This rule is issued under Marketing Agreement No. 148 and Order No. 932, both as amended (7 CFR part 932), regulating the handling of olives grown in California, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (Department) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California olive handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable olives beginning on January 1, 2001, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the Secretary a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing the Secretary would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule increases the assessment rate established for the Committee for the 2001 and subsequent fiscal years from $21.73 per ton to $27.90 per ton of olives.

The California olive marketing order provides authority for the Committee, with the approval of the Department, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of California olives. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2000 and subsequent fiscal years, the Committee recommended, and the Department approved, an assessment rate that would continue in effect from fiscal year to fiscal year unless modified, suspended, or terminated by the Secretary upon recommendation and information submitted by the Committee or other information available to the Secretary.

The Committee met on December 12, 2000, and unanimously recommended fiscal year 2001 expenditures of $1,348,242 and an assessment rate of $27.90 per ton of olives. In comparison, last year's budgeted expenditures were $2,472,235 and the assessment rate was $21.73. Assessable tonnage for 2001 is estimated at 46,374, significantly below last year's of 113,750. Although the Committee reduced expenditures in marketing development and research, the significant decrease in tonnage necessitates a higher assessment rate. The reduced research expenditures will fund: (1) Continued research and development of the mechanical olive harvester and (2) scientific studies to develop chemical and scientific defenses to counteract a potential threat from the olive fruit fly in the California production area. Market development expenditures are significantly lower because handlers have taken more responsibility for market development.

The following table compares major budget expenditure recommendations for the 2001 fiscal year with those from last year.

The assessment rate recommended by the Committee was derived by considering anticipated expenses, actual tonnage, and additional pertinent factors. The significant assessable tonnage decrease in 2001, due in large part to the alternate-bearing nature of olives, has made it necessary for the Committee to increase the assessment rate from $21.73 to $27.90 per ton, an increase of $6.17. Income derived from handler assessments, interest, and reserve funds will be adequate to cover budgeted expenses. Funds in the reserve will continue to be less than the maximum permitted by § 932.40 of the order (approximately one fiscal year's expenses) by the end of 2001.

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by the Secretary upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate is effective for an indefinite period, the Committee will continue to meet prior to or during each fiscal year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or the Department. Committee meetings are open to the public and interested persons may express their views at these meetings. The Department will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2001 budget and those for subsequent fiscal years will be reviewed and, as appropriate, approved by the Department.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 1,200 producers of olives in the production area and 2 handlers subject to regulation under the marketing order. Small agricultural producers have been defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts less than $500,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000. None of the olive handlers may be classified as small entities, while the majority of olive producers may be classified as small entities.

This rule increases the assessment rate established for the Committee and collected from handlers for the 2001 and subsequent fiscal years from $21.73 per ton to $27.90 per ton of olives. The Committee unanimously recommended 2001 expenditures of $1,348,242 and an assessment rate of $27.90 per ton. The assessment rate of $27.90 is $6.17 higher than the 2000 rate. The estimated quantity of assessable olives for the 2001 fiscal year is 46,374 tons. Thus, the $27.90 rate should generate enough funds to meet this year's budgeted expenses, when combined with funds from the authorized reserve and interest income.

The following table compares major budget expenditure recommendations for the 2001 fiscal year with those from last year.

The reduced research expenditures will fund: (1) Continued research and development of the mechanical olive harvester and (2) scientific studies to develop chemical and scientific defenses to counteract a potential threat from the olive fruit fly in the California production area. Market development expenditures are significantly lower because handlers have taken more responsibility for market development.

A higher assessment rate is recommended for 2001 because the 2001 fiscal year assessable tonnage is approximately 59 percent smaller than last fiscal year's tonnage, due in large part to the alternate bearing nature of the crop:

The Committee reviewed and unanimously recommended 2001 expenditures of $1,348,242, which reflects the decreases in the research, market development and administrative budgets. Prior to arriving at this budget, the Committee considered information from various sources, such as the Committee's Executive Subcommittee, the Research Subcommittee, and the Marketing Subcommittee. Alternate spending levels were discussed by these groups, based upon potential reductions in the funding of various research and market development projects. The Committee determined it was necessary to increase the assessment rate to cover these expenses because the significant decrease in tonnage will not provide sufficient funds to cover anticipated expenses. The assessment rate of $27.90 per ton of assessable olives was derived by considering anticipated expenses, the Committee's estimate of assessable olives, and additional pertinent factors.

A review of historical and preliminary information pertaining to the upcoming fiscal year indicates that the grower revenue for the 2000-2001 crop year is estimated to be approximately $36,068,864. Therefore, if the assessment rate is increased to $27.90 per ton, the estimated assessment revenue to the Committee will be $1,293,835 for the 2001 fiscal year, or approximately 3.59 percent of grower revenue.

This action increases the assessment obligation imposed on handlers for fiscal year 2001 by $286,128 ($6.17 difference between the new and current rate × 46,374 assessable tonnage estimate for 2001). Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, increasing the assessment rate increases the burden on handlers, and may increase the burden on producers. In addition, the Committee's meeting was widely publicized throughout the California olive industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the December 12, 2000, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

This action imposes no additional reporting or recordkeeping requirements on California olive handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

The Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect, and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The 2001 fiscal period begins on January 1, 2001, and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable olives handled during such fiscal period; (2) the action increases the assessment rate for assessable olives beginning with the 2001 fiscal period; (3) this action was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years; and (4) this interim final rule provides a 60-day comment period, and all comments timely received will be considered prior to finalization of this rule.

This rule is issued under Marketing Agreement and Order No. 956, as amended (7 CFR part 956), regulating the handling of sweet onions grown in the Walla Walla Valley of Southeast Washington and Northeast Oregon, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (Department) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule provides dates by which handlers must pay assessments and furnish reports to the Committee that reflect new cultural and storage practices for sweet onions handled during the period September 1 through May 31 of each fiscal period. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the Secretary a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing the Secretary would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

Section 956.41 of the order provides the Committee with the authority to establish an annual budget of expenditures and § 956.42 provides authority for the Committee to levy assessments upon handlers of Walla Walla sweet onions to provide adequate funds to defray such expenditures. Section 956.202 establishes the current assessment rate of $0.21 per 50-pound bag of Walla Walla sweet onions handled. Section 956.42 also provides the Committee with the authority to impose an interest charge on any handler who fails to pay any assessment in a timely manner, and § 956.142 of the order's administrative rules and regulations establishes the rate of interest and the dates such interest charges begin to accrue. Section 956.80 establishes the authority for the Committee to require handler reports, while § 956.180 provides the rules and regulations necessary for the Committee to implement and administer such reporting requirements.

For sweet onions handled on or after September 1, this rule continues in effect dates by which handlers must pay assessments and furnish reports to the Committee. These changes recognize new cultural and storage practices that have extended the traditional mid-summer marketing season. The changes provide dates by which handlers must pay assessments and submit reports on shipments made in September or later. This rule was unanimously recommended by the Committee on August 15, 2000.

Sections 956.142 (interest charges) and 956.180 (reports) were established in August 1996 to foster prompt assessment payments and to ensure that adequate funds would be available to cover budgeted expenses incurred by the Committee under the order. Section 956.180 establishes reporting requirements for providing the Committee with statistical information regarding total industry shipments and is used as a basis for assessment collection. This information also is useful for the development of a budget and in making marketing and promotion plans for the upcoming season. Section 956.142 establishes assessment due dates and an interest charge of 1.5 percent per month on any handler who fails to pay his or her assessments within thirty days of the due date.

Historically, Walla Walla sweet onions have been planted in the fall, then harvested and marketed from late June to early August. Due to the short shelf life of this, traditionally non-storage, summer onion, the marketing season has closely followed the annual harvest. However, recent changes in cultural and storage practices within the Walla Walla sweet onion industry are lengthening the marketing season for some of the sweet onions produced in the Walla Walla Valley. A few producers have been planting sweet onions in the spring, thereby extending the traditional mid-summer harvest into late summer or early fall. In addition, with the recent introduction of Controlled Atmosphere (CA) storage, the potential now exists for extending the marketing season further into the fall and early winter season.

By extending the due dates for assessments and reports on sweet onions handled on or after September 1, this action provides Walla Walla sweet onion handlers more time to comply with these requirements. This will enable them to take advantage of the expanding marketing season. The Committee will continue to require that assessments be paid and reports submitted by September 1 for onions handled in June, July, and August.

For assessments due on sweet onions handled prior to September 1, the monthly interest charge of 1.5 percent will continue to accrue after September 30. For assessments due on sweet onions handled during the period September 1 through May 31 of each fiscal period, interest charges will begin accruing 30 days after the handler's report of shipments is due.

Handlers marketing their sweet onions prior to September 1 will continue to submit reports (Committee Form No. 1) showing weekly and seasonal totals by September 1, and assessments for their shipments to the Committee no later than September 30 to avoid late payment interest charges. For shipments during the period September 1 through May 31 of each fiscal period, handlers will submit a separate report, along with the appropriate assessment payment, for each monthly period that they continue to make shipments. Such reports will be due at the office of the Committee no later than 30 days following the end of the month in which shipments were made. Assessments will be due within thirty (30) days of the last day of the month in which the shipments are made. For example, a handler shipping Walla Walla sweet onions anytime during the month of September would furnish the shipment report to the Committee no later than October 30. In this example, the report would contain the number of 50-pound equivalents of Walla Walla sweet onions shipped by such handler during each week in September, along with the monthly total of shipments and a check for the appropriate assessment amount. This reporting and payment schedule continues for each monthly period Walla Walla sweet onions are handled after September 1.

With the introduction of spring planting and CA storage for Walla Walla sweet onions and the associated extension of the traditional marketing season, this action is necessary to ensure that adequate Committee operating funds are obtained in a timely manner, that producers and handlers are treated equitably and have the needed flexibility to produce and market their crop as they desire, and that consumers have an extended season in which to purchase Walla Walla sweet onions.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, the AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 30 handlers of Walla Walla sweet onions who are subject to regulation under the order and approximately 60 sweet onion producers in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $500,000.

The Committee estimates that all of the handlers of Walla Walla sweet onions ship under $5,000,000 worth of sweet onions on an annual basis. In addition, based on acreage, production, and producer prices reported by the National Agricultural Statistics Service, and the total number of onion producers in the regulated production area, the average gross annual producer revenue from sweet onions was about $117,000 in 1999, the most recent year statistics are available. Based on this information, it can be concluded that the majority of Walla Walla sweet onion handlers and producers may be classified as small entities, excluding receipts from other sources.

Based on authority in §§ 956.42 and 956.80, the Committee unanimously recommended this action at a public meeting on August 15, 2000. Specifically, for sweet onions handled on or after September 1, this rule continues in effect dates by which handlers must pay assessments (§ 956.142) and furnish reports (§ 956.180) to the Committee. These changes are being made to recognize new cultural and storage practices that extend the traditional mid-summer marketing season to mid-winter, and provide handlers more time to pay assessments and file reports on these later shipments.

Regarding the impact of this action on affected entities, sweet onion handlers will not be forced into noncompliance with the order because they are now able to pay assessments and submit shipment reports later than was previously provided. When the previous deadlines were established, the Committee did not envision shipments being made in September or later. Walla Walla sweet onions have a relatively high market value, but generally must be harvested and sold within a short time period between late June and early August. With this extension in the marketing season, producers and handlers hope to increase their returns while providing consumers with unique, highly demanded sweet onions during a period of time when such onions were traditionally not available.

The Committee estimated that during the 2000 marketing season only a limited amount of sweet onions would be handled on or after September 1 and into early winter. The Committee has been informed, however, that an additional 1,300 acres of sweet onions may be planted for the 2001 marketing season, with many of the onions possibly going into CA storage. Approximately 800 acres of Walla Walla sweet onions were planted for the 2000 season.

The Committee discussed alternatives to the recommendation, including leaving the regulations unmodified. However, the Committee decided that it did not have the option of leaving the regulations unmodified because some handler assessment obligations are expected to accrue during the period September 1 through May 31 of each fiscal period. Another alternative discussed would have changed the regulations to require the submission of reports and assessments for the entire crop, regardless of when marketed, within 30 to 60 days of the date of shipment. The Committee rejected this option because it felt that the bulk of the Walla Walla sweet onion crop will continue to be marketed during the traditional mid-summer season, and it wants to ensure that an adequate income is received early in the fiscal period to offset expenditures. The fiscal period begins June 1 and ends May 31.

The Committee uses Form No. 1, Handler's Statement of Walla Walla Sweet Onion Shipments, for collecting assessments and statistical data. Prior to this action, this form was mailed to handlers in mid-August with the requirement that it be returned by September 1, and assessments were due within 30 days of September 1 to avoid imposition of the 1.5 percent per month interest charge. The Committee revised Form No. 1 to reflect the changes in handling practices and due dates.

The Committee estimates that only two of the currently regulated handlers in the Walla Walla sweet onion production area may initially ship sweet onions on or after September 1. The Committee also estimates that the revised Form No. 1 will continue to take approximately 25 minutes to complete. With only two handlers submitting reports on October 31 and possibly again on November 30, for example, the total additional burden on the industry for the information reporting requirements for sweet onions shipped on or after September 1 would approximate 100 minutes per year. Thus, while this rule will impose some additional reporting requirements, the burden is currently approved under OMB No. 0581-0078 by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The Agricultural Marketing Service has notified the Office of Management and Budget of this change in burden.

As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, as noted in the initial regulatory flexibility analysis, the Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

The Committee's meeting was widely publicized throughout the Walla Walla sweet onion industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the August 15, 2000, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Further, interested persons were invited to submit information on the regulatory and informational impacts of this action on small businesses.

An interim final rule concerning this action was published in the Federal Register on October 16, 2000. A copy of the rule was mailed to Committee staff, who handled the distribution of copies to Committee members and sweet onion producers and handlers. In addition, the rule was made available through the Internet by the Office of the Federal Register. The rule provided a 60-day comment period that ended December 15, 2000. No comments were received.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that finalizing the interim final rule, without change, as published in the Federal Register (65 FR 61080, October 16, 2000) will tend to effectuate the declared policy of the Act.

This rule is issued under Marketing Agreement No. 125 and Marketing Order No. 966, both as amended (7 CFR part 966), regulating the handling of tomatoes grown in certain designated counties in Florida, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the Secretary a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing the Secretary would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

Under the order, tomatoes produced in the production area and shipped to fresh market channels outside the regulated area are required to meet grade, size, inspection, and container requirements. These requirements apply during the period October 10 through June 15 each year. Current requirements include a minimum grade of U.S. No. 2 and a minimum size of 29/32 inches in diameter. Current pack and container requirements outline the types of information that need to appear on a container, weight restrictions, and other requirements containers must meet.

Section 966.52 of the order provides authority for the modification, suspension, and termination of regulations. It includes the authority to establish and modify size and pack requirements for tomatoes grown in the defined production area and handled under the order.

Section 966.323 of the order's rules and regulations specifies the handling regulations for Florida tomatoes. Section 966.323(a)(2)(i) currently specifies that all tomatoes packed by a registered handler must meet a minimum size requirement of 29/32 inches in diameter. That section also requires that all such tomatoes must be sized with proper equipment in one of three numeric size designations with specified ranges of diameter. Tomatoes designated as “6x67” must be a minimum of 29/32 inches in diameter and a maximum of 219/32. These are the smallest tomatoes marketed. Tomatoes, other than producer field-packed tomatoes, designated as “6x66” must be a minimum of 217/32 inches in diameter and, prior to the issuance of the interim final rule, a maximum of 227/32 inches in diameter. The interim final rule changed that maximum to 229/32. Tomatoes designated as “5x6” must be a minimum of 225/32 inches in diameter with no maximum size requirement. These are the largest size marketed. To allow for variation incident to proper sizing, not more than a total of 10 percent, by count, of the tomatoes in the lot may be smaller than the specified minimum diameter or larger than the maximum diameter.

This rule continues in effect the increase in the maximum diameter prescribed for size 6x66 tomatoes by 2/32 of an inch, from 227/32 inches to 229/32 inches. This will allow handlers the option of packing slightly larger tomatoes in a 6x66 container. This increased flexibility in packing tomatoes is expected to allow handlers to pack some of the smaller 5x6 tomatoes into 6x66 containers. This is expected to increase the number and availability of containers of 6x66 tomatoes, which are often in short supply, and improve the uniformity of the 5x6-sized tomatoes. The Committee unanimously recommended this change at a meeting held on September 8, 2000.

Based on an analysis of markets and demands of buyers, the Committee believes that the increase in the maximum diameter for size 6x66 tomatoes will improve the marketing of Florida tomatoes, provide handlers with additional flexibility in packing tomatoes, and help improve grower returns. Recent industry trends have been toward shipping larger tomatoes. In response to a strong consumer demand, new commercial tomato varieties have been planted to produce bigger tomatoes and have resulted in more large sized tomatoes being shipped. Because of this demand, production of larger tomatoes has been a popular method of improving returns among producers as it also increases total yields. Increasing the 6x66 maximum diameter provides handlers the option of shifting the smallest sized tomatoes in a 5x6 pack to a 6x66 pack. By making this shift, handlers will be able to increase the average size in both the 6x66 and the 5x6 pack.

The 2/32 inch increase in the maximum diameter of the 6x66-size designation results in a 4/32 overlap in the maximum diameter of the 6x66 and the minimum size for the 5x6. Tomatoes at the bottom of the 5x6 size can either be packed as 5x6 tomatoes or as 6x66 tomatoes. According to the Committee, this will provide for greater distribution of tomato shipments throughout the two size designations, enabling handlers to make better decisions on which size of tomatoes to pack. Such packing decisions could depend on specific buyer or market demands, on general crop size, or on prices.

Shifting the smallest sizes from the 5x6 pack to the 6x66 pack would increase the average size in both the 6x66 and the 5x6 packs. It would move larger tomatoes into the 6x66 pack while providing space for additional larger tomatoes in the 5x6 pack. This would lower the count of tomatoes for each pack as well. In its discussions, the Committee recognized that buyers prefer larger tomatoes and a lower count per box. With buyer preferences trending toward larger sized tomatoes, the Committee believes that having this option could help grower returns.

This change also makes more tomatoes available to fill the 6x66 pack. In past years, there have been shortages of this pack due to tomato size. Committee members stated that during the past season there were periods when the tomatoes were sizing so well they were having trouble packing many 6x66 packs. The Committee recognized that there is a strong demand for the 6x66 pack and that it brings a favorable price, occasionally equal to or above the price for a 5x6 pack. Therefore, the Committee believes that it is important to continue to supply this market. With the option of shifting slightly larger tomatoes into the 6x66 pack, handlers have more flexibility to move tomatoes to meet market demand. This will be particularly beneficial when the majority to tomatoes are sizing well.

In addition, the Committee also believes that raising the maximum diameter for the 6x6 pack could improve the uniformity of tomatoes in the 5x6 pack. While increasing the maximum diameter of the 6x6 pack does increase the size range, the increase is only by 2/32 of an inch. Further, shifting the smaller sizes from a 5x6 pack to the 6x6 pack could improve the uniformity of the 5x6 pack, which is expected to be viewed as a benefit to buyers.

Because there is no upper limit on size for a 5x6 pack, there can be a considerable variation in size. With newer tomato varieties producing larger fruit, the size variance in containers of 5x6 tomatoes has grown. This size variation is particularly evident with the smaller sizes in the pack. By having the opportunity to shift the smaller sizes to the 6x6 pack, handlers will be able to improve the uniformity of their 5x6 packs. This is particularly important because the 5x6 pack usually commands the best price in the market, faces the most competition, and is the most popular size.

During the 1999-2000 season, approximately 58 percent of the Florida tomatoes sold were 5x6 packs, and about 28 percent were sold as 6x6's. Increasing the maximum diameter size of the 6x6 by 2/32 inch will give handlers the flexibility to reduce the number of smaller sized tomatoes packed in the 5x6-size designation.

A study conducted by Dr. John J. VanSickle at the University of Florida indicates that increasing the maximum diameter could result in an increase in the prices received for Florida tomatoes. The study indicates that if 1 percent of the smallest 5x6 size tomatoes are shifted into the smaller size categories, then prices for 5x6 size tomatoes could increase by .25 percent. With regard to 6x6 size tomatoes, the study indicates that the prices could increase by .15 percent. The increase in price would occur because of the redistribution of larger sized tomatoes into the smaller size designations, which is a response to consumer demand for a more consistent pack and slightly larger tomatoes.

Committee members do not believe that this change will create any confusion on the part of buyers. Rather, they stated that this change allows handlers more opportunity to address the demands of their buyers.

Consumers and buyers are demanding a slightly larger tomato. Smaller tomatoes with a less uniform pack have poor consumer acceptance, especially in chain stores. This change provides handlers with some flexibility to adjust the size composition and uniformity of their packs to address the needs of their customers.

This change does not affect the current exemption provided to producer field packed tomatoes as long as the containers are designated as 6x6 and larger. Specifically, field packed tomatoes designated as size 6x6 and larger are not subject to the maximum diameter specified in the order's rules and regulations for 6x6 sized tomatoes (65 FR 8247, February 18, 2000).

Section 8e of the Act requires that whenever grade, size, quality, or maturity requirements are in effect for certain commodities under a domestic marketing order, including tomatoes, imports of that commodity must meet the same or comparable requirements. However, the Act does not authorize the imposition of container requirements on imports, when such requirements are in effect under a domestic marketing order. Florida tomatoes must be packed in accordance with three specified size designations, and tomatoes falling into different size designations may not be commingled in a single container. These pack restrictions do not apply to imported tomatoes. Therefore, no change is necessary in the tomato import regulation as a result of this action.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 70 handlers of Florida tomatoes who are subject to regulation under the marketing order and approximately 130 tomato producers in the regulated area. Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $500,000 (13 CFR 121.201).

Committee data indicates that approximately 20 percent of the Florida tomato handlers handle 80 percent of the total volume. Based on the industry and Committee data, the average annual price for fresh Florida tomatoes during the 1999-2000 season was $6.89 per 25-pound carton or equivalent, and total fresh shipments for the 1999-2000 season were 58,006,721 25-pound equivalent cartons of tomatoes. Based on this information, the majority of handlers would be classified as small entities as defined by the SBA. The majority of producers of Florida tomatoes may also be classified as small entities.

This rule continues in effect an increase in the maximum diameter requirement for size 6x6 tomatoes prescribed in the order's handling regulations from 227/32 inches to 229/32 inches, and will allow handlers the option of packing slightly larger tomatoes in a 6x6 container. With this increased flexibility, handlers will be able to better meet consumer demand for larger tomatoes, while providing greater returns to growers. The Committee unanimously recommended this change. Authority for this action is provided in § 966.52.

If handlers take advantage of the increased packing flexibility, they would incur direct costs associated with the purchase of new sizing belts. Sizing belts convey and size fruit during the packing process. Depending on the amount of use, sizing belts can last a season or may need to be replaced two to three times a season. Estimated prices associated with these purchases could range from $450.00 for a small handler to $19,000 for very large handlers. While there are short-term costs associated with the maximum diameter of the 6x6 sizing designation, the benefits are expected to outweigh the costs. Moreover, changing sizing belts is a routine action since they have to be regularly replaced depending on use. These costs are expected to be minimal relative to the benefits expected, and in relation to normal operating costs and procedures.

A study conducted by Dr. John J. VanSickle at the University of Florida estimates that a shift of 1 percent of 5x6 tomatoes into the smaller size categories would increase the prices for 5x6-size tomatoes by .25 percent. For 6x6's, the price could increase by .15 percent. The increase in price would occur in response to consumer demand for packs with slightly larger tomatoes.

This change is designed to provide handlers with more flexibility as to how sizes are packed. Because of this, handlers can choose to continue to pack as they have without making any adjustments due to this rule change. Purchasing new equipment is not necessary to remain in compliance with order provisions. Therefore, this rule places the decision with the individual handler as to whether the costs are outweighed by the benefits.

Individual seasons and different periods during the same season can present a fair amount of variability in production and size. This change provides handlers with some additional flexibility when packing for size to allow handlers to make some adjustments in order to maximize returns and to service customer demand. This rule provides the opportunity for handlers to make adjustments based on market conditions. This should have a positive effect on returns.

The Committee recommended these changes to improve the marketing of Florida tomatoes. The opportunities and benefits of this rule are expected to be equally available to all tomato handlers and growers regardless of their size of operation. This action will have a beneficial impact on producers and handlers since it will allow tomato handlers more flexibility in making tomatoes available to meet consumer needs consistent with crop and market conditions.

The Committee discussed alternatives to this recommendation, including leaving the regulations as currently issued. All Committee members agreed that this change would be helpful in improving pack appearance and in providing handlers some additional flexibility. Therefore, the Committee voted to make this change rather than leave the size designation for 6X6 unchanged.

This rule will not impose any additional reporting or recordkeeping requirements on either small or large tomato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

In addition, as noted in the initial regulatory flexibility analysis, the Department has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

Further, the Committee's meeting was widely publicized throughout the tomato industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the September 8, 2000, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue.

Also, the Committee has a number of appointed subcommittees to review certain issues and make recommendations to the Committee. The Committee's Marketing Subcommittee met on August 21, 2000, and discussed this issue in detail. That meeting was also a public meeting and both large and small entities were able to participate and express their views.

An interim final rule concerning this action was published in the Federal Register on November 6, 2000. Copies of the rule were mailed by the Committee's staff to all Committee members and tomato handlers. In addition, the Office of the Federal Register made the rule available through the Internet. That rule provided for a 60-day comment period, which ended January 5, 2001. No comments were received.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that finalizing the interim final rule, without change, as published in the Federal Register (65 FR 66492, November 6, 2000) will tend to effectuate the declared policy of the Act.

This rule is issued under Marketing Agreement No. 115 and Marketing Order No. 982, both as amended (7 CFR part 982), regulating the handling of hazelnuts grown in Oregon and Washington, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (Department) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is intended that this action apply to all merchantable hazelnuts handled during the 2000-2001 marketing year (July 1, 2000, through June 30, 2001). This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the Secretary a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, the Secretary would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule establishes marketing percentages which allocate the quantity of inshell hazelnuts that may be marketed in domestic markets. The Board is required to meet prior to September 20 of each marketing year to compute its marketing policy for that year, and compute and announce an inshell trade demand if it determines that volume regulations would tend to effectuate the declared policy of the Act. The Board also computes and announces preliminary free and restricted percentages for that year.

The inshell trade demand is the amount of inshell hazelnuts that handlers may ship to the domestic market throughout the marketing season. The order specifies that the inshell trade demand be computed by averaging the preceding three “normal” years’ trade acquisitions of inshell hazelnuts, rounded to the nearest whole number. The Board may increase the three-year average by up to 25 percent, if market conditions warrant an increase. The Board's authority to recommend volume regulations and the computations used to determine the percentages are specified in § 982.40 of the order.

The quantity to be marketed is broken down into free and restricted percentages to make available hazelnuts which may be marketed in domestic inshell markets (free) and hazelnuts which must be exported, shelled or otherwise disposed of by handlers (restricted). Prior to September 20 of each marketing year, the Board must compute and announce preliminary free and restricted percentages. The preliminary free percentage releases 80 percent of the inshell trade demand to the domestic market. The purpose of releasing only 80 percent of the inshell trade demand under the preliminary percentage is to guard against an underestimate of crop size. The preliminary free percentage is expressed as a percentage of the total supply subject to regulation (supply) and is based on the preliminary crop estimate.

The National Agricultural Statistics Service (NASS) has estimated hazelnut production at 25,000 tons for the Oregon and Washington area. The majority of domestic inshell hazelnuts are marketed in October, November, and December. By November, the marketing season is well under way.

The Board initially adjusted the crop estimate down to 24,153 tons by taking into consideration the average crop disappearance over the preceding three years (8.32 percent) and the undeclared carry-in (1,234 tons.) The Board computed the adjusted inshell trade demand of 3,163 tons by taking the difference between the average of the past three years' sales (4,347 tons) and the declared carry-in from last year's crop (1,184 tons.)

The Board computed and announced preliminary free and restricted percentages of 10 percent and 90 percent, respectively, at its August 31, 2000, meeting. The Board computed the preliminary free percentage by multiplying the adjusted trade demand by 80 percent and dividing the result by the adjusted crop estimate (3,163 tons × 80 percent/24,153 tons = 10 percent.) The preliminary free percentage thus initially released 2,530 tons of hazelnuts from the 2000 supply for domestic inshell use, and the restricted percentage withheld 21,738 tons for the export and kernel market.

Under the order, the Board must meet again on or before November 15 to recommend interim final and final percentages. The Board uses current crop estimates to calculate interim final and final percentages. The interim final percentages are calculated in the same way as the preliminary percentages and release the remaining 20 percent (to total 100 percent of the inshell trade demand) previously computed by the Board. Final free and restricted percentages may release up to an additional 15 percent of the average of the preceding three years' trade acquisitions to provide an adequate carryover into the following season (i.e., desirable carryout). The order requires that the final free and restricted percentages shall be effective 30 days prior to the end of the marketing year, or earlier, if recommended by the Board and approved by the Secretary. Revisions in the marketing policy can be made until February 15 of each marketing year, but the inshell trade demand can only be revised upward, consistent with § 982.40(e).

The Board met on November 14, 2000, and reviewed and approved an amended marketing policy and recommended the establishment of interim final and final free and restricted percentages. The interim final free and restricted percentages were recommended at 14 percent free and 86 percent restricted. Final percentages, which included an additional 15 percent of the average of the preceding three-years' trade acquisitions for desirable carry-out, were recommended at 17 percent free and 83 percent restricted effective May 1, 2001. The final free percentage releases 3,815 tons of inshell hazelnuts from the 2000 supply for domestic use.

The final marketing percentages are based on the Board's final production estimate and the following supply and demand information for the 2000-2001 marketing year:

In addition to complying with the provisions of the order, the Board also considered the Department's 1982 “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” (Guidelines) when making its computations in the marketing policy. This volume control regulation provides a method to collectively limit the supply of inshell hazelnuts available for sale in domestic markets. The Guidelines provide that the domestic inshell market has available a quantity equal to 110 percent of prior years' shipments before secondary market allocations are approved. This provides for plentiful supplies for consumers and for market expansion, while retaining the mechanism for dealing with oversupply situations. The established final percentages are based on the final inshell trade demand, and will make available an additional 652 tons for desirable carry-out effective May 1, 2001. The total free supply for the 2000-2001 marketing year is 4,999 tons of hazelnuts, which is the sum of the final trade demand of 4,347 tons and the 652 ton desirable carry-out. This amount is 115 percent of prior years' sales and exceeds the goal of the Guidelines.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, the AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 800 producers of hazelnuts in the production area and approximately 22 handlers subject to regulation under the order. Small agricultural producers have been defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $500,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000. Using these criteria, virtually all of the producers are small agricultural producers and an estimated 19 of the 22 handlers are small agricultural service firms. In view of the foregoing, it can be concluded that the majority of hazelnut producers and handlers may be classified as small entities.

Board meetings are widely publicized in advance of the meetings and are held in a location central to the production area. The meetings are open to all industry members and other interested persons who are encouraged to participate in the deliberations and voice their opinions on topics under discussion. Thus, Board recommendations can be considered to represent the interests of small business entities in the industry.

Many years of marketing experience led to the development of the current volume control procedures. These procedures have helped the industry solve its marketing problems by keeping inshell supplies in balance with domestic needs. The current volume control procedures fully supply the domestic inshell market while preventing oversupplies in that market.

Inshell hazelnuts sold to the domestic market provide higher returns to the industry than are obtained from shelling. The inshell market is inelastic and is characterized as having limited demand and being prone to oversupply.

Industry statistics show that total hazelnut production has varied widely over the last 10 years, from a low of 15,500 tons in 1998 to a high of 47,000 tons in 1997. Average production has been around 29,800 tons. While crop size has fluctuated, the volume regulations contribute toward orderly marketing and market stability, and help moderate the variation in returns for all producers and handlers, both large and small. For instance, production in the shortest crop year (1998) was 55 percent of the 10-year average (1990-1999). Production in the biggest crop year (1997) was 158 percent of the 10-year average. The percentage releases provide all handlers with the opportunity to benefit from the most profitable domestic inshell market. That market is available to all handlers, regardless of handler size.

As an alternative, the Board discussed not regulating the 2000-2001 hazelnut crop. However, without any regulations in effect, the Board believes that the industry would oversupply the inshell domestic market.

While the level of benefits of this rulemaking is difficult to quantify, the stabilizing effects of the volume regulations impact both small and large handlers positively by helping them maintain and expand markets even though hazelnut supplies fluctuate widely from season to season.

Hazelnuts produced under the order comprise virtually all of the hazelnuts produced in the United States. This production represents, on average, less than 5 percent of total U.S. tree nut production, and less than 5 percent of the world's hazelnut production.

This volume control regulation provides a method for the U.S. hazelnut industry to limit the supply of domestic inshell hazelnuts available for sale in the United States. Section 982.40 of the order establishes a procedure and computations for the Board to follow in recommending to the Secretary release of preliminary, interim final, and final quantities of hazelnuts to be released to the free and restricted markets each marketing year. The program results in plentiful supplies for consumers and for market expansion while retaining the mechanism for dealing with oversupply situations.

Currently, U.S. hazelnut production can be successfully allocated between the inshell domestic and secondary markets. One of the best secondary markets for hazelnuts is the export market. Inshell hazelnuts produced under the marketing order compete well in export markets because of quality. Europe, and Germany in particular, is historically the primary world market for U.S. produced inshell hazelnuts. A third market is for shelled hazelnuts (kernels) sold domestically. Domestically produced kernels generally command a higher price in the domestic market than imported kernels. The industry is continuing its efforts to develop and expand secondary markets, especially the domestic kernel market. Small business entities, both producers and handlers, benefit from the expansion efforts resulting from this program.

There are some reporting, recordkeeping, and other compliance requirements under the order. The reporting and recordkeeping burdens are necessary for compliance purposes and for developing statistical data for maintenance of the program. The information collection requirements have been previously approved by the Office of Management and Budget under OMB No. 0581-0178. The forms require information which is readily available from handler records and which can be provided without data processing equipment or trained statistical staff. As with other marketing order programs, reports and forms are periodically reviewed to reduce or eliminate duplicate information collection burdens by industry and public sector agencies. This interim final rule does not change those requirements. In addition, the Department has not identified any relevant Federal rules that duplicate, overlap or conflict with this regulation.

Further, the Board's meeting was widely publicized throughout the hazelnut industry and all interested persons were invited to attend the meeting and participate in Board deliberations. Like all Board meetings, the November 14, 2000, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

This rule invites comments on the establishment of interim and final free and restricted percentages for the 2000-2001 marketing year under the hazelnut order. Any comments received will be considered prior to finalization of this rule.

After consideration of all relevant material presented, including the Board's recommendation, and other information, it is found that this interim final rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined, upon good cause, that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect, and that good cause exists for not postponing the effective date of this action until 30 days after publication in the Federal Register because: (1) The 2000-2001 marketing year began July 1, 2000, and the percentages established herein apply to all merchantable hazelnuts handled from the beginning of the crop year; (2) handlers are aware of this rule, which was recommended at an open Board meeting, and need no additional time to comply with this rule; and (3) interested persons are provided a 60-day comment period in which to respond, and all comments timely received will be considered prior to finalization of this action.

This final rule is issued under the Watermelon Research and Promotion Plan (Plan) (7 CFR part 1210). The Plan is authorized under the Watermelon Research and Promotion Act (Act) (7 U.S.C. 4901-4916). Prior document in this proceeding: A proposed rule published in the October 16, 2000, issue of the Federal Register (65 FR 61122).

Section 1210.320 (d) of the Plan requires the National Watermelon Promotion Board (Board) to review the alignment of the seven districts and importer representation every five years. The Board conducted a review in 1999 and made recommendations to the U.S. Department of Agriculture (USDA). USDA published those recommendations as a proposed rule in the October 16, 2000, issue of the Federal Register. No comments were received on the proposed rule. Therefore, this rule implements the Board's recommendations.

The Plan divides the United States into seven districts of comparable watermelon production. Each district is allocated two producer members and two handler members. The Plan also requires the number of importer members on the Board to be proportionate to the percentage of assessments paid by importers. In addition, one public member should serve on the Board. The Board currently has 33 members: 14 producers, 14 handlers, 4 importers, and 1 public member. However, two importer positions and the public member position are currently vacant.

The Board is required to base its recommendations on the most recent three years of USDA production reports or Board assessment reports. In this instance, the Board used assessment reports for 1996, 1997, and 1998 because USDA production reports were available for only 16 of the 35 states in which watermelons are produced.

The 1999 review indicated that the boundaries of the districts needed to be adjusted in order for there to be an equal amount of assessments paid by the producers and handlers in the districts and that two additional importers needed to be added to the Board.

The number of producer and handler members will not be changed. However, the number of importer positions on the Board will be increased from four to six.

This action will not have any impact on the assessment rates paid by producers, handlers, and importers.

This rule has been determined “not significant” for purposes of Executive Order (E.O.) 2866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB).

In addition, this rule has been reviewed under Executive Order 12988, Civil Justice Reform. The rule is not intended to have retroactive effect and will not affect or preempt any other State or Federal law authorizing promotion or research relating to an agricultural commodity.

The Act allows producers, producer-packers, handlers, and importers (if covered by the program) to file a written petition with the Secretary of Agriculture (Secretary) if they believe that the Plan, any provision of the Plan, or any obligation imposed in connection with the Plan, is not established in accordance with law. In any petition, the person may request a modification of the Plan or an exemption from the Plan. The petitioner will have the opportunity for a hearing on the petition. Afterwards, an Administrative Law Judge (ALJ) will issue a decision. If the petitioner disagrees with the ALJ's ruling, the petitioner has 30 days to appeal to the Judicial Officer, who will issue a ruling on behalf of the Secretary. If the petitioner disagrees with the Secretary's ruling, the petitioner may file, within 20 days, an appeal in the U.S. District Court for the district where the petitioner resides or conducts business.

Final Regulatory Flexibility Analysis. In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), AMS has examined the economic impact of this rule on the small producers, handlers, and importers that will be affected by this rule.

The Small Business Administration defines, in 13 CFR part 121, small agricultural producers as those having annual receipts of no more than $500,000 and small agricultural service firms (handlers and importers) as those having annual receipts of no more than $5 million. Under these definitions, the majority of the producers, handlers, and importers that would be affected by this rule would be considered small entities. Producers of less than 10 acres of watermelons are exempt from this program. Importers of less than 150,000 pounds of watermelons per year are also exempt.

According to the Board, there are approximately 2,219 non-exempt producers, 619 handlers, and 278 importers who are eligible to serve on the Board.

The Plan requires producers to be nominated by producers, handlers to be nominated by handlers, and importers to be nominated by importers. This will not change. Because some current members are in states or counties which will be moved to other districts under this rule, at least one producer member vacancy in Districts 1, 6, and 7 and one handler member vacancy in District 6 will be created. Nomination meetings will need to be held in the new districts to fill these vacancies.

The overall impact will be favorable for producers and handlers because the new district boundaries will provide more equitable representation for the producers and handlers who pay assessments in the various districts. For importers, too, the overall impact will be favorable because they will be provided two additional seats on the Board and more equitable representation on the Board.

The Board considered several alignments of the districts in an effort to provide balanced representation for each district. The Board selected the alignment described in this rule as it will provide proportional representation on the Board of producers, handlers, and importers.

The addition of two importer seats on the Board will mean four additional nominees. This is because two nominees must be submitted for each position. The estimated additional annual cost of providing nomination information by four persons eligible to be nominated to serve as importer members on the Board will be $6.00 or $1.50 per importer. The increase of .06 hours has been added to the burden previously approved under OMB No. 0505-0001.

There are no federal rules that duplicate, overlap, or conflict with this rule.

Paperwork Reduction Act. This rule will increase the information collection burden previously approved by OMB for the Board nominee background information form under OMB Number 0505-0001. This is because there will be two additional importers on the Board. Since two nominees must be submitted to the Secretary for each position, there is the potential for four additional background forms to be submitted under this final rule. As required by OMB regulations (5 CFR part 1320), the revised burden, as described below, has been submitted to OMB.

Title: National Research, Promotion, and Consumer Information Programs.

OMB Number: 0505-0001.

Expiration Date of Approval: July 31, 2001.

Type of Request: Revision of a currently approved information collection for research and promotion programs.

Abstract: The information collection requirements in this request are essential to carry out the intent of the Act. The increase in burden associated with the background form is as follows:

Estimate of Burden: Public reporting burden for this collection of information is estimated to average 0.50 hours per response.

Respondents: Importers.

Estimated Number of Respondents: 4.

Estimated Number of Responses per Respondent: 1 every 3 years (0.3).

Estimated Total Annual Burden on Respondents: 0.6 hours.

The estimated additional annual cost of providing nomination information by four persons eligible to be nominated to serve as importer members on the Board is $6.00 or $1.50 per importer. The increase of .06 hours has been added to the burden previously approved under OMB No. 0505-0001.

Under the Plan, the Board administers a nationally coordinated program of research, development, advertising, and promotion designed to strengthen the watermelon's position in the market place and to establish, maintain, and expand markets for watermelons. This program is financed by assessments on producers growing 10 acres or more of watermelons, handlers of watermelons, and importers of 150,000 pounds of watermelons or more per year. The Plan specifies that handlers are responsible for collecting and submitting both the producer and handler assessments to the Board, reporting their handling of watermelons, and maintaining records necessary to verify their reporting(s). Importers are responsible for payment of assessments to the Board on watermelons imported into the United States through the U.S. Customs Service.

Domestic membership on the Board is determined on the basis of two producers and two handlers for each of the seven districts established by the Plan. The Board should also include at least one representative of importers and one public member. There are currently four importer positions on the Board.

The current U.S. districts were established in 1994. They are:

District 1—South Florida, including all south areas of State Highway 50.

District 2—North Florida, including all north areas of State Highway 50.

District 3—Alabama, Georgia, and Mississippi.

District 4—Connecticut, Delaware, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Vermont, Virginia, Washington, D.C., and West Virginia.

District 5—Alaska, Arkansas, Colorado, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, Tennessee, and Wisconsin.

District 6—Arkansas, Louisiana, and Texas.

District 7—Arizona, California, Idaho, Montana, Nevada, Oregon, Utah, Washington, and Wyoming.

The Plan provides that two years after its effective date (June 8, 1989), and at least every five years thereafter, the Board should review the districts to determine whether realignment of the districts is necessary.

When making a review, the Plan specifies that the Board should consider factors such as the most recent three years of USDA production reports or Board assessment reports if USDA production reports are unavailable, shifts and trends in quantities of watermelons produced, and any other relevant factors. In reviewing importer representation, the Board should review a three-year average of watermelon import assessments.

The Plan further specifies that, as a result of a review, the Board may recommend realignment of the districts and a change in the number of importer members subject to the approval of the Secretary. Any realignment should be recommended by the Board at least six months prior to the date of the call for nominations and should become effective at least 30 days prior to this date.

On November 8, 1999, the Board appointed a subcommittee to begin reviewing the U.S. districts and to determine whether realignment was necessary based on production and assessment collections in the current districts. During the review, as prescribed by the Plan, the subcommittee reviewed USDA's Annual Crop Summary reports for 1996 through 1998, which provide figures for the top 16 watermelon producing states, and the Board's assessment collection records for 1996 through 1998, including assessments collected at the county level for California and Florida.

The subcommittee recommended to the Board that the boundaries of Districts 3 through 7 be changed and that Districts 1 and 2 be defined by Florida counties, rather than using Route 50 as the boundary line.

The subcommittee also determined that assessments on imports represented 20 percent of the Board's assessment income during 1996-1998. The Plan requires that importers have proportionate representation on the Board. Therefore, importers should have 20 percent of the seats on the Board. Currently, the four importer positions represent only 12.5 percent of the 32 industry seats on the Board. Adding two more importer member positions will give importers approximately 20 percent of the seats on the Board. Because the Plan and regulations are self-executing in this regard, no change to the regulations is needed.

Subsequently, the realignment was approved by Board at its February 15-16, 2000, meeting, with slight modification. Under the realignment, each district will represent, on average, 14 percent of total U.S. production.

Therefore, this final rule will realign the districts as follows:

District 1—The Florida counties of Brevard, Broward, Collier, Dade, Glades, Hardee, Hendry, Highlands, Indian River, Lee, Martin, Monroe, Okeechobee, Osceola, Palm Beach, Polk, and St. Lucie.

District 2—The Florida counties of Alachula, Baker, Bay, Bradford, Calhoun, Charlotte, Citrus, Clay, Columbia, Desoto, Dixie, Duval, Escambia, Flagler, Franklin, Gadsden, Gilchrist, Gulf, Hamilton, Hernando, Hillsborough, Holmes, Jackson, Jefferson, Lafayette, Lake, Leon, Levy, Liberty, Madison, Manatee, Marion, Nassau, Okaloosa, Orange, Pasco, Pinnellas, Putnam, Santa Rosa, Sarasota, Seminole, St. Johns, Sumter, Suwannee, Taylor, Union, Volusia, Wakulla, Walton, and Washington.

District 3—Alabama, Arkansas, Georgia, Louisiana, Mississippi, South Carolina, and Tennessee.

District 4—Connecticut, Delaware, Illinois, Indiana, Iowa, Kansas, Kentucky, Massachusetts, Maryland, Maine, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Vermont, Virginia, Washington, D.C., West Virginia, and Wisconsin.

District 5—Alaska, Colorado, Hawaii, Idaho, Montana, Nevada, Oregon, Utah, Washington, Wyoming and the California counties of Alameda, Alpine, Amador, Butte, Calaveras, Colusa, Contra Costa, Del Norte, El Dorado, Fresno, Glenn, Humboldt, Inyo, Kern, Kings, Lake, Lassen, Madera, Marin, Mariposa, Mendocino, Merced, Modoc, Mono, Monterey, Napa, Nevada, Placer, Plumas, Sacramento, San Benito, San Francisco, San Joaquin, San Luis Obispo, San Mateo, Santa Barbara, Santa Clara, Santa Cruz, Shasta, Sierra, Siskiyou, Solano, Sonoma, Stanislaus, Sutter, Tehama, Trinity, Tulare, Toulumne, Venture, Yolo, and Yuba.

District 6—Texas.

District 7—Arizona, New Mexico, and the California counties of Imperial, Los Angeles, Orange, Riverside, San Bernardino, and San Diego.

With these district boundaries: (1) South Carolina and Tennessee will be moved from District 4 to District 3; (2) Arkansas and Louisiana will be moved from District 6 to District 3; (3) Illinois, Iowa, Kansas, Minnesota, Missouri, Nebraska, North Dakota, Oklahoma, South Dakota, and Wisconsin will be moved from District 5 to District 4; (4) four California counties will be moved from District 7 to District 5; and (5) only Texas will remain in District 6.

This will create one producer vacancy in Districts 1, 6, and 7 and one handler in District 6. Current Board members will be affected because their states or counties will be moved to other districts. Nomination meetings will be held in the new districts to fill the vacancies.

Section 263 of the ARPA requires that these regulations be promulgated without regard to the notice and comment provisions of 5 U.S.C. 553 or the Statement of Policy of the Secretary of Agriculture effective July 24, 1971, (36 FR 13804) relating to notices of proposed rulemaking and public participation in rulemaking. These regulations are thus issued as final.

This final rule is issued in conformance with Executive Order 12866 and has been determined to be significant and has been reviewed by the Office of Management and Budget.

The titles and numbers of the Federal assistance programs, as found in the Catalog of Federal Domestic Assistance, to which this final rule applies is Commodity Loan Deficiency Payments—10.051.

It has been determined that the Regulatory Flexibility Act is not applicable to this rule because USDA is not required by 5 U.S.C. 553 or any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this rule.

It has been determined by an environmental evaluation that this action will have no significant impact on the quality of the human environment. Therefore, neither an environmental assessment nor an Environmental Impact Statement is needed.

This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115 (June 24, 1983).

The provisions of Title II of the Unfunded Mandates Reform Act of 1995 are not applicable to this rule because the USDA is not required by 5 U.S.C. 553 or any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this rule.

Section 263 of the Act of 2000 requires that the regulations necessary to implement Title II, Subtitle A of the Act of 2000 be issued as soon as practicable and without regard to the notice and comment provisions of 5 U.S.C. 553 or the Statement of Policy of the Secretary of Agriculture effective July 24, 1971, (36 FR 13804) related to the notice of proposed rulemaking and public participation in rulemaking. It also requires the Secretary to use the provisions of 5 U.S.C. 808 (the Small Business Regulatory Enforcement Act (SBREFA), which provide that a rule may take effect at such time as the agency may determine if the agency finds for good cause that public notice is impracticable, unnecessary, or contrary to the public purpose and thus does not have to meet the requirements of section 801 of SBREFA requiring a 60-day delay for Congressional review of a major regulation before the regulation can go into effect. This final rule is considered major for the purposes of SBREFA. Based on the foregoing authorities, however, it has been determined that it would be contrary to the public interest to delay the implementation of this rule. This rule, accordingly, has been made effective immediately.

Section 263 of the Act of the ARPA also requires that these regulations be promulgated and the program administered without regard to the Paperwork Reduction Act. This means the information to be collected from the public to implement these programs and the burden, in time and money, the collection of the information would have on the public, does not have to be approved by the Office of Management and Budget.

Producers of certain commodities are allowed by the provisions under section 135 of the Agricultural Market Transition Act (7 U.S.C. 7235) and related provisions to obtain, upon harvest, market assistance loans, or, in lieu of those loans, “loan deficiency payments” (LDP's). Section 205 of ARPA, however, provides additional relief for farmers in a form which in effect amounts to the equivalent of an LDP. Under section 205 of ARPA, a farmer who is otherwise eligible for a wheat, barley, or oat LDP under section 135 of AMTA can graze the acreage instead and still receive a payment if the producer enters into an agreement with the Secretary to forgo any other harvesting of the wheat, barley, or oats on that acreage. That section (Section 205 of ARPA) provides further that the amount of the payment shall be determined using the loan deficiency payment rate determined under section 135(c) of the Agricultural Market Transition Act (7 U.S.C. 7235(c)) in effect, as of the date of the agreement, for the county in which the farm is located. That rate, the statute provides, will be multiplied by the payment quantity. The payment quantity, the law provides, is determined by multiplying (for the commodity involved) the quantity of the grazed acreage involved by the higher of the farm's established yield or the county's average yield. Further, section 205 provides that the payment shall be made at the same time and in the same manner as loan deficiency payments. Still further, the statute specifies that the payment shall be made not later than September 30, 2001. Also, section 205 provides that, in operating this program, the Secretary shall establish an availability period for the payment consistent with the availability period for wheat, barley, and oats established for AMTA marketing assistance loans. Section 205 further specifies that the Secretary shall promulgate such regulations as are needed to administer the payments in a fair and equitable manner with respect to those producers of wheat and feed grains that will not receive the new payments.

This rule implements those provisions by regulations that will be codified in a new subpart in 7 CFR part 1421. In so doing, however, several important determinations had to be made. Among those, was a determination with respect to limitations on payments. LDPs under section 135 of AMTA are, by the provisions of section 1001 of the Food Security Act of 1985, 7 U.S.C. 1308, as amended, payment-limited. That is, the amount that any one “person” (as defined in rules in 7 CFR part 1400) can receive in any one program year, in the form of LDPs, is limited to a set amount. By the terms of section 1001 of the Food Security Act, the limit applies to payments under section 135 of AMTA, and does not, for that reason, cover these new grazing payments, as such, in section 205 of ARPA. That follows because section 205 does not, as such, amend section 135 of AMTA. Rather, section 205 is a stand-alone source of authority for making the new payments. Nonetheless, as indicated above, Congress, by the terms of section 205, instructs the agency to make the payment “in the same manner” as section 135 of AMTA and further instructs the agency to make the payments in such a way as to be fair with respect to farmers who will not be making use of the new authority. For those reasons, it seems clear that the payments should be treated as limited as well and, in order to do so, it is provided in these rules that a farmer will be considered to be eligible to receive, or retain, payments under section 205 of ARPA only to the extent that the farmer would have a remaining eligibility for payments under section 135 of AMTA taking into account the payment limit that applies to payment under that section. That is, if the producer had for example hit the payment limit under that section by receiving LDP's up to that limit, then the producer would not be eligible for grazing payments under the new program and would, if payments for grazing had already been received, be required to return those payments with interest. This conclusion—linking the two payments—is consistent with still another provision in section 205 of ARPA that being the provision which specifies that the producer will only be eligible for payments under section 205 to the extent that the farmer would be eligible for a payment under section 135. While that provision does not directly address the situation where the producer was eligible for the payment when it was received and only later hits the LDP payment limit, it would not make sense to have the rules allow the farmer retain the grazing as such would change the connection between the two programs from being a matter of substance to being one of timing only. Presumably, placing form over substance was not intended. Accordingly, once it has been determined that the grazing payment will in effect be tied to the same payment limit it follows that this rule will apply regardless of which payments were requested first. As indicated, this seems to be fully consistent with the idea of the statute which appear to be that the LDP program should not force farmers to harvest forage of certain crops just to utilize their LDP eligibility. Provision has been made in the rule to assure that the connection between the two programs will be enforced irrespective of whether the normal rules of offset would allow a charge-off between the two programs.

Other provisions in the new regulations specify that producers will not be eligible for the payment if the crop could not be harvested anyway because of weather or other reasons. Also, the rules provide that applications cannot be filed before the date on which mechanical harvesting of the crop would, otherwise, have first been possible. This provision is consistent with the timing provisions of the statute as described above. Also, there are provisions, requiring consistency between the producer's grazing reports and others that might be filed, and a number of other aspects of the program as well. Further, since the grazing payments allowed by the new rules only apply where the producer could otherwise have obtained LDP for the crop, the new rules will only apply to wheat, barley and oats crops produced by the applicant on a farm on which that person has an existing and valid production flexibility contract (PFC). That is because wheat, barley, and oats are so-called “contract commodities” and, by statute, generally, contract commodities are eligible for LDP only if produced on a PFC farm. The PFC program is a program in which farmers with certain crop bases under older programs can receive certain special payments it they agreed to abide by certain limited conditions with respect to the operation of their farms. The PFC program is administered under 7 CFR part 12. For the 2000 crop only, Congress has severed the tie between PFC's and LDP's. However, as the new grazing payment program applies only to the 2001 crops wheat, barley, and oats, the existence of a PFC contract will continue to be an eligibility requirement for the new payment. Should the requirements for LDP's be modified again, it would have to be determined whether such a change would also expand eligibility for the new grazing payment provided for in these new rules.

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

To implement this mandate, the NRC approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule in 10 CFR Part 72 entitled, “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new Subpart L within 10 CFR Part 72, entitled “Approval of Spent Fuel Storage Casks” containing procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule on April 7, 1993 (58 FR 17948), that approved the VSC-24 cask design, added it to the list of NRC-approved cask designs in § 72.214, and issued Certificate of Compliance Number (CoC No.) 1007.

On March 29, 2000, PSNA (the certificate holder) submitted an application to the NRC to amend CoC No. 1007 to change Technical Specifications (TS) 1.2.1 and 1.2.6. This change modifies the fuel specifications for Combustion Engineering 16x16 spent fuel stored in the VSC-24 cask system. Amendment 3 also modifies the text in TS 1.2.7 for accuracy, modifies the text in Certificate Section 2.b. to remove ambiguity, modifies Certificate Section 3 to be consistent with TS 1.1.4, modifies Certificate Section 4 for consistency with TS 1.1.3, and modifies Certificate Section 5 to remove ambiguity and removes the “Basis” section from all TSs in accordance with revised NRC TS format. The NRC staff performed a detailed safety evaluation of the proposed CoC amendment request. The NRC staff found that the changes stated above do not reduce the safety margin. In addition, the NRC staff has determined that changes do not pose any increased risk to public health and safety. A full discussion of the NRC staff's evaluation is presented in its SER that can be found under ADAMS Accession No. ML003733556.

This direct final rule revises the PSNA VSC-24 cask system listing within the list of NRC-approved casks for spent fuel storage in § 72.214 by adding Amendment No. 3 to CoC No. 1007. Amendment No. 3 applies to any VSC-24 cask loaded after May 21, 2001.

Amendment No. 3 to CoC No. 1007 and the underlying SER, and the Environmental Assessment and Finding of No Significant Impact are available for inspection and comment at the NRC Public Document Room (PDR), 11555 Rockville Pike, Rockville, Maryland 20852. Single copies of the CoC and SER may be obtained from Stan Turel, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 415-6195, email spt@nrc.gov

Certificate No. 1007 will be revised indicating the addition of Amendment No. 3 and its effective date.

This rule is limited to the changes contained in Amendment No. 3 to CoC 1007 and does not include other aspects of the VSC-24 cask system design. The NRC is using the “direct final rule procedure” to promulgate this amendment because it represents a limited and routine change to an existing CoC that is expected to be noncontroversial; adequate protection of public health and safety continues to be ensured. This amendment is not considered to be a significant amendment by the NRC staff. The amendment to the rules will become effective on May 21, 2001. However, if the NRC receives significant adverse comments by April 5, 2001, then the NRC will publish a document that withdraws this action and will address the comments received in response to the proposed amendments published elsewhere in this issue of the Federal Register. These comments will be addressed in a subsequent final rule. The NRC will not initiate a second comment period on this action.

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

The Presidential Memorandum dated June 1, 1998, entitled “Plain Language in Government Writing,” directed that the Federal Government's writing be in plain language. The NRC requests comments on this direct final rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the address listed under the heading ADDRESSES above.

Under the National Environmental Policy Act of 1969, as amended, and the NRC regulations in Subpart A of 10 CFR Part 51, the NRC has determined that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The rule will amend the CoC for the VSC-24 cask system within the list of approved spent fuel storage casks that power reactor licensees can use to store spent fuel at reactor sites under a general license. This amendment revises Technical Specifications 1.2.1 and 1.2.6 to modify the fuel specifications for Combustion Engineering 16x16 spent fuel stored in the VSC-24 cask system and makes other minor clarifying changes to the CoC and TS. The environmental assessment and finding of no significant impact on which this determination is based are available for inspection at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. Electronic copies of the environmental assessment and finding of no significant impact can be found in the NRC's Public Electronic Reading Room on the Internet at http://www.nrc.gov/NRC/ADAMS/index.html. Single copies are available from Stan Turel, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 415-6234, email spt@nrc.gov.

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

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

The National Technology Transfer Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC will revise the VSC-24 cask system design list in § 72.214 (List of NRC-approved spent fuel storage cask designs). This action does not constitute the establishment of a standard that establishes generally-applicable requirements.

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR Part 72 to provide for the storage of spent nuclear fuel under a general license in cask system designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if it notifies the NRC in advance, spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. A list of NRC-approved cask designs is contained in § 72.214. On April 7, 1993 (58 FR 17948), the NRC issued an amendment to Part 72 that approved the VSC-24 cask design, added it to the list of NRC-approved cask designs in § 72.214, and issued CoC No. 1007. On March 29, 2000, the certificate holder submitted an application to the NRC to amend CoC No. 1007 to change Technical Specifications 1.2.1 and 1.2.6 to modify the fuel specifications for Combustion Engineering 16x16 spent fuel stored in the VSC-24 cask system. The amendment also makes other minor clarifying changes to the CoC and TSs.

The alternative to this action is to withhold approval of this amended cask system design and issue an exemption to each general license. This alternative would cost both the NRC and the utilities more time and money because each utility would have to pursue an exemption.

Approval of the direct final rule will eliminate the problems described above and is consistent with previous Commission actions. Further, the direct final rule will have no adverse effect on public health and safety. This direct final rule has no significant identifiable impact or benefit on other Government agencies.

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

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

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

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

The Electronic Fund Transfer Act (EFTA or Act), 15 U.S.C. 1693 et seq., enacted in 1978, provides a basic framework establishing the rights, liabilities, and responsibilities of participants in electronic fund transfer (EFT) systems. The Board's Regulation E (12 CFR part 205) implements the Act. Types of transfers covered by the Act and regulation include transfers initiated through an ATM, point-of-sale terminal, automated clearinghouse, telephone bill-payment plan, or home-banking program. The Act and regulation prescribe restrictions on the unsolicited issuance of ATM cards and other access devices; disclosure of terms and conditions of an EFT service; documentation of EFT services by means of terminal receipts and periodic account statements; limitations on consumer liability for unauthorized transfers; procedures for error resolution; and certain rights related to preauthorized EFT services.

The Official Staff Commentary (12 CFR part 205 (Supp. I)) interprets the regulation, and provides guidance to financial institutions in applying the regulation to specific transactions. The commentary is a substitute for individual staff interpretations; it is updated periodically, as necessary, to address significant questions that arise.

EFTA coverage is not limited to traditional financial institutions holding consumers' asset accounts. For EFT services made available by entities other than an account-holding financial institution, the act directs the Board to assure, by regulation, that the provisions of the act are made applicable.

The Gramm-Leach-Bliley Act (GLBA), Pub. L. 106-102, 113 Stat. 1338, amended the EFTA. Sections 702, 703, and 705 of the GLBA require disclosure of ATM fees (sometimes referred to as “surcharges”) imposed by ATM operators. Many ATM operators—including financial institutions that impose such a fee—currently disclose information about the fee to satisfy existing regulatory and network requirements.

Section 702 of the GLBA amends section 904(d) of the EFTA regarding services provided by entities other than the account-holding institution. An ATM operator that imposes a fee on a consumer for EFT services is required to post a notice of that fact in a prominent and conspicuous location on or at the ATM. The ATM operator must also disclose that a fee will be imposed and the amount of the fee, either on the screen of the ATM or on a paper notice, before the consumer is committed to completing the transaction. No fee may be imposed unless proper notice is provided and the consumer elects to complete the transaction.

Section 703 of the GLBA amends section 905(a) of the EFTA regarding the disclosure of terms and conditions at the time a consumer signs up for EFT services. The financial institution holding the consumer's account must include in its initial disclosures a notice that a fee may be imposed by (1) An ATM operator not holding the consumer's account, or (2) any national, regional, or local network used to complete the transaction.

Section 705 of the GLBA amends section 910 of the EFTA regarding liability of financial institutions. ATM operators are not liable for failing to comply with the requirement to post notice if the notice posted at an ATM is subsequently removed, damaged, or altered by any person other than the ATM operator.

In July 2000, the Board published proposed revisions to Regulation E to implement the EFTA amendments made by the GLBA. (65 FR 44481, July 18, 2000.) The proposal paralleled the statutory provisions for the most part. The Board received approximately 50 comment letters. The majority of comments on the proposed revisions were from financial institutions and industry associations. Several commenters requested action outside the scope of the Board's authority, such as deleting the statutory requirement to post a sign about fees at the ATM as unnecessary and burdensome or prohibiting ATM surcharges.

In general, most commenters supported the Board's proposed revisions. Many industry commenters, however, requested a longer period than 30 days after issuance to comply with a final rule. They stated that while the proposed revisions will not require extensive software or other system changes, ATM operators will need more than 30 days to implement them. In response to comments received, the mandatory compliance date for the final rule is October 1, 2001.

Pursuant to its authority under section 904(a) of the EFTA, the Board is adopting a final rule amending Regulation E to implement sections 702 and 703 of the GLBA. The final rule is substantially similar to the proposal with some technical and editorial revisions. To facilitate compliance, a new § 205.16 addresses in a single location most of the rules related to disclosure of fees by ATM operators. Below is a section-by-section analysis of the final rule.

Section 205.3(b) generally defines the term “electronic fund transfer.” The GLBA treats a balance inquiry as an EFT for purposes of the ATM fee disclosure requirement. Therefore, the proposed rule added balance inquiries at ATMs to the list of examples of an EFT in paragraph (b), but only for purposes of ATM fee disclosure requirements. Based on comments, the final rule does not include a balance inquiry as an example of an “electronic fund transfer,” since such an inquiry does not fit within the literal definition of a “fund transfer.”

Section 205.7(b) is revised substantially as proposed to implement section 703 of the GLBA. At the time a consumer contracts for an EFT service or before the first EFT, a financial institution is required to provide initial disclosures related to the EFT service, such as fees imposed and a summary of the consumer's liability for unauthorized transfers. Section 703 of the GLBA amends section 905(a) of the EFTA by adding to the initial disclosures a notice that a fee may be imposed for an EFT or balance inquiry at an ATM by an ATM operator or by a national, regional, or local network used to complete the transfer.

The Board solicited specific comment on whether national, regional, or local networks separately impose fees and thus should be distinguished, or whether it is sufficient to refer to “any network” in the disclosures as an alternative to the statutory language. Many commenters, including network owners, indicated that while networks currently charge an interchange fee to a financial institution whose customers use the network, they do not separately impose a fee on the consumer.

Commenters requested clarification that reference to network-imposed fees may be excluded from the disclosure in paragraph § 205.7(b)(11), if networks are not imposing fees on consumers. Disclosures are generally required only to the extent applicable. Therefore, an institution may omit any reference to a network fee if the disclosure does not apply to the consumer's account. Model language in appendix A-2 regarding ATM fees is amended to reflect this flexibility. If networks begin to impose fees on consumers to complete an EFT or a balance inquiry, institutions that choose to exclude the reference to network fees from their section 7(b) disclosures will be required to send a change-in-terms notice to account holders who contract for EFT services on or after October 1, 2001.

A new § 205.16 is added, as proposed, to implement section 702 of the GLBA. Section 205.16(a) defines ATM operator. The ATM disclosure requirements are set forth in §§ 205.16(b) and (c).

Some ATM operators only impose a fee for a specific type of transfer such as a cash withdrawal, and not for a balance inquiry. In such cases, the notice in § 205.16(b)(1) may contain a general statement that a fee will be imposed for providing EFT services or may specify the type of service for which a fee is imposed. If a financial institution provides a specific notice, and subsequently imposes fees on a broader category of transactions, the notice must be revised to reflect changes in an ATM operator's practice. Comment 16(b)(1)-1 is added to provide this guidance.

Several commenters requested guidance on how the requirements in § 205.4(a), that disclosures be clear and readily understandable and in a form the consumer may keep, apply to the ATM disclosure requirements. The notice required to be posted on or at the ATM under § 205.16(c)(1) must be placed in a prominent and conspicuous location. The “clear and readily understandable” standard applies to the content of the notice.

Regulation E provides that disclosures required to be given to a consumer must generally be in a retainable format. The notices posted on the screen (and, of course, those provided on or at the ATM) need not be in retainable format. If a paper notice is provided to comply with § 205.16(c)(2), the notice must be provided in a form that may be retained by the consumer.

Based on the comments received, § 205.16(c) is revised from the proposed language to clarify that two notices are required—one on or at the ATM and another on the screen or in paper form. Editorial changes are for clarity; no substantive change is intended.

Section 205.16(d) provides, in accordance with the statute, that the requirement for a disclosure on the screen or on a paper notice does not apply—through December 31, 2004—to any ATM that lacks the technical capability to provide such information. Commenters noted that many ATM operators are already providing notices about ATM fees in compliance with state law or network rules and guidelines. A few commenters urged the Board to eliminate the temporary exemption. The exemption is statutory and is adopted as proposed. The burden of proof rests on any ATM operator relying on the temporary exemption.

Model language added to Appendix A-2 reflects the new disclosure in § 205.7(b)(11) regarding fees that may be imposed by an ATM operator and by any network. Brackets indicate that institutions may omit terms and conditions not applicable to the consumer's account, such as fees imposed directly by networks.

Comment 7(b)(5)-3 to § 205.7(b)(5), which addresses interchange system fees, is revised to provide a cross-reference to § 205.7(b)(11).

Section 205.9(a)(1) requires financial institutions that include in the transaction amount a fee for completing an EFT at an electronic terminal to disclose the amount of the fee on the receipt and to display it on or at the terminal. Comment 9(a)(1)-1, which provides guidance on complying with the disclosure requirement, is revised to provide a cross-reference to the notice requirements in § 205.16 for ATM operators. The cross-reference is intended to alert financial institutions of additional requirements in § 205.16. In addition, a new comment 9(a)(1)-2 is added to give guidance on the relationship between § 205.9(a)(1) and § 205.16.

Comment 16(b)(1)-1 is added to clarify that an institution may state generally that a fee will be imposed for providing EFT services or may specify the type of service for which a fee is imposed.

In accordance with section 3(a) of the Regulatory Flexibility Act and section 904(a)(2) of the EFTA, the Board has reviewed the amendments to Regulation E. The amendments impose disclosure requirements on ATM operators and account-holding financial institutions about ATM fees. In accordance with the GLBA, the final rule exempts ATMs lacking technical capabilities from certain notice requirements until December 31, 2004.

The amendments are not expected to have any significant impact on small entities. Many financial institutions that impose a fee for carrying out a transaction at an ATM already disclose the fee to satisfy existing requirements under § 205.9(a)(1). The amendment would require that a disclosure regarding the fee be posted at the terminal and on the screen. The notice is generic, however, and can easily be programmed for display on the screen and at the terminal.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506; 5 CFR 1320 Appendix A.1), the Board reviewed the rule under the authority delegated to the Board by the Office of Management and Budget (OMB). The Federal Reserve may not conduct or sponsor, and an organization is not required to respond to, an information collection unless it displays a currently valid OMB number. The OMB control number for Regulation E is 7100-0200.

The information collection requirements relevant to this rulemaking are in 12 CFR part 205 and Appendix A. This information collection is mandatory (15 U.S.C. 1693 et seq.) to evidence compliance with the requirements of Regulation E and the Electronic Fund Transfer Act (EFTA). The revised requirements help ensure adequate disclosure of fees imposed for electronic fund transfers at ATMs owned by a party other than the account-holding financial institution. The respondents/recordkeepers are for-profit financial institutions, including small businesses. Institutions are required to retain records for 24 months. This regulation applies to all types of financial institutions, not just state member banks; however, under Paperwork Reduction Act regulations, the Federal Reserve accounts for the burden of the paperwork associated with the regulation only for state member banks. Other agencies account for the paperwork burden on their respective constituencies under this regulation.

The revisions are not expected to increase the ongoing annual burden of Regulation E. With respect to state member banks, it is estimated that there are 884 respondents/recordkeepers and an average frequency of about 85,800 responses per respondent each year. The current annual burden is estimated to be approximately 480,786 hours. The Federal Reserve estimates that there would be associated start-up cost of $3,500 with a range from $1,600 to $5,000 per respondent, depending on size and location, for changing disclosures (or disclosure producing software) to include disclosures relating to ATM surcharges and for posting a notice regarding the surcharge on or at the ATM and on the screen of the ATM.

Because the records would be maintained at state member banks and the notices are not provided to the Federal Reserve, no issue of confidentiality under the Freedom of Information Act arises; however, any information obtained by the Federal Reserve may be protected from disclosure under exemptions (b)(4), (6), and (8) of the Freedom of Information Act (5 U.S.C. 522(b)(4), (6) and (8)). The disclosures and information about error allegations are confidential between institutions and the customer.

The Board has a continuing interest in the public's opinion of the Federal Reserve's collections of information. Comments regarding the burden estimates, or any other aspect of this collection of information, including suggestions for reducing the burden estimate, may be sent at any time to: Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets, NW., Washington, DC 20551; and to the Office of Management and Budget, Paperwork Reduction Project (7100-0200), Washington, DC 20503.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 85-14-06, Amendment 39-5089 (50 FR 28561, July 15, 1985) and AD 85-14-06 R1, Amendment 39-5121 (50 FR 37173, September 12, 1985), which apply to Societe Nationale Industrielle Aerospatiale (currently Eurocopter France) Model AS350 and AS355 series helicopters, was published in the Federal Register on December 8, 2000 (65 FR 76953). That action proposed the same actions as the existing AD's and also proposed increasing the inspection interval from 1,200 hours TIS to 2,500 hours or 6 years TIS, whichever occurs first, to coincide with the maintenance manual and eliminate confusion and unnecessary costs. To compensate for the increase in the inspection interval, reducing the initial inspection interval from 100 hours TIS to 30 hours TIS and changing the visual inspection to a dye-penetrant inspection were also proposed.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that 475 helicopters of U.S. registry will be affected by this AD, that it will take approximately 8 work hours per helicopter to accomplish the required actions, and that the average labor rate is $60 per work hour. Based on these figures, the total cost impact of this AD on U.S. operators is estimated to be $228,000, assuming no cracked frames are discovered.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas.

The FAA has received reports of erroneous airspeed readings, including those from the airspeed indicator and Machmeter, after a McDonnell Douglas Model DC-8 series airplane had flown through visible moisture. The original airplane design included a turbo compressor system. The turbo compressors generated enough heat to prevent freezing of any trapped moisture in the lines running from the pitot tubes. The turbo compressors were removed during installation of Supplemental Type Certificate (STC) ST466CH, which incorporated a flow control system that uses bleed air from the engines. However, the flow control system did not generate enough heat in the area of the pitot tube lines to prevent freezing. Frozen pitot lines could generate erroneous or total loss of airspeed indications to the flight crew, which could result in loss of control of the airplane

A modification to positively address this unsafe condition was subsequently developed, and applicable parts and procedures were provided to operators of the affected airplanes. However, a recent fleetwide inspection revealed that not all of those airplanes had been modified.

National Aircraft Service, Inc., issued Service Bulletin SB-98-01R1, dated January 26, 1999, which the FAA reviewed and approved. The service bulletin describes procedures to modify the flow control system by rerouting the bleed air ducts to warm the pitot tube lines. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design, this AD is being issued to prevent the pitot lines from freezing, which could result in erroneous or total loss of airspeed indications to the flight crew, and consequent loss of control of the airplane. This AD requires accomplishment of the actions specified in the service bulletin described previously, except as discussed below.

The service bulletin recommends the modification within 500 flight hours after March 1, 1999; this AD requires the modification within 30 days after the effective date of this AD. In light of the urgency of the unsafe condition and the fact that the revised service bulletin has been available to affected operators for nearly two years, the FAA finds that the required compliance time represents an appropriate interval of time allowable for affected airplanes to continue to operate without compromising safety.

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

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket 2001-NM-26-AD.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that is applicable to certain PW JT9D series turbofan engines was published in the Federal Register on March 7, 2000 (65 FR 11940). That action proposed to require initial and repetitive detailed eddy current inspections for cracks in 1st stage HPT disks, and, if necessary, replacement with serviceable parts.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

Two commenters state their support of the notice of proposed rulemaking (NPRM) as written.

One commenter states that the cost incurred due to premature engine removal is not captured in the NPRM economic analysis. This cost would adversely impact operators when an engine must be removed prematurely in order to perform disk inspections. The cost would specifically impact this operator when an engine that is not under its maintenance program is acquired and is inducted into its system.

The FAA does not agree. The NPRM cost analysis is based on the costs of parts and labor to U.S. operators needed to perform the required initial inspections, and is not specific to any particular maintenance system. However, the economic analysis is corrected to clarify that the cost totals are for initial inspection only.

Two commenters state that the NPRM's proposed compliance times are inconsistent with the compliance times referenced in PW Alert Service Bulletins (ASB's) JT9D A6376, dated July 28, 1999 and JT9D-7R4-A72-563, dated July 28, 1999. Specifically, for disks that have had a prior fluorescent penetrant inspection, the NPRM proposed reinspections based on cycles-since-new (CSN) intervals. The ASB's, however, require reinspections based on cycles-in-service (CIS) intervals.

The FAA agrees. The compliance is corrected as follows:

• In the JT9D series engines section, in paragraph (a)(4)(ii) and (a)(4)(iii), the compliance time type is changed from CSN to CIS.

• In the JT9D-7R4 series engines section, in paragraph (b)(4)(ii) and (b)(4)(iii), the compliance time type is changed from CSN to CIS.

One commenter states that under the Applicability section in the NPRM, the reference to Airbus Industrie A300 series aircraft is incorrect, and should read Airbus Industrie A310 series aircraft.

The FAA agrees. The Applicability section is corrected in this amendment.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes described previously. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 330 engines of the affected design in the worldwide fleet. The FAA estimates that 220 engines installed on aircraft of U.S. registry would be affected by this proposed AD, that it would take approximately 4.5 work hours per engine to accomplish the initial inspection, and that the average labor rate is $60 per work hour. Required parts would cost approximately $165,000 per engine. Based on these figures, the total initial inspection cost impact of the proposed AD on U.S. operators is estimated to be $36,359,400.

This rule does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this rule.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

On September 21, 2000, the FAA issued AD 2000-20-02, Amendment 39-11913 (65 FR 58645, October 2, 2000) to require visual inspection of the stage 2 LPT nozzle lock studs, and replacement of the borescope plug with a new design plug. That action was prompted by three uncontained engine failures resulting from stage 2 LPT lock stud failures, nozzle segment rotation, and LPT case machining. That condition, if not corrected, could result in failure of the stage 2 LPT nozzle lock assemblies. Since AD 2000-20-02 was issued, there has been one more uncontained engine failure, on February 4, 2001, that has been attributed to the failure of stage 2 Waspalloy LPT nozzle lock assembly studs. That engine is reported to have been in compliance with AD 2000-20-02, at the time of failure. Because of this report, and because of the recent issuance of three GE service bulletins (SB's), two of which are alert service bulletins (ASB's), the FAA has determined that it is necessary to supersede AD 2000-20-02. The GE SB's provide for

• Stage 2 Waspalloy LPT nozzle lock ultrasonic inspection (previously allowed as an alternative method of compliance (AMOC) to AD 2000-20-02),

• LPT case modification and new nozzle lock incorporation (previously allowed as an AMOC to AD 2000-20-02), and,

• Stage 2 LPT additional nozzle lock incorporation.

The methods for complying with AD 2000-20-02 that were previously approved as AMOCS to that AD have been incorporated into this AD.

This AD incorporates by reference, one SB and one ASB as-written. This AD also incorporates by reference another inspection ASB, but with two exceptions. Because of the recent engine failure, the inspection ASB is incorporated with a reduction in the stage 2 LPT Waspalloy nozzle lock ultrasonic inspection thresholds, but does not include the requirement to inspect the stages 3 and 4 LPT nozzle locks.

The FAA has reviewed and approved the technical contents of the following:

• GE ASB CF6-50 72-A1197, dated December 14, 2000, that describes procedures for on-wing or off-wing initial and repetitive ultrasonic inspections of stage 2 LPT Waspalloy nozzle lock studs for cracks. This ASB also defines initial and repetitive visual inspections of stage 2 LPT Rene nozzle lock studs.

• GE ASB CF6-50 72-A1201, dated December 22, 2000, and CF6-50 72-A1201, Revision 1, dated February 6, 2001, describe procedures for LPT case modification and incorporation of new design nozzle locks. Accomplishment of this ASB constitutes terminating action for the inspection requirements of this AD.

• GE SB CF6-50 72-1203, dated November 22, 2000, and CF6-50 72-1203 Revision 1, dated February 7, 2001, describe procedures for incorporating additional stage 2 LPT nozzle locks when an engine is found to have a reject condition as described in GE ASB CF6-50 72-A1197, dated December 14, 2000, and the required compliance cannot be addressed by an immediate shop visit.

Although GE ASB CF6-50 72-A1197, dated December 14, 2000, requires ultrasonic inspections of stage 2 LPT Waspalloy nozzle lock studs to be done at specified times, the FAA has determined that more stringent initial and repetitive ultrasonic inspection time intervals are required to meet the necessary level of safety, and have incorporated those intervals in this amendment. Also, although that ASB requires the stages 3 and 4 LPT nozzle locks to be inspected, the FAA has determined that an unsafe condition is not likely to occur as a result of a stage 3 or 4 lock stud failure and therefore this AD requires only the stage 2 LPT nozzle locks to be inspected.

Since an unsafe condition has been identified that is likely to exist or develop on other GE CF6-50 series turbofan engines of the same type design, this AD supersedes AD 2000-20-02 to require:

• Installation of the solid borescope plug for engines that have not already complied with paragraph (e) of AD 2000-20-02.

• On-wing or off-wing initial and repetitive ultrasonic inspections of stage 2 Waspalloy LPT nozzle lock assembly studs for cracks.

• On-wing or off-wing initial and repetitive visual inspections of stage 2 LPT nozzle lock assembly studs for loose or missing studs.

• Replacement of all of the stage 2 LPT lock assemblies with new design assemblies before further flight if a cracked, loose, or missing stud is found, OR,

• Incorporation of additional stage 2 LPT nozzle locks if no indications of nozzle rotation are found, as an interim action to allow time to arrange for a shop visit, within 3,500 cycles-in-service.

• Inspection of the area surrounding the borescope plug for evidence of buckling or cracks whenever the nozzle lock studs are inspected.

• Inspection for loose or missing added nozzle locks and LPT case cracking in the areas of the added nozzle locks, every 750 hours time-in-service.

• Replacement of the LPT lock assemblies with new design assemblies before further flight if any LPT case buckling or cracks are found, or if nozzle segment rotation is found.

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

Interested persons were afforded an opportunity to participate in the making of Amendment 39-11913. Due consideration has been given to the comments received.

One commenter requests that the inspection thresholds and intervals be changed to coincide with scheduled aircraft “A-Check” intervals, or the manufacturer's recommended engine repetitive maintenance intervals.

The FAA disagrees. As the commenter stated in their request, the “A-Check” interval can vary from operator to operator. “A-Check” intervals as low as 200 hours to as high as 700 hours have been reported. To provide an equivalent level of safety for all operators, the inspection thresholds and intervals must therefore be defined in this AD.

One commenter requests that the 30 day compliance requirement for the borescope plug installation be extended to 90 days or next “A-Check”, due to limited parts availability.

The FAA disagrees. The manufacturer provided evidence that sufficient parts had been procured and distributed to support the 30 day requirement.

One commenter requests that the word “place” in paragraph (d) of AD 2000-20-02 be changed to read “replace''.

The FAA agrees. A correction was published in the Federal Register on October 16, 2000 (65 FR 61216).

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000NE-38-AD.” The postcard will be date stamped and returned to the commenter.

This final rule does not have federalism implications, as defined in Executive Order No. 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this rule.

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

On January 30, 2001, the FAA issued Emergency AD 2001-03-51 for Sikorsky Model S-76B and S-76C helicopters, which requires, for certain shafts, initial and recurring fluorescent penetrant inspections. Replacing each affected shaft on or before reaching 1,000 hours TIS is also required. That action was prompted by four reports of shaft cracks. This condition, if not corrected, could result in failure of the shaft and subsequent loss of control of the helicopter.

The FAA has reviewed Sikorsky Alert Service Bulletin (ASB) No. 76-66-32A, Revision A, dated January 17, 2001, which specifies identifying main gear box assemblies containing certain shafts, conducting a recurring fluorescent penetrant inspection (FPI), and removing certain main gear box assemblies containing certain shafts.

Since the unsafe condition described is likely to exist or develop on other Sikorsky Model S-76B and S-76C helicopters of the same type designs, the FAA issued Emergency AD 2001-03-51 to prevent failure of the shaft and subsequent loss of control of the helicopter. The AD requires, for certain main rotor shafts, an FPI before further flight and thereafter at intervals not to exceed 20 hours TIS or 80 landings, whichever occurs first. Replacing each affected shaft on or before reaching 1,000 hours TIS is also required. The actions must be accomplished in accordance with the ASB described previously. The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the structural integrity of the helicopter. Therefore, FPI's and removal of each affected shaft are required at the specified time intervals, and this AD must be issued immediately.

Since it was found that immediate corrective action was required, notice and opportunity for prior public comment thereon were impracticable and contrary to the public interest, and good cause existed to make the AD effective immediately by individual letters issued on January 30, 2001, to all known U.S. owners and operators of Sikorsky Model S-76B and S-76C helicopters. These conditions still exist, and the AD is hereby published in the Federal Register as an amendment to 14 CFR 39.13 to make it effective to all persons.

The FAA estimates that 7 helicopters of U.S. registry will be affected by this AD. It will take approximately 4 work hours per helicopter to accomplish each FPI and 5 work hours to replace each shaft. The average labor rate is $60 per work hour. Required parts will cost approximately $25,000 per shaft. Based on these figures, the total cost impact of the AD on U.S. operators is estimated to be $178,780 (assuming 1 FPI per helicopter and 1 shaft replacement on each helicopter). Additional FPI's would cost $240 per inspection and additional shaft replacements would cost $25,300 per helicopter.

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

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

Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2001-SW-01-AD.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

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

The FAA has received several reports indicating that, during routine maintenance, loose primary retention nuts of the midspar fuse pins of the inboard and outboard struts were found on certain Boeing Model 747 series airplanes. One report indicated that the primary retention nut migrated into the secondary retention washer. The cause of these discrepancies was determined to be inadequate run-on torque of the primary retention nut. Such conditions, if not fixed, could result in the loss of secondary retention capabilities of the fuse pins, migration of the fuse pins, reduction of the joint capability of the midspar fittings to carry the design loads, and consequent loss of the strut and engine from the airplane.

The FAA has reviewed and approved Boeing Service Bulletin 747-54A2206, Revision 1, dated February 22, 2001, which describes procedures for repetitive detailed visual inspections to find discrepancies (incorrect thread protrusion, which is less than two threads protruding from the nut between the nut and the secondary retention washer; incorrect gap between the fuse pin primary nut and secondary retention washer; cracked or broken torque stripe) of the installation of the midspar fuse pins of the inboard and outboard struts, and follow-on actions, if necessary.

If the primary nut has backed off and is contacting the secondary retention washer; the follow-on actions include, but are not limited to:

If the primary nut has backed off and is not contacting the secondary retention washer, follow-on actions consist of repeating the inspection of the fuse pin installation at a reduced inspection interval.

The service bulletin also provides for an optional terminating modification which consists of replacement of the primary nut of the midspar fuse pin with a new nut and installation of the torque stripe, a detailed visual inspection of the fuse pin threads for damage, and replacement of the fuse pin, if necessary, Doing these actions ends the repetitive inspections.

This AD is related to AD 95-10-16, amendment 39-9233 (60 FR 27008, May 22, 1995); AD 95-13-05, amendment 39-9285 (60 FR 33333, June 28, 1995); AD 95-13-06, amendment 39-9286 (60 FR 33338, June 28, 1995); AD 95-13-07, amendment 39-9287 (60 FR 33336, June 28, 1995), and AD 99-10-10, amendment 39-11163 (64 FR 25197, May 11, 1999). The replacement of fuse pins in the upper link, midspar fittings, and diagonal brace of the nacelle strut with new corrosion-resistant pins is required by those AD's as part of the modification of the nacelle strut/wing structure for earlier Model 747 series airplanes. The actions required by this AD are to be done if any of the AD's specified above, or the production equivalent, has been accomplished.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, this AD requires accomplishment of the actions specified in the service bulletin described previously.

This is considered to be interim action. The FAA is currently considering requiring the optional terminating modification, which will constitute terminating action for the repetitive inspections required by this AD action. However, the planned compliance time for the installation of the modification is sufficiently long so that notice and opportunity for prior public comment will be practicable.

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

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-01-AD.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

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

PM Ag Products, Inc., 1055 West 175th St., Homewood, IL 60430, has informed FDA that it has transferred ownership of, and all rights and interests in NADA 033-773 for Sweetlix Bloat Guard Block, NADA 109-471 for Staley Sweetlix with Rumensin®, and NADA 136-214 for Enproal Bloat Blox to Sweetlix, LLC, 175 South Main St., suite 150, Salt Lake City, UT 84111. Accordingly, the agency is amending the regulations in 21 CFR 510.600(c)(1) and (c)(2) to reflect the transfer of ownership. The agency is removing the sponsor name for PM Ag Products, Inc., because the firm no longer is the holder of any approved NADA's, and the drug labeler code assigned to PM Ag Products, Inc., is being retained as the drug labeler code for Sweetlix, LLC.

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.

On March 3, 1987, the IRS and Treasury published temporary regulations (TD 8126, 1978-1 C.B. 184) in the Federal Register (52 FR 6428) to provide (among other things) rules for grouping transactions for purposes of applying the FSC transfer pricing rules. A notice of proposed rulemaking (INTL-153-86, 1987-1 C.B. 799) cross-referencing the temporary regulations and inviting comments and requests for a public hearing was published on the same day in the Federal Register (52 FR 6467). Written comments concerning the proposed regulations were received and a public hearing was held.

On March 3, 1998, the IRS and Treasury amended the above temporary regulations by publishing temporary regulations (TD 8764, 1998-1 C.B. 844) in the Federal Register (63 FR 10305) that (among other things) modified the time for filing the election to group transactions for purposes of applying the administrative pricing (including marginal costing) rules to determine FSC transfer prices. A notice of proposed rulemaking (REG-102144-98, 1998-1 C.B. 860) cross-referencing the temporary regulations and notice of public hearing was published on the same day in the Federal Register (63 FR 10351). Written comments concerning the proposed regulations were received and, on June 24, 1998, a public hearing was held.

After consideration of all the comments, certain proposed regulations relating to grouping of transactions for FSC transfer pricing are adopted as revised by this Treasury decision.

Section 927(d)(2)(B) of the Internal Revenue Code provides generally that FSCs and their related suppliers may, to the extent provided in regulations, elect to apply the FSC transfer pricing provisions under section 925 on the basis of groups of transactions based on product lines or recognized industry or trade usage, rather than on a transaction-by-transaction basis. Sections 1.925(a)-1T(c)(8)(i) and 1.925(b)-1T(b)(3)(i) of the temporary regulations permit taxpayers, at their annual choice, to group transactions in applying the administrative pricing (including marginal costing) rules to determine FSC transfer prices. Such grouping elections must be evidenced on a Schedule P of the FSC's timely filed (including extensions) U.S. income tax return for the taxable year. No untimely or amended returns are allowed to make a grouping election, change a grouping basis, or change from a grouping basis to a transaction-by-transaction basis (collectively “grouping redeterminations”).

Section 1.925(a)-1T(c)(8)(i) of the temporary regulations also contains a transition rule that requires grouping redeterminations for any taxable year beginning before January 1, 1998, to be made no later than the due date of the FSC's timely filed (including extensions) U.S. income tax return for the FSC's first taxable year beginning after December 31, 1997 (transition rule).

Conforming changes are reflected in §§ 1.925(a)-1T(e)(4) and 1.925(b)-1T(b)(3)(i) of the temporary regulations.

Commentators requested that the rule limiting grouping elections to timely filed returns be removed to allow taxpayers to maximize FSC benefits and correct grouping errors. Other commentators requested that the time limit for grouping elections be replaced by a case-by-case analysis that would disallow only those grouping redeterminations that are abusive. Commentators also suggested alternative time limits that would allow taxpayers to file amended returns to reflect grouping redeterminations within a specified time limit (for example, one year from the extended due date of the original return). In response to these comments, the Treasury and the IRS have revised the time limits for filing grouping elections under § 1.925(a)-1T(c)(8)(i). Accordingly, these regulations permit grouping redeterminations no later than one year after the due date of the FSC's timely filed (including extensions) U.S. income tax return for taxable years beginning after December 31, 1999. For any taxable year beginning before January 1, 2000, a grouping redetermination may be made no later than the due date of the FSC's timely filed (including extensions) U.S. income tax return for the FSC's first taxable year beginning on or after January 1, 2000.

Commentators also suggested that the transition rule be extended by two or more years to enable taxpayers to assemble data and determine the most advantageous groupings for taxable years beginning before January 1, 1998. In response, the IRS on May 17, 1999, published Notice 99-24 (1999-1 C.B. 1069). Notice 99-24 notified taxpayers that the IRS and Treasury intended to extend by one year the transition rule for such years. These regulations provide a further extension of the transition rule time limit.

These regulations also provide an additional time period for certain taxpayers to make grouping redeterminations notwithstanding the time limits for filing grouping redeterminations otherwise specified in these regulations. In particular, a grouping redetermination may be made at any time during the one-year period commencing upon notification of the related supplier by the Internal Revenue Service of an examination, provided that both the FSC and the related supplier agree to extend their respective statutes of limitations for assessment by one year. The IRS and Treasury anticipate the IRS and taxpayers to plan and conduct examinations in a manner consistent with the foregoing provision so as to facilitate efficient and fair administration of the FSC grouping rules for transfer pricing.

Finally, these regulations provide that the requirements under § 1.925(a)-1T(e)(4) with respect to redeterminations other than grouping also apply to grouping redeterminations.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulation does not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, the temporary regulations and notice of proposed rule-making preceding these regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

The principal author of these regulations is Christopher J. Bello of the Office of the Associate Chief Counsel (International). Other personnel from the IRS and Treasury Department also participated in the development of these regulations.

The final and temporary regulations that are the subject of this correction are under sections 141 and 142 of the Internal Revenue Code.

As published, TD 8941 contains an error which may prove to be misleading and is in need of clarification.

On August 23, 1978, ATF published Treasury Decision ATF-53 (43 FR 37672, 54624). This decision revised the regulations in 27 CFR part 4, Labeling and Advertising of Wine, to allow the establishment of definitive viticultural areas. The regulations allow the name of an approved viticultural area to be used as an appellation of origin in the labeling and advertising of wine.

On October 2, 1979, ATF published Treasury Decision ATF-60 (44 FR 56692) which added a new part 9 to 27 CFR, American Viticultural Areas, for providing the listing of approved American viticultural areas, the names of which may be used as appellations of origin.

Section 4.25a(e)(1), title 27, CFR, defines an American viticultural area as a delimited grape-growing region distinguishable by geographical features. Viticultural features such as soil, climate, elevation, topography, etc., distinguish it from surrounding areas.

Any interested person may petition ATF to establish a grape-growing region as a viticultural area. The petition should include:

• Evidence that the name of the proposed viticultural area is locally and/or nationally known as referring to the area specified in the petition;

• Historical or current evidence that the boundaries of the viticultural area are as specified in the petition;

• Evidence relating to the geographical features (climate, soil, elevation, physical features, etc.) that distinguish the viticultural features of the proposed area from surrounding areas;

• A description of the specific boundaries of the viticultural area, based on features that can be found on United States Geological Survey (U.S.G.S.) maps of the largest applicable scale; and

• A copy of the appropriate U.S.G.S. map(s) with the boundaries prominently marked.

ATF received a petition from Barbara E. Heck proposing to establish a viticultural area in Delta County, Colorado, known as “West Elks.” The area encompasses approximately 75 square miles. Over 84 acres of vineyards are currently planted in West Elks and the area presently boasts eighteen vineyard and/or winery businesses.

In response to the petition, ATF published a notice of proposed rulemaking, Notice No. 904, in the Federal Register on October 16, 2000, (65 FR 61129), proposing the establishment of the West Elks viticultural area. The notice requested comments from interested persons by December 15, 2000.

No comments were received as a result of Notice No. 904.

The West Elks viticultural area takes its name from the West Elk Mountains located just east of the area. Each vineyard in the area has a magnificent view of the West Elk Mountains. The petitioner submitted the following as evidence of name recognition:

• Brochure from the U.S. Department of Agriculture Forest Service indicating that the proposed “West Elks” viticulture area is known as West Elk Wilderness;

• Brochure from the Colorado State Historical Society and Delta County Tourism mapping the West Elk Loop which runs through the proposed “West Elks” viticultural area;

• Delta County Area Map on which the West Elk Mountains are prominently labeled; and

• United States Department of the Interior topographic map on which the West Elk Wilderness and the West Elk Mountains are prominently labeled.

• News article from the Delta County Independent which depicts a 1855 map on which the Elk Mountains are prominently labeled;

• Delta County Historical Society map which also shows the Elk Mountains.

The West Elks viticultural area is located on mesa lands. Its borders are the West Elk Mountains to the east and the higher Grand Mesa to the north. To the south, Crawford and Fruitland Mesa have a higher elevation and the plateau climbs until it reaches the north rim of the Black Canyon of the Gunnison. To the west lie the Adobe Badlands in which very little grows.

• Soil: The soils of the West Elks viticultural area distinguish it from the surrounding areas. The petitioner provided a General Soil Map which indicates that the West Elks viticultural area is comprised mostly of Aqua Fria-Saration soils, which are deep and moderately deep well-drained stony soils that formed in outwash alluvium derived from igneous rock. To the north of the viticultural area, the soils change to Delson-Cerro soils and to the east the soils are Fughes-Bulkley, Absarokee-Beenom and Delson-Cerro. Billings-Gullied land soils are found to the south of the viticultural area.

• Elevation: The boundaries of the West Elks viticultural area are defined by elevation. The far eastern boundary, Juanita Junction, sits at 5942 feet. The eastern line sits mainly at 6200 feet. The southern border of the viticultural area follows section lines of the U.S.G.S. maps that have elevations that range from 5300 to over 5800 feet. The northern border has an elevation range from 6900 to 5900 feet.

The elevations of the areas surrounding the West Elks viticultural area are much higher. Mountains surround the area to the east with elevations reaching 11,000 feet. The Grand Mesa is located to the north of the viticultural area with elevations reaching 10,000 feet at the top. To the south, Crawford and Fruitland Mesa have higher elevations and the plateau climbs until it reaches the north rim of the Black Canyon of the Gunnison. To the west, the Adobe Badlands, on which very little grows, and the Redlands Mesa, which sits above 6200 feet, separate the West Elks viticultural area from Delta, Cedaredge and the Surface Creek areas. The farming area to the east of Delta sits under 5000 feet elevation, which indicates a longer growing season than that of the West Elks viticultural area.

The high elevation of the viticultural area creates a fruit that has tremendous flavor. The area is completely protected and sheltered by lofty mesas and mountain ranges. The elevations of the surrounding areas help protect the viticultural area from severe storms and climatic disturbances, which often injure or destroy fruit.

• Climate: The climate of the West Elks viticultural area is rather mild. With over 300 full sun days a year, grape sugar contents are high. The West Elk Loop Scenic and Historical Byway brochure states “. . . warm days, cool nights, and the so-called Million Dollar Breeze which flows down valley enhance the growing season.” The areas surrounding the West Elks viticultural area are much cooler due to their higher elevation.

It has been determined that this final rule is not a significant regulatory action as defined in Executive Order 12866. Accordingly, this final rule is not subject to the analysis required by this Executive Order.

It is hereby certified that this regulation will not have a significant economic impact on a substantial number of small entities. Any benefit derived from the use of a viticultural area name is the result of the proprietor's own efforts and consumer acceptance of wines from a particular area. No new requirements are imposed. Accordingly, a regulatory flexibility analysis is not required.

The Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this final rule because no requirement to collect information is imposed.

The principal author of this document is Lisa M. Gesser, Regulations Division, Bureau of Alcohol, Tobacco and Firearms.

Title 27, Code of Federal Regulations, Part 9, American Viticultural Areas, is amended as follows:

A notice of proposed rulemaking (NPRM) was not published for this regulation. In keeping with 5 U.S.C. 553(b), the Coast Guard finds that good cause exists for not publishing a NPRM. The Coast Guard received confirmation of the request for special local regulations on January 16, 2001. We were notified of the need for special local regulations with insufficient time to publish a NPRM, allow for comments, and publish a final rule prior to the event.

On March 23 and March 24, 2001, Ports Events, Inc. will sponsor the Crawford Bay Crew Classic. The event will consist of intercollegiate crew rowing teams racing along a 2000 meter course on the waters of the Western Branch of the Elizabeth River. A fleet of spectator vessels is expected to gather near the event site to view the competition. To provide for the safety of participants, spectators and other transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area during the crew races.

The Coast Guard is establishing temporary special local regulations on specified waters of the Western Branch of the Elizabeth River. The temporary special local regulations will be enforced from 11 a.m. to 6 p.m. on March 23, 2001 and from 6:30 a.m. to 6 p.m. on March 24, 2001. The effect will be to restrict general navigation in the regulated area during the event. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area. The Patrol Commander will allow non-participating vessels to transit the regulated area between races. These regulations are needed to control vessel traffic during the event to enhance the safety of participants, spectators and transiting vessels.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979).

We expect the economic impact of this temporary final rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

Although this regulation prevents traffic from transiting a portion of the Western Branch of the Elizabeth River during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers, so mariners can adjust their plans accordingly. Additionally, vessel traffic will be allowed to transit through the regulated area in between races.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in the effected portions of the Western Branch of the Elizabeth River during the event.

Although this regulation prevents traffic from transiting a portion of the Western Branch of the Elizabeth River during the event, the effect of this regulation will not be significant because of the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers, so mariners can adjust their plans accordingly. Additionally, vessel traffic will be allowed to transit through the regulated area in between races.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this temporary rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the address listed under ADDRESSES.

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

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

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

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

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

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

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

We prepared an “Environmental Assessment” in accordance with Commandant Instruction M16475.1C and determined that this rule will not significantly affect the quality of the human environment. The “Environmental Assessment” and “Finding of No Significant Impact” is available in the docket where indicated under ADDRESSES.

The Coast Guard encourages interested persons to participate in this rulemaking by submitting data, views or arguments for or against this rule. Persons submitting comments should include their name, address, identify this rulemaking (CGD09-01-001), the specific section of this rule to which each comment applies, and the reason(s) for each comment. The Coast Guard requests that all comments and attachments be submitted in an 81/2″ × 11″ unbound format suitable for copying and electronic filing. If that is not practical, a second copy of any bound material is requested. Persons wanting acknowledgment of receipt of comments should enclose a stamped, self-addressed postcard or envelope.

The Coast Guard is publishing a direct final rule, the procedures of which are outlined in 33 CFR 1.05-55, because no adverse comments are anticipated. If no adverse comments or any written notice of intent to submit adverse comment are received within the specified comment period, this rule will become effective as stated in the DATES section. In that case, approximately 30 days prior to the effective date, the Coast Guard will publish a notice in the Federal Register stating that no adverse comment was received and announcing confirmation that this rule will become effective as scheduled. However, if the Coast Guard receives written adverse comment or written notice of intent to submit adverse comment, the Coast Guard will publish a notice in the final rule section of the Federal Register to announce withdrawal of all or part of this direct final rule. If adverse comments apply to only part of this rule, and it is possible to remove that part without defeating the purpose of this rule, the Coast Guard may adopt as final those parts of this rule on which no adverse comments were received. The part of this rule that was the subject of adverse comments will be withdrawn. If the Coast Guard decides to proceed with a rulemaking, a separate Notice of Proposed Rulemaking (NPRM) will be published and a new opportunity for comment provided.

A comment is considered “adverse” if the comment explains why this rule would be inappropriate, including a challenge to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change.

The Coast Guard published a final rule on September 22, 1983 (48 FR 43173), which completed a rulemaking to revise the bridge operating regulations for drawbridges on Manitowoc River, Wisconsin. The revised regulation was not included in the re-codified numbering of bridge regulations that occurred on April 24, 1984 (49 FR 17452). Commander, Ninth Coast Guard District, has reviewed the operating schedule adopted in 1983 and evaluated the present conditions of marine traffic and bridge operations in Manitowoc Harbor, WI, and determined that the adopted schedule adequately provides for the reasonable needs of navigation in the harbor. The adopted schedule has been enforced in Manitowoc for the past 17 years without any reported complaints or difficulties.

The Coast Guard has identified a minor change to the final rule of 1983; the Soo Line bridge at mile 0.9 is now owned by the Wisconsin Central railroad company. The bridge is correctly named in this direct final rule.

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

This determination is based on the Coast Guard review of impacts on commerce and marine activities in Manitowoc during the 17 years since the original final rule was published. There have been no reported problems or complaints with the bridge operating schedule.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the Coast Guard must consider the economic impact on small entities of a rule for which a general notice of proposed rulemaking is required. “Small entities” may include (1) small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields and (2) governmental jurisdictions with populations of less than 50,000.

The revised bridge regulations have been employed for approximately seventeen years with no complaints or problems for known small entities.

Therefore, the Coast Guard certifies under 5 U.S.C 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

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

The Coast Guard has analyzed this rule under the principles and criteria contained in Executive Order 13132, and determined that this rule does not have federalism implications under that order.

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

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

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

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

The Coast Guard considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph 34(g) of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation. This rule changes a drawbridge regulation which has been found not to have a significant effect on the environment. A “Categorical Exclusion Determination” is not required.

In the Federal Register of March 13, 2000 (65 FR 13254), we published a proposal to revise the criteria for determining the level of payment for an individual born with spina bifida whose biological father or mother is a Vietnam veteran. The proposed revisions were developed based on VA's review of a sample of adjudicated spina bifida claims to determine the effectiveness of the evaluation criteria and how they were applied, a further review of the medical literature, and suggestions from several veterans service organizations. The proposed evaluation criteria were based on certain medical impairments due to spina bifida and on the disabling effects of those impairments on ordinary day-to-day activities. We also proposed to allow the Director of the Compensation and Pension Service to increase the payment level for an individual with spina bifida who has such impairments as blindness, uncontrolled seizures, or renal failure.

In addition, we proposed to change the references to “child” and “children” to “individual” and “individuals” throughout 38 CFR 3.814 and to define the word “individual” to make it clear that the regulation applies to eligible individuals regardless of age.

We received one comment, which was from the Veterans of Foreign Wars.

Under VA's initial evaluation criteria for individuals with disabilities due to spina bifida, the effects of bowel and bladder impairment were evaluated as follows: Level I if “continent of urine and feces”; Level II if “requires drugs or intermittent catheterization or other mechanical means to maintain proper urinary bladder function, or mechanisms for proper bowel function”; and Level III if “has complete urinary or fecal incontinence.” We proposed that the effects of bowel and bladder impairment be evaluated as follows: Level I if “continent of urine and feces without the use of medication or other means to control incontinence”; Level II if “requires medication or other means to control the effects of urinary bladder impairment and is unable no more than two times per week to remain dry for at least three hours at a time during waking hours; or, requires bowel management techniques or other treatment to control the effects of bowel impairment but does not have fecal leakage severe or frequent enough to require daily wearing of absorbent materials”; and Level III if “despite the use of medication or other means to control the effects of urinary bladder impairment, at least three times per week is unable to remain dry for three hours at a time during waking hours; or, despite bowel management techniques or other treatment to control the effects of bowel impairment, has fecal leakage severe or frequent enough to require daily wearing of absorbent materials; or, regularly requires manual evacuation or digital stimulation to empty the bowel.”

The commenter suggested that we change the Level III requirement for “daily wearing of absorbent materials” to “wearing of absorbent materials on most days” because a requirement for daily wearing of absorbent materials is too stringent, considering that constipation may occur intermittently and absorbent materials not be necessary for a day or two.

On further consideration, we agree that the commenter's suggested change would be an improvement, in view of the fact that when constipation is present, the individual might feel comfortable not wearing absorbent materials for a day or so, although they would ordinarily wear them on most days and be incontinent a substantial part of the time. We have therefore revised the criteria for Level III by changing “daily wearing of absorbent materials” to “wearing of absorbent materials at least four days a week” and revised the Level II criteria accordingly.

The commenter also felt that Level III should be assigned for those who undergo a surgical procedure that permanently alters the structure and/or function of the bowel or bladder, for example, a colostomy, because these surgical alterations and appliances disrupt day-to-day activities as much as the frequent need to wear absorbent materials.

We agree in part with the commenter. There are a number of surgical procedures and appliances that may be used to improve bowel and bladder function. At times they make an individual continent or at least decrease the extent or frequency of incontinence; however, they are not always successful. For example, an artificial bladder sphincter that is implanted for urinary incontinence might result in improved bladder function with diminished incontinence or no incontinence at all, but it might also fail to improve bladder function significantly. When an individual must use appliances or undergo surgical procedures, at least a Level II assignment would be warranted because such use or procedure is akin to the use of medication or other means to control the effects of urinary bladder impairment. If the device or surgery does not restore continence sufficiently, a Level III assignment would be warranted. However, the presence of an appliance or history of a surgical procedure does not necessarily mean an individual will have the extent of functional impairment contemplated by the Level III criteria. If incontinence is diminished by a surgical procedure or appliance, day-to-day functioning should be improved, and a Level III payment would not be warranted. Therefore, no overall change in criteria is needed to assure the assignment of an appropriate payment level to individuals who must wear an appliance or who have undergone a surgical procedure that alters the structure of the bowel or bladder.

In the case of a colostomy, as with other procedures, some individuals are helped more than others. Some become continent of feces with a colostomy and may not need to wear a bag. In this case, the resulting impairment is contemplated by the criteria listed under Level II. Individuals who have a colostomy have required surgery but may not have fecal leakage severe or frequent enough to require wearing of absorbent materials on most days. In fact, they may not need to wear absorbent materials at all. Others with a colostomy remain incontinent and must wear a bag. In our judgment, the need to wear a bag is akin to the Level III criteria, specifically, the need to wear absorbent materials. To assure consistency of evaluations for a relatively common procedure with different possible outcomes, we have added “a colostomy that requires wearing a bag” to the Level III criteria and “a colostomy that does not require wearing a bag” to the Level II criteria. Impairment resulting from other procedures and the use of other appliances can be assessed using the existing criteria to determine whether Level II (which would be the minimum) or Level III is appropriate, according to the extent of urinary or fecal incontinence.

VA appreciates the comment submitted in response to the proposed rule, which is now adopted with the amendments noted above.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

This regulatory amendment has been reviewed by the Office of Management and Budget under the provisions of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993.

The Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. The reason for this certification is that this amendment would not directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

This final rule concerns agency organization, procedure or practice and is not a substantive rule. Accordingly, this final rule is exempt from the notice-and-comment requirements and the delayed effective date provisions of 5 U.S.C. 553.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

This document has been reviewed by the Office of Management and Budget under Executive Order 12866.

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This rule will not affect small businesses. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.

EPA provides notice that, on September 8, 2000, we delegated authority to the State of Colorado to implement and enforce the NSPS of 40 CFR part 60 as in effect on July 1, 1996. EPA also delegated authority to Colorado to implement and enforce the NSPS for hospital/medical/infectious waste incinerators for which construction is commenced after June 20, 1996 in 40 CFR part 60, subpart Ec (as promulgated on September 15, 1997 at 62 FR 48382). In addition, EPA is updating the table in 40 CFR 60.4 regarding the NSPS delegation status for Region VIII States. Last, EPA is updating the EPA Region VIII address and the State of Colorado's address listed in 40 CFR 60.4.

EPA considers these changes to 40 CFR 60.4 to be minor amendments. Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. Because these regulatory changes are minor in nature, EPA has determined that there is good cause for making today's changes to 40 CFR 60.4 final without prior proposal and opportunity for comment. Thus, notice and public procedure are unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).

Sections 110, 111(c)(1) and 301, of the Clean Air Act (Act), as amended, authorize EPA to delegate authority to implement and enforce the NSPS standards set out in 40 CFR part 60.

On June 27, 1997 and December 16, 1998, the State of Colorado submitted requests for delegation of authority for the NSPS in effect as of July 1, 1996 and for 40 CFR part 60, subpart Ec, as promulgated on September 15, 1997 (62 FR 48382). These delegation requests were submitted subsequent to the State revising its adoption of the Federal NSPS by reference in Colorado's Regulation No. 6. With this adoption of the NSPS, the State adopted two new NSPS subparts: hospital/medical/infectious waste incinerators for which construction is commenced after June 20, 1996 (Subpart Ec) and municipal solid waste landfills (Subpart WWW).

EPA granted delegation of authority to the State of Colorado to implement and enforce the NSPS in the following letter dated September 8, 2000:

We publish a table in 40 CFR 60.4 for Region VIII States that identifies, for each State, the NSPS subparts for which EPA has delegated authority to implement. In this document, we update that table to reflect the NSPS subparts delegated to Colorado.

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 notifies the public of our delegation to Colorado and makes minor regulatory amendments. Thus, it 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 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). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 notifies the public of our delegation to the State to implement a Federal standard and makes minor regulatory changes. Thus, the rule 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 State delegation requests, EPA's role is to delegate authority to implement Federal standards, provided that the State meets 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 not grant a delegation request for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a delegation request, to use VCS in place of a State rule 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 Taking” 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. section 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. section 804(2). This rule will be effective April 5, 2001.

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 May 7, 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).)

INFORMATION: The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, cero, cobia, little tunny, dolphin, and, in the Gulf of Mexico only, bluefish) is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

Based on the Councils' recommended total allowable catch and the allocation ratios in the FMP, on February 19, 1998 (63 FR 8353), NMFS implemented a commercial quota of 2.34 million lb (1.06 million kg) for the eastern zone (Florida) of the Gulf migratory group of king mackerel. On April 27, 2000, NMFS divided the Florida west coast subzone of the eastern zone into northern and southern subzones and established a separate quota for the southern Florida west coast subzone of 1,082,250 lb (490,900 kg) (65 FR 16336, March 28, 2000). That quota was further divided into two equal quotas of 541,125 lb (245,450 kg) for vessels in each of two groups fishing with hook-and-line gear and run-around gillnets (50 CFR 622.42(c)(1)(i)(A)(2)(i)).

Under 50 CFR 622.43(a), NMFS is required to close any segment of the king mackerel commercial fishery when its quota has been reached, or is projected to be reached, by filing a notification at the Office of the Federal Register. NMFS has determined that the commercial quota of 541,125 lb (245,450 kg) for Gulf group king mackerel for vessels using hook-and-line gear in the southern Florida west coast subzone was reached on March 1, 2001. Accordingly, the commercial hook-and-line fishery for king mackerel in the southern Florida west coast subzone is closed at 12:01 a.m., local time, March 2, 2001, through June 30, 2001, the end of the fishing year.

The Florida west coast subzone is that part of the eastern zone south and west of 25°20.4′ N. lat. (a line directly east from the Miami-Dade County, FL, boundary). The Florida west coast subzone is further divided into northern and southern subzones. The southern subzone is that part of the Florida west coast subzone that from November 1 through March 31 extends south and west from 25°20.4′ N. lat. to 26°19.8′ N. lat.(a line directly west from the Lee/Collier County, FL, boundary), i.e., the area off Collier and Monroe Counties. From April 1 through October 31, the southern subzone is that part of the Florida west coast subzone which is between 26°19.8′ N. lat. and 25°48′ N. lat.(a line directly west from the Monroe/Collier County, FL, boundary), i.e., the area off Collier County.

NMFS previously determined that the commercial quota for king mackerel from the western zone of the Gulf of Mexico was reached and closed that segment of the fishery on August 26, 2000 (65 FR 52350, August 29, 2000). Subsequently, NMFS determined that the commercial quota for Gulf group king mackerel in the northern Florida west coast subzone was reached and closed that segment of the fishery on November 19, 2000 (65 FR 70317, November 22, 2000). Next, NMFS determined that the commercial quota for Gulf group king mackerel for vessels fishing with run-around gillnets in the southern Florida west coast subzone was reached and closed that segment of the fishery on January 19, 2001 (66 FR 7591, January 24, 2001). Thus, with this closure, all commercial fisheries for Gulf group king mackerel in the EEZ are closed from the U.S./Mexico border through the southern Florida west coast subzone through June 30, 2001.

Except for a person aboard a charter vessel or headboat, during the closure, no person aboard a vessel for which a commercial permit for king mackerel has been issued may fish for Gulf group king mackerel in the EEZ in the closed zones or subzones. A person aboard a vessel that has a valid charter vessel/headboat permit for coastal migratory pelagic fish may continue to retain king mackerel in or from the closed zones or subzones under the bag and possession limits set forth in 50 CFR 622.39(c)(1)(ii) and (c)(2), provided the vessel is operating as a charter vessel or headboat. Note, however, that the bag limit for an operator or crew member of a charter vessel or headboat is zero. A charter vessel or headboat that also has a commercial king mackerel permit is considered to be operating as a charter vessel or headboat when it carries a passenger who pays a fee or when there are more than three persons aboard, including operator and crew.

During the closure, king mackerel from the closed zones or subzones taken in the EEZ, including those harvested under the bag and possession limits, may not be purchased or sold. This prohibition does not apply to trade in king mackerel from the closed zones or subzones that were harvested, landed ashore, and sold prior to the closure and were held in cold storage by a dealer or processor.

This action responds to the best available information recently obtained from the fishery. The closure must be implemented immediately to prevent an overrun of the commercial quota (50 CFR 622.42(c)(1)) of Gulf group king mackerel, given the capacity of the fishing fleet to quickly harvest the quota. Overruns could potentially lead to further overfishing and unnecessary delays in rebuilding this overfished resource. Any delay in implementing this action would be impractical and contradictory to the Magnuson-Stevens Act, the FMP, and the public interest. NMFS finds, for good cause, that the implementation of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is waived.

This action is taken under 50 CFR 622.43(a) and is exempt from review under Executive Order 12866.

The Atlantic shark fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP) is implemented by regulations at 50 CFR part 635.

On May 2, 1997, NMFS was sued by the Southern Offshore Fishing Association (SOFA) and other commercial fishermen and dealers on a regulation that reduced the large coastal shark (LCS) commercial quota by 50 percent to 1,285 metric tons (mt) dressed weight (dw) and established a small coastal shark (SCS) commercial quota of 1,760 mt dw.

In April 1999, in response to new requirements of the Magnuson-Stevens Act, NMFS published the final HMS FMP. The HMS FMP included numerous measures to rebuild or prevent overfishing of Atlantic sharks in commercial and recreational fisheries, including a rebuilding plan for LCS that further reduced commercial quotas and measures to prevent overfishing of SCS. On June 25, 1999, SOFA and commercial fishermen and dealers sued NMFS on the commercial shark measures in the HMS FMP and its implementing regulations.

On June 30, 1999, Judge Steven D. Merryday of the U.S. District Court for the Middle District of Florida enjoined the Atlantic shark commercial quotas and fish-counting methods (including the counting of dead discards and state commercial landings after Federal closures) adopted in the HMS FMP. The injunction ordered that NMFS maintain the commercial shark quotas and fish-counting methods at 1997 levels.

On June 12, 2000, in response to a joint motion, Judge Merryday ordered that NMFS may proceed with implementation and enforcement of the prohibited species provisions adopted in the HMS FMP.

On November 21, 2000, plaintiffs and NMFS reached a settlement agreement that would dismiss both lawsuits and prescribed actions to be taken by both parties. On December 7, 2000, Judge Merryday entered an order approving the settlement agreement. The settlement agreement requires NMFS to re-establish the 1997 commercial LCS quota and catch accounting/monitoring procedures (dead discards and state landings after Federal closure not counted against Federal quotas; no splitting of the LCS commercial quota into ridgeback and non-ridgeback subgroups; no minimum size for ridgeback LCS) pending an independent review of the 1998 LCS stock assessment. The settlement agreement also requires NMFS to re-establish the 1997 SCS commercial quota pending a new SCS stock assessment. Both the independent review of the 1998 LCS stock assessment and a new SCS stock assessment are anticipated to be completed in 2001. NMFS also anticipates conducting a new LCS stock assessment in 2001, which will also be independently reviewed.

NMFS determined that the settlement agreement was appropriate because it will conserve Atlantic sharks while maintaining a sustainable fishery in the long-term; move the management process for Atlantic sharks forward through quality-controlled scientific assessment and appropriate rulemaking; and promote confidence in the management process and its underlying science.

This emergency rule is necessary because, since the court injunction was dissolved per the settlement agreement, the HMS FMP and its implementing regulations are in force. Specifically, without this emergency rule, the reduced LCS and SCS commercial quotas of 816 mt dw and 329 mt dw, respectively, and the catch accounting/monitoring procedures adopted in the HMS FMP would remain in force, inconsistent with the court-approved settlement agreement. This emergency rule will ensure that the regulations in force are consistent with the court-approved settlement agreement.

Pending completion of the independent review of the 1998 LCS stock assessment, this emergency rule establishes the LCS commercial quota at 1,285 mt dw; suspends the regulation on the ridgeback LCS minimum size; suspends the regulation on season-specific quota adjustments for LCS and SCS; and suspends the regulation on counting dead discards and state landings after Federal closures against Federal quotas. Pending completion of a new SCS stock assessment, this emergency rule establishes the SCS commercial quota at 1,760 mt dw. NMFS will ensure that the independent review of the 1998 LCS stock assessment and new stock assessments for LCS and SCS are completed as soon as possible. NMFS will take appropriate action at the earliest practicable date upon completion of these assessments and reviews to ensure the conservation of Atlantic sharks while maintaining a sustainable fishery in the long-term.

These emergency regulations are published under the authority of the Magnuson-Stevens Act. The Assistant Administrator for Fisheries (AA) has determined that these regulations are necessary to ensure that regulations in force are consistent with the court-approved settlement agreement.

NMFS prepared an Environment Assessment for this emergency rule that describes the impact on the human environment and found that no significant impact on the human environment would result. This emergency rule is of limited duration and is the surest and quickest way to conserve Atlantic sharks and ensure the long-term sustainability of shark fisheries. While this action could result in further LCS stock declines in the short-term, NMFS believes that the risks of protracted litigation (potentially several years) and uncertain outcome outweigh these short-term negative ecological impacts.

NMFS also prepared a Regulatory Impact Review for this action which assesses the economic costs and benefits of the action. Because the fishing quotas and catch accounting/ monitoring procedures for the LCS or SCS fisheries, as adopted in the HMS FMP and its implementing regulations, have been thus far enjoined by court order, re-establishing the 1997 management measures for the duration of this emergency rule will not change the short-term economic benefits or costs associated with the fisheries.

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

NMFS issues this emergency rule, effective for 180 days, as authorized by section 305(c) of the Magnuson-Stevens Act. This emergency rule may be extended for an additional 180 days provided the public has had an opportunity to comment on the emergency rule and, at the time of extension, the agency is actively pursuing a plan amendment or proposed regulations to conserve Atlantic sharks on a permanent basis. NMFS will consider public comments on this emergency rule in determining whether to maintain or extend this emergency rule. Responses to comments will be provided if the emergency rule is revoked, modified, or extended. Because no general notice of proposed rulemaking is required to be published in the Federal Register for this emergency rule, the analytical requirements of the Regulatory Flexibility Act do not apply; thus, no Regulatory Flexibility Analysis was prepared.

The AA finds that there is good cause to waive the requirement to provide prior notice and an opportunity for public comment pursuant to authority set forth at 5 U.S.C. 553(b)(B), as such provisions would be contrary to public interest. This emergency rule is necessary to meet the requirements of a court-approved settlement agreement. Further litigation that could further delay implementation of appropriate quotas is contrary to the public interest, because of the concern that LCS stocks would experience further decline during any protracted litigation.

The AA, under 5 U.S.C. 553(d)(3), also finds that there is good cause to waive the 30-day delay in the effective date of this emergency rule, as is normally required, because such delay would be contrary to the public good. The AA finds that this measure is necessary to meet the timely requirements of the court order and to achieve the agency’s goals, as described here. Given NMFS’s ability to communicate rapidly these regulations to fishing interests through the HMS Fax network, NOAA weather radio, press releases, mailing lists, and the HMS Infoline, the AA believes that affected fishermen and other interested persons will have sufficient and timely notice of this action.

The purpose of the Act is to support and encourage the development, implementation, and enforcement of the Commission's ISFMPs to conserve and manage Atlantic coastal fishery resources. Section 806 of the Act specifies that, after notification by the Commission that an Atlantic coastal state is not in compliance with an ISFMP of the Commission, the Secretary must make a finding, no later than 30 days after receipt of the Commission's notification, on: (1) whether the state has failed to carry out its responsibilities to implement and enforce the Commission's ISFMP; and (2) whether the measures that the state has failed to implement and enforce are necessary for the conservation of the fishery in question. In making such a finding, the Act requires the Secretary to give careful consideration to the comments of the Commission, the Atlantic coastal state found out of compliance by the Commission, and the appropriate Regional Fishery Management Councils. If the Secretary finds that the state is not in compliance with the Commission's ISFMP and that the measures the state has failed to implement and enforce are necessary for the conservation of the fishery, the Secretary must declare a moratorium on fishing in that fishery within the waters of the noncomplying state. The Secretary must specify the moratorium's effective date, which may be any date within 6 months after the declaration of the moratorium. NMFS has been delegated this decision-making authority.

On November 6, 2000, the Secretary received a letter from the Commission prepared pursuant to section 806(b) of the Act. The Commission’s letter stated that the State of Rhode Island’s American lobster regulations did not meet the provisions of Amendment 3 to the Commission's ISFMP for American lobster and, therefore, the Commission found the State of Rhode Island out of compliance with the ISFMP.

The Commission adopted Amendment 3 to the ISFMP for American Lobster in December 1997. Under Amendment 3, states are required to implement and enforce the nontrap gear limit of no more than 100 lobsters per day (based on a 24-hour period) up to a maximum of 500 lobsters per trip, for trips 5 days or longer. The Commission found that the State of Rhode Island did not implement and is not enforcing this measure and, therefore, is not in compliance with the ISFMP for American Lobster.

NMFS met with representatives from the State of Rhode Island on December 5, 2000, to receive comments on their compliance status. Rhode Island temporarily reinstated the non-trap gear possession limit by emergency rule on November 29, 2000. Under Rhode Island law, regulations implemented by emergency action expire after 120 days unless replaced by a final rule. Therefore, there is no guarantee that this regulation will remain in effect after the 120-day period. On December 17, 2000, based on a careful analysis of all relevant information, including comments from the State of Rhode Island and the New England and Mid-Atlantic Fishery Management Councils, NMFS determined that the State of Rhode Island is not in compliance with the Commission's ISFMP for American lobster. This determination is based on Rhode Island’s failure to implement and enforce on a permanent basis the nontrap gear limit of no more than 100 lobsters per day (based on a 24-hour period) up to a maximum of 500 lobsters per trip, for trips 5 days or longer as specified in Amendment 3.

On December 17, 2000, NMFS also determined that implementation and enforcement of the nontrap gear limit by Rhode Island is necessary for the conservation of the resource. “Conservation” is defined in ACFCMA as “the restoring, rebuilding, and maintaining of any coastal fishery resource and the marine environment, in order to assure the availability of coastal fishery resources on a long-term basis.” The most recent stock assessment (March 2000) indicates that all three stocks of American lobster are overfished. The stock assessment reveals that the lobster landings are comprised mainly of young lobsters that have just recruited into the fishery and have not had the opportunity to reproduce before being harvested. If states are not required to both implement and enforce mandatory measures of the ISFMP, the ability of the plan to rebuild American lobster stocks by meeting the necessary egg production goals is compromised.

Unless Rhode Island permanently implements and enforces the non-trap limit, non-trap vessels licensed to fish for lobster in Rhode Island state waters will be able to land unlimited numbers of lobsters. Uncontrolled harvest of lobster taken by non-trap gear is expected to result in elevated landings beyond historical levels, thereby resulting in higher fishing mortality, counter to ISFMP objectives to end overfishing of American lobster. Therefore, Rhode Island’s implementation of the non-trap gear landing limit specified in Amendment 3 is necessary to allow the Commission to assure the sustainability of the fishery and long-term viability of the American lobster resource.

On December 18, 2000, NMFS notified the State of Rhode Island that it was not in compliance with Amendment 3 to the Commission’s ISFMP for American lobsters, and that the measure Rhode Island failed to implement and enforce is necessary for the conservation of American lobsters. NMFS also indicated that it required further time to analyze the timing and impacts of the moratorium’s implementation before declaring a moratorium, as required by law. The Act allows the effective date of the moratorium to be delayed for up to 6 months from the date on which the moratorium is declared. NMFS completed an Environmental Assessment and Regulatory Impact Review (EA/RIR), which analyze the impacts of various alternatives for the implementation of a moratorium. After a thorough review of the EA/RIR, NMFS is hereby declaring, pursuant to subsection 806(c) of the Act, a Federal moratorium on fishing for American lobsters in Rhode Island waters. Since Rhode Island has temporarily reinstated the non-trap gear possession limit by emergency rule on November 29, 2000, which will be in effect until March 28, 2001, NMFS is delaying implementation of the moratorium until May 1, 2001. If the State of Rhode Island is not in compliance with Amendment 3 to the ISFMP for American lobster by that date, a moratorium on fishing for American lobster in Rhode Island state waters will go into effect. If NMFS determines that the State of Rhode Island has complied with Amendment 3 to the ISFMP by May 1, 2000, NMFS will issue an appropriate announcement in the Federal Register rescinding the moratorium with respect to the State of Rhode Island. Delaying the effective date of the moratorium until May 1, 2001, will allow Rhode Island time to complete its legislative process to issue permanent regulations implementing the non-trap limit, and will provide the Commission time to review the new regulations for compliance. The delay will not significantly diminish American lobster conservation efforts because the state has implemented the non-trap possession limit as a temporary measure effective until March 28, 2001. The delay will not significantly impact the American lobster resource for several reasons. As indicated in the March 2000 lobster stock assessment, migrating lobsters move offshore in the fall and winter and inshore during the spring and summer. While lobsters are in inshore waters in April, generally they are inactive due to a variety of factors, such as water temperature and burrowing activity; therefore, they are less likely to be caught. Furthermore, those present in inshore waters are likely to be below the minimum legal size and cannot be retained. Total landings of lobsters for the month of April 1999, in Rhode Island State waters accounted for 2.3 percent of the state’s total lobster harvest, equivalent to approximately 54,000 lbs (22.5 metric tons). In comparison, monthly landings from Rhode Island State waters from May 1 through December 31 averaged about 260,000 lbs (117.9 metric tons).

If the moratorium goes into effect, NMFS will terminate it as soon as possible upon determination that the State has taken appropriate remedial actions to bring it into compliance with the the Commission’s ISFMP for American lobster

The moratorium on fishing for American lobster includes the statutory prohibitions listed in subsection 806(e) of the Act (16 U.S.C. 5106(e)). Subsection 806(e) states: “During the time in which a moratorium under this section is in effect, it is unlawful for any person to - (1) violate the terms of the moratorium or of any implementing regulation issued under subsection 806(d) of this section; (2) engage in fishing for any species of fish to which the moratorium applies within the waters of the State subject to the moratorium; (3) land, attempt to land, or possess fish that are caught, taken, or harvested in violation of the moratorium or of any implementing regulation issued under subsection (d) of this section; (4) fail to return to the water immediately, with a minimum of injury, any fish to which the moratorium applies that are taken incidental to fishing for species other than those to which the moratorium applies, except as provided by regulations issued under subsection (d) of this section; (5) refuse to permit any officer authorized to enforce the provisions of this chapter to board a fishing vessel subject to such person’s control for purposes of conducting any search or inspection in connection with the enforcement of this chapter; (6) forcibly assault, resist, oppose, impede, intimidate, or interfere with any such authorized officer in the conduct of any search or inspection under this chapter; (7) resist a lawful arrest for any act prohibited by this section; (8) ship, transport, offer for sale, sell, purchase, import, or have custody, control or possession of, any fish taken or retained in violation of this chapter; or (9) interfere with, delay, or prevent, by any means, the apprehension or arrest of another person, knowing that such person has committed any act prohibited by this section.”

This declaration of a moratorium and rule are consistent with section 806 of the Atlantic Coastal Fisheries Cooperative Management Act.

The Assistant Administrator for Fisheries, NOAA (AA), finds that providing prior public notice and opportunity for comment is impracticable and unnecessary. Providing prior notice and opportunity for comment would be impracticable, because it would prevent the agency from executing its functions under section 806 of the Act in a timely manner. Section 806 contemplates quick action on the declaration of a moratorium that would not be possible if prior notice and an opportunity for comment are provided. Furthermore, providing prior notice and opportunity for comment would be unnecessary because it would serve no purpose. The nature of a moratorium is described in section 806 of the Act and, therefore, cannot be modified in response to public comments. Therefore, the AA, under 5 U.S.C. 553(b)(B), finds that good cause exists to waive the requirement of prior notice and opportunity for comment.

Because prior notice and opportunity for public comment are not required for this action by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.

The Act does not explicitly preempt state law. Rather, section 806 of the Act provides clear evidence that Congress intended the Secretary to have the authority to preempt state law. That authority has been delegated from the Secretary to NMFS. NMFS has met the special requirements for preemption under section 4 of Executive Order 13132. The agency, in declaring a moratorium on fishing for American lobsters in Rhode Island state waters has restricted the preemption of state law to the minimum level necessary to achieve the objectives of the statute.

NMFS notified the Governor of Rhode Island on November 13, 2000, of the Commission’s non-compliance determination, and the possibility that a moratorium may be declared, and offering him an opportunity to meet and present comments on these issues. In response, Rhode Island requested a meeting with NMFS representatives. This meeting occurred on December 5, 2000.

Rhode Island was found out of compliance because on June 6, 2000, Part 15.18 to the Rhode Island Marine Fisheries Statutes and Regulations was repealed by the Rhode Island Marine Fisheries Council. This section imposed a possession limit on the number of lobsters that could be harvested by commercial vessels using methods other than pots or traps. As a result of the repeal of this section, effective June 29, 2000, vessels permitted by the State of Rhode Island to harvest lobster by a method other than traps may land an unlimited number of lobsters. Consequently, the State of Rhode Island has failed to implement and enforce the required possession limit of 100 lobsters per day/500 lobsters per trip for non-trap gear as mandated in the ISFMP for American lobster.

Rhode Island representatives stated that the non-trap possession limit was temporarily reinstated by Rhode Island’s Director of the Department of Environmental Management (DEM) by emergency action on November 29, 2000. In issuing the emergency action, the Director stated that “...imminent peril exists to the public health, safety and welfare which requires the adoption of the [non-trap gear lobster possession limit] prior to notice of promulgation and opportunity for public comment. Specifically, I find that without the adoption of the attached regulation, the welfare of a significant portion of the state’s commercial fishing industry and their families, which rely upon American lobster, would be jeopardized.” The Director further states in the emergency adoption of the regulations,”... Failure to take action at this time would negatively affect the numerous commercial fishing vessels, which rely on American lobster and not allow for the orderly development of the fishery.” Rhode Island’s Administrative Procedures Act allows measures implemented by emergency action to be effective for a period of 120 days; accordingly, the state’s emergency measures will expire March 28, 2001. Rhode Island had informed both NMFS and the Commission’s Lobster Management Board (Board) of this emergency action at the Board’s meeting on November 30.

Rhode Island representatives also stated that they did not agree with the need for a non-trap gear lobster possession limit, and that implementation of the emergency action should not be viewed as implicit agreement with the need for the non-trap regulations by Rhode Island. Further, NMFS was told that the Rhode Island Marine Fisheries Council will hold a hearing on the matter in February to garner public comments, and will decide then whether to continue the emergency rule or let it expire. Therefore, there is no guarantee that this regulation will remain in effect after the 120 day period. Rhode Island intends to ask its congressional delegation to meet with NMFS officials in the near future to further discuss this issue.

On December 18, 2000, the AA wrote to the Governor of Rhode Island notifying him that NMFS completed its independent review and concurred with the Commission’s findings that Rhode Island was out of compliance, and that the measure Rhode Island failed to implement and enforce is necessary for the conservation of the American lobster fishery. NMFS indicated that it required further time to analyze the timing and impacts of the moratorium’s before issuing a declaration of a moratorium, as required by law. The Act allows the effective date of the moratorium to be delayed for up to 6 months from the date on which the moratorium is declared.

In a subsequent letter to the AA, the Executive Director of the Commission indicated that although the State of Rhode Island was making an effort to come into compliance by temporarily reinstating the measure, the state will not be in full compliance until the non-trap measure is permanently reinstated. Consequently, the Executive Director recommended delaying any potential moratorium “to allow the state to complete its regulatory process.”

In response to Rhode Island’s comments received during the December 5, 2000, meeting and a subsequent request by the Commission to delay the moratorium to allow Rhode Island time to complete its regulatory process, NMFS, pursuant to section 806(c) of the Act, declares a Federal moratorium on fishing for American lobsters in Rhode Island state waters effective May 1, 2001. If Rhode Island is found in compliance with the Commission’s ISFMP for American lobster before that date, the moratorium will be withdrawn. The delay until May 1 will allow Rhode Island time to complete its legislative process to issue permanent regulations implementing the non-trap limit, and will provide the Commission time to review the new regulations for compliance.

This declaration of moratorium has been determined to be significant for purposes of Executive Order 12866.