessary and contrary to the public interest. The temporary 60-day delay in effective date is necessary to give Department officials the opportunity for further review and consideration of new regulations, consistent with the Assistant to the President's memorandum of January 20, 2001. Given the imminence of the effective date, seeking prior public comment on this temporary delay would have been impractical, as well as contrary to the public interest in the orderly promulgation and implementation of regulations. The imminence of the effective date is also good cause for making this action effective immediately upon publication.

To the extent that 5 U.S.C. 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. 553(b)(A). Alternatively, the FMCSA's implementation of this action without opportunity for public comment, effective immediately upon publication today in the Federal Register, is based on the good cause exceptions in 5 U.S.C. 553(b)(B) and 553(d)(3). Seeking public comment is impracticable, unnecessary and contrary to the public interest. The temporary 60-day delay in effective date is necessary to give Department officials the opportunituy for further review and consideration of new regulations, consistent with the Assistant to the President's memorandum of January 20, 2001. Given the imminence of the effective date, seeking prior public comment on this temporary delay would have been impracticable, as well as contrary to the public interest in the orderly promulgation and implementation of regulations. The imminence of the effective date is also good cause for making this action effective immediately upon publication.

To the extent that 5 U.S.C. section 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. section 553(b)(A). Alternatively, FTA's implementation of this action without opportunity for public comment, effective February 5, 2001, is based on the good cause exceptions in 5 U.S.C. section 553(b)(B) and 553(d)(3). Seeking public comment is impracticable, unnecessary and contrary to the public interest. The temporary 60-day stay of the rule is necessary to give Department officials the opportunity for further review and consideration of new regulations, consistent with the Assistant to the President's memorandum of January 20, 2001. Given the imminence of the effective date, seeking prior public comment on this temporary stay would have been impractical, as well as contrary to the public interest in the orderly promulgation and implementation of regulations. The imminence of the effective date is also good cause for making this action effective February 5, 2001.

NMFS implemented an interim final rule on April 3, 1998 (63 FR 15324), that established two areas in the Mid-Atlantic region that were closed to all scallop fishing. This interim final rule was subsequently extended for 180 days (63 FR 51862, September 29, 1998) and on March 29, 1999, Amendment 7 to the FMP (64 FR 14835) extended the effective date of the closures through March 1, 2001.

While there are still concentrations of small scallops in the Hudson Canyon South and Virginia Beach Closed Areas, recent surveys by the NMFS Northeast Fisheries Science Center and Virginia Institute of Marine Science indicate that a large portion of the protected scallops have grown and could be of considerable value to the fishing industry. To address the concern that these scallops will be vulnerable to high fishing pressure upon the re-opening of the closed areas on March 1, 2001, the New England Fishery Management Council (Council) is currently developing Framework Adjustment 14 to the FMP, which includes an area access program for the Mid-Atlantic closed areas. This program would restrict scallop vessels when fishing in the re-opened Mid-Atlantic closed areas to a scallop possession limit and a limited amount of trips, among other measures. Because the Council is preparing a Supplemental Environmental Impact Statement for Framework 14 to assess the impacts of the fishery on the human environment, it is highly unlikely that the framework can be implemented by March 1, 2001, the date that the Mid-Atlantic closed areas are scheduled to re-open. An extension of the closures is, therefore, necessary to ensure that the areas do not open prior to protective measures being in place. NMFS published a proposed rule for this action on December 1, 2000 (65 FR 75232) and no comments were received in response to the request for comments. Further details concerning the justification for this interim final rule were provided in the preamble to the proposed rule and are not repeated here.

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

The need to implement these measures in a timely manner to prevent overfishing and reduce the likelihood of long-term productivity losses and more severe restrictions in the future, constitutes good cause under 5 U.S.C. 553(d)(3) to delay for 15 days, rather than 30 days, the effectiveness of this interim final rule.

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

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

A description of the reasons why action by the agency is being taken and the objectives of this interim final rule are explained in the preamble to the proposed rule and are not repeated here. This action does not contain any collection-of-information, reporting, recordkeeping or other compliance requirements. This action is taken under authority of the Magnuson-Stevens Fishery Act and regulations at 50 CFR part 648.

There were no public comments submitted in response to the initial regulatory flexibility analysis (IRFA). No changes were made from the proposed rule.

The FRFA considers the impacts that this action will have on small entities, which includes all holders of active scallop permits, since none have reported gross annual revenues greater than $3 million. The 1999 fishing season, March 1, 1999, to February 28, 2000, was the last full year of scallop fishing activity available for analysis. During that season, there were 345 qualified permits in the limited access fishery. In addition, 2,095 permits were issued to vessels in the open access General Category.

The alternative implemented by this interim final rule is expected to minimize negative economic impacts on small entities, particularly in the long term, while achieving the conservation goals and overall objectives of the FMP.

NMFS considered 3 alternatives for action with respect to the Hudson Canyon South and Virginia Beach Closed Areas. The alternative to implement a controlled access program for the two closed areas was rejected because NMFS determined that it is not feasible to implement an area access program by March 1, 2001, due to the time constraints of developing such an action. Analysis of the action was, therefore, not completed. Two other alternatives were analyzed: Re-opening the areas on March 1, 2001, without control (no action); and extending the closures through the interim final rule for a period of 180 days or until a controlled access program is implemented (proposed action). NMFS selected the proposed action for 180 days from March 1, 2001, or until Framework 14 can be implemented (currently estimated to be May 2001), whichever is sooner, because it would prevent overfishing and would be more likely to achieve the goals of the FMP to maximize, over time, the joint social and economic benefits from harvesting and use of the sea scallop resource. The proposed action is not expected to reduce overall access to the closed areas in 2001 and will protect the growth potential of more young scallops for 2002, provided that Framework 14 is implemented in a timely fashion, as anticipated by the Council and NMFS. Vessels will be able to fish their days-at-sea (DAS) allocation outside of the closed areas. Any short-term negative impacts caused by delaying the re-opening of the two Mid-Atlantic areas to scallop fishing are expected to be offset by access to those areas through Framework 14 for the remainder of 2001 and by future recruitment of scallops. Without the proposed action, the most likely outcome would be that Framework 14 would need to implement measures that would prevent further access to these closed areas during 2001 because vessels would have exceeded the target fishing mortalities and total allowable catch by the time Framework 14 becomes effective. Therefore, the no-action alternative would likely reduce long-term economic benefits. Under this alternative, overfishing may occur in the areas, and the ability to maximize scallop yields from the areas and ensure that recruitment potential is maintained could be compromised, thereby reducing long-term benefits to the scallop fishing industry. Depending on the amount of fishing that has occurred in the absence of this interim action, access during the 2002 season might also have to be reduced substantially in order to rebuild the stock.

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

Fisheries, Fishing, Reporting and recordkeeping requirements.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The A season allowance of the pollock TAC in Statistical Area 610 of the GOA is 7,707 metric tons (mt) as established by the Final 2001 Harvest Specifications and Associated Management Measures for the Groundfish Fisheries Off Alaska (66 FR 7276, January 22, 2001).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the A season allowance of the pollock TAC in Statistical Area 610 will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 6,707 mt, and is setting aside the remaining 1,000 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 610 of the GOA.

Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to prevent exceeding the amount of the 2001 A season pollock TAC specified for Statistical Area 610 of the GOA constitutes good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(3)(B) and 50 CFR 679.20(b)(3)(iii)(A), as such procedures would be unnecessary and contrary to the public interest. Similarly the need to implement these measures in a timely fashion to prevent exceeding the 2001 A season pollock TAC specified for Statistical Area 610 of the GOA constitutes good cause to find that the effective date of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP at subpart H of 50 CFR part 600 and 50 CFR part 679.

The A season allowance of Atka mackerel TAC for non-jig gear in the Eastern Aleutian District and the Bering Sea subarea was specified as 3,572 metric tons (mt) (66 FR 7327, January 22 2001). See § 679.20(a)(8)(ii).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the A season allowance of TAC for non-jig gear Atka mackerel in the Eastern Aleutian District and the Bering Sea subarea will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 3,372 mt, and is setting aside the remaining 200 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance soon will be reached. Consequently, NMFS is prohibiting directed fishing for Atka mackerel in the Eastern Aleutian District and the Bering Sea subarea of the BSAI.

Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).

This action responds to the Initial TAC limitations and other restrictions on the fisheries established in the 2001 Harvest Specifications for Groundfish for the BSAI. Pursuant to 5 USC 553(b)(3)(B), the Acting Assistant Administrator for Fisheries, NOAA, finds good cause exists to waive the prior notice and opportunity for public comment as such procedures are unnecessary and contrary to public interest. This action must be implemented immediately to prevent overharvesting the A season allowance of the 2001 TAC of Atka mackerel in the Eastern Aleutian District and the Bering Sea subarea of the BSAI. Similarly good cause exists to waive the delay in the effective date as it would only result in overharvest. NMFS finds for good cause that the implementation of this action should not be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.