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

This supplemental information section is organized as follows:

On December 21, 2000, President Clinton signed into law the Legal Immigration Family Equity Act (LIFE Act), Title XI of H.R. 5548, enacted by reference in Public Law 106-553 (Dec. 21, 2000), and the LIFE Act Amendments, Title XV of H.R. 5666, enacted by reference in Public Law 106-554 (Dec. 21, 2000), which provides for numerous different immigration benefits. Section 1104 of the LIFE Act and its Amendments (LIFE Legalization) allow certain eligible aliens to apply for adjustment of status to that of a lawful permanent resident (LPR) under a modified version of section 245A of the Immigration and Nationality Act (Act) (8 U.S.C. 1255a). Aliens who are eligible to apply for adjustment under LIFE Legalization are only those who, before October 1, 2000, had filed with the Attorney General a written claim for class membership in the CSS , LULAC , or Zambrano legalization class action lawsuits. In order to qualify for adjustment, aliens must establish that they entered the United States before January 1, 1982, and thereafter resided in continuous unlawful status through May 4, 1988. Aliens must also establish that they were continuously physically present in the United States from November 6, 1986, through May 4, 1988. Furthermore, aliens must demonstrate basic citizenship skills. Finally, aliens must be otherwise admissible to the United States under the Act. LIFE Legalization also provides for a stay of removal or deportation and work authorization for eligible aliens under this law while their adjustment applications are pending.

Section 1504 of the LIFE Act Amendments provides that the Attorney General may not remove certain spouses and children of aliens eligible to adjust under LIFE Legalization and shall grant employment authorization to those eligible spouses and children for the period of time in which they have been afforded Family Unity protection. The exact scope of the Family Unity provisions of the LIFE Act Amendments is discussed later in this interim rule.

On November 6, 1986, President Reagan signed into law the Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603. Section 201 of IRCA created a “legalization” program under section 245A of the Act, that allowed for certain aliens to apply for adjustment to temporary resident status, and later to LPR status. To be eligible, an alien needed to establish that he or she entered the United States before January 1, 1982, and that he or she resided continuously in the United States in an unlawful status since such date through the date that his or her application for temporary resident status was filed. Aliens who entered the United States without inspection and certain nonimmigrants were eligible to apply under the IRCA. The legalization program had a 1-year application period that began on May 5, 1987, and ended on May 4, 1988.

LIFE Legalization made several notable modifications to section 245A of the Act (8 U.S.C. 1255a). First, aliens who applied for legalization benefits under IRCA first needed to apply for adjustment to lawful temporary resident status. Subsequent to this adjustment, these aliens were required to apply for adjustment to LPR status. In contrast, those eligible aliens applying for adjustment of status under LIFE Legalization will be submitting applications to adjust to LPR status directly. There is no provision or requirement for first adjusting to lawful temporary resident status.

Second, sections 245A (c)(1) through (c)(4) of the Act allowed for qualified designated entities (QDEs) to forward applications for adjustment of status under section 245A of the Act to the Immigration and Naturalization Service (Service), provided the alien had consented to such action. The LIFE Legalization provisions have no such QDE provision. Accordingly, all applications for adjustment of status under LIFE Legalization must be filed by the alien, or by his or her representative, directly to the Service.

Third, section 245A(c)(7) of the Act provided for the allocation of up to $3 million of the application fees for section 245A of the Act to immigration-related unfair employment practices programs. The LIFE Legalization provisions specifically prohibit the use of any funds collected through this program to be used in such a manner.

Fourth, section 245A(f)(4)(C) of the Act prohibited any court from having jurisdiction over any cause or action or claim by, or on behalf of, any person asserting an interest under section 245A of the Act unless that person had actually filed or attempted to file an application under section 245A of the Act. This section does not apply to an alien eligible for adjustment under LIFE Legalization, effective November 6, 1986.

Fifth, section 245A(h) of the Act provided a 5-year prohibition on newly legalized aliens from receiving certain public welfare assistance. The LIFE Legalization provisions specifically state that section 245A(h) does not apply to those aliens who adjust to LPR status under LIFE Legalization. Although aliens who have adjusted their status under the LIFE Legalization provisions are exempt from the bar on public assistance under Section 245A(h), they remain subject to the restrictions on access to benefits set forth in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Welfare Reform Act), as amended (Public Law 104-193, 110 Stat. 2105). The Welfare Reform Act, as amended, establishes restrictions on access to federal, state, and local public benefits by aliens, including lawful permanent residents. 8 U.S.C. 1601 through 1625. Aliens who adjust to permanent residency under LIFE Legalization are encouraged to contact the relevant benefit-granting agency for information about their eligibility for specific public benefit programs. See also, Notice, Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 62 FR 61344; Notice, Personal Responsibility and Work Opportunity Reconciliation Act of 1996; Interpretation of “Federal Public Benefit,” 63 FR 41658.

Sixth, LIFE Legalization provides for the same confidentiality provisions as the IRCA, with the exception that information furnished by an eligible alien pursuant to any applications filed under LIFE Legalization may be used by the Attorney General for purposes of rescinding LPR status pursuant to 8 CFR part 246.

In many other respects the provisions of LIFE Legalization are identical to those contained in section 245A of the Act. Accordingly, where applicable, much of the regulatory language contained in this interim rule is taken from 8 CFR 245a.3 (Application for adjustment from temporary to permanent resident status).

The three class action lawsuits listed in LIFE Legalization involved claims by aliens who were unsuccessful in applying for legalization under section 245A of the Act enacted in 1986. The aliens in CSS, LULAC, and Zambrano argued that either their claims were denied or that they were discouraged from applying.

First, an alien must prove that he or she, before October 1, 2000, filed a written claim with the Attorney General for class membership in the CSS, LULAC, or Zambrano legalization class action lawsuits in order to be considered an eligible alien for adjustment to LPR status under LIFE Legalization. Applicants who were denied class membership in the CSS, LULAC, or Zambrano legalization class action lawsuits by the Service are still eligible to apply for adjustment of status under LIFE Legalization.

Second, an eligible alien must then submit evidence to establish the following five requirements—that he or she:

1. Properly files an application for adjustment under LIFE Legalization;

2. Entered the United States before January 1, 1982, and resided continuously in the United States in an unlawful status since that date through May 4, 1988;

3. Was continuously physically present in the United States during the period from November 6, 1986, through May 4, 1988;

4. Is not inadmissible to the United States for permanent residence under any provisions of the Act; and

5. Establishes basic citizenship skills as required.

As under IRCA, LIFE Legalization specifies that any otherwise eligible alien who has ever been convicted of a felony or of three or more misdemeanors in the United States is ineligible to adjust status under LIFE Legalization. Further, any alien who has ever assisted in the persecution of any person or persons on account of race, religion, nationality, membership in a particular social group, or political opinion is ineligible to adjust status under LIFE Legalization. There are no waivers available for the grounds of ineligibility described in this paragraph.

The LIFE Legalization provisions further specify that section 241(a)(5) of the Act (8 U.S.C. 1231(a)(5)) does not apply to an alien adjusting under LIFE Legalization. Section 241(a)(5) of the Act provides for the reinstatement of a removal order against any alien who illegally re-enters the United States after having been removed or after having departed voluntarily under an order of removal. It also bars any alien whose removal order has been reinstated from receiving any relief under the Act.

All aliens must establish that they are admissible under section 212(a) of the Act (8 U.S.C. 1182(a)). Sections 212(a)(5) (labor certification requirements) and 212(a)(7)(A) (documentation requirements for immigrants) are not applicable to LIFE Legalization applicants. Any alien who is inadmissible under other provisions of section 212(a) of the Act is not eligible for adjustment to LPR status under section 245A of the Act (8 U.S.C. 1255a). A waiver for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest is available for some, but not all, grounds of inadmissibility. In addition, the LIFE Legalization provisions also allow for waivers for those aliens inadmissible pursuant to sections 212(a)(9)(A) and 212(a)(9)(C) of the Act (aliens previously removed and aliens unlawfully present after previous immigration violations). The following grounds of inadmissibility under section 212(a) of the Act, however, may not be waived:

1. Sections 212(a)(2)(A) and (B) of the Act, crimes involving moral turpitude and controlled substances;

2. Section 212(a)(2)(C) of the Act, controlled substance traffickers;

3. Section 212(a)(3) of the Act, security and related grounds; and

4. Section 212(a)(4) of the Act, aliens likely to become a public charge.

In determining whether the alien is likely to become a public charge, and would therefore be inadmissible under section 212(a)(4) of the Act, there is a Special Rule that is discussed in this interim rule at 8 CFR 245a.18(d). In short, the Special Rule allows the Service to look at an alien's employment history when determining whether he or she is likely to become a public charge.

Yes, an alien who has a proceeding pending before the Immigration Court or the Board, or who has a motion to reopen or a motion to reconsider filed with the Immigration Court or the Board, may still file an application for LIFE Legalization adjustment of status with the Service. However, the alien must also request that the Immigration Court or the Board, whichever has jurisdiction, administratively close proceedings, or indefinitely continue any pending motion to reopen or reconsider in order to allow the alien to proceed with a LIFE Legalization application. In the request to administratively close the matter or indefinitely continue the motion, the alien must include documents establishing prima facie eligibility for relief, and proof that the LIFE Legalization application has already been filed with the Service. The Service must consent before the matter is administratively closed.

Jurisdiction over LIFE Legalization applicants lies only with the Service. Thus, an eligible alien who is the subject of a final order of exclusion, deportation, or removal may file such application with the Service. The filing of a LIFE Legalization adjustment application during the application period stays the execution of any final order of exclusion, deportation, or removal. This stay shall remain in effect unless the district director who seeks to execute the order makes a final determination that the application does not present a prima facie claim to LIFE Legalization eligibility on certain criminal grounds and serves the applicant with a written decision explaining the reason for this determination.

An alien must file Form I-485, Application to Register Permanent Residence or Adjust Status, during the 1-year application period beginning June 1, 2001, and ending May 31, 2002, along with all required documentary evidence and appropriate fee(s). An additional instruction form, Supplement D, LIFE Legalization Supplement to Form I-485 Instructions, will assist applicants with the application process.

LIFE Legalization authorizes the Attorney General to provide a 1-year application period for LIFE Legalization applicants to file for adjustment. The application period begins on June 1, 2001, and ends on May 31, 2002. Pursuant to existing regulations at 8 CFR 103.2(a)(7), applications filed with the Service are considered to be “received” on the date of actual receipt in a Service office.

Because of the particular nature of the LIFE Legalization program, and the high anticipated volume of applications by the deadline date, the Service is making a special exception to the requirements at 8 CFR 103.2(a)(7). For purposes of LIFE Legalization only, the Service will implement a postmark rule that is patterned directly on the Internal Revenue Service (IRS) regulations at 26 CFR 301.7502-1. The IRS rules provide an established set of standards for determining the timeliness of mail, whether mailed from within the United States or from abroad. Any LIFE Legalization application that is postmarked by the United States Post Office on or before the deadline date will be considered to be timely filed, regardless of the date it is actually received by the Service. In the case where a postmark is illegible or missing, the Service will consider the application to be timely filed if it is received by June 3, 2002, if the application was mailed from within the United States, or by June 14, 2002, if the application was mailed from abroad. Applications that are postmarked after May 31, 2002, will be untimely and will be denied. To avoid the risk that an application may be postmarked after May 31, 2002, applicants within the United States might consider sending applications via United States registered or certified mail.

All applications for adjustment of status under LIFE Legalization must be submitted by mail to: United States Immigration and Naturalization Service, Post Office Box 7219, Chicago, IL 60607-7219. Applications may not be submitted to any other Service location.

Yes, an applicant for LIFE Legalization may apply for adjustment of status from outside the United States. An applicant filing for LIFE Legalization from abroad must mail an application along with all required documentary evidence and appropriate fee(s) to: United States Immigration and Naturalization Service, Post Office Box 7219, Chicago, IL 60607-7219. Applications may not be submitted to any consular post. As with domestic applicants, the Service is making a special exception to the requirements at 8 CFR 103.2(a)(7). Any LIFE Legalization application that is postmarked on or before May 31, 2002, will be considered to be timely filed, regardless of the date it is actually received by the Service. In the case where a postmark is illegible or missing, and the application was mailed from abroad, the Service will consider the application to be timely filed if it is received by June 14, 2002. Applications that are postmarked after May 31, 2002, or applications that have illegible or no postmarks and are received after June 14, 2002, will be untimely and will be denied. If an application has both a foreign postmark and a postmark subsequently made by the United States Post Office, the Service will disregard the postmark made by the United States Post Office. The Service will then consider the foreign postmark when determining the timeliness of the filing of the application. LIFE Legalization provisions do not provide applicants outside the United States with a means to enter the United States in order to apply for adjustment under LIFE Legalization. Upon review of applications from abroad, the Service will notify applicants of any further evidence required and/or what further steps need to be taken.

In all cases, any doubts as to the existence, authenticity, veracity, or accuracy of the documentation shall be resolved by the official Government record, with Service records having precedence over the records of other agencies. Furthermore, adjudications will be made according to the weight of the evidence. It shall be the responsibility of the applicant to obtain and submit copies of the records of any other Government agency that the applicant desires to be considered in support of his or her application.

Each applicant for LIFE Legalization adjustment of status benefits must file a separate Form I-485, accompanied by the required application fee(s) and supporting documents. As discussed later, applicants are encouraged to file applications for employment authorization and advance parole, if desired, with their Form I-485. Applicants should complete Part 2 (Application Type) of Form I-485 by checking box “h—other” and writing “LIFE Legalization” next to that block. Each application must be accompanied by:

1. Application fee;

2. Fingerprinting fee;

3. Proof of identity;

4. A completed Form G-325A, Biographic Information Sheet, if the applicant is between the age of 14 and 79;

5. A report of medical examination;

6. Two photographs as described in the Form I-485 instructions;

7. Evidence as described in 8 CFR 245a.14 to establish that before October 1, 2000, the alien filed with the Attorney General a written claim for class membership in the CSS, LULAC, or Zambrano lawsuit;

8. Evidence as described in 8 CFR 245a.15 to prove continuous residence in an unlawful status since prior to January 1, 1982, through May 4, 1988, in the United States;

9. Evidence as described in 8 CFR 245a.16 to prove continuous physical presence between November 6, 1986, and May 4, 1988, in the United States; and

10. Evidence as described in 8 CFR 245a.17 to establish the applicant's citizenship skills.

It is noted that LIFE Legalization specifies that any alien who is a male who is at least 18 years of age, but not yet 26 years of age is required to register under the Military Selective Service Act. 50 U.S.C. 453(a). Once a Form I-485 has been accepted by the Service, any LIFE Legalization applicant required to register under the Military Selective Service Act will have his name, current address, Social Security number, date of birth, and the date the Form I-485 was filed forwarded to the Selective Service System. If the LIFE Legalization applicant has already registered with the Selective Service System, the Selective Service will check its records to avoid any duplication.

Yes, unless the applicant is under 14 years of age or over 75 years of age. Upon receipt of the application, the Service will instruct the applicant regarding procedures for obtaining fingerprints through one of the Service's Application Support Centers (ASCs) or authorized Designated Law Enforcement Agencies (DLEAs) chosen specifically for that purpose. Those instructions will direct the applicant to the ASC or DLEA nearest the applicant's home and advise the applicant of the date(s) and time(s) fingerprinting services may be obtained. Applicants should not submit fingerprint cards as part of the initial filing. If the applicant must be fingerprinted, he or she must submit the fee of $25 to cover fingerprinting costs at the time the Form I-485 is filed.

Yes, those aliens applying for adjustment of status under LIFE Legalization will be required to pay an application fee of $330. The Service recognizes that this is a higher fee than the current Form I-485 application fee; however, the provisions of section 245A of the Act allowed for the Service to provide for a schedule of fees to be charged for the filing of applications under section 245A of the Act. 8 U.S.C. 1255a(c)(7). Moreover, section 245A(g)(3) of the Act, which was not modified by LIFE Legalization, provides that regulations issued pursuant to section 245A of the Act may be prescribed to take effect on an interim final basis if the Attorney General determines, as is the case here, that it is necessary in order to implement that section in a timely manner. As will be discussed later in this interim rule, the Service determined that $330 represents the full cost of processing the Form I-485 for LIFE Legalization.

In accordance with 8 CFR 103.2(a)(2), an application may be signed by a parent or legal guardian if the applicant is under 14 years of age, and by a legal guardian if the applicant is mentally incompetent. However, an applicant who is under age 14 is not precluded from signing the application if he or she is capable of understanding the significance of the attestation.

Until a final determination is made on their application, eligible aliens in the United States who present a prima facie application for adjustment to LPR status under LIFE Legalization:

1. May not be deported or removed from the United States;

2. Are entitled to employment authorization; and

3. In accordance with procedures set forth in these regulations, may return to the United States following brief, casual, and innocent trips abroad.

For these reasons, all LIFE Legalization applicants who are in the United States, and who desire to work and/or travel abroad, are encouraged to submit a Form I-765, Application for Employment Authorization, and a Form I-131, Application for Travel Document, with appropriate fees, at the time the Form I-485 is submitted.

Yes, an alien who establishes a prima facie claim for LIFE Legalization will be granted employment authorization. In determining a prima facie claim, the Service will verify that the applicant applied for class membership in the CSS, LULAC, or Zambrano lawsuit before October 1, 2000, and that the applicant presents, on the face of the application package, all of the eligibility requirements. An applicant for adjustment is able to apply for, and be granted, an extension of any such employment authorization if he or she remains eligible. An applicant for adjustment of status under LIFE Legalization who wishes to obtain initial employment authorization, or employment authorization renewals, during the pendency of the adjustment of status application, may file a Form I-765 with the Service. Further, if the applicant has already received employment authorization under any other provision of the Act, that employment authorization will not be affected by the filing of an application for adjustment of status under LIFE Legalization.

LIFE Legalization applicants wishing to travel outside the United States while their adjustment applications are pending should apply for “advance parole” on Form I-131, Application for Travel Document. The Form I-131 must be mailed to: United States Immigration and Naturalization Service, Post Office Box 7219, Chicago, IL 60607-7219. If an alien travels abroad and returns to the United States with a grant of advance parole, the Service will presume that the alien is entitled to return to the United States. Further, a LIFE Legalization applicant who departs the United States will not be subject to the provisions of section 212(a)(9)(B) of the Act (8 U.S.C. 1182(a)(9)(B)) (aliens unlawfully present in the United States who seek to reenter the United States). A LIFE Legalization applicant returning to the United States from travel abroad without a grant of advance parole may be subject to removal proceedings and may have to process or/and await his or her adjustment application from outside the United States. This is discussed in the regulations at 8 CFR 245a.13(a)(3), (e)(2), and (e)(3) in this interim rule.

Aliens who had applied for class membership in CSS, LULAC, or Zambrano before October 1, 2000, were required to submit various forms of written applications for class membership to the Service including, but not limited to, a Form I-687, Application for Status as a Temporary Resident—Applicants under Section 245A of the Immigration and Nationality Act, as amended, a “Questionnaire for class member applicants,” and supporting documentation. The Service reviewed the application and evidence submitted, and made a determination on whether the alien qualified for class membership. A written notification was then sent to the alien, and/or his or her representative, informing them of the Service's decision. If the alien was determined to be a class member under CSS, LULAC, or Zambrano, the alien was entitled to employment authorization.

An alien filing a LIFE Legalization application should submit as many of the documents involved in the process previously described as necessary to establish that he or she had applied for class membership in the CSS, LULAC, or Zambrano lawsuit before October 1, 2000. These documents should, at a minimum, include the alien's full name, A-number, and date(s). The following documents, for example, may be submitted:

1. Employment authorization document (EAD) based on the class membership;

2. Service notification granting or denying the class membership;

3. Questionnaire for class member applicants in CSS, LULAC, or Zambrano;

4. Service document(s) pursuant to the class membership application (e.g., Parole Authorization, or denial of such, Order to Show Cause, Notice to Appear, Final Order of Removal, Request for Evidence (RFE), or Form I-687 submitted with the class membership application); or

5. Any other relevant documents.

The Service will check its databases and files to verify the alien's claim. If it can be verified that the alien had in fact applied for class membership, the Service will notify him or her of its determination and grant employment authorization (if applied for by the alien).

As required by IRCA and again of LIFE Legalization applicants, the applicant must provide evidence that he or she entered the United States before January 1, 1982, either as a nonimmigrant or without inspection. Under LIFE Legalization, the applicant must also provide evidence that he or she thereafter resided in continuous unlawful status through May 4, 1988. An eligible alien who entered the United States as a nonimmigrant before January 1, 1982, must establish that:

1. His or her authorized period of admission as a nonimmigrant expired before January 1, 1982, through the passage of time and that he or she resided continuously in the United States in an unlawful status since that date through May 4, 1988; or

2. His or her unlawful status was known to the Government before January 1, 1982, and that he or she resided continuously in the United States in an unlawful status since that date through May 4, 1988.

Known to the Government means that, prior to January 1, 1982, documents existed in one or more Federal Government agencies' files such that when such documentation is taken as a whole, it warrants a finding that the alien's status in the United States was unlawful. See Mater of P-, 19 I&N Dec. 823 (Comm. 1988). Further, any absence of mandatory annual and/or quarterly registration reports from Federal Government files does not warrant a finding that the alien's unlawful status was “known to the Government.” See Matter of H-, 20 I&N Dec. 693 (Assoc. Comm. 1993). (Under section 265 of the Act (8 U.S.C. 1305), nonimmigrants were required to register with the Service by January 30 of each year and to notify the Service of their address at the end of each 3-month period.)

Contained in IRCA and required of LIFE Legalization applicants, evidence must be provided to establish their continuous physical presence in the United States from November 6, 1986, through May 4, 1988.

Yes, so long as such absences were brief, casual, and innocent or were pursuant to a Service-authorized advance parole. “Brief, casual, and innocent” means temporary, occasional trips abroad as long as the purpose of the absence from the United States was consistent with the policies reflected in the immigration laws of the United States. Whether an absence is brief, casual, and innocent is a factual question appropriate for case-by-case analysis in consideration of the meaning of the phrase. Brief refers to the temporal length of the absence, and must not be so long as to reduce the significance of the whole period of continuous physical presence. See Kamheangpatiyooth v. INS, 597 F.2d 1253, 1256-1257 (9th Cir. 1979). Casual is interpreted to mean performed without regularity, occasionally. See Castrejon-Garcia v. INS, 60 F.3d 1359, 1363 (9th Cir. 1995). Innocent refers to the purpose of the absence from the United States, and whether that purpose was consistent with or contrary to a policy reflected in the immigration laws. See Catholic Social Services v. Meese, 685 F. Supp. 1149, 1158 (E.D. Cal. 1988).

If an alien was absent from the country pursuant to an advance parole, this absence will not be considered as having interrupted his or her continuous physical presence. Brief, casual, and innocent absences from the United States are not limited to absences with advance parole.

A single absence from the United States of more than 30 days or an aggregate of all absences exceeding 90 days shall not be deemed to be a brief, casual, and innocent absence unless the alien had advance parole or the alien can establish that due to emergent reasons, his or her return to the United States could not be accomplished within the time period(s) allowed.

If a LIFE Legalization applicant appears eligible for the benefit, an interview will be required as, at a minimum, the applicant must demonstrate a minimal understanding of ordinary English and a knowledge and understanding of the history and government of the United States as required under section 312(a) of the Act (8 U.S.C. 1423). If an applicant fails to appear for an interview, his or her LIFE Legalization adjustment application may be denied for lack of prosecution. If an applicant is determined to be statutorily ineligible, his or her LIFE Legalization adjustment application may be denied without interview.

As stated earlier, the LIFE Legalization provisions require applicants to demonstrate basic citizenship skills as specified in section 312(a) of the Act (relating to minimal understanding of ordinary English and a knowledge and understanding of the history and government of the United States). Therefore, during their interview, LIFE Legalization applicants will be required to demonstrate a minimal understanding of ordinary English and a knowledge and understanding of the history and government of the United States as required under section 312(a) of the Act.

In lieu of the above, to meet the requirement, an applicant may instead submit: (1) A high school diploma; (2) a general educational development diploma (GED); or (3) a certification on letterhead stationery from a state recognized, accredited learning institution in the United States that the applicant is attending or has attended such institution. The course of study at such learning institution must be for a period of one academic year (or the equivalent thereof according to the standards of the learning institution) and the curriculum must include at least 40 hours of instruction in English and United States history and government.

The applicant will be notified in writing of the Service's decision on his or her adjustment application. If the application is approved, the applicant will be so advised and will also be advised of the delivery of his or her Form I-551, Permanent Resident Card, and of the process for obtaining temporary evidence of alien registration. If the application is denied, the applicant will be notified of the Service's decision and the reason(s) for denial. The applicant will also be notified of his or her appellate rights. If the application was denied because the Service was unable to verify a prima facie claim for LIFE Legalization, the applicant will neither be eligible for, nor entitled to, employment authorization or advance parole. If the reasons for the denial do not include inability to verify application for class membership in the CSS, LULAC, or Zambrano lawsuit or failure to present a prima facie claim for LIFE Legalization, and the applicant appeals the denial and was entitled to employment authorization and advance parole at the time of the decision of denial, he or she will continue to be eligible to apply for and be entitled to employment authorization and advance parole until a final decision is made on his or her appeal.

If, at the time of the interview, the Service officer conducting the interview determines that the application is approvable, the applicant will receive temporary evidence of LPR status. A Form I-551 will be mailed to the applicant at a later date; therefore, the applicant must maintain possession of any temporary evidence of LPR status until receipt of the Form I-551.

If the application cannot be approved at the time of the interview, and further review of the application and supporting documents is required, the applicant will be notified in writing of any subsequent decision rendered by the Service. Applicants should keep this notice for their records. If the application has been approved, a Form I-551 will be mailed separately to the applicant. To obtain temporary evidence of LPR status, the applicant may present the original approval notice and his or her passport or other photo identification at his or her local Service office. The local Service office will issue temporary evidence of LPR status after verifying the approval of the adjustment of status application. If the applicant is not in possession of a passport in which such temporary evidence may be endorsed, he or she should also submit two photographs meeting the specifications described in the instructions to the Form I-485 so that the Service may prepare and issue temporary evidence of LPR status.

Whenever an application for adjustment of status under LIFE Legalization is denied, the alien, and his or her attorney or representative, shall be given written notice stating the specific reason(s) for the denial. The denial shall also contain advice to the alien that he or she may appeal the decision, and shall provide instructions on when and where the appeal must be filed. The alien shall be advised that he or she may submit additional evidence, and a supporting brief, with the appeal. The notice of denial shall additionally provide a notice to the alien that if he or she fails to file an appeal from the decision, the notice of denial will serve as a final notice of ineligibility.

All appeals from decisions of denials of applications under LIFE Legalization must be filed on Form I-290B, Notice of appeal to the Administrative Appeals Unit (AAU). Appeals filed from within the United States must be filed with the Service office that denied the application within 30 days of the date the decision was mailed. Any appeal that is received subsequent to this 30-day period will not be accepted for processing and the decision of denial will be considered to be a final notice of ineligibility. If an applicant's last known address of record was outside the United States, and the notice of denial was mailed to that foreign address, then the appeal must be received within 60 days of the date the decision was mailed. Any appeal from abroad that is received subsequent to this 60-day period will not be accepted for processing and the decision of denial will be considered a final notice of ineligibility.

All appeals must be properly completed and must be accompanied by the appropriate fee of $110. Upon receipt of an appeal, the administrative record will be forwarded to the Administrative Appeals Office (AAO) for review and decision. The decision on appeal will be provided to the alien, and his or her attorney or representative, in writing, and if the appeal is dismissed, it shall include a final notice of ineligibility. No further administrative appeal shall lie from this decision, nor may the application be filed or reopened before an Immigration Court or the Board of Immigration Appeals during exclusion, removal, or deportation proceedings.

If the appeal is sustained, and the application approved, the alien will be advised in writing of the decision and of the process for obtaining temporary evidence of alien registration. A Form I-551 will be mailed separately to the alien.

The Service believes that it is reasonable to identify a current application whose process is similar to the requirements outlined under LIFE Legalization in order to select an appropriate fee to charge applicants under LIFE Legalization. Aliens filing LIFE Legalization applications are applying to adjust their status to that of LPR. The current Service application whose process is most similar to the LIFE Legalization process is the Form I-485, which is currently used by other aliens to adjust their status to that of LPR. In developing fees, the Service must comply with guidance provided in the Office of Management and Budget (OMB) Circular A-25. This guidance directs Federal agencies to charge the “full cost” of providing benefits when calculating fees that provide a special benefit to recipients. Section 6(d) of OMB Circular A-25 defined “full cost” as including “all direct and indirect costs to any part of the Federal Government of providing a good, resource, or service.” Therefore, the Service referred to its most recent fee review—the FY 2000 “Immigration Examinations Fee Account Review.” This review conducted an in-depth analysis of both direct and indirect costs using an activity-based costing methodology. The fee review identified the current full cost of the Form I-485 to be $330. The Service determined that a $330 fee for the Form I-485 would underwrite the Service's processing and administrative costs incurred in the Form I-485 adjudication process, such as staffing, training of Service personnel, and adjudication of applications. The Service will thus use $330 for the fee for LIFE Legalization applications until the next biennial fee review, as required by the Chief Financial Officers Act of 1990, Public Law 101-576, 104 Stat. 2838. The Service will make the fee review available to the public upon request.

Aliens who might benefit from the Family Unity provisions of the LIFE Act Amendments are those who:

1. Are currently in the United States;

2. Are the spouse or unmarried child of an alien who is eligible for adjustment under LIFE Legalization; and

3. Entered the United States before December 1, 1988, and were residing in the United States on such date.

Section 1504 of the LIFE Act Amendments extends immigration benefits to an alien “who is the spouse or unmarried child” of an alien described in section 1104 of the LIFE Act. The LIFE Act Amendments, however, do not refer to a specific date on which that familial status is to be determined. Consistent with the purpose of the Family Unity program to provide temporary protection to keep families together that are on a path to legalize their status under the Act, the Service takes the position that an eligible spouse who was married to an eligible principal alien on the date of enactment, December 21, 2000, but has since divorced, should no longer be entitled to Family Unity benefits after the divorce becomes final. On the other hand, a newly-married spouse would be able to get Family Unity benefits, if otherwise eligible, even if he or she was not married to the principal alien on December 21, 2000.

A more difficult issue, however, arises when an alien “ages-out” when he or she reaches his or her 21st birthday because he or she no longer meets the Act's definition of a “child”, see 8 U.S.C. 1101(b)(1). As section 1504(b) of the LIFE Act Amendments describes an eligible child as an alien who “is” the unmarried child of an alien described in section 1104(b) of the LIFE Act, it is not apparent from the face of the statutory language that Family Unity protection can be extended to aliens who were children on December 21, 2000, but who “age-out” of the Act's definition of child by virtue of reaching their 21st birthday. Congress's precise intention is not clear in this regard, although the limited legislative history available states that the objective was to ensure that family members “are treated in the same manner as the family members of those who adjusted their status under IRCA.” Joint Memorandum Concerning the Legal Immigration Family Equity Act of 2000 and the LIFE Act Amendments of 2000, 146 Cong. Rec. S11851 (Dec. 15, 2000). However, the language of section 1504 is different from section 301 of the Immigration Act of 1990 (IMMACT 90), Public Law 101-649, 104 Stat. 4978, 5029, which specifically referred to status as a child as of a particular date in the past.

Given the need to implement an interpretation of the statute that is consistent as it applies to both spouses and children, and in view of the interpretation of other provisions of the immigration laws relating to a child who “ages-out” upon reaching the age of 21, the Department interprets section 1504(b) of the LIFE Act Amendments to require the requisite familial status (the spousal or child relationship) both at the time when the application for Family Unity benefits is adjudicated and thereafter. If the familial status does not exist at the time of adjudication the alien will not be eligible for Family Unity benefits. If the status as a spouse or child exists at the time of adjudication, but ceases to exist thereafter, the alien will no longer be eligible for Family Unity benefits. Similarly, an alien who ceases to be an unmarried child because of the alien's marriage is no longer eligible.

The fact that an alien is ineligible for Family Unity benefits under section 1504 of the LIFE Act Amendments solely because he or she has reached the age of 21 after December 21, 2000, or for other reasons, does not mean that the alien necessarily will be removed from the United States. The Service has in place guidance for the exercise of prosecutorial discretion that provide for the assessment, on a case-by-case basis, of whether seeking the removal of a particular alien serves a substantial Federal enforcement interest. Factors to be considered include, among others, humanitarian concerns (including family ties in the United States) and whether there is a legal avenue available for the alien to regularize his or her status if not removed from the United States. Whether an alien who is no longer eligible for Family Unity benefits is eligible for employment authorization depends upon whether the alien falls within one of the classes of aliens authorized employment in 8 CFR 274a.12. The Service is also considering whether to seek clarification of the scope of the Family Unity benefit as applied to “age-out” children through statutory amendment.

The LIFE Act Amendments also authorize the Attorney General to parole aliens who are no longer physically present in the United States into the United States so that they may obtain benefits under the LIFE Act Amendments Family Unity provisions. The Service is in the process of developing the specific procedures for implementing this provision of the LIFE Act Amendments. As such, the details will be discussed in a separate rulemaking at a later time. The parole provisions only apply to eligible family members of an alien who has already been granted LIFE Legalization, and do not apply to LIFE Legalization applicants or their families.

The statutory eligibility requirements imposed on aliens in order to qualify for benefits under the existing Family Unity Program (FUP) implementing section 301 of IMMACT 90, and the LIFE Act Amendments Family Unity provisions are different. In order to benefit from the FUP, the applicant had to be the spouse or unmarried child (under the age of 21) of an alien who had already adjusted status to that of either temporary or permanent resident under section 245A of the Act (8 U.S.C. 1255a). Also, in order to qualify, the FUP applicants were required to establish entry into the United States before May 5, 1988, residence on that date, continuous residence in the United States since that date, and that a qualifying relationship with the legalized alien existed as of May 5, 1988. 8 CFR 236.12. The specific eligibility requirements for aliens who might benefit from the LIFE Act Amendments Family Unity provisions will be discussed in more detail later in this interim rule. In general, however, aliens who might benefit from the LIFE Act Amendments Family Unity provisions must establish entry into the United States before December 1, 1988, residence in the United States on December 1, 1988, and that a qualifying relationship with an alien who is eligible for adjustment of status under LIFE Legalization currently exists. Thus, while the old FUP is focused on unifying families that were in existence as of May 5, 1988, the Family Unity provisions of the LIFE Act Amendments serve to benefit only those families that are in existence after the date of enactment of the LIFE Act Amendments.

Another difference between the two programs is that the current FUP regulations ban FUP beneficiaries from receiving Federal financial assistance. Specifically, 8 CFR 236.17 states that any spouse or child who receives Family Unity benefits through an alien who received lawful temporary residence, and who was banned from receiving certain public welfare assistance for a period of 5 years pursuant to section 245A(h) of the Act, is similarly banned from receiving certain public welfare assistance. The LIFE Act explicitly states that section 245A(h) of the Act does not apply to aliens adjusting status under LIFE Legalization. The inapplicability of section 245A(h) of the Act to aliens adjusting status under LIFE Legalization, however, does not mean that they are generally eligible for all public benefits. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104-193, 110 Stat. 2105, as amended, limits the eligibility of lawful permanent residents and other “qualified aliens,” as defined by the welfare reform law, for certain Federal, state, and local means-tested public benefits. 8 U.S.C. 1601 through 1625. Individuals are encouraged to contact the relevant benefit-granting agency for information about their eligibility for public benefit programs.

Pursuant to section 1504(d) of the LIFE Act Amendments (and by incorporation, section 241(b)(3)(B) of the Act, 8 U.S.C. 1231(b)(3)(B)), an alien is ineligible for Family Unity benefits if the Service finds or determines that:

1. The alien has been convicted of a felony or of three or more misdemeanors in the United States;

2. The alien has ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual's race, religion, nationality, membership in a particular social group, or political opinion;

3. The alien has been convicted by a final judgment of a particularly serious crime and is a danger to the community of the United States;

4. There are serious reasons to believe that the alien has committed a serious nonpolitical crime outside the United States before the alien arrived in the United States; or

5. There are reasonable grounds to believe that the alien is a danger to the security of the United States.

It must be noted that under section 1504(a)(1) of the LIFE Act Amendments, an alien granted Family Unity benefits under the provisions of the LIFE Act Amendments may not be removed on certain grounds. The grounds on which such an alien may not be removed are limited to the following:

1. Section 237(a)(1)(A) of the Act (8 U.S.C. 1227(a)(1)(A)) (aliens who were inadmissible at the time of entry or adjustment of status), except that the alien may be removed if he or she is inadmissible because of a ground listed in section 212(a)(2) (criminal and related grounds) or in section 212(a)(3) (security and related grounds) of the Act;

2. Section 237(a)(1)(B) of the Act (aliens present in the United States in violation of the Act or any other law of the United States);

3. Section 237(a)(1)(C) of the Act (aliens who violated their nonimmigrant status or violated the conditions of entry); or

4. Section 237(a)(3)(A) of the Act (aliens who failed to comply with the change of address notification requirements).

Consistent with the existing regulations implementing section 301 of IMMACT 90, if an alien is removable on a ground that is not protected by section 1504(a)(1) of the LIFE Act Amendments, the Service finds that it would be inappropriate to grant Family Unity benefits to that alien. Accordingly, aliens in such circumstance will not be afforded Family Unity benefits.

Aliens who are eligible for benefits under the Family Unity provisions of the LIFE Act Amendments and who are currently residing in the United States should file a Form I-817. The Form I-817 must be submitted by mail to: United States Immigration and Naturalization Service, Post Office Box 7219, Chicago, IL 60607-7219. An alien who is eligible for benefits under the Family Unity provisions of the LIFE Act Amendments and files a Form I-817 on or before May 31, 2002, need only demonstrate that he or she has a qualifying relationship to an alien who is eligible to apply for LIFE Legalization. Any Form I-817 that is filed on or after June 1, 2002 (i.e., after the statutorily mandated LIFE Legalization application period has ended), must include evidence that the alien through whom the applicant is alleging eligibility for Family Unity benefits has filed a Form I-485 pursuant to LIFE Legalization. If a Form I-817 is submitted on or before May 31, 2002, but is not adjudicated until on or after June 1, 2002, the Service will request that the applicant submit evidence that the alien through whom the applicant is alleging eligibility for Family Unity benefits has filed a Form I-485. When the Form I-817 is filed, the alien must include:

1. The required fee of $120.00;

2. Four photographs as described in the Form I-817 instructions;

3. Documentary evidence of his or her qualifying relationship to the alien eligible for adjustment of status under LIFE Legalization;

4. Documentary evidence of his or her entry into the United States prior to December 1, 1988;

5. Documentary evidence of his or her residence in the United States on December 1, 1988;

6. Documentary evidence that his or her spouse or parent applied for class membership in the CSS, LULAC, or Zambrano lawsuit before October 1, 2000;

7. If the Form I-817 is filed on or after June 1, 2002, documentary evidence that his or her spouse or parent has filed a Form I-485 seeking adjustment of status under LIFE Legalization; and

8. When required, a fingerprint fee of $25.00.

The instructions to the Form I-817 provide examples of documents that can be submitted by an individual to prove eligibility under these provisions. The instructions also advise under what circumstances a fingerprint fee is required.

Not every applicant under the Family Unity provisions of the LIFE Act Amendments will be required to appear before a Service officer for an interview. If, however, a Service officer believes that an interview would be necessary to review evidence of the applicant's eligibility, then one will be scheduled. The Family Unity applicant would be notified in writing of the time and place of the interview.

The Service will notify the applicant in writing of any decision made on the Form I-817. If the Form I-817 is approved, the Family Unity beneficiary will be so notified and will receive an employment authorization document (EAD). The EAD will be valid for 1 year. If the Form I-817 is denied, the Family Unity applicant will be so notified. There is no appeal from the denial of a Form I-817.

No, the Service will not automatically extend a Family Unity beneficiary's EAD upon its expiration. The Service is in the process of finalizing procedures that must be followed by all Family Unity beneficiaries to extend their EADs. These procedures will be discussed in a separate rulemaking at a later time.

No, the initial filing of a Form I-817 does not entitle the applicant to employment authorization from the Service. If and when the applicant's initial Form I-817 is approved, the alien will receive Family Unity benefits prescribed by law, including employment authorization.

Yes, if an applicant is granted Family Unity benefits pursuant to the LIFE Act Amendments, he or she will be deemed to have received an authorized period of stay approved by the Attorney General. Such authorized period of stay will be deemed to begin as of the date the Form I-817 was filed. Accordingly, a Family Unity beneficiary will not accrue unlawful presence as long as he or she retains Family Unity protection. If, however, a beneficiary under the Family Unity provisions of the LIFE Act Amendments has his or her benefits terminated by the Service, the former Family Unity beneficiary will begin accruing unlawful presence immediately from the date of such termination.

No, any applicant who departs the United States while his or her Form I-817 is pending will be deemed to have abandoned the application and the application will be denied. If a Form I-817 is approved, the Family Unity beneficiary will be allowed to travel to and from the United States provided he or she applies for advance parole, using Form I-131, before departing the United States.

Yes, the Service may terminate Family Unity benefits whenever the necessity for such action comes to the attention of the Service. The following bases of termination are founded upon the grounds of ineligibility for Family Unity benefits discussed earlier in this interim rule. These grounds for termination include, but are not limited to:

1. A determination is made that Family Unity benefits were acquired as the result of fraud or willful misrepresentation of a material fact;

2. The Family Unity beneficiary commits an act or acts which render him or her ineligible for benefits under the LIFE Act Amendments Family Unity provisions; or

3. The alien, upon whose status LIFE Act Family Unity benefits are based, is issued a final determination of ineligibility for LIFE Legalization;

4. Failure of the alien, upon whose status LIFE Act Family Unity benefits are based, to apply for LIFE Legalization within the statutory application period;

5. The alien, upon whose status LIFE Act Family Unity benefits are based, loses his or her status as a LPR;

6. A qualifying relationship to the alien, upon whose status LIFE Act Family Unity benefits are based, no longer exists.

The LIFE Act Amendments do not specifically address the subject of termination. However, the reference in section 1504(a)(2) of the LIFE Act Amendments to “the period of time in which protection is provided,” and the general principle that an agency can act through regulation to fill gaps in a statute in a way that reasonably gives effect to the statutory scheme and avoids absurd results, support the Service's rulemaking to ensure, for example, that a benefit that is improvidently granted as a result of fraud may be withdrawn. The grounds for termination include situations in which the principal alien does not apply, or is found ineligible for legalization. As the very name “Family Unity” implies, a protection that is derivatively based upon another alien who has an opportunity to legalize his or her status, no longer carries out the reasonable statutory intention if that alien is ineligible to legalize and lacks protection from removal. Rather, this would place the derivative family members in a more advantageous immigration position than the principal alien, yet in a limbo situation in which they could not be removed on certain grounds of deportation but would not have any prospect of adjusting their status to lawful permanent residence. The rule avoids this absurd result by filling the gap in the LIFE Act Amendments by providing reasonable bases and procedures for termination.

If the Service determines that an alien who received benefits pursuant to the LIFE Act Amendments Family Unity provisions is no longer eligible for such benefits, the alien will be advised in writing of such determination. The alien will be advised of the Service's intent to terminate and of the reason(s) thereof. The alien will be given 30 days to respond to the notice of intent to terminate and to submit evidence in his or her behalf. The alien will then be advised in writing of the Service's final determination.

Although this rule falls under the category of major rule as that term is defined in 5 U.S.C. 804(2)(A), the Department finds that under 5 U.S.C. 808(2) good cause exists for implementation of this rule on June 1, 2001. The reason for immediate implementation is as follows: The provisions of Public Law 106-553, which was enacted on December 21, 2000, require that the Service publish implementing regulations not later than 120 days after the date that Public Law 106-553 was enacted. Accordingly, the Service is required to issue regulations immediately. Moreover, because the application period prescribed under the LIFE Act for eligible aliens to apply for adjustment under section 245A of the Act, as modified by Public Law 106-553, does not begin until the Attorney General issues this regulation, and given the public interest in providing these important benefits and protections, the Attorney General has determined to issue this regulation as an interim final rule, effective immediately.

The Service is implementing this rule on an interim final basis with a request for post promulgation comments. The provisions of Public Law 106-553 require that the Attorney General issue implementing regulations no later than 120 days after the date that the legislation was enacted on December 21, 2000. Moreover, section 245A(g)(3) of the Act (8 U.S.C. 1255a(g)(3)), which was not modified by Public Law 106-553, provides that regulations issued pursuant to section 245A of the Act may be prescribed to take effect on an interim final basis if the Attorney General determines that it is necessary in order to implement that section in a timely manner. Because the application period prescribed under the LIFE Act for eligible aliens to apply for adjustment under section 245A of the Act, as modified by Public Law 106-553, does not begin until the Attorney General issues this regulation, and given the public interest in providing these important benefits and protections, the Attorney General has determined that timely implementation of the LIFE Legalization program requires the issuance of this regulation on an interim final basis.

The foregoing statutory provisions notwithstanding, the Department also finds that this regulation falls within the “good cause” exception found at 5 U.S.C. 553(b)(3)(B) and (d)(3) as the immediate effectiveness of this rule is necessary in order to allow aliens to apply for these important benefits and protections at their earliest opportunity. Accordingly, prior notice and public comment on this interim rule is unnecessary and contrary to the public interest.

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities because of the following factors. The rule applies to individuals, not small entities, and allows certain class action participants who entered before January 1, 1982, to apply for adjustment of status. It, therefore, has no effect on small entities as that term is defined in 5 U.S.C. 601(6).

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year, and it will not significantly or uniquely effect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is a major rule as defined by section 251 of the Small Business Regulatory Enforcement Act of 1996 (5 U.S.C. 804). This rule will result in an effect on the economy of:

$152,379,000 for 2001;

$77,352,000 for 2002; and

$34,260,000 for 2003.

This increase is directly associated with the expected increase in the number of applications as a result of Public Laws 106-553 and 106-554, and the increase in fee that is provided for in section 245A(c)(7) of the Act (8 U.S.C. 1255a(c)(7)). The Service projects that in fiscal year 2001, a total of 789,000 applications will be submitted because of the LIFE Act Legalization and Family Unity provisions as follows:

300,000 Forms I-485;

150,000 Forms I-131;

15,000 Forms I-193;

300,000 Forms I-765; and

24,000 Forms I-817.

The Service projects that in fiscal year 2002, a total of 568,000 applications will be submitted as follows:

100,000 Forms I-485;

55,000 Forms I-131;

5,000 Forms I-193;

400,000 Forms I-765; and

8,000 Forms I-817.

The Service projects that in fiscal year 2003, a total of 328,000 applications will be submitted as follows:

100,000 Forms I-130;

20,000 Forms I-131;

200,000 Forms I-765; and

8,000 Forms I-817.

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

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

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

The Attorney General has reviewed this regulation and has determined that it may affect family well-being as that term is defined in section 654 of the Treasury General Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681, Div. A. Accordingly, the Attorney General has assessed this action in accordance with the criteria specified by section 654 (c)(1). In this rule, the Family Unity provisions of the LIFE Act Amendments positively affect the stability of the family by providing a means for the family unit to remain intact.

This rule provides for the use of a new Form I-485 Supplement D and the revision of Form I-817. These forms are considered information collection requirements under the Paperwork Reduction Act. Since the Service was required to publish regulations implementing Public Law 106-553 within 120 days after enactment, the Service has requested and received emergency review and clearance by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act. The emergency approval is only valid for 180 days.

A regular review of this information will also be undertaken. Written comments are encouraged and will be accepted until July 31, 2001. Submit comments to: Immigration and Naturalization Service, Policy Directives and Instructions Branch, 425 I Street NW, Room 4034, Washington, DC 20536. Your comments should address one or more of the following points.

1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

3. Enhance the quality, utility, and clarity of the information to be collected; and

4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

The Service, in calculating the overall burden the Form I-485 supplement D requirement will place on the public, estimates that approximately 400,000 applicants will apply for adjustment of status under LIFE Legalization. The Service has estimated that it takes applicants five and one quarter (5.25) hours to complete Form I-485. The Service also estimates that it will take the applicants approximately one (1) additional hour to complete the Form I-485 with the supplement D. As such, the Service estimates that it will take the applicants a total of six and one quarter (6.25) hours to complete the LIFE Legalization application. This amounts to 2.5 million total annual burden hours for the collection of this information.

The Service, in calculating the overall burden the revised Form I-817 requirement will place on the public, estimates that approximately 40,000 applicants will apply for Family Unity benefits under the LIFE Act Amendments. The Service also estimates that it will take the applicants approximately two and one half (2.5) hours to complete the application. This amounts to 100,000 total annual burden hours for the collection of this information.

Additionally, comments regarding this burden estimate or any aspect of these information collection requirements, including suggestions for reducing the burden, should be directed to the Immigration and Naturalization Service, Policy Directives and Instructions Branch, 425 I Street, N.W., Room 4034, Washington, DC 20536; Attention: Richard A. Sloan, Director, 202-514-3291.

On December 21, 2000, the President signed the District of Columbia Appropriations Act, 2001, Public Law 106-553, 114 Stat. 2762 (2000). The legislation added a new section 286(u) to the Immigration and Nationality Act (Act) that authorizes the Attorney General to collect a $1,000 “premium processing” fee in addition to the regular filing fee that must be paid for the filing with the Service of certain petitions and applications. Under this new legislation, the authority to collect the premium processing fee applies only to employment-based petitions and applications.

The Premium Processing Service will enable the Service to improve its services to its business customers. These businesses must sometimes recruit and hire foreign workers to fill jobs in short time frames. The Service's current processing times for employment-based petitions and applications may not accommodate the needs of these businesses. The Premium Processing Service will give American businesses an option to pay for faster processing of petitions and applications for foreign workers.

The District of Columbia Appropriations Act of 2001, Public Law 106-553, established “premium processing service” and the associated filing fee. It also specified that the Service was required to process applications under the Premium Processing Service in 15 calendar days. However, the legislation did not explicitly define what “premium processing service” means. Therefore, the Service is using its authority under section 103(a) of the Act to establish the details of this new service.

For example, if the applicant or petitioner pays for Premium Processing Service of a petition or application, the Service will issue an approval notice, notice of intent to deny, request for evidence, or notice of an investigation for fraud or misrepresentation within 15 calendar days. Premium Processing Service begins on the day the Service physically receives a petition or application and ends on the day the Service issues a notice or request. If the Service does not issue a notice or request within 15 calendar days, the Service will refund the fee automatically. However, when the Service fails to issue a notice or request within 15 calendar days and refunds the fee, the Service will still expeditiously process the case. If the application or petition in question was not eligible for Premium Processing Service, the fee will be refunded and the Service will continue to process the case normally.

The Premium Processing Service provides a benefit to all entities that file applications and petitions with the Service, and not just to those employers who are granted Premium Processing Service. The fee revenue generated by Premium Processing Service will be deposited into the Immigration Examinations Fee Account and used by the Service to hire additional adjudicators, contact representatives, and support personnel to provide service to all its customers. The fee will also be used for infrastructure improvements.

The fee for Premium Processing Service is $1,000 in addition to the filing fee for the petition or application. As an example, H-2B cases are eligible for Premium Processing Service. There are two fees involved: The Form I-129, Petition for Nonimmigrant Worker, filing fee of $110 and the $1,000 Premium Processing fee.

The fee for Premium Processing Service is set by law and cannot be waived for any reason. However, the Service will refund the fee if it cannot complete its adjudication within 15 calendar days or if Premium Processing for a particular application or petition has been suspended.

The Service will continue its existing policy and procedures for requesting expeditious processing, without any additional fee, of petitions that are filed by petitioners designated as non-profit by the Internal Revenue Service and for petitions and applications that are not designated for Premium Processing Service.

You may request Premium Processing Service by filing a completed Form I-907, Request for Premium Processing Service, with the petition or application and paying the Premium Fee. You must pay the Premium Fee with a separate check or money order in the amount of $1,000. This check is in addition to the check for the regular filing fee for the application or petition.

Yes, if you want to request Premium Processing Service, you can file Form I-907, Request for Premium Processing Service, with the Premium Fee, either at the same time as or after a petition or application. If you file Form I-907, after you file the related petition or application, the 15 calendar day processing period will begin when the Service receives the Form I-907.

If the Form I-907 is filed at the same time as the related petition, submit both forms to the designated Premium Processing address for the INS Service Center indicated on the petition. If the Form I-907 is filed after the related petition, submit it to the designated Premium Processing Address for the INS Service Center where the related petition was previously filed. When submitting a Form I-907 after a related petition, if possible, include a copy of the Form I-797, Notice of Action, showing receipt of the related petition.

A designated Premium Processing address for each of the four centers will be published on the instruction sheet to Form I-907. The designated address must be used to be sure the Premium Processing petition immediately enters the Premium Processing unit. If an alternate address is used, the 15 calendar day processing time will begin when the Service initially identifies the case as a request for Premium Processing.

In addition, the employer must file the Premium Processing request at the INS Service Center designated for the specific application or petition. The Service has established special filing procedures for certain applications and petitions. For example, petitions involving the E-1 and E-2 nonimmigrant classifications must be filed at either the Texas or California Service Center. Therefore, the Premium Processing request must also be filed at these locations. A Form I-907 filed in connection with a petition involving the E-1 or E-2 nonimmigrant classification must be submitted to the designated Premium Processing address for the Texas or California Service Center, as appropriate.

Designated customer service e-mail addresses will be provided on the instruction sheet to Form I-907. The Service will also provide customers with designated phone numbers on receipt notices for the Form I-907. The phone numbers and e-mail addresses will be for use by Premium Processing customers only.

The Service will designate certain employment-based petitions or applications for Premium Processing Service. Absent the Premium fee, the Service will process the petition or application under normal procedures. If you request Premium Processing Service for a petition or application that has not been designated by the Service, the Service will return the Premium Processing Fee and Form I-907 and continue normal processing of the petition or application.

The Service will designate petitions and applications for Premium Processing Service by publishing notices in the Federal Register . These notices will specify the form types and the visa classifications for which Premium Processing Service is available. The notices will also specify the dates on which the availability of Premium Processing Service begins and ends.

The Service is designating Form I-129, Petition for Nonimmigrant Worker, for Premium Processing Service beginning on June 1, 2001. Classifications within the Form I-129 eligible for the Premium Processing program as of June 1, 2001 are:

Classifications within the Form I-129 eligible for the Premium Processing program as of July 30, 2001 are:

These designations will continue until the Service publishes a notice amending or terminating them.

If the family members application(s) is filed concurrently with the Premium Processing petition, the Service will process the application(s) for the family members with the Premium Processing petition in 15 calendar days without requiring an additional $1,000 fee for the family member's application(s). This applies only to dependents of the beneficiary of the Premium Processing petition.

The Service is designating Premium Processing Service for certain nonimmigrant classifications that are subject to annual numerical limitations. Like petitions filed under regular procedures, petitions for which Premium Processing Service is requested will be processed in the order of receipt. Once the annual limitation for a nonimmigrant classification is met (e.g., when the Service has received a volume of H-1B petitions sufficient to reach the annual numerical limitation), INS will temporarily terminate Premium Processing Service for all pending petitions filed for entry in that fiscal year. The Service will then process all pending petitions (regular and premium together) in the order of receipt.

The Service believes that temporary termination of Premium Processing Service is the fairest method to balance the interest of expedited processing while reasonably preserving the ability of all individuals to access numerically limited immigration programs.

The Service will announce the temporary termination by publication of a notice in the Federal Register . When the Service announces temporary termination of Premium Processing Service for a particular nonimmigrant classification, it will return the Form I-907 and Premium Fee for all requests subject to the termination.

In § 103.2 the Service is adding a new paragraph (f) to describe the process that the Service will use to process requests for Premium Processing Service.

In § 103.7, the Service is amending the regulations to add the fee for Premium Processing Service for certain employment-based petitions and applications. The fee is established at $1,000 per petition or application requesting Premium Processing Service. Payment of the fee guarantees 15 calendar day processing of the petition or application. The fee for Premium Processing Service cannot be waived.

In § 299.1 and § 299.5, the Service is amending the regulations to add the Form I-907, Request for Premium Processing Service, to the listing of forms. This form must be filed in conjunction with a petition or application to request Premium Processing Service.

This interim rule is effective on June 1, 2001, although the Service invites post-promulgation comments and will address any such comments in a final rule. For the following reasons, the Service finds that good cause exists for adopting this rule without the prior notice and comment period or the delay in the effective date ordinarily required by 5 U.S.C. 553(b)(3)(B) and (d)(3). Section 112 of Public Law 106-553 specifically authorizes the Attorney General to collect a fee for employment-based petitions and applications to be used to provide certain Premium Processing Services to business customers. By delaying implementation of this rule, these business customers will not be able to immediately benefit from the Premium Processing Services. Premium Processing Services allows for United States employers to fill key vacancies expeditiously allowing these employers to enhance their profitability and productivity. The benefit will result in certain businesses saving valuable time in hiring foreign-workers that can result in benefits to the entire country. A delay in the implementation of this statutory process would, therefore, be contrary to the public interest. Accordingly, the Service finds that it is impracticable and contrary to the public interest to publish this rule with prior notice and comment period or a delay in the effective date normally required under 5 U.S.C. 553.

The Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. Although there is an additional cost for entities (both large and small) to obtain Premium Processing Service, the $1,000 Premium Processing Fee is established by statute. The Premium Processing Service is voluntary and is intended to expedite requests by American businesses to hire foreign workers.

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely effect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

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

This rule is considered by the Department of Justice, Immigration and Naturalization Service, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this regulation has been submitted to the Office of Management and Budget for review. It is estimated that petitioners and applicants will pay $25 million in fiscal year 2001 for Premium Processing Services, and $80 million in fiscal year 2002.

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

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

Since this interim rule takes effect on June 1, 2001, and the Form I-907, is required by the business community to request Premium Processing Services, the Service is using emergency review procedures for review and clearance by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act (PRA) of 1995. The Service has requested that OMB waive the comment period for the emergency paperwork review. If granted, the emergency approval is only valid for 180 days.

A regular review of this information collection will also be undertaken. Written comments are encouraged and will be accepted until July 31, 2001. Submit comments to: Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, NW., Room 4034, Washington, DC 20536, or via fax to (202) 305-0143. Your comments should address one or more of the following points:

(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

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

(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

The Service in calculating the overall burden this requirement will place upon the public, estimates 80,000 applications for Premium Processing Services will be requested annually. The Service estimated that it will take approximately .25 hours to comply with the requirements of Form I-907. This amounts to 20,000 total burden hours.

Organizations and individuals interested in submitting comments regarding this burden estimate or any aspect of these information collection requirements, including suggestions for reducing the burden, should direct them to the Immigration and Naturalization Service, Policy Directives and Instructions Branch, 425 I Street, NW., Suite 4034, Washington, DC 20536; Attention: Richard A. Sloan, Director, (202) 514-3048.

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

On March 14, 2001, we published in the Federal Register (66 FR 14825-14826, Docket No. 01-018-1) an interim rule, effective January 15, 2001, that removed Great Britain (England, Scotland, Wales, and the Isle of Man) and Northern Ireland from the list of regions considered to be free of rinderpest and FMD because the existence of FMD had been confirmed in both regions. Great Britain and Northern Ireland participate in the European Union (EU) through the individual Member State status of the United Kingdom. Due to the magnitude and rate of spread of FMD in the United Kingdom, we felt it necessary to act immediately to remove Great Britain and Northern Ireland from the list of FMD-free regions in order to safeguard the animal health status of the United States.

Prior to the effective date of this interim rule, the EU Member States of France, Ireland, and The Netherlands were listed in §§ 94.1 and 94.11 of the regulations as regions considered to be free of rinderpest and FMD. However, a series of FMD outbreaks have occurred in France, Ireland, and The Netherlands. Specifically:

• On March 13, 2001, France's Ministry of Agriculture and Fisheries (MAF) clinically confirmed an outbreak of FMD in the department of Mayenne, followed by confirmation of a second outbreak in the department of Seine-et-Marne on March 23, 2001;

• On March 22, 2001, Ireland's Department of Agriculture, Food and Rural Development (DAFRD), reported clinical confirmation of an outbreak of FMD in County Louth; and

• The Netherlands' Ministry of Agriculture, Nature Management and Fisheries (MANMF) reported clinical confirmation of FMD outbreaks in the provinces of Overijssel and Gelderland on March 21, 2001, and March 24, 2001. MANMF has since confirmed a number of additional outbreaks in The Netherlands.

MAF, DAFRD, and MANMF notified the Office International des Epizooties (OIE) and the U.S. Department of Agriculture at the time of clinical confirmation of these FMD diagnoses. Based on preliminary epidemiological studies, the sources of the outbreaks in France, Ireland, and The Netherlands have been traced back to the United Kingdom.

Because of the close trading relationships that exist among the EU Member States, coupled with the speed with which FMD has spread from the United Kingdom to other areas of the EU, we initially believed it necessary to impose additional trade restrictions relating to FMD on the 13 EU Member States listed in our regulations as FMD-free after implementation of the interim rule for the United Kingdom in order to safeguard the animal health status of the United States. Consequently, on March 13, 2001, we imposed temporary import restrictions applicable to the EU with respect to swine and ruminants, any fresh (chilled or frozen) swine or ruminant meat, and other products of swine and ruminants. As part of this process, we also requested information from the European Commission and the individual Member States to justify why individual Member States should continue to be considered FMD-free, and therefore remain on our list of FMD-free regions in the regulations. We intended to use this information to evaluate the potential risks of further FMD outbreaks occurring in different regions of the EU. Any region for which sufficient data were not available to make such an evaluation would be considered to be a high FMD risk until information became available to support an alternative determination. We set a deadline of April 27, 2001, for the receipt of this information. To assist us in evaluating a region's level of risk relating to FMD, we asked that the information submitted to us address the following:

• Outbreak history in the Member State or region;

• Complete information on European Community (Community) legislation in force to control spread of disease among Member States, including information on limitations that were identified in Community legislation in force at the time of the outbreak, changes made to address these limitations, enforcement processes to implement the changes and enforcement of compliance;

• Information on surveillance or control measures implemented by individual Member States in addition to Community legislation;

• Statistics on trade in live animals and high-risk animal products within the Community since January 2001;

• Traceback results for animals moving from affected areas;

• Information on practices that might serve to introduce disease (e.g., garbage feeding of swine), surveillance of those practices, and recent or planned legislative changes that might affect these practices;

• Mechanisms in place to ensure compliance with Community and Member State legislation, as well as mechanisms to identify and correct failures in the safeguarding system; and

• Vaccination practices and vaccination records for the regions, as applicable.

Other issues such as environmental factors (e.g., prevailing winds) that might contribute to disease spread may also be considered.

Based on our evaluation of the information submitted to us by the European Commission and the individual Member States, published literature, and reports to the OIE, we are removing France, Ireland, and The Netherlands from the list of regions considered to be free of rinderpest and FMD primarily because the existence of FMD has been confirmed there and these Member States do not yet meet the OIE criterion for freedom of FMD (i.e., a 3-month waiting period after the last case in a region previously recognized as free of the disease). We have determined that the other EU Member States that APHIS considers to be FMD-free represent a low risk for the introduction of FMD into the United States, and therefore will be allowed to remain on the list of free regions. The basis for our designation of these Member States is documented in a risk assessment that may be viewed on the Internet at http://www.aphis.usda.gov/vs/reg-request.html. You may also request paper copies of the risk assessment by calling or writing the person listed under FOR FURTHER INFORMATION CONTACT. Please refer to Docket No. 01-031-1 when requesting copies. The risk assessment is also available for review in our reading room (information on the location and hours of the reading room is listed under the heading ADDRESSES at the beginning of this document).

We believe that this course of action is consistent with our obligations under the World Trade Organization in the Agreement on the Application of Sanitary and Phytosanitary Measures and the United States-European Union Veterinary Equivalency Agreement. We are imposing these provisional measures to safeguard the United States from FMD, but not before taking due account of the information and other supporting data provided us by the European Commission and the individual Member States of the EU in order to avoid any unnecessary disruption of trade.

Therefore, we are amending the regulations in § 94.1 by removing France, Ireland, and The Netherlands from the list of regions that have been declared to be free of rinderpest and FMD. We are also removing France, Ireland, and The Netherlands from the list in § 94.11 of regions that are declared to be free of these diseases, but that are subject to certain restrictions because of their proximity to or trading relationships with rinderpest-or FMD-affected regions. As a result of this action, the importation into the United States of any ruminant or swine and any fresh (chilled or frozen) meat and other products of ruminants and swine from any part of France, Ireland, and The Netherlands is prohibited or restricted. We are making these amendments effective retroactively to February 19, 2001, because the disease may have been present in the affected areas of France, Ireland, and The Netherlands for some time before the initial outbreaks were clinically confirmed in each of these regions. The date of February 19, 2001, takes into account the potential disease risk prior to discovery and the incubation period for FMD.

Although we are removing France, Ireland, and The Netherlands from the list of regions considered to be free of rinderpest and FMD, we recognize that the European Commission and the regions affected by this action have responded to the detection of FMD by imposing restrictions on the movement of ruminants, swine, and ruminant and swine products from FMD-affected areas; by conducting heightened surveillance activities; and by initiating measures to eradicate the disease. We intend to reassess this situation at a future date in accordance with the standards of the OIE. As part of that reassessment process, we will consider all comments received on this interim rule, as well as any additional information or data from the European Commission or individual Member States that support changing the disease status of a given region or regions. In future reassessments, we will determine whether it is necessary to continue to prohibit or restrict the importation of ruminants or swine and any fresh (chilled or frozen) meat and other products of ruminants or swine from France, Ireland, and The Netherlands, or whether we can restore some or all of those countries to the list of regions in which FMD is not known to exist or regionalize portions of France, Ireland, and The Netherlands as FMD-free.

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

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

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

We are amending the regulations governing the importation of certain animals, meat, and other animal products by removing France, Ireland, and The Netherlands from the list of regions considered to be free of rinderpest and FMD. We are taking this action because the existence of FMD has been confirmed there and these Member States do not yet meet the OIE criterion for freedom of FMD (i.e., a 3-month waiting period after the last case in a region previously recognized as free of the disease). The effect of this action is to prohibit or restrict the importation of any ruminant or swine and any fresh (chilled or frozen) meat and other products of ruminants or swine into the United States from France, Ireland, and The Netherlands on or after February 19, 2001. This action is necessary to protect the livestock of the United States from FMD.

This emergency situation makes timely compliance with section 604 of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) impracticable. We are currently assessing the potential economic effects of this action on small entities. Based on that assessment, we will either certify that the rule will not have a significant economic impact on a substantial number of small entities or publish a final regulatory flexibility analysis.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has retroactive effect to February 19, 2001; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

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

This proposal is prompted by reports of two No. 4 bearing failures on CFMI CFM56-7B series turbofan engines since December 2000. Inspections of the failed bearings indicate marginal metallurgical structure, most likely due to an uneven heat treatment process. Both failed bearings are from a manufacturing lot of 47 parts simultaneously heat-treated. This condition, if not corrected, could result in bearing failures, which could cause an engine failure.

Since an unsafe condition has been identified that is likely to exist or develop on other CFMI CFM56-2, -2B, -3, -5B, -5C and -7B series turbofan engines of the same type design, this AD is being issued to prevent bearing failures which could cause an engine failure.

This AD requires:

• Limiting the number of engines with a suspect No. 4 bearing installed to one on each airplane within 300 hours time-in-service (TIS) after the effective date of this AD, but no later than July 1, 2001, whichever occurs earlier. AND

• Increasing the frequency of inspections for magnetic particles until the suspect bearing is replaced. AND

• Replacing all suspect No. 4 bearings within 2,000 hours TIS after the effective date of this AD, but no later than December 31, 2001, whichever occurs earlier.

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

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted 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 action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NE-18-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 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 final 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.

The FAA published this direct final rule with a request for comments in the Federal Register on March 2, 2001 (66 FR 13011). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on July 12, 2001. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete description of each SIAP is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation Regulations (FAR). The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, and 8260-5. Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR (and FAR) sections, with the tapes and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to part 97 is effective upon publication of each separate SIAP as contained in the transmittal. Some SIAP amendments may have been previously issued by the FAA in a National Flight Data Center (NFDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP amendments may require making them effective in less than 30 days. For the remaining SIAPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(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) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description on each SIAP is contained in the appropriate FAA Form 8260 and the National Flight Data Center (FDC)/Permanent (P) Notices to Airmen (NOTAM) which are incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation's Regulations (FAR). Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction of charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR (and FAR) sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes SIAPs. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained in the content of the following FDC/P NOTAMs for each SIAP. The SIAP information in some previously designated FDC/Temporary (FDC/T) NOTAMs is of such duration as to be permanent. With conversion to FDC/P NOTAMs, the respective FDC/T NOTAMs have been canceled.

The FDC/P NOTAMs for the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these chart changes to SIAPs by FDC/P NOTAMs, the TERPS criteria were applied to only these specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a National Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Further, the SIAPs contained in this amendment are based on the criteria contained in the TERPS. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(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) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

ATF published Treasury Decision ATF-53 (43 FR 37672, 54624) on August 23, 1978. 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 on wine labels and in wine advertisements. On October 2, 1979, ATF published Treasury Decision ATF-60 (44 FR 56692) which added 27 CFR part 9, American Viticultural Areas, for the listing of approved American viticultural areas, the names of which may be used as appellations of origin.

An American viticultural area is a delimited grape-growing region distinguishable by geographic 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 characteristics (climate, soil, elevation, physical features, etc.) which distinguish the viticultural features of the proposed area from surrounding areas;

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

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

Rudy von Strasser of Von Strasser Winery petitioned ATF for the establishment of a viticultural area in Napa County, California, to be called “Diamond Mountain.” The petition was filed on behalf of the Diamond Mountain Appellation Committee, whose 15 growers and vintners represent 87 percent of the total vineyard holdings in the viticultural area. The proposed viticultural area is located entirely in Napa County, California and encompasses approximately 5,000 acres, of which approximately 450 acres are planted to vineyards.

A Notice of Proposed Rulemaking, Notice No. 882, was published in the Federal Register on September 29, 1999, requesting comments from all interested persons concerning the proposed viticultural area. The comment period was to close on November 29, 1999. On November 15, 1999, ATF received a request from Fred and Mary Constant of Diamond Mountain Vineyard to extend the comment period an additional 60 days. Diamond Mountain Vineyard is located within both Napa and Sonoma Counties, partially within the boundaries proposed for the Diamond Mountain viticultural area. According to the winery, it had been unable to get timely and complete information on the specifics of the proposal and therefore it needed additional time to prepare its comments. In view of this, on November 26, 1999, ATF published Notice No. 886 extending the comment period until January 28, 2000.

Thirty-nine comments were received in response to Notice 882. Thirty-seven of the comments favored adoption of the viticultural area as proposed. Twenty-five of these specifically supported the use of the Napa and Sonoma county line as one of the boundary lines for proposed area. These commenters maintained that because the name “Diamond Mountain” has always been associated with Napa Valley, the boundaries should not encompass any areas outside Napa County.

Fred and Mary Constant of Diamond Mountain Vineyards submitted two comments proposing two changes to the proposed viticultural area. First, they proposed changing the name to “Diamond Mountain District.” The Constants argued that because the proposed area does not physically encompass all of Diamond Mountain, as identified on the U.S.G.S. map included in the petition, the name “Diamond Mountain” could be confusing. The Constants, who own a trademark for the name “Diamond Mountain Vineyard”, also felt that “Diamond Mountain District” would reduce confusion and conflicts with their trademark, their winery name, and other Diamond Mountain trademarks. As evidence for the use of this name, the Constants submitted two documents in which “District” is used in association with “Diamond Mountain”. One, a 1913 school board document, twice referred to the Diamond Mountain school district. The other, an article from the 12/4/99 issue of the Wine Business Insider on the proposed Diamond Mountain viticultural area, used the phrase “Diamond Mountain District”.

The Constants also proposed amending the southwestern boundary of the viticultural area to include their Sonoma county property. Their vineyard, Diamond Mountain Vineyard, straddles the Napa and Sonoma county line. Fifty-five of its acres are located in Napa County within the proposed boundaries of the Diamond Mountain viticultural area, while 15 of its acres are in Sonoma county, just outside the proposed boundaries. The Constants argued that their Sonoma property is on Diamond Mountain and should therefore be included in any viticultural area bearing its name. Referring to the U.S.G.S. map submitted by the petitioners (Calistoga, CA 1993, 1:24,000), they pointed out that much of Diamond Mountain, including its peak, is actually in Sonoma County.

Their proposal was supported by their assertion that the climate and soil of their Sonoma property is indistinguishable from that of their Napa property. They stated that it is unlikely for climate to vary dramatically over a distance of a few hundred feet on the same side of a mountain. The elevation of their Sonoma property is not an issue, according to the Constants, because the highest part of their Sonoma property is no higher than the highest part of their Napa property. The soil, they asserted, is also consistent between their Napa and Sonoma parcels. The Constants did not provide any evidence supporting this claim.

Additionally, the Constants stated that their vineyard, originally planted to vines around 1900 by Andrew Rasmussen, is one of the oldest on Diamond Mountain. They submitted several pieces of evidence which mention the Rasmussen vineyards as located on Diamond Mountain near the Napa-Sonoma County line. Because of the historical importance of their vineyard, the Constants felt it should be included in the viticultural area in its entirety.

Finally, the Constants stated that the division of their vineyards by the viticultural area boundaries will create an administrative and financial burden for them by forcing them to track the origin of their grapes.

The petitioners, in counter comments, initially disagreed with both the proposed name change and the proposal to include Sonoma County property in the viticultural area, calling the evidence cited for these changes weak.

On January 22, 2001, the petitioners wrote to ATF stating that they had reconsidered and now wished to change the name of the viticultural area to “Diamond Mountain District.” However, they stated that they were against any change in the proposed boundaries.

While the petitioners acknowledged that Diamond Mountain's peak is in Sonoma County, they argued that historical and current usage of the name is strongly associated with Napa, not Sonoma, County. The petitioners submitted, as part of either the petition or counter comments, over 40 articles referencing Diamond Mountain as a grape growing area in Napa Valley or Napa County. The petitioners felt that including Sonoma County land in a viticultural area associated with Napa Valley would be confusing to the public.

The petitioners also submitted, as part of their counter comments, a document written by wine historian William F. Heintz titled “Diamond Mountain—An Overview of its History & the Rasmussens on Diamond Mountain Napa County, California.” Mr. Heintz found historical records indicating that “Diamond Mountain” was a Napa County region name and road name before it was used for the mountain peak. According to Mr. Heintz's research, the earliest use of the name on a Sonoma County map was in 1970. Thus, the petitioners argued, “Diamond Mountain” is historically a Napa County name.

Mr. Heintz also researched the history of the Rasmussen's vineyards by examining Napa and Sonoma County assessment records and interviewing individuals familiar with the Rasmussen/Constant property. He concluded that the Rasmussens never grew grapes on the Sonoma portion of their property. Two commenters concurred, stating their personal observations of the property in question showed that, prior to the Constants' ownership, it was heavily forested and contained no evidence of old grape plantings.

Finally, the petitioners argued that the division of the Constants' vineyards by the viticultural area boundary would not create a financial or administrative burden. They pointed out that this boundary is already one of the boundaries of the Napa Valley viticultural area. They argued that the Constants knowingly purchased a parcel in Sonoma, on the other side of the present Napa Valley boundary, thus choosing to divide their vineyard holdings. Their financial and administrative burden, the petitioners maintained, would not change with the establishment of the proposed Diamond Mountain District boundaries.

After careful review of the comments, ATF has concluded that the evidence provided supports the creation of the viticultural area with the name “Diamond Mountain District” and with the boundaries as originally proposed.

ATF finds that sufficient evidence has been submitted to support the name “Diamond Mountain District.” In addition to insuring that the viticultural name is that by which the area is locally and/or nationally known, ATF must also insure that the name is not false or misleading to the consumer. While the evidence shows that the area has also been called “Diamond Mountain”, ATF finds that this name could be confused with the Constants ' winery, Diamond Mountain Vineyards. ATF therefore feels that the name “Diamond Mountain District” is a better choice. This name is known to refer to the viticultural area and is not misleading.

ATF finds that the evidence provided by Fred and Mary Constant is not sufficient to change the boundaries as originally proposed. In order for ATF to adopt their proposal, the evidence would need to show that: (1) Their Sonoma County property is recognized by consumers and the wine industry as part of the viticultural area, and (2) their Sonoma County property shares geographic characteristics with the viticultural area. Both of these elements must be proved by the evidence for the proposal to be adopted.

First, the Constants did not establish that their Sonoma County property is recognized as part of the viticultural area. To provide name recognition and boundary evidence, the petitioners submitted over forty articles from newspapers, magazines, and reference books referring to Diamond Mountain as a wine region in Napa Valley or Napa County. None of these articles mention wineries or vineyards in Sonoma County.

Both the petitioners and the Constants referenced an article from the January-February 1977 issue of Connoisseurs' Guide to California Wine titled “Napa Valley Appellations.” This article identifies Diamond Mountain as one of several Napa Valley areas having unique grape-growing characteristics. In their comments, the Constants quote this article, “We would identify the whole mountain area west of the Valley and north of Spring Mountain as Diamond Mountain,” and argue that it supports the inclusion of their vineyard in the viticultural area. However, because of the vagueness of this description, and the fact that this article is clearly referencing Napa Valley areas, ATF does not find this article to be sufficient evidence for the Constants' proposed boundaries.

Both the Constants and the petitioners presented arguments on whether the Rasmussens grew grapes on the Constants' Sonoma parcel on Diamond Mountain. The petitioners submitted several pieces of evidence that persuasively indicated that while the Rasmussens did grow grapes on their Napa property, they did not grow any on their Sonoma property. The Constants' evidence was more general and merely established the site of the Rasmussens' property, and not that they grew grapes in Sonoma County. After analysis of the combined evidence, ATF finds that the Sonoma County portion of Diamond Mountain does not share the viticultural history of the Napa County portion.

Second, the Constants did not establish that that their Sonoma County property shares geographic characteristics with the proposed viticultural area. It is indisputable that the geographic feature called “Diamond Mountain”, as depicted on the petitioners” U.S.G.S. map, includes part of Sonoma County and the Constants' vineyard. However, ATF has created other viticultural areas named for a mountain that do not encompass the entire mountain. In many cases, separate areas of a mountain may have varying climates, soils, or other geographic features, thus creating different grape growing conditions. For example, when establishing the Bell Mountain viticultural area (T.D. ATF-238), ATF cited the soils and topography in its decision to include only the south and southwestern slopes of Bell Mountain in the viticultural area. In another example, the higher elevations of Sonoma Mountain were not included in the Sonoma Mountain viticultural area (T.D. ATF-196) because of climate and topography. In cases such as these, the viticultural area should not encompass the entire mountain since geographic features (climate, soil, elevation, physical features) should be similar within the viticultural area. In the case of Diamond Mountain District, the petitioners have submitted persuasive evidence that the soil and climate in the Napa County part of Diamond Mountain are different from those in the adjacent part of the mountain in Sonoma County. In view of this, the evidence must show that the Constants' Sonoma parcel not only is physically on Diamond Mountain, but also shares similar soil and climatic conditions with the petitioner's proposed viticultural boundaries. Because the Constants have not submitted any evidence regarding the climate or soils of their proposed boundaries, ATF cannot determine if they are similar to those in the proposed viticultural boundaries proposed by the petitioner.

Taken as a whole, the historic and current evidence regarding the boundaries supports the original boundaries proposed by the petitioners. No evidence was present that associated Sonoma County or the Constants' Sonoma vineyard with the grape growing area known as “Diamond Mountain District.” ATF's conclusion is that the Diamond Mountain District is locally and nationally known as referring to that part of Diamond Mountain in Napa County. This, along with the petitioners' climate and soil evidence, supports designating only the Napa County part of Diamond Mountain as the viticultural area “Diamond Mountain District.”

The Diamond Mountain District has been home to vineyards and wineries since the 1860's. According to the petitioner's evidence, a Mr. Joseph Schram planted his first vines as early as 1863 and had a hundred acres of vineyards by 1892.

According to the petitioner, the evolution of Diamond Mountain into a Napa Valley regional name began in the early decades of the 20th century, with Diamond Mountain School and Diamond Mountain Road being the first features in the region to bear the name. The naming of the school took place in 1909, with the major access road in the region designated as Diamond Mountain Road shortly thereafter. The petitioner has also presented substantial evidence that the Diamond Mountain District began to gain national renown in the early 1970's, as expanding consumer interest in California wines resulted in new vineyards, new wineries and a greater awareness of regional wine character. As evidence for this national name, the petitioner included an excerpt from the second edition of The Wines of America by Leon Adams that states, “Diamond Mountain, like Mt. Veeder and Spring Mountain also on the west side of Napa Valley, is regarded as a viticultural district separate from the rest of Napa Valley.”

According to the petitioner, precise boundaries for the region being proposed have never been delineated. The evidence submitted, however, shows that the Diamond Mountain District's viticultural history and identity are strongly associated with Napa Valley. For this reason, the boundaries of the viticultural area are entirely within Napa County. According to the petitioner, the petition took a conservative approach to establishing boundaries for the Diamond Mountain District. The petitioner stated that special care was taken to assure that the boundaries encompass only those lands that meet both the historic and geographic criteria for inclusion in the viticultural area. Also, the boundaries have been drawn to respect neighboring regions with separate names, histories, geographic features and political boundaries. The petitioner cited the Fourth Edition of The Connoisseurs' Handbook of the Wines of California and the Pacific Northwest for a description of the proposed area “* * * a portion of the Napa Valley's western hills between St. Helena and Calistoga”. This citation was accompanied by a map which shows the rough limits of the region: Spring Mountain to the south, the 400 foot elevation that generally parallels Highway 29 to the east, Petrified Forest Road to the north and the Napa-Sonoma County line to the west.

The petitioner chose the 400-foot contour line for the northeastern boundary to accurately reflect the lowest elevation of vineyards historically associated with the Diamond Mountain District. The use of the Napa-Sonoma County line as the southwestern boundary acknowledges the historic association of the Diamond Mountain District viticultural area with Napa County and Napa Valley, and also recognizes the differences in history and geography that distinguish Diamond Mountain from adjacent slopes of the Mayacama Mountains in Sonoma County.

There is evidence in the record that the geographical features in the Diamond Mountain District viticultural area clearly distinguish it from surrounding areas. The Diamond Mountain District is situated in the Napa Valley on the eastern slope of the Mayacamas Mountains. The region consists entirely of residual upland soils derived from volcanic parent material. These soils are very different from the alluvial soils on the floor of the Napa Valley to the east and northeast and are also significantly different from the sedimentary upland soils prevalent in the Spring Mountain viticultural area to the south. These soils are significantly different from the shallow, dry soils in Sonoma County to the west and southwest. According to the petitioner, the viticultural area's topography and aspect contribute to a special microclimate. Hillside topography and valley temperature inversions combine to give the region an unusually moderate temperate regime during a growing season, with lower maximum temperatures and higher minimum temperatures than nearby locations on the floor of the Napa Valley. The petitioner stated that the microclimate of the Diamond Mountain District is clearly distinctive when compared to the surrounding areas. The region's microclimate is slightly warmer than that of the Spring Mountain District to the south, but somewhat similar due to comparable upland locations, northeastern (eastern, in Spring Mountain's case) aspects, and cooling influence of marine breezes from the Pacific Ocean. The microclimate is significantly cooler than the floor of the Napa Valley to its northeast and north, due to various tempering influences primarily associated with its upland location. So too is it cooler than adjacent land to the west in Sonoma County, due to its predominantly northeastern aspect which provides oblique sun and shade in the afternoon, while the western aspect of the Mayacamas Mountains adjacent to the region in Sonoma County is clearly hotter and drier.

The viticultural area is located in Napa County, California. The approved USGS maps for determining the boundary of the Diamond Mountain District viticultural area are, “Mark West Springs, Calif.”, 7.5 minute series, edition of 1993, and the “Calistoga, Calif.”, 7.5 minute series, edition of 1993. The northeastern boundary follows the 400-foot contour line from Ritchey Creek northwest to the Petrified Forest Road and the northern boundary follows the Petrified Forest Road west from the 400-foot contour line to the Napa-Sonoma county line. The southwestern boundary follows the official boundary line between Napa and Sonoma counties southeast from Petrified Forest Road to the east-west boundary between Sections 18 and 19 in Township 8 North, Range 6 West, Mount Diablo Range and Meridian. The southern boundary follows the boundary between Sections 18 and 19, Sections 17 and 20 and Ritchey Creek east from the Napa-Sonoma county line to the 400-foot elevation line. It also corresponds with the Northern Boundary of the Spring Mountain District viticultural area.

The provisions of 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 rule because no requirement to collect information is imposed.

These regulations will not have a significant economic impact on a substantial number of small entities. The establishment of a viticultural area is neither an endorsement or approval by ATF of the quality of wine produced in the area, but rather an identification of an area that is distinct from surrounding areas. ATF believes that the establishment of viticultural areas merely allows wineries to more accurately describe the origin of their wines to consumers, and helps consumers identify the wines they purchase. Thus, 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 that area.

No new requirements are proposed. Accordingly, a regulatory flexibility analysis is not required.

It has been determined that this regulation is not a significant regulatory action as defined by Executive Order 12866. Therefore, a regulatory assessment is not required.

The principal author of this document is Jennifer Berry, Regulations Division, Bureau of Alcohol, Tobacco, and Firearms.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM, and, under 5 U.S.C. 553(d)(3), good cause exists for making this rule it effective less than 30 days after publication in the Federal Register . The permit application did not allow sufficient time for publication of an NPRM followed by a temporary final rule effective 30 days after publication. Any delay of the effective date of this rule would be contrary to the public interest due to the known dangers associated with fireworks displays and the possible loss of life, injury, and damage to property.

This Safety Zone is established to safeguard the public from the hazards associated with launching of fireworks on the Milwaukee River, Milwaukee, Wisconsin. The size of the zone was determined by using previous experiences with fireworks displays in the Captain of the Port Milwaukee zone and local knowledge about wind, waves, and currents in this particular area.

The safety zone will be in effect on June 1st and 2nd, from 8:30 p.m. (CST) until 10:40 p.m. (CST). The safety zone will encompass all waters bounded by the following coordinates: from the point of origin at 43° 02.601 N, 087° 54.831 W; east along the State Street Bridge to 43° 02.617 N, 087° 54.766 W; south along the east bank of the Milwaukee River to 43° 02.487 N, 087° 54.756 W; west along the Kilbourn Street Bridge to 43° 02.506 N, 087° 54.735 W; north along the west bank of the Milwaukee River next to Pere Marquette Park back to the point of origin.

All persons and vessels shall comply with the instructions of the Captain of the Port Milwaukee or his designated on scene patrol personnel. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Milwaukee or his designate on scene representative. The Captain of the Port Milwaukee may be contacted via VHF Channel 16.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 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 final rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of the DOT is unnecessary. This finding is based on the following reasons: this rule will be in effect for only two hours on two days and late in the day when vessel traffic is minimal; vessel traffic may enter or transit through the safety zone with the permission of the Captain of the Port Milwaukee or his designated on scene representative; and we will issue maritime advisories, widely available to users of the Milwaukee River, before the effective period.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), 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: the owners or operators of vessels intending to transit or anchor in the vicinity of Pere Marquette Park between the Kilbourn Avenue and State Street Bridges, Milwaukee, Wisconsin from 8:30 p.m. (CST) until 10:40 p.m. (CST) on June 1st and 2nd, 2001.

This safety zone will not have significant economic impact on a substantial number of small entities for the following reasons: this rule will be in effect for only two hours on two days and late in the day when vessel traffic is minimal; vessel traffic may enter or transit through the safety zone with the permission of the Captain of the Port Milwaukee or his designated on scene representative; and we will issue maritime advisories, widely available to users of the Milwaukee River, before the effective period.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. 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 Marine Safety Office Milwaukee (See 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 1-800-REG-FAIR (1-888-734-3247).

This rule call 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 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 M16475.1C, this rule is categorically excluded from further environmental documentation.

Each July, persons who are entitled to statutory license fees collected under the provisions of the cable statutory license, 17 U.S.C. 111, and the satellite statutory license, 17 U.S.C. 119, must file a claim with the Copyright Office in accordance with its regulations in order to establish their claim to a share of the royalty fees. See 37 CFR 252.3 and 257.3. Historically, the filing requirements have been minimal, requiring only the identification of the claimant, contact information, a statement of the nature of the claimant's copyrighted work, at least one example of a secondary retransmission of the claimant's work during the previous calender year, an original signature of the claimant or a duly authorized representative of the claimant, and, in the case of a joint claim, a statement on the part of the entity filing the claim that authorization for filing the claim exists.

On April 26, 2001, the Copyright Office published a Notice of Proposed Rulemaking, seeking comment on proposed amendments which were offered to clarify that the identity of each copyright owner must be listed on each claim. 66 FR 20958 (April 26, 2001). The need for this clarification became apparent during a recent cable royalty distribution proceeding, when a party filed a claim for cable royalties in the name of a corporate entity that held no copyrights to programming which had been secondarily transmitted by a cable system during the relevant calendar year. See Docket No. 2000-2 CARP CD 93-97. The disputed claim was filed under the current regulations which allow “any party” claiming to be entitled to cable fees to make the claim. During the course of that proceeding, the Office observed that the language “any party” was quite broad and could include holders of one or more exclusive rights granted by copyright, as well as agents and representatives of copyright owners. See Order in Docket No. 2000-2 CARP CD 93-97 (June 22, 2000).

Specifically, the Office found that this language might plausibly be interpreted by the public as allowing the filing of a “placeholder” claim. A “placeholder” claim is a claim filed by a person who is not a copyright owner, but who files a cable or satellite claim in his or her own name, and then later asserts claims to royalties on behalf of copyright owners whose works were retransmitted by a cable system or satellite carrier. Placeholder claims may be filed with the Copyright Office in the form of single claims, but in substance they are joint claims. Because the Copyright Office does not inquire as to the identity of the person or entity filing a cable or satellite claim (i.e. whether that person or entity is a copyright owner or another party), we cannot determine whether the claim is a properly filed single claim, or should be a joint claim identifying the appropriate represented copyright owners.

Placeholder claims run afoul of the distribution process for cable and satellite royalties. The law states that cable and satellite royalties may only be distributed to copyright owners whose works were retransmitted by either cable systems or satellite carriers. 1 Indeed, the purpose of filing claims is to permit identification of all copyright owners who are entitled to a distribution. 2 Placeholder claims make it impossible to identify the copyright owners entitled to distribution. Further, both section 111 and section 119 plainly state that claims for royalty fees must be filed in the month of July to be eligible for distribution. Placeholder claims can circumvent this requirement by allowing the filer to enter into representation agreements with copyright owners after the July deadline, and effectively secure a distribution for those owners who had not filed timely claims. The Office has stated previously that it will not allow joint claims to be amended to add new parties after the July deadline, because this would thwart the purpose of the July filing requirement. 59 FR 63025, 63028 (December 7, 1994). Placeholder claims can produce this result, because the identity of the copyright owners represented by the party filing the placeholder claim will not be known until Notices of Intent to Participate in a CARP proceeding are filed. Presumably, the party filing the placeholder claim could then sign representation agreements with copyright owners who had not filed their own claims up until that date.

We wish to put an end to placeholder claims. To this end, we proposed amendments to parts 252 and 257 of the rules to clarify that a claim filed with the Copyright Office must list the name of each copyright owner covered by the claim; and today, we are adopting the proposed amendments as final regulations. In addition, the amended rules will also require that a joint claim specify the name of the copyright owner for each listed copyrighted work. These rules shall govern the filing of cable and satellite claims beginning July 1, 2001.

The Copyright Office received comments to its proposed rules from seven parties: the American Society of Composers, Authors and Publishers, Broadcast Music, Inc., and SESAC, Inc. (collectively, the “Performing Rights Organizations”); the Office of the Commissioner of Baseball, the National Basketball Association, the National Football League, and the National Hockey League (collectively, the “Professional Sports Leagues”); the Canadian Claimants Group; the National Association of Broadcasters (“NAB”); the Motion Picture Association of America (“MPAA”); Worldwide Subsidy Group (“WSG”); and Mark J. Davis (“Davis”).

The commenters, in general, support the Office's endeavor to clarify its rules to eliminate any opportunity for a claimant to expand its claim after the July 31 filing deadline. The Performing Rights Organizations and the Professional Sports Leagues support the proposed modifications to §§ 252.3 and 257.3 of title 37 of the Code of Federal Regulations without change. The remaining five commenters agreed with the proposed amendments but each sought additional modifications to the rules and/or clarification of the nature of the problem that prompted the Office to amend its rule.

First, the purpose of the filing requirements is to establish each copyright owner's entitlement to the cable and satellite royalties in accordance with the provisions set forth in the law. A fundamental requirement is to file a claim with the Copyright Office during the month of July for royalties collected the prior calendar year. No claim can be filed without identifying the copyright owner.

Prior to the recent cable distribution proceeding, Docket No. 2000-2 CARP CD 93-97, we had thought the rules had made it clear that the identity of each copyright owner must be disclosed. Consequently, a joint claim had to include the name of each copyright owner on whose behalf the claim was made. Certain parties, e.g. the Professional Sports Leagues and the MPAA, who have historically participated in these proceedings, also understood this to be the law and saw no ambiguity in the wording of the rules.

But what was clear and unambiguous to these parties and the Office was not so obvious to new participants. In July of 1998, the Office received a claim from a single entity which turned out to be an agent filing on behalf of a number of copyright owners. Because the Office recognized that there were arguably ambiguities in the regulation at that time, the Office allowed the claim and further fact-finding was conducted by a Copyright Arbitration Royalty Panel (“CARP”) for the purpose of establishing which copyright owners and which programs were covered by the initial filing.

To avoid such problems in the future, the Office issued proposed rules for the purpose of clarifying that each claim must list the name of each copyright owner on whose behalf the claim is filed and it must do so during the time period established by Congress.

Only WSG makes any objection to the new rules. WSG argues that the proposed rules “are little more than another obstacle that could result in the denial of valid claims.” WSG comment at 4. WSG reaches this conclusion based upon its analysis of the United States statutory mechanism for filing claims for retransmission royalties with procedures used in Europe, Australia and Asia. It concludes that the United States system is more complex, restrictive, time consuming and expensive. To make its case, WSG highlights the statutory requirement that claims to cable and satellite royalties must be filed with the Copyright Office during the month of July each year. It cites this requirement as an example of the formalistic restrictions placed on the copyright owners and seems to urge the Office to impose fewer restrictions on the claimants, such as not requiring the identification of the copyright owner at the time the claim is filed. Moreover, WSG argues that the imposition of the requirement could result in the denial of a valid claim, especially where the agent has secured timely and proper authority to make the filing.

However, we fail to see how an agent or a copyright owner is disadvantaged because the agent is required to list the name of each copyright owner to a joint claim. First, the agent must know who his clients are when he files the claim. Second, an initial claim may be further amended to add new copyright owners at any time during the month of July. Alternatively, the agent can file the claim on the last day of the filing period provided that the claim is either hand delivered to the Copyright Office or it is sent via first class mail and bears a July date stamp from the United States Postal Service. The only requirement is that the claim be timely filed with the Copyright Office and that it meet the minimal filing requirements, including a complete list of the copyright owners who are covered by the claim, their respective addresses and an example of a secondary transmission of a work owned by one of the listed copyright owners. The copyright owner of this work must be identified.

Adherence to this fundamental filing requirement will, as MPAA points out, simplify litigation and reduce the associated costs. MPAA also contends that the simple rule change will facilitate settlement negotiations at an earlier phase in the distribution process. Even WSG agrees that the requirement to list each copyright owner to a joint claim will allow other parties a mechanism by which they can ascertain the extent of the claim and verify that the party making the claim has the necessary authority to make the filing.

The name of each copyright owner is among the most fundamental elements required to establish a claim to copyright royalties and there can be no serious challenge to a rule requiring the identification of the party who is the beneficiary of the claim. Thus, we are adopting the amended rules. 3

The proposed rules also require that a joint claim include the address for each listed copyright owner. WSG does not object to the additional requirement, but it does not agree that the requested contact information need be filed at the same time as the initial claim. It argues that the information may not be readily available to the party filing the claim, especially when a first time claimant decides at the last minute to pursue its entitlement. For this reason, WSG proposes that the Office require a subsequent filing with the address and contact information for each claimant. In addition, WSG suggests that this information be submitted to the Copyright Office under seal of a protective order to avoid misuse of the information.

WSG's arguments are unavailing on this point. Undoubtedly, most people could benefit from more time to meet a deadline, but the time for completing the process is limited. Thus, it is incumbent upon the claimant to begin the process early enough to gather the necessary information and submit it to the Office in a timely manner, either in his or her own claim or in a joint claim filed by the copyright owner's agent. Moreover, there is no justification for granting a copyright owner who chooses to file through an agent more time to submit the required information than that allotted to a copyright owner who submits a single claim in his or her own name. Identifying the address of a claimant is a simple matter involving information that should be readily available to the person filing the claim.

For this reason, the Copyright Office rejects WSG's suggestion that copyright owners to a joint claim receive additional time to meet the Office's filing requirements. The Office also rejects the suggestion that the addresses and contact information for each joint claimant be submitted under a protective order. The requested information is by no means confidential. Quite the contrary, it is the most mundane, ordinary variety of information that is routinely disclosed in the ordinary course of business. There is no justification for redacting such information from a public record.

Two commenters, WSG and Davis, seek modifications to the rules to require claimants to identify in their initial filing all programs for which they are making a claim. Davis maintains that the purpose of the claim in July is to clearly identify the claimants who are entitled to receive the royalty fees and the works upon which they base their claim. Davis argues that the identification of all programs at the initial stage of the distribution process will foster an early resolution of any outstanding controversies. He believes that an additional requirement to list all programs in the initial claim will not overburden the filer because the information is readily available from Cable Data Corporation or readily accessible from the claimant's business records.

WSG supports similar modifications of the rules because it had difficulty ascertaining the validity of a claimant's entitlement to particular programs in a recent cable distribution proceeding. It too believes that a rule requiring disclosure of the programs owned or claimed by each claimant would aid in the just resolution of outstanding controversies.

Davis and WSG, however, have formed their opinions based on a single experience in a Phase II distribution proceeding which, by its very nature, required the fact finders to sort out individual claims and determine the value of each claimant's programming. Lists of programs associated with particular claimants, however, are not needed in the early stages of the distribution process. Historically, parties have been able to negotiate settlement agreements between program categories without the aid of specific program information. Furthermore, parties have indicated that, in the case of a joint claim, it is both unnecessary and expensive to require the listing of a single specific program for each copyright owner listed in the claim. 59 FR 23964 (May 9, 1994).

The Office concludes that before making a determination on these proposals, it would be necessary to explore this issue in a separate proceeding and provide an opportunity for comment from other parties.

NAB supports the proposed rule changes, but it seeks clarification of the rule for filing a joint claim when the claim is filed in the name of a parent company on behalf of all its subsidiaries. It notes that “group broadcast station owners sometimes follow the practice of filing a single claim on behalf of their entire group of owned stations,” even though the parent company may only be the beneficial owner and not the legal owner of the retransmitted works. NAB comment at 2.

However, it is clear that a claim which asserts rights to royalties on behalf of more than a single entity is a joint claim. Thus, the preceding example cited by NAB must be considered a joint claim and as such, it must list each claimant and include a concise statement of authorization. On this point, NAB asserts that the practice of reciting the relationship between the parent and the subsidiary should be sufficient to establish the parent entity's authority for filing the claim on behalf of itself and its subsidiaries and seeks to codify this understanding by including additional regulatory language. Specifically, NAB requests that the proposed regulation be amended to state that:

Moreover, what is required under the final rule is that the person or entity filing the claim, e.g., the parent corporation, ascertain whether it has the authority to file the claim on behalf of the listed joint claimants and include a concise statement of the authorization it has for making such claim. Of course, this statement is merely a representation to the Office that the authority for filing the claim exists and its validity may be tested at a later point in the distribution process.

In the event the Office determines that a parent/subsidiary claim is a joint claim, NAB makes a second request. It asks for a liberal amendment policy under which the parent corporation can amend its claim to add additional subsidiaries not listed on the original claim. It argues that such amendments do not prejudice other parties because the original claim would provide notice to all parties of the scope and nature of the claim. While NAB suggests that the Office can offer such relief informally without a change to its rules, the Office disagrees.

The final rule requires that, with one exception, a joint claim list each copyright owner. The one express exception—a longstanding one—applies to performing rights organizations. This exception to the requirement to list all copyright owners exists because the Office has recognized that the organizations' standard membership or affiliate agreements are a proper indication of authorization. Because the proposed rule states the circumstances under which a party need not adhere to specific filing requirements, the Office concludes that NAB's proposal would require promulgation of a similar regulation specifically granting liberal amendment procedures for parent corporations. Moreover, such change is beyond the scope of the proposal made in the current rulemaking proceeding, and other parties have not had the opportunity to comment on it. Thus, at this time the Office cannot entertain the NAB proposal.

The Canadian Claimant Group files a joint claim annually and “supports [the Office's] efforts to insure the integrity and transparency of the claims process.” Canadian Claimant Group comment at 2. However, it has asked the Office to amend its rules further and make written authorizations available for inspection by other copyright owners upon request. This suggestion goes beyond the scope of the Office's proposal made in the current rulemaking proceeding, and the Office is not prepared to make such a change without giving other interested parties an opportunity to comment on the efficiencies and burdens associated with the additional requirement.

The Library of Congress is adopting final regulations under its authority to establish regulations for the submission of cable statutory license claims and satellite statutory license claims. 17 U.S.C. 111(d)(4)(A) and 119(b)(4)(A).

On December 8, 2000, the Postal Service published a final rule in the Federal Register (65 FR 77075) adopting changes in international postal rates, fees, and mail classifications. The rule was effective on January 7, 2001. At that time, the Postal Service noted that certain international special service fees were based on the domestic equivalent service and were subject to change based on the Board of Governors' decision about domestic mail.

Recorded delivery service is an international special service that is equivalent to the domestic service, certified mail. Mailers using the service receive a numbered mailing receipt and the destination post office retains a record to establish proof of delivery for each mailed item. Recorded delivery items are handled as ordinary mail during transit. The fee for recorded delivery is based on the fee for the equivalent domestic service, certified mail.

The Postal Rate Commission, in its recommended decision on R2000-1, recommended a fee of $1.90 for certified mail. The Postal Service adopted this fee, under protest, for certified mail. Likewise, we set the fee for recorded delivery at $1.90.

On May 7, 2001, the Board of Governors adopted a fee of $2.10 for certified mail; the new rate is effective on July 1, 2001. Accordingly, we are changing the fee for recorded delivery service to $2.10 effective July 1, 2001.

The Postal Service adopts the following amendments to the International Mail Manual (IMM), which is incorporated by reference in the Code of Federal Regulations (CFR). (See 39 CFR 20.1.)

You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

1. Electronically . You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/. To access the OPPTS Harmonized Guidelines referenced in this document, go directly to the guidelines at http://www.epa.gov/opptsfrs/home/guidelin.htm.

2. In person . The Agency has established an official record for this action under docket control number OPP-301128. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

In the Federal Register of March 28, 2001 (66 FR 16921) (FRL-6769-9), EPA issued a notice pursuant to section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) announcing the filing of a pesticide petition (PP) for tolerance by K-I Chemical U.S.A. Inc., Westchester Financial Center, 11 Martine Avenue, 9th Floor, White Plains, NY, 10606. This notice included a summary of the petition prepared by K-I Chemical U.S.A. Inc., the registrant. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR 180.547 be amended by establishing a tolerance for residues of the plant growth regulator prohexadione calcium, calcium 3-oxido-5-oxo-4- propionylcyclohex-3-enecarboxylate in or on grass forage at 0.10 part per million (ppm), grass hay at 0.10 ppm, grass straw at 1.2 ppm and grass seed screenings at 3.5 ppm.

Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).

Consistent with section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2), for a tolerance for residues of prohexadione calcium, calcium 3-oxido-5-oxo-4-propionylcyclohex-3-enecarboxylate in or on grass forage at 0.10 ppm, grass hay at 0.10 ppm, grass straw at 1.2 ppm and grass seed screenings at 3.5 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by prohexadione calcium are discussed in the following Table 1 as well as the no observed adverse effect level (NOAEL) and the lowest observed adverse effect level (LOAEL) from the toxicity studies reviewed.

The dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor (UF) is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. An UF of 100 is routinely used, 10× to account for interspecies differences and 10× for intraspecies differences.

For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). Where an additional safety factor is retained due to concerns unique to the FQPA, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute or chronic Population Adjusted Dose (aPAD or cPAD) is a modification of the RfD to accommodate this type of FQPA Safety Factor.

For non-dietary risk assessments (other than cancer) the UF is used to determine the LOC. For example, when 100 is the appropriate UF (10× to account for interspecies differences and 10× for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure (MOE) = NOAEL/exposure) is calculated and compared to the LOC.

The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify carcinogenic risk. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk. A Q* is calculated and used to estimate risk which represents a probability of occurrence of additional cancer cases (e.g., risk is expressed as 1 × 10 - 6 or one in a million). Under certain specific circumstances, MOE calculations will be used for the carcinogenic risk assessment. In this non-linear approach, a “point of departure” is identified below which carcinogenic effects are not expected. The point of departure is typically a NOAEL based on an endpoint related to cancer effects though it may be a different value derived from the dose response curve. To estimate risk, a ratio of the point of departure to exposure (MOE cancer = point of departure/exposures) is calculated. A summary of the toxicological endpoints for prohexadione calcium used for human risk assessment is shown in the following Table 2:

1. Dietary exposure from food and feed uses . Tolerances have been established (40 CFR 180.547) for the residues of prohexadione calcium, in or on a variety of raw agricultural commodities. Risk assessments were conducted by EPA to assess dietary exposures from prohexadione calcium in food as follows:

i. Acute exposure . Acute dietary risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a one day or single exposure. An acute dietary risk assessment was not performed because there were no adverse effects of concern observed in neurotoxicity studies, oral toxicology studies, including maternal toxicity in the developmental toxicity studies in rats and rabbits, that were attributable to a single exposure dose.

ii. Chronic exposure . In conducting this chronic dietary risk assessment the Dietary Exposure Evaluation Model (DEEM _ ) analysis evaluated the individual food consumption as reported by respondents in the USDA 1989-1992 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: Tolerance level residues (pome fruit, peanuts, animal feeds) and 100% CT was assumed for all commodities. Residues were not found to concentrate in processed apples; therefore, concentration factors were not used (apple juice, cider).

iii. Cancer . In accordance with the EPA Draft Guidelines for Carcinogen Risk Assessment (July, 1999), prohexadione calcium is classified as not likely to be carcinogenic to humans by all routes of exposure based upon lack of evidence of carcinogenicity in rats and mice.

2. Dietary exposure from drinking water . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for prohexadione calcium in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the physical characteristics of prohexadione calcium.

The Agency uses the Generic Estimated Environmental Concentration (GENEEC) or the Pesticide Root Zone/Exposure Analysis Modeling System (PRZM/EXAMS) to estimate pesticide concentrations in surface water and SCI-GROW, which predicts pesticide concentrations in groundwater. In general, EPA will use GENEEC (a tier 1 model) before using PRZM/EXAMS (a tier 2 model) for a screening-level assessment for surface water. The GENEEC model is a subset of the PRZM/EXAMS model that uses a specific high-end runoff scenario for pesticides. GENEEC incorporates a farm pond scenario, while PRZM/EXAMS incorporates an index reservoir environment in place of the previous pond scenario. The PRZM/EXAMS model includes a percent crop area factor as an adjustment to account for the maximum percent crop coverage within a watershed or drainage basin.

None of these models include consideration of the impact processing (mixing, dilution, or treatment) of raw water for distribution as drinking water would likely have on the removal of pesticides from the source water. The primary use of these models by the Agency at this stage is to provide a coarse screen for sorting out pesticides for which it is highly unlikely that drinking water concentrations would ever exceed human health levels of concern.

Since the models used are considered to be screening tools in the risk assessment process, the Agency does not use estimated environmental concentrations (EECs) from these models to quantify drinking water exposure and risk as a %RfD or %PAD. Instead drinking water levels of comparison (DWLOCs) are calculated and used as a point of comparison against the model estimates of a pesticide's concentration in water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food, and from residential uses. Since DWLOCs address total aggregate exposure to prohexadione calcium they are further discussed in the aggregate risk sections below.

Based on the GENEEC and SCI-GROW models the estimated environmental concentrations (EECs) of prohexadione calcium for acute exposures are estimated to be 35.6 parts per billion (ppb) for surface water and 0.001 ppb for ground water. The EECs for chronic exposures are estimated to be 7.73 ppb for surface water and 0.001 ppb for ground water.

3. From non-dietary exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Prohexadione calcium is not registered for use on any sites that would result in residential exposure.

4. Cumulative exposure to substances with a common mechanism of toxicity . Section 408(b)(2)(D)(v) requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA does not have, at this time, available data to determine whether prohexadione calcium has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, prohexadione calcium does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that prohexadione calcium has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the final rule for Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997).

1. In general . FFDCA section 408 provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a margin of exposure (MOE) analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans.

2. Prenatal and postnatal sensitivity . The prenatal and postnatal toxicology data base for prohexadione is adequate for FQPA considerations. The results of these studies indicated no quantitative or qualitative increase in susceptibility of rats or rabbits to in utero and/or postnatal exposure to prohexadione. A developmental neurotoxicity study is not required.

3. Conclusion . There is a complete toxicity data base for prohexadione calcium and exposure data are complete or are estimated based on data that reasonably accounts for potential exposures. The FQPA Safety Factor is 1× (reduced from 10×). In assessing the risk posed by prohexadione calcium the safety factor could be removed because: (i) The prenatal and postnatal toxicology data base is complete, there is no indication of increased susceptibility, and a developmental neurotoxicity study is not required, and (ii) the food and drinking water exposure assessments will not underestimate the potential exposures for infants and children from the use of prohexadione calcium (currently there are no proposed residential uses and, therefore, non-occupational exposure is not expected).

To estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses, the Agency calculates DWLOCs which are used as a point of comparison against the model estimates of a pesticide's concentration in water (EECs). DWLOC values are not regulatory standards for drinking water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. In calculating a DWLOC, the Agency determines how much of the acceptable exposure (i.e., the PAD) is available for exposure through drinking water [e.g., allowable chronic water exposure (mg/kg/day) = cPAD - (average food + residential exposure). This allowable exposure through drinking water is used to calculate a DWLOC.

A DWLOC will vary depending on the toxic endpoint, drinking water consumption, and body weights. Default body weights and consumption values as used by the USEPA Office of Water are used to calculate DWLOCs: 2L/70 kg (adult male), 2L/60 kg (adult female), and 1L/10 kg (child). Default body weights and drinking water consumption values vary on an individual basis. This variation will be taken into account in more refined screening-level and quantitative drinking water exposure assessments. Different populations will have different DWLOCs. Generally, a DWLOC is calculated for each type of risk assessment used: acute, short-term, intermediate-term, chronic, and cancer.

When EECs for surface water and groundwater are less than the calculated DWLOCs, OPP concludes with reasonable certainty that exposures to the pesticide in drinking water (when considered along with other sources of exposure for which OPP has reliable data) would not result in unacceptable levels of aggregate human health risk at this time. Because OPP considers the aggregate risk resulting from multiple exposure pathways associated with a pesticide's uses, levels of comparison in drinking water may vary as those uses change. If new uses are added in the future, OPP will reassess the potential impacts of residues of the pesticide in drinking water as a part of the aggregate risk assessment process.

1. Acute risk . Acute dietary risk assessment is not expected because there were no adverse effects of concern observed in neurotoxicity studies, oral toxicology studies, including maternal toxicity in the developmental toxicity studies in rats and rabbits, that were attributable to a single exposure dose.

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to prohexadione calcium from food will utilize < 1 % of the cPAD for the U.S. population, 2% of the cPAD for all infants (<1 year old) and 2% of th cPAD for children 1-6 years of age. There are no residential uses for prohexadione calcium that result in chronic residential exposure to prohexadione calcium. In addition, there is potential for chronic dietary exposure to prohexadione calcium in drinking water. After calculating DWLOCs and comparing them to the EECs for surface and ground water, EPA does not expect the aggregate exposure to exceed 100% of the cPAD, as shown in the following Table 3:

3. Short-term risk . Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Prohexadione calcium is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern.

4. Intermediate-term risk . Intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Prohexadione calcium is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern.

5. Aggregate cancer risk for U.S. population . Prohexadione calcium is classified as not likely to be carcinogenic to humans by all routes of exposure based upon lack of evidence of carcinogenicity in rats and mice, therefore, no cancer risk is expected.

6. Determination of safety . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to prohexadione calcium residues.

Adequate enforcement methodology (gas chromatography and mass selective detector) is available to enforce the tolerance expression. The method may be requested from: Calvin Furlow, PRRIB, IRSD (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW, Washington, DC 20460; telephone number: (703) 305-5229; e-mail address: furlow.calvin@epa.gov.

There is neither a Codex proposal, nor Canadian or Mexican limits for residues of prohexadione calcium in/on plant or livestock commodities.

A 21-day dermal toxicity study in rabbits (OPPTS 870.3200) is required.

Therefore, the tolerance is established for residues of prohexadione calcium, calcium 3-oxido-5-oxo-4-propionylcyclohex-3-enecarboxylate in or on grass forage at 0.10 ppm, grass hay at 0.10 ppm, grass straw at 1.2 ppm and grass seed screenings at 3.5 ppm.

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCA sections 408 and 409. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301128 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before July 31, 2001.

1. Filing the request . Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. C400, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.

2. Tolerance fee payment . If you file an objection or request a hearing, you must also pay the fee prescribed by 40 CFR 180.33(i) or request a waiver of that fee pursuant to 40 CFR 180.33(m). You must mail the fee to: EPA Headquarters Accounting Operations Branch, Office of Pesticide Programs, P.O. Box 360277M, Pittsburgh, PA 15251. Please identify the fee submission by labeling it “Tolerance Petition Fees.”

EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov, or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VI.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301128, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

This final rule establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on 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, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). For these same reasons, the Agency has determined that this rule does not have any tribal implications as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications. Policies that have tribal implications is defined in the Executive Order to include regulations that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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

States which have received Final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

EPA concludes that Maryland's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Maryland Final authorization to operate its hazardous waste program with the changes described in the authorization application. Maryland has responsibility for permitting treatment, storage, and disposal facilities (TSDFs) within its borders and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Maryland, including issuing permits, until the State is granted authorization to do so.

The effect of this decision is that a facility in Maryland subject to RCRA will have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Maryland has enforcement responsibilities under its state hazardous waste program for violations of such program, but EPA retains authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

• Do inspections, and require monitoring, tests, analyses or reports;

• Enforce RCRA requirements and suspend or revoke permits; and

• Take enforcement actions regardless of whether the State has taken its own actions.

This action does not impose additional requirements on the regulated community because the regulations for which Maryland is being authorized by today's action are already effective, and are not changed by today's action.

EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's Federal Register we are publishing a separate document that proposes to authorize the State program changes. If EPA receives comments which oppose this authorization, or portion(s) thereof, that document will serve as a proposal to authorize such changes.

If EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the Federal Register before the rule becomes effective. EPA will base any further decision on the authorization of the State's program changes on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.

If EPA receives comments that oppose only the authorization of a particular change to the State hazardous waste program, we may withdraw that part of this rule, but the authorization of the program changes that the comments do not oppose will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn.

Title 7, Subtitle 2 of the Health-Environmental Article of the Annotated Code of Maryland, as amended through 1984, authorized the Department of Health and Mental Hygiene (DHMH) to “adopt rules and regulations to carry out the provisions of this subtitle” and to “administer and enforce this subtitle and the rules, regulations, and orders adopted or issued under this subtitle.” The DHMH promulgated regulations to implement Subtitle 2 in Chapters 10.51.01 through 10.51.07 of the Code of Maryland Regulations. The State received Final authorization from EPA to implement its base hazardous waste program effective February 11, 1985 (50 FR 3511; January 25, 1985).

The statutory provisions concerning hazardous waste management were shifted without renumbering to the newly created Environment Article of the Annotated Code of Maryland in 1987. At that time, the responsibilities for adopting rules and regulations, and for administering and enforcing Subtitle 2, were transferred to the newly created Maryland Department of the Environment (MDE). Since Maryland's base program authorization, the State has made numerous changes to its regulations. Most notably, in 1989 the regulations were recodified in Chapters 26.13.01 through 26.13.10 of the Code of Maryland Regulations with conforming changes to internal references and some renumbering of provisions in Chapters 26.13.02 and 26.13.05. MDE's latest regulatory revisions took effect on October 16, 2000.

On December 21, 2000, Maryland submitted a final, complete program revision application seeking authorization of its changes in accordance with 40 CFR 271.21. EPA Region III worked closely with the State to develop the authorization package. Therefore, EPA's comments relative to the State's legal authority to carry out aspects of the Federal program for which the State is seeking authorization, the scope and coverage of activities regulated, and the State's procedures, including the criteria for permit reviews, public participation and enforcement capabilities, were addressed before the submission of the final application by the State. Maryland also solicited public comments on its proposed regulations before they were adopted.

Maryland's program revision application includes statutory and regulatory changes to the State's authorized hazardous waste program, including the adoption of interim status regulations, the adoption of changes to the Federal hazardous waste regulations addressed by selected Revision Checklists listed in the following table, and the adoption of State-initiated changes. The State's statutory references are to the Environment Article, Title 7, Subtitle 2 of the Annotated Code of Maryland (1996 Repl. Vol., 1999 Cumul. Supp.). The regulatory references are to Title 26, Subtitle 13 of the Code of Maryland Regulations (COMAR), Chapters 01 through 07, and Chapter 10, as amended effective October 16, 2000.

We now make an immediate final decision, subject to receipt of written comments that oppose this action, that Maryland's hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. Therefore, we grant Maryland Final authorization for the following program changes:

This is a summary of the Commission's Order on Reconsideration in WT Docket 99-327, FCC 01-151, adopted May 2, 2001 and released May 17, 2001. The full text is also available for inspection and copying during normal business hours in the FCC Reference Information Center (Courtyard level), 445 12th Street, SW., Washington DC 20554, and also may be purchased from the Commission's copy contractor, International Transcription Services (ITS Inc.), (202) 857-3800, 445 12th Street, SW., CY-B400, Washington DC 20054. The full text of the Order on Reconsideration may also be downloaded at http://www.fcc.gov/Bureaus/Wireless/Orders/2001/FCC-01-151A1.doc.

1. This Order on Reconsideration (Order) denies two petitions for reconsideration of the Report and Order in this proceeding (65 FR 59350, October 5, 2000) regarding licensing the 24 GHz band by 176 EAs. In the Report and Order, the Commission decided to license the 24 GHz band by EAs because EAs not only offer economies of scale, but also serve the needs of a wider range of entities, including both large and small service providers. Also, the Commission decided to adopt a three-tiered approach to bidding credits, under which very small businesses receive a 35 percent bidding credit, small businesses a 25 percent bidding credit, and entrepreneurs a 15 percent bidding credit.

2. The Rural Telecommunications Group (RTG) and the Office of Advocacy of the Small Business Administration (SBA) filed petitions for reconsideration objecting to licensing the 24 GHz band by EA. SBA and RTG maintained that EAs are too large and, therefore unaffordable, for either small businesses or rural telephone companies to participate at auction. Both RTG and SBA recommend that the Commission instead license the 24 GHz band by MSA and RSA, which are smaller than EAs and would result in licensing rural areas separately from urban areas. In contrast, EAs encompass both urban and rural areas.

3. Contrary to the position of RTG and SBA on this issue, the Commission believes, based on its experience with the 39 GHz auction, that licensing the 24 GHz band by EAs will not discourage small businesses from participating at the 24 GHz auction. The 39 GHz auction used EA-based service areas. In that auction, small and very small businesses successfully bid for 849 licenses, or almost 40 percent of the licenses sold. In the 24 GHz auction, bidding credits will be made available to small businesses. Moreover, rural telephone companies were successful at the 39 GHz auction. All six qualified bidders that identified themselves in their short-form applications as rural telephone companies were successful in winning licenses, for a total of 52 licenses. We conclude that licensing the 24 GHz band by EA will not discourage either small businesses or rural telephone companies from participating in the 24 GHz auction.

4. RTG and SBA maintain that the Commission's reliance on post-auction partitioning and disaggregation is misplaced and unworkable because of the costs involved and the reluctance of license holders to carve out portions of their licenses for rural carriers. The Commission notes that none of their comments specifically relate to the 24 GHz band. Thus, the Commission concludes that it is more appropriate to address SBA's and RTG's concerns in the context of the Secondary Markets proceeding, initiated by our Notice of Proposed Rulemaking (65 FR 81475, December 26, 2000) seeking comment on possible changes to our rules and policies allowing greater flexibility through “spectrum leasing.”

5. RTG maintains that licensing by EA would guarantee that rural areas of the country would not see the benefits of 24 GHz service because licensees would be able to meet the substantial service standard by serving the urban area within the EA. Instead of the substantial service standard, RTG recommends that the Commission require licensees to provide service to one-third of the population within five years and two-thirds of the population within ten years. In the alternative, RTG recommends the Commission adopt a fill-in policy in which, at the time of renewal, any party can apply for and provide service to any area in which the original licensee is not providing service. The Commission has already considered and rejected using minimum coverage requirements to establish substantial service, and RTG has reiterated the position it took earlier in the proceeding at the Notice of Proposed Rulemaking stage without presenting any new information on this issue. Consequently, the Commission affirms its prior decision in the Report and Order that the substantial service standard, in lieu of specific service requirements, best serves the public interest. The Commission concludes that this approach is consistent with the approach used in other wireless services and is sufficiently flexible to foster expeditious development and deployment of systems.

6. With regard to providing service to rural areas, the Commission recognizes that section 309(j)(4)(B) of the Telecommunications Act of 1934, as amended, stresses the need for the Commission to encourage the rapid deployment of services to rural areas and to promulgate performance requirements that ensure prompt delivery of service to rural areas. In addition, the Commission notes that the statute includes “rural telephone companies” among the wide variety of applicants to which the Commission is to disseminate licenses. The Commission continues to believe, however, that licensing the 24 GHz band by EAs strikes the best balance among its various policy objectives for the 24 GHz band. The Commission believes that by adopting EA licenses for the 24 GHz band, it has achieved a means of providing service to rural areas while ensuring that the 24 GHz spectrum is put to the highest and best use.

7. Accordingly, It is Ordered that pursuant to section 4(i) and 405 of the Communications Act of 1934, 47 U.S.C. 154(i), 405, and § 1.429 of the Commission's rules, 47 CFR 1.429, the Petitions for Reconsideration filed by the Office of Advocacy of the Small Business Administration and the Rural Telecommunications Group are denied.

8. It is Further Ordered, pursuant to section 4(i) of the Communications Act of 1934, 47 U.S.C. 154(i), that the Commission's Consumer Information Bureau, Reference Information Center, Shall Send a copy of the Order on Reconsideration to the Chief Counsel for Advocacy of the Small Business Administration.

9. It is Further Ordered that this proceeding Is Terminated.

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-53, adopted May 24, 2001, and released May 25, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-51, adopted May 23, 2001, and released May 25, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-50, adopted May 23, 2001, and released May 25, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-49, adopted May 23, 2001, and released May 25, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-46, adopted May 23, 2001, and released May 25, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

This is a synopsis of the Commission's Report and Order, MM Docket No. 99-269, adopted May 24, 2001, and released May 25, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

This is a synopsis of the Commission's Report and Order, MM Docket 98-159, adopted May 2, 2001, and released May 11, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center (Room CY-A257), 445 12th Street, S.W., Washington, DC 20554. The complete text of this decision also may be purchased from the Commission's copy contractor, International Transcription Service, (202) 857-3800, 1231 20th Street, N.W., Washington, DC 20036,

NASA's Office of Inspector General (IG) requested that NASA contractors be required to display “hotline posters” in contractor facilities performing work on some NASA contracts. Foreign contracts and contracts less than $5,000,000 are exempt. This final rule requires contractors to obtain from the NASA IG “hotline posters” and to post them in facilities where and when work is performed on an applicable NASA contract. By waiver from Part 12, NASA might also impose this requirement on a case-by-case basis in contracts for commercial items when unusual circumstances warrant. An example of such circumstances might include procurements involving extraordinary concerns about the safety of human life.

A proposed rule was published in the Federal Register on May 22, 2000, (65 FR 32069—32070). NASA received one comment. The commenter recommended that NASA conform to DoD by exempting contractors having an established internal reporting mechanism and program. NASA's IG believes employees of NASA contractors should have an independent avenue to report violations. In its view, the existence of an internal reporting mechanism does not assure employees would report illegal activities seen on the job. Therefore, no changes are being made as a result of this comment. The proposed rule is being adopted as final with a change to section 1803.7001 to change the word “provision” to “clause”.

NASA certifies that this rule will not have a significant economic impact on a substantial number of small business entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) because it only affects small business entities with contracts exceeding $5,000,000 and the NASA Office of Inspector General will provide the posters at no direct cost to contractors.

The Paperwork Reduction Act does not apply because this final rule does not impose any recordkeeping or information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

Currently, most NASA contracts receive DPAS ratings. This final rule provides that contracts will receive ratings only if they are in support of one of the approved programs in DPAS Schedule I. This change was published as a proposed rule in the Federal Register on September 20, 2000 (65 FR 56859-56860). Comments were received from the Office of Strategic Industries and Economic Security, U.S. Department of Commerce. These comments were considered in the development of the final rule. In response to comments, section 1811.603(e) was changed to provide statutory references covering exceptions to the rating system rather than a detailed listing of these exceptions. Additionally, the proposed rule unintentionally indicated that section 1811.602 was proposed for deletion. This error is corrected in this final rule and an editorial change is made to an organizational code within this section.

NASA certifies that this rule will not have a significant economic impact on a substantial number of small business entities within the meaning of the Regulatory Flexibility Act (5 USC 601, et. seq .), because it does not impose any new requirements on offerors or contractors.

The Paperwork Reduction Act does not apply because the changes to the NFS do not impose any recordkeeping or information collection requirements, or collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 USC 3501, et. seq.

NASA is adopting as final, without change, the interim rule published in the August 11, 2000 Federal Register (65 FR 49205-49206). The interim rule identified the Associate Administrator for Procurement as the senior policymaking official delegated the authority to approve Cost Accounting Standards (CAS) waivers for NASA. The NASA interim rule was issued in response to a FAR interim rule published in the June 6, 2000 Federal Register (65 FR 36028-36030) that authorized the heads of executive agencies to approve CAS waivers and allowed for this authority to be delegated to an official not below the senior policymaking level in the agency. The FAR interim rule resulted from Section 802 of the National Defense Authorization Act for Fiscal Year 2000 (Pub. L. 106-65) which made several changes to CAS, including waivers. The FAR interim rule was adopted as a final rule without change (66 FR 2136-2137, January 10, 2001). No comments were received in response to the NASA interim rule.

NASA certifies that this final rule will not have a significant economic impact on a substantial number of small business entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) because this rule pertains to Cost Accounting Standards from which small businesses are exempt.

The Paperwork Reduction Act does not apply because the changes to the NFS do not impose recordkeeping or information collection requirements, or collection of information from offerors, contractors, or members of the public which require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

NFS 1832.402(e)(1)(B)(a) provides a class deviation authorizing the use of advance payments for Phase I contracts awarded under the SBIR program. NFS 1832.702-70(a), (b), and (c) set forth conditions when incremental funding is permitted. NFS 1832.702-70(e) provides a class deviation from those conditions, permitting the use of incremental funding of contracts under Phase II of the SBIR program. These two class deviations expired September 30, 2000, the date set forth in the Congressional authorization for the SBIR program. Public Law 106-554, extended the SBIR program through September 30, 2008. This final rule will extend the advance payments and incremental funding class deviations for the life of the SBIR program.

This final rule does not constitute a significant revision within the meaning of FAR 1.501 and Pub. L. 98-577, and publication for public comment is not required. However, comments from small entities concerning the affected NFS subpart will be considered in accordance with 5 U.S.C. 610. Such comments must be submitted separately and should cite 5 U.S.C. 601, et seq.

The Paperwork Reduction Act does not apply because the changes to the NFS do not impose recordkeeping or information collection requirements, or collections of information from offerors, contractors, or members of the public which require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

Regulations governing the scup fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is allocated into three quota periods. The Summer commercial quota (May through October) is distributed to the coastal states from Maine through North Carolina. The process to set the annual commercial quota and the seasonal allocation is described in § 648.120.

The total commercial quota for scup for the 2001 calendar year was set at 4,444,600 lb (2,016,037 kg)(66 FR 12902; March 1, 2001). The Summer period quota was initially set at 1,731,172 lb (785,246 kg). As specified in § 648.120, landings in excess of the commercial quota in the 2000 Summer period were deducted from the Summer period allocation this year, resulting in a final Summer quota allocation of 1,147,861 lb (520,661 kg).

Section 648.121 requires the Administrator, Northeast Region, NMFS (Regional Administrator) to monitor the commercial scup quota for each quota period and, based upon dealer reports, state data, and other available information, to determine when the commercial quota has been harvested. NMFS is required to publish notification in the Federal Register advising and notifying federally permitted commercial vessels and federally permitted dealers that, effective upon a specific date, the scup commercial quota has been harvested. The Regional Administrator has determined, based upon dealer reports and other available information, that the scup commercial quota for the 2001 Summer period has been harvested.

The regulations at § 648.4(b) provide that Federal scup moratorium permit holders agree as a condition of the permit not to land scup in any state after NMFS has published a notification in the Federal Register stating that the commercial quota for the period has been harvested and that no commercial quota for scup is available. Therefore, effective 0001 hours, June 1, 2001, further landings of scup by vessels holding Federal scup moratorium permits are prohibited through October 31, 2001. The Winter II period for commercial scup harvest will open on November 1, 2001. Effective 0001 hours, June 1, 2001, federally permitted dealers are also advised that they may not purchase scup from federally permitted vessels that land in coastal states from Maine through North Carolina for the remainder of the Summer period (through October 31, 2001).

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.