Karnal bunt is a fungal disease of wheat ( Triticum aestivum ), durum wheat ( Triticum durum ), and triticale ( Triticum aestivum X Secale cereale ), a hybrid of wheat and rye. Karnal bunt is caused by the fungus Tilletia indica (Mitra) Mundkur and is spread by spores, primarily through the planting of infected seed. Some countries in the international wheat market regulate Karnal bunt as a fungal disease requiring quarantine; therefore, without measures taken by the Animal and Plant Health Inspection Service (APHIS), United States Department of Agriculture (USDA), to prevent its spread, the presence of Karnal bunt in the United States could have significant consequence with regard to the export of wheat to international markets. The regulations regarding Karnal bunt are set forth in 7 CFR 301.89-1 through 301.89-16 (referred to below as the regulations).

The regulations in § 301.89-3(e) provide that we will classify a field or area as a regulated area when it is:

• A field planted with seed from a lot found to contain a bunted wheat kernel;

• A distinct definable area that contains at least one field that was found during a survey to contain a bunted wheat kernel. The distinct definable area may include an area where Karnal bunt is not known to exist but where intensive surveys are required because of the areas's proximity to a field found during survey to contain a bunted kernel; or

• A distinct definable area that contains at least one field that was found during survey to contain spores consistent with Karnal bunt and has been determined to be associated with grain at a handling facility containing a bunted wheat kernel. The distinct definable area may include an area where Karnal bunt is not known to exist but where intensive surveys are required because of that area's proximity to a field that has been associated with grain at a handling facility containing a bunted kernel.

The boundaries of distinct definable areas are determined using the criteria in paragraphs (b) through (d) of § 301.89-3, which provide for the regulation of less than an entire State, the inclusion of noninfected acreage in a regulated area, and the temporary designation of nonregulated areas as regulated areas. Paragraph (c) of § 301.89-3 states that the Administrator may include noninfected acreage within a regulated area due to its proximity to an infestation or inseparability from the infected locality for regulatory purposes, as determined by:

• Projections of the spread of Karnal bunt along the periphery of the infestation;

• The availability of natural habitats and host materials within the noninfected acreage that are suitable for establishment and survival of Karnal bunt; and

• The necessity of including noninfected acreage within the regulated area in order to establish readily identifiable boundaries.

The regulations at § 301.89-3(f) set the boundaries for regulated areas in Arizona, California, New Mexico, and Texas. Certain regulated areas in Arizona, California, and Texas include noninfected acreage that functions as a buffer zone to guard against the spread of Karnal bunt.

When we include noninfected acreage in a regulated area for one or more of the reasons previously listed, the noninfected acreage, along with the rest of the acreage in the regulated area, is intensively surveyed. Negative results from surveys of the noninfected acreage provide assurance that all infected acreage is within the regulated area. In effect, the noninfected acreage serves as a buffer zone between fields or areas associated with a bunted kernel and areas outside of the regulated area.

In this document, we are adding to the list of regulated areas in Texas Throckmorton and Young Counties in their entirety. This action is necessary due to the discovery of bunted wheat kernels in several wheat fields in western Young County, adjacent to Throckmorton County. Initial surveys indicate that Karnal bunt is also present in other fields in the area we are regulating, and that the spread of the disease to the infected fields may have occurred as a result of the movement of contaminated seed into the area or through the movement into the area of cattle that may have grazed in infected fields. Until we are able to determine the extent of this new infection by conducting detection and delimiting surveys, it is essential that we delineate a large enough regulated area to include any fields for which there is a reasonable possibility of infection.

This rulemaking is necessary on an emergency basis to prevent Karnal bunt from spreading to noninfected areas of 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. 533 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.

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 program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)

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 no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

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

The regulations in 7 CFR 319.56 through 319.56-8 (referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests that are new to or not widely distributed within the United States.

On January 22, 2001, we published in the Federal Register (66 FR 6488-6491, Docket No. 93-131-1) a proposal to amend the regulations to allow the importation of mangoes from Guimaras Island in the Republic of the Philippines, subject to inspection and the completion of a prescribed vapor heat treatment.

We solicited comments concerning our proposal for 60 days ending March 23, 2001. We received four comments by that date. They were from a State agriculture agency, a foreign government, and a firm representing foreign governmental and nongovernmental organizations.

Two of the commenters suggested several editorial changes to the background section of the proposed rule. Those suggested changes did not, however, relate to the regulatory provisions of § 319.56-2ii or our rational basis for those provisions, so there is no need to make any changes in this final rule as a result of those comments.

With regard to the trust fund agreement provided for by § 319.56-2ii(f), one commenter recommended that the agreement be similar to those that Animal and Plant Health Inspection Service (APHIS) has previously arranged with the Governments of Japan and the Republic of Korea and offered specific examples of the types of expenses that should be covered. While the commenter's suggestions may, in fact, be reflected in the actual trust fund agreement that we arrange with the Republic of the Philippines Department of Agriculture (RPDA), it is not necessary to amend § 319.56-2ii(f) as a result of that comment, as that portion of the final rule simply provides for the use of a trust fund agreement as one element of the mango import program. Specific details such as those suggested by the commenter will be worked out between APHIS and the RPDA before the trust fund agreement is signed.

One commenter opposed the proposed rule based on the risk presented by the fruit fly Bactrocera philippinensis and stated that the mangoes should be prohibited from being imported through ports of entry in Florida and should not be sold or distributed in that State. The commenter noted that B. philippinensis had been detected in two Florida cities in 1998, which, given that B. philippinensis occurs only in the Philippines, suggests that infested fruit had been moved from the Philippines to Florida. The commenter stated that his agency would be willing to reconsider its position on the proposed rule if Philippine efforts to suppress and eventually eradicate B. philippinensis prove successful.

In the proposed rule, we noted that several plant pests, including the mango seed weevil (Sternochetus mangiferae) and fruit flies of the genus Bactrocera, are known to attack mangoes in the Philippines. While Guimaras Island has been shown to be free of the mango seed weevil, no claims were made as to the freedom of Guimaras Island from fruit flies. Indeed, our concerns about two fruit fly species B. occipitalis and B. philippinensis led us to propose the vapor heat treatment requirement for the mangoes found in § 319.56-2ii(b) of this final rule. That vapor heat treatment has been shown, through confirmatory tests conducted by the Department's Agricultural Research Service, to be effective in mitigating the risk presented by B. occipitalis and B. philippinensis. Given the availability and required application of an effective treatment for the fruit flies of concern and the freedom of Guimaras Island from the mango seed weevil, we do not believe that it is necessary or justifiable to prohibit the movement into Florida of mangoes grown and shipped in accordance with the requirements of this rule.

With regard to the economic analysis contained in the proposed rule, one commenter asked how we could conclude that the importation of mangoes from the Philippines would not further damage the economics of Florida mango production, given that State's overwhelming share of domestic production (97 percent) and the negative effects that weather, disease, and falling prices have had on Florida mango producers.

Our conclusions with regard to the potential effects of mango imports from the Philippines were based on several factors. First, while Florida did indeed account for about 97 percent of domestic production in 1997, domestic production accounted for only about 1.5 percent of the total U.S. mango supply that year; the amount of mangoes imported in 1997 (186,530 metric tons) was nearly 66 times greater than the amount of mangoes produced domestically (2,829 metric tons). Between 1997 and 1999, U.S. mango imports increased by more than 17 percent, and it is reasonable to assume that the growth in U.S. mango imports will continue, with Guimaras Island being but one more foreign source. Moreover, we noted that little of Florida's mango crop now enters the national market to compete with fresh fruit imports, as most of the production is either consumed fresh within Florida or is processed into chutney or other products; these markets are unlikely to be affected by the availability of an additional source of imported fresh mangoes. Based on these considerations, we concluded that the importation of mangoes from Guimaras Island, the amount of which is expected to be very small compared to current import levels, would not significantly affect U.S. mango producers.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, without change.

This is a substantive rule that relieves restrictions and, pursuant to the provisions of 5 U.S.C. 553, may be made effective less than 30 days after publication in the Federal Register .

Immediate implementation of this rule is necessary to provide relief to those persons who are adversely affected by restrictions we no longer find warranted. The shipping season for mangoes from the Philippines is in progress. Making this rule effective immediately will allow interested producers and others in the marketing chain to benefit during this year's shipping season. Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be effective upon publication in the Federal Register .

This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

This rule amends the regulations governing the importation of fruits and vegetables by allowing, under certain conditions, the importation of mangoes from the Philippines into the United States.

Nearly all of the mangoes consumed in the United States are imported. Mexico is the source of most U.S. mango imports, supplying between 75 percent and 85 percent of all imported mangoes in each of the 5 years between 1995 and 1999. Other major sources are Brazil, Ecuador, and Peru.

The quantity of imported mangoes has grown steadily and rapidly in recent years. Over the 5-year period 1995 through 1999, mango imports increased at an annual rate of about 9 percent (table 1). During this same period, the average value of imported mangoes fell from about $0.85 per kg to about $0.65 per kg. These data suggest a high level of market competition among those countries supplying mangoes to the U.S. market.

In an interim rule effective and published in the Federal Register on July 29, 1999 (64 FR 41007-41010, Docket No. 98-091-1), we amended the regulations in 7 CFR part 360 (referred to below as the regulations) to clearly state that a permit is required for the movement of noxious weeds interstate, as well as into or through the United States. Prior to the interim rule, the regulations provided for the issuance of permits for movements of noxious weeds into or through the United States, but did not explicitly address interstate movements.

The interim rule was necessary to help prevent the artificial interstate spread of noxious weeds into noninfested areas of the United States. The interim rule aligned our interstate movement regulations with our import requirements and is consistent with our obligations under international trade agreements.

Comments on the interim rule were required to be received on or before September 27, 1999. We received six comments by that date. The comments were from State Governments, plant and seed producers, a trade association, and an environmental advocacy organization. Four of those commenters generally supported the interim rule. One commenter opposed the rule. One commenter submitted data on two Federal noxious weeds. We have carefully considered these comments, which are discussed below by topic.

Two commenters asked APHIS to describe how it intends to enforce the requirements in the interim rule.

APHIS faces a difficult task in monitoring the interstate movement of noxious weeds, and we depend on State plant officials to identify weeds moved into their States. In the event that APHIS can determine that a person has moved a noxious weed interstate without a permit, or in contradiction to the terms specified in a permit, APHIS has authority to destroy or dispose of such noxious weeds in order to prevent their dissemination in the United States. APHIS also has the authority to impose criminal and civil penalties on those persons who move noxious weeds interstate without a permit or who violate the terms of their permit, as discussed in detail later in this document. Further, if APHIS finds that persons or companies are advertising Federal noxious weeds for sale, we contact the sellers and inform them that they are prohibited from moving noxious weeds interstate except under permit.

One commenter requested that APHIS consider codifying a weed classification system, which would make the noxious weed permitting system more transparent. The commenter stated that such a system would involve the identification of “risk zones” based on geographic and other climate-based criteria, and would provide for the sale of noxious weeds in areas where there is no invasion potential while prohibiting the sale and movement of weeds in areas where there is invasion potential.

We believe that, due to the number of variables that would be involved, such a system would prove problematic to develop and implement because the risk presented by the movement of any weed is fairly unique to that weed and is further dependent on the climate and environment to which the weed is being moved. Nonetheless, we are considering various types of weed classification systems, and if we determine that it is possible to develop and maintain an accurate system, we may make it the subject of an upcoming rulemaking.

One commenter requested that APHIS work to ensure that States are basing their individual weed lists on sound scientific research. The commenter stated that concerns over the effects of invasive plant species on agricultural areas and the environment have led to a proliferation of State and local initiatives to control species that often do not appear to have been science-based.

APHIS does not challenge weed lists maintained by individual States. Persons with concerns regarding States' weed lists may have an opportunity to comment on the scientific merit of weed listings through the separate rulemaking mechanisms employed by States to create their regulations, including regulations that contain weed lists. In short, persons with concerns about the scientific justification for State weed listings should pursue the matter directly with the appropriate State Department of Agriculture.

One commenter asked what actions APHIS is taking to keep noxious weeds from being sold in commercial trade.

As stated earlier in this document, if APHIS finds that persons or companies are advertising Federal noxious weeds for sale, we contact the sellers and inform them that they are prohibited from moving noxious weeds interstate except under permit.

Federal noxious weeds that are moved in violation of the regulations may be seized and destroyed, and violators may be subject to civil and criminal penalties as discussed later in this document.

If Federal noxious weeds are found during inspection of a retail establishment or under other circumstances, APHIS attempts to determine the origin of the weeds and whether the weeds have been imported or moved interstate. If the weeds are found to have been imported or moved interstate, APHIS will determine whether there is a permit on file authorizing the importation or interstate movement. If there is no permit on file, the presence of the weeds will be investigated as a violation of the regulations.

One commenter stated that APHIS does not have the authority to impose restrictions on the interstate movement of noxious weeds.

APHIS believes it has clear authority under section 412 of the Plant Protection Act (Title IV, Pub. L. 106-224, 114 Stat. 438, 7 U.S.C. 7712) to regulate the movement of noxious weeds in interstate commerce. Specifically, the Plant Protection Act states, in section 412, paragraph (a), that the Secretary of Agriculture “may prohibit or restrict the importation, entry, exportation, or movement in interstate commerce of any plant, plant product, biological control organism, noxious weed, article, or means of conveyance, if the Secretary determines that the prohibition or restriction is necessary to prevent the introduction or the dissemination of a plant pest or noxious weed within the United States.”

One commenter stated that the interim rule effectively usurps a State's right to decide for itself whether to allow movement of a product (such as a noxious weed) into the State.

When processing an application for a permit to move a noxious weed interstate, APHIS evaluates the effects of the movement of the noxious weed and shares its findings with the affected State. If APHIS determines that movement of a weed will not present a significant risk of disseminating the weed into noninfested areas of the United States, the State has an opportunity to comment on or suggest revisions to the conditions of the permit. Any decision to approve or deny a permit application is made by APHIS after consultation with the affected State.

To elaborate, if a State does not want to allow movement of a noxious weed and has a sound, scientific basis for its position, APHIS is unlikely to issue a permit for the movement of the weeds. Further, if a State wishes to allow entry of a weed, and APHIS has determined that the movement of the weed would not present a significant risk of disseminating the weed into uninfested areas of the United States, APHIS would grant the permit to move weeds interstate. In the event that there is disagreement between APHIS and a State over whether to grant a permit, the final decision rests with APHIS, since permits to move weeds interstate are Federal permits.

One commenter objected to the interim rule on Constitutional grounds that it unfairly interferes with free trade among States.

We believe that this action is well within the scope of our authorizing legislation; as explained elsewhere in this document.

One commenter expressed concern over the possibility that APHIS would issue a permit to move certain weeds to one State, but could refuse to issue a permit to move weeds to another State.

APHIS believes it has authority to allow weeds to be moved to one State but not another, based on risk assessment. When considering each request for a permit to move a noxious weed interstate, APHIS considers the intended use of the weed and the proposed methods to be used to prevent escape of the weed into the environment. Since a given noxious weed can present a different risk of spread or infestation depending on the climate or environment where it is introduced, APHIS believes that it is essential to consider whether to allow the interstate movement of noxious weeds on a case-by-case basis. This could mean that APHIS could grant a permit to move a given weed to one State, but not another, and also that APHIS could grant a permit to move a given weed into one area of a State, but not another.

Further, most permits for the interstate movement of noxious weeds are granted to containment facilities that use the weeds for research purposes. These facilities use or grow the weeds under controlled conditions that provide assurance that the weeds will not be disseminated into natural or agricultural areas. Some persons seeking permits to move noxious weeds interstate do not intend to grow the weeds in containment facilities. For these permit requests, APHIS considers whether or not the weed is already present in the State. If the weed is present in the State and the State concurs with permit issuance, APHIS will issue a permit. If the weed does not occur in the State, APHIS evaluates the potential effects of the weed on the particular environment to which it would be moved, and confirms its findings with the State. APHIS may deny a permit request based on the possibility that the weeds could be disseminated into agricultural and natural areas where they could affect crop production or crowd out native species, or otherwise pose a high risk of becoming established.

One commenter asked that we answer six specific questions about the interim rule. Those questions and our responses follow.

Question: Does the interim rule apply to seeds shipped from a State where the seed is “legal and certified” under U.S. Department of Agriculture (USDA) standards to another State where the seed is “legal and certified” under the same USDA standards?

Response: A person moving noxious weeds or noxious weed seeds interstate must have a valid Federal permit, regardless of the State where weeds or seeds originate or their intended destination State. Only one person ( i.e. , either the person moving the weed or seed or the person receiving the weed or seed) needs to obtain a permit for a single movement of noxious weeds. In most cases, the recipient of the noxious weeds would be granted a permit to receive noxious weeds from another State. When many recipients in a particular State or a defined area within the State are authorized to receive the noxious weed, the original shipper may be granted a permit to move seeds to the defined area. In both cases, the movement is authorized only under the conditions specified in the permit.

Question: Does the rule apply to adjoining States that both allow production and plantings?

Response: Again, either the person receiving noxious weeds from another State or the person sending noxious weeds interstate must have a permit that allows the weeds or seeds to be moved from one State to another, regardless of whether the States allow production or planting of noxious weeds.

Question: Does the rule apply to States exporting to foreign countries when the shipment has to cross State lines to the port of export?

Response: A person who wishes to move noxious weeds from one State to another State so that they can be exported must have a permit stating that the weeds or seeds may be moved into the area of export in the exporting State. The person who obtains the permit should be the recipient in the weeds' destination State (in this case, the exporter of seeds). Further, if a person has a permit to move weeds from one State to another, but the movement requires that the weeds transit other States en route to their destination, the permit would specify relevant safeguarding measures that need to be applied to ensure that the weeds do not pose a risk of being disseminated into the States that they are transiting.

Question: Does this rule give USDA jurisdiction over noxious weeds growing in States where the crop is legal, certifiable, and widespread?

Response: This rule only affects persons moving noxious weeds or seeds interstate.

Question: How does USDA plan to administer thousands of small lot orders of 100 to 500 pounds of certified Federal noxious weed seed on a daily basis going to and from States where it is legal and accepted?

Response: APHIS' permitting policy requires that a person wishing to move certain weeds interstate to a single State would need only one permit, typically valid for 4 years, to move an unlimited number of lots of weeds to that State. However, a person wishing to move a single weed to several States would need a permit for each destination State. Further, some APHIS permits may specify that weeds can only be moved within a defined area in the destination State in order to prevent dissemination of the weed into noninfested areas.

Question: Does this new rule carry any different penalties than the rule it updates?

Response: Since the publication of the interim rule, Congress passed the Plant Protection Act (Title IV, Pub. L. 106-224, 114 Stat. 438, 7 U.S.C. 7701-7772). Under the Plant Protection Act, the Secretary of Agriculture has the authority to hold, treat, or destroy, at the owner's expense, noxious weeds that are moving or have moved interstate without a valid permit or in contradiction to the terms specified in a permit. The Secretary also has the authority to assess civil penalties against persons who violate the terms of permits issued for the interstate movement of noxious weeds. Cases in which persons are believed to knowingly violate the terms of their permit can be referred to the Department of Justice for criminal prosecution.

With regard to criminal penalties, the Act provides that violators may be fined in accordance with Title 18, U.S. Code, imprisoned for a period not exceeding 1 year, or both. With regard to civil penalties, the Act provides that violators may, after notice and opportunity for a hearing on the record, be assessed a civil penalty by the Secretary that does not exceed the greater of: (1) $50,000 in the case of any individual (except that the penalty may not exceed $1,000 in the case of an initial violation by a person moving noxious weeds or seeds not for monetary gain), $250,000 in the case of any partnership, corporation, association, joint venture, or other legal entity, $500,000 for all violations adjudicated in a single proceeding; or (2) twice the gross gain or gross loss for any violation that results in the person deriving pecuniary gain or causing pecuniary loss to another.

Therefore, for the reasons given in the interim rule and in this document, we are adopting the interim rule as a final rule without change.

This action also affirms the information contained in the interim rule concerning Executive Orders 12372 and 12988.

This rule has been reviewed under Executive Order 12866. The rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.

In accordance with 5 U.S.C. 604, we have performed a final regulatory flexibility analysis, which is set forth below, regarding the economic effects of this rule on small entities. The discussion also serves as a cost-benefit analysis. Based on the information we have, there is no basis to conclude that this rule will result in any significant economic effects on a substantial number of small entities.

In accordance with section 412 of the Plant Protection Act (Title IV, Pub. L. 106-224, 114 Stat. 438, 7 U.S.C. 7712), the Secretary of Agriculture is authorized to prohibit or restrict the importation, entry, exportation, or movement in interstate commerce of any plant, plant product, biological control organism, noxious weed, article, or means of conveyance, if the Secretary determines that the prohibition or restriction is necessary to prevent the introduction or dissemination of a plant pest or noxious weed within the United States.

This rule specifically requires that a permit is necessary for the interstate movement of Federal noxious weeds. Prior to the interim rule, the regulations provided for the issuance of permits for movements of noxious weeds into or through the United States, but did not explicitly address interstate movements.

As part of our analysis of the economic effects of this action, we compared the expected benefits of restricting the interstate movement of Federal noxious weeds with the expected costs to the private sector associated with the new restrictions.

Noxious weeds affect both crops and native plant species in the same way—by out-competing for light, water, and soil nutrients. Noxious weeds cause estimated crop losses of $2 to $3 billion annually. These losses are attributed to: (1) Decreased quality of agricultural products due to high levels of competition from noxious weeds; and (2) decreased quantity of agricultural products due to noxious weed infestations.

Further, noxious weeds can negatively affect livestock and dairy producers by making forage unpalatable to livestock, thus decreasing livestock productivity and potentially increasing producers' feed costs. Increased costs to agricultural producers are eventually borne by consumers of their products.

Noxious weeds also grow in aquatic habitats and may clog waterways and block irrigation and drainage canals, thus negatively affecting fish and wildlife resources and recreational use of these areas.

Infestations of noxious weeds can have a potentially disastrous impact on biodiversity and natural ecosystems, as evidenced by the case of the Mediterranean clone of Caulerpa taxifolia, a listed aquatic Federal noxious weed. The clone was introduced into the Mediterranean in 1984 and has since spread along the French and Italian coasts, covering 10,000 acres of the coastal sea floor, and crowding out many native seaweeds, sea grasses, and invertebrates such as coral, sea fans, and sponges.

In order to combat the negative effects of noxious weeds on crop lands, grazing lands, and waterways, herbicidal and other weed control strategies can be implemented at further costs to producers. Such costs would then likely be passed on to consumers, who would pay more for products due to increased producer costs.

The interim rule is expected to benefit any entities referred to above by curbing the spread of Federal noxious weeds and thereby eliminating potential new costs resulting from infestations.

Any person involved in moving Federal noxious weeds interstate will be affected by the interim rule because they will have to obtain a permit prior to the interstate movement. Those likely to be affected are nursery stock catalog firms and individual backyard producers who distribute Federal noxious weeds.

We have found that at least 61 nursery stock catalog companies list some Federal noxious weeds, in the form of either seeds or plants, in their inventory of available products. Available data suggests, however, that sales of Federal noxious weeds (and seeds) make up a small fraction of the total receipts for these businesses. In our initial regulatory flexibility analysis, we invited any persons engaged in the sale of Federal noxious weeds, including seeds, to provide us with additional economic data regarding revenue generated by those sales. We received no data in response to our request.

There are entities in some States that import noxious weed seeds under permit and grow them under conditions specified in permits granted by APHIS. We are aware that, in isolated cases, entities that import Federal noxious weeds and seeds under permit may also wish to move them interstate. Under this rule, those entities are required to obtain another permit from APHIS for any movement of noxious weeds that is not authorized in the original permit. Further, APHIS has the authority to deny such a permit if it determines that the movement of such Federal noxious weeds may cause dissemination of the weed into noninfested areas of the United States. This means that, based on the risk of dissemination, APHIS may grant a permit for the movement of a Federal noxious weed into one State, but not into another, or may grant a permit for the movement of one species of Federal noxious weed, but not another. It is possible that this rule could negatively affect sales of noxious weeds because APHIS may refuse to allow movement of weeds to areas where they present a risk of becoming established and infesting agricultural and natural areas. However, the benefits of reducing the probability of a large new infestation of noxious weeds that became established after being moved interstate would far exceed the losses that affected individuals may bear from the rule.

Also among the entities potentially affected by this rule are individual backyard producers. Some listed Federal noxious weeds are known to be valued among certain groups as vegetable crops and are grown in small garden plots for personal use and sale at informal markets. The total number of such entities is not available. However, since most of these entities probably do not depend upon the production of noxious weeds for their livelihood, this rule should have a very limited economic effect on them. In our initial regulatory flexibility analysis, we invited the public to submit any available data on such entities that are affected by this rule. No data was received.

We are also aware that there are producers of Ipomoea aquatica (Chinese water spinach—a listed Federal noxious weed and a food valued by some groups) in some counties in Florida, California, and Hawaii who raise the weed as a cash crop for interstate sale to metropolitan and other markets. The exact number of such farms and their size is not available, but most holdings are believed to be as small as an acre or less. Under this rule, persons wishing to move I. aquatica interstate will be required to obtain a permit from APHIS. We realize that this may result in a new burden on sellers and purchasers of I. aquatica , and we intend to address the situation in an upcoming rulemaking.

The only significant alternative to this rule that we considered was to make no changes in the regulations, i.e. , to not restrict the interstate movement of noxious weeds. We have rejected this alternative because of the potential adverse economic and ecological consequences that we believe could result if listed Federal noxious weeds are disseminated into noninfested areas of the United States.

In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. 3501 et seq. ), the information collection and recordkeeping requirements in the interim rule have been approved by the Office of Management and Budget (OMB). The assigned OMB control number is 0579-0054.

Section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) authorizes the Commission to adopt such reasonable procedures, rules, and regulations as it deems necessary to carry out its functions and duties. Section 202 of the Trade Act of 1974 (19 U.S.C. 2252) provides for the Commission to promulgate regulations concerning access to confidential business information (CBI) under administrative protective order (APO) in safeguard investigations. The interim amendment set out herein concerns rules of agency organization, procedure, and practice.

A party to Inv. No. TA-204-6, Certain Steel Wire Rod , has requested disclosure of CBI under APO. The Commission's Rules of Practice and Procedure do not currently provide for such disclosure. The investigation is subject to statutory deadlines and is scheduled to be completed in a relatively short period of time. Consequently, the Commission cannot pursue the normal notice-and-comment rulemaking schedule called for in the Administrative Procedure Act, under 5 U.S.C. 553, and has good cause for making its rule amendment effective on publication. Therefore, the Commission is amending its rules on an interim basis, effective on the date of publication of this notice.

The Commission is amending section 206.52 of the Commission's Rules (19 CFR 206.52) to add a new paragraph (c) that corresponds to the existing paragraph (e) in section 206.54. This change will permit the disclosure of CBI under APO in monitoring proceedings addressed in section 206.52.

Because of the emergency nature of the amendment, the Commission is providing each party to one of the two currently-pending investigations, Inv. No. TA-204-6, Certain Steel Wire Rod and Inv. No. TA-204-5, Circular Welded Carbon Quality Line Pipe , the opportunity to object to application of the amendment to the investigation to which it is a party. Any such objection must be filed no later than 7 calendar days after the date of publication of this notice.

In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), the Commission certifies pursuant to 5 U.S.C. 605(b), that the amendment set forth in this notice will not, if promulgated, have a significant economic impact on a substantial number of small entities. The amendment will clarify current Commission procedures, and does not substantially increase the burden of appearing or practicing before the Commission.

The Commission has determined that the amendment does not meet the criteria described in section 3(f) of Executive Order 12866 (58 FR 51735, October 4, 1993) (E.O.) and thus does not constitute a significant regulatory action for purposes of the E.O., since the revisions will not result in (1) an annual effect on the economy of $100 million or more, (2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions, or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic or foreign markets. Accordingly, no regulatory impact assessment is required.

The amendment does not contain federalism implications warranting the preparation of a Federalism Assessment pursuant to E.O. 13132 (64 FR 43255, August 4, 1999).

The amendment will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et. seq .).

The amendment is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et. seq.). The amendment will not result in an annual effect on the economy of $100,000,000 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.

The amendment is exempt from the reporting requirements of the Contract With America Advancement Act of 1996 (5 U.S.C. 801 et. seq .) because it concerns rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties.

The amendment is not subject to the Paperwork Reduction Act (44 U.S.C. 3501 et. seq .), since it does not contain any new information collection requirements.

As a part of continuing efforts to reorganize the part numbering system of title 27 CFR, ATF is removing part 296 of title 27 CFR, in its entirety, and is recodifying the regulations as 27 CFR part 46. This change improves the organization of title 27 CFR.

The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this final rule because there are no new or revised recordkeeping or reporting requirements.

Because no notice of proposed rulemaking is required for this rule under the Administrative Procedure Act (5 U.S.C. 553), the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply. We sent a copy of this final rule to the Chief Counsel for Advocacy of the Small Business Administration in accordance with 26 U.S.C. 7805(f). No comments were received.

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

Because this final rule merely makes technical amendments and conforming changes to improve the clarity of the regulations, it is unnecessary to issue this final rule with notice and public procedure under 5 U.S.C. 553(b). Similarly, because of the nature of this final rule, good cause is found that it is unnecessary to subject this final rule to the effective date limitation of 5 U.S.C. 553(d).

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

The PBGC conducts background investigations and reinvestigations to establish that applicants for employment and employees are reliable, trustworthy, of good conduct and character, and loyal to the United States. The PBGC maintains records about these investigations in a system of records subject to the Privacy Act of 1974, as amended (5 U.S.C. 552a) (“Privacy Act”), entitled “PBGC-12, Personnel Security Investigation Records—PBGC”. The PBGC's regulations implementing the Privacy Act exempt under 5 U.S.C. 552a(k)(5) certain records maintained in PBGC-12 from the access, contest, and certain other provisions of the Privacy Act (29 CFR 4902.9).

The PBGC is expanding its use of background investigations and reinvestigations to cover individuals who work, or who are being considered for work, for the PBGC as contractors or as employees of contractors. To reflect the change, on April 2, 2001 (66 FR 17586), the PBGC proposed to alter PBGC-12 by revising it to include records pertaining to individuals who work, or who are being considered for work, for the PBGC as contractors or as employees of contractors. The PBGC received no comments on the proposed changes and they became effective May 17, 2001.

Also on April 2, 2001 (66 FR 17518), the PBGC published a proposed rule to amend § 4902.9 by exempting certain records pertaining to individuals who work, or who are being considered for work, for the PBGC as contractors or as employees of contractors from the access, contest, and certain other provisions of the Privacy Act. The PBGC received no comments on the proposed rule and this final rule amends the regulation as proposed. The amendment protects the identity of a source who furnishes information to PBGC in confidence for a background investigation of such an individual.

The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

The PBGC certifies under section 605(b) of the Regulatory Flexibility Act that the final rule will not have a significant economic impact on a substantial number of small entities. The rule only affects the maintenance and disclosure of information about individuals by the PBGC under the Privacy Act and therefore would ordinarily be expected to have no economic impact on entities of any size. Accordingly, sections 603 and 604 of the Regulatory Flexibility Act do not apply.

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 effective less than 30 days after publication in the Federal Register . The Coast Guard had insufficient advance notice to publish an NPRM followed by a temporary final rule. Publication of a notice of proposed rulemaking and delay of effective date would be contrary to the public interest because immediate action is necessary to prevent possible loss of life, injury, or damage to property. The Coast Guard has not received any complaints or negative comments with regard to this event.

This temporary rule is necessary to ensure the safety of spectators and vessels during the setup, loading and launching of a fireworks display in conjunction with the City of Port Clinton's 4th of July Fireworks. The fireworks display will occur between 2 p.m. and 11 p.m. on July 04th.

This safety zone will encompass all waters and the adjacent shoreline of Lake Erie, Port Clinton, Ohio, bounded by an arc of a circle with a 420-foot radius with its center in approximate position 41°30′52″ N, 082°55′46″ W. The Captain of the Port Toledo or his designated on scene representative may terminate this event.

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on scene patrol personnel. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Toledo or his designated on scene representative. The Captain of the Port or his designated on scene representative 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). This finding is based on the historical lack of vessel traffic during this time of year.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

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

This rule will affect the following entities, some of which may be small entities: the owners and operators of vessels intending to transit or anchor in a portion of Lake Erie off Port Clinton, Ohio.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will be in effect for less than one day, and vessel traffic can pass safely around the safety zone.

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 may 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 Toledo (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 1-888-REG-FAIR (1-888-734-3247).

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

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

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

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

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

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

The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this proposed rule under Executive order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a statement of Energy Effects under Executive Order 13211.

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 if effective less than 30 days after publication in the Federal Register . The Coast Guard had insufficient advance notice to publish an NPRM followed by a temporary final rule. Publication of a notice of proposed rulemaking and delay of effective date would be contrary to the public interest because immediate action is necessary to prevent possible loss of life, injury, or damage to property.

A temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading and launching of a fireworks display in conjunction with the City of Toledo's 4th of July Fireworks. The fireworks display will occur between 12:30 p.m. and 11 p.m. on July 04th.

This safety zone will encompass all waters and the adjacent shoreline of the Maumee River, Toledo, Ohio, extending from the bow of the museum ship SS WILLIS B. BOYER (41°38′35″ N, 083°31′54″ W), then north north-east to the south end of the City of Toledo Street (41°38′51″ N, 083°31′50″ W), then south-west to the red nun bouy #64 (41°38′48″ N, 083°31′58″ W), then south south-east to the museum ship SS WILLIS B. BOYER. The Captain of the Port Toledo or his designated on scene representative have the authority to terminate the event.

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on scene patrol personnel. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Toledo or his designated on scene representative. The Captain of the Port or his designated on scene representative 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). This finding is based on the historical lack of vessel traffic during this time of year.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

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

This rule will affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit or anchor in a portion of the Maumee River off Toledo, Ohio.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: this rule will be in effect for less than one day in conjunction with one event, and vessel traffic can pass safely around the safety zone. In the event that shipping is affected by this temporary safety zone, commercial vessels may request permission from the Captain of the Port Toledo to transit through the safety zone.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could 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 Toledo (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 1-888-REG-FAIR (1-888-734-3247).

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

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

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

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

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

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

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. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a statement of Energy Effects under Executive Order 13211.

The law (10 U.S.C. 2145) provides that the Secretary of Defense shall adjust the amount of educational assistance which may be provided in any academic year under the Educational Assistance Test Program and the amount of subsistence allowance authorized under that program. The adjustment is to be based upon the twelve-month increase in the average actual cost of attendance at public institutions of higher education. As required by law, the Department of Defense has consulted with the Department of Education. The Department of Defense has concluded that these costs increased by 4% in the 1999-2000 academic year. Accordingly, this final rule changes 38 CFR 21.5820 and 21.5822 to reflect a 4% increase in the rates payable in the 2000-01 academic year, including changes in § 21.5820 to the adjustments that compensate for rounding. In addition, nonsubstantive changes are made for the purpose of clarification.

The rates of subsistence allowance and educational assistance payable under the Educational Assistance Test Program are determined based on a statutory formula and, in essence, the calculation of rates merely constitutes a non-discretionary ministerial act. The other changes made by this document are merely nonsubstantive changes for the purpose of clarification. Accordingly, there is a basis for dispensing with notice-and-comment and a delayed effective date under 5 U.S.C. 552 and 553.

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

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

The Secretary of Veterans Affairs and the Secretary of Defense hereby certify that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C 601-612. This final rule directly affects only individuals. Pursuant to 5 U.S.C. 605(b), this final rule, therefore, is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.

There is no Catalog of Federal Domestic Assistance number for the program affected by this final rule.

Under the formula mandated by 38 U.S.C. 3015(g) (as in effect on October 1, 2000) for fiscal year 2001, the rates of basic educational assistance under the Montgomery GI Bill—Active Duty (MGIB) payable to students pursuing a program of education full time must be increased by 3.0%, which is the percentage by which the total of the monthly Consumer Price Index-W (CPI-W) for July 1, 1999, through June 30, 2000, exceeds the total of the monthly CPI-W for July 1, 1998, through June 30, 1999.

In addition, the rates for the months during fiscal year 2001 that follow October 2000 were further increased by the Veterans Benefits and Health Care Improvement Act of 2000 (Pub. L. 106-419). That Act provides that beginning on November 1, 2000, the rates of basic educational assistance under the MGIB must be increased beyond the increase that went into effect on October 1, 2000. Changes are made to the regulations governing rates payable under MGIB to reflect both rate increases.

Moreover, Pub. L. 106-419 requires an increase in the monthly rate of Survivors' and Dependents' Educational Assistance (DEA), effective November 1, 2000. Changes are made to the regulations governing DEA rates and entitlement charges to reflect the statutory changes.

It should be noted that neither the increase attributable to the CPI-W nor the increase attributable to the Act affects all educational assistance payable under MGIB. The increases don't apply to additional amounts payable by the Secretary of Defense to individuals with skills or a specialty in which there is a critical shortage of personnel (so-called “kickers”). They don't apply to amounts payable for dependents. Veterans who previously had eligibility under the Vietnam Era GI Bill receive monthly payments that are in part based upon basic educational assistance and in part based upon the rates payable under the Vietnam Era GI Bill. Only that portion attributable to basic educational assistance is increased.

38 U.S.C. 3015(a) and (b) require that the Department of Veterans Affairs (VA) pay part-time students at appropriately reduced rates. Since the first student became eligible for assistance under the MGIB in 1985, VA has paid three-quarter-time students and one-half-time students at 75% and 50% of the full-time institutional rate, respectively. Students pursuing a program of education at less than one-half but more than one-quarter-time have had their payments limited to 50% or less of the full-time institutional rate. Similarly, students pursuing a program of education at one-quarter-time or less have had their payments limited to 25% or less of the full-time institutional rate. Changes are made consistent with the authority and formula described in this paragraph.

In addition, 38 U.S.C. 3032(c) requires that monthly rates payable to veterans in apprenticeship or other on-the-job training must be set at a given percentage of the full-time rate. Hence, there are raises effective October 1, 2000, and November 1, 2000, for such training as well.

Nonsubstantive changes also are made for the purpose of clarity.

The changes set forth in this final rule are effective from the date of publication, but the changes in rates are applied retroactively from October 1, 2000, and November 1, 2000, in accordance with the applicable statutory provisions discussed above.

Substantive changes made by this final rule merely reflect statutory requirements and adjustments made based on previously established formulas. Accordingly, there is a basis for dispensing with prior notice and comment and delayed effective date provisions of 5 U.S.C. 552 and 553.

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

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

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

The Unfunded Mandates Reform Act requires (in section 202) that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any given year. This rule would have no consequential effect on State, local, or tribal governments.

The Catalog of Federal Domestic Assistance numbers for the programs affected by this final rule are 64.117 and 64.124.

The provisions of 38 U.S.C. chapter 37 authorize the Secretary of Veterans Affairs (VA) to guarantee or make loans to veterans. Under a number of circumstances VA becomes the holder of a housing loan. The most common reasons are: VA acquired the property securing a guaranteed loan following foreclosure and sold the security on terms (sometimes called a “vendee loan.”), VA took an assignment of (or “refund”) a guaranteed loan pursuant to 38 U.S.C. 3732(a)(2), or VA made a direct loan to a veteran pursuant to 38 U.S.C. 3711 or 3761.

VA has contracted with a private entity for the servicing of its housing loan portfolio. In order to increase the efficiency of this contract, certain officers of the contractor are being delegated authority to execute, on behalf of VA, routine documents necessary for the servicing and foreclosing of the loans being serviced.

Currently, 38 CFR 36.4342 authorizes certain VA officials, such as field station Directors, Loan Guaranty Officers, and Assistant Loan Guaranty Officers, to execute these documents. Regional Offices are required to maintain a cumulative list of all employees of that office who have held the designated positions since May 1, 1980.

This rule adds a new paragraph (e) to 38 CFR 36.4342 which delegates to persons holding the office of Vice President, Assistant Vice President, and Assistant Secretary of the entity performing loan servicing functions under a contract with VA the authority to execute all documents necessary for the servicing and termination of a housing loan made or acquired by VA. Documents authorized to be executed will include loan modification agreements, notices of default, notices of appointment or substitution of trustees, releases or satisfactions of mortgages, loan assumption agreements, deeds tendered upon satisfaction or conversion of an installment land sales contract, and documents related to filing, pursuing and settling claims with hazard insurance companies.

The Director of the VA Loan Guaranty Service, Washington, DC, will maintain a log listing all corporate officers of the contractor who have been authorized to execute documents and the dates during which these persons were authorized to act. VA will also maintain copies of resolutions of the contractor's board of directors authorizing these persons to execute these documents. Those files will be available for public inspection and copying during normal business hours at the Office of the Director of VA Loan Guaranty Service, Washington, DC 20420.

This authority does not apply, however, with respect to loans under the pilot program for multifamily transitional housing projects for homeless veterans under 38 U.S.C. chapter 37, subchapter vi. Such loans will not be serviced by the contractor servicing the VA loan portfolio.

The provisions of 38 CFR 36.4342(e) are published without regard to the notice and comment and delayed effective date provisions of 5 U.S.C. 553 since they relate to agency management and personnel and are not substantive rules.

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

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

The Secretary of Veterans Affairs hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The final rule relates to agency management and personnel and does not contain substantive provisions. Accordingly, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analysis requirements of §§ 603 and 604.

There is no Catalog of Federal Domestic Assistance number for this program.

Pursuant to sections 182(b)(2) and 182(f) of CAA, Delaware is required to implement RACT for all major NO X sources. The major source size is determined by its location, the classification of that area and whether it is located in the ozone transport region (OTR), which is established by the CAA. The Delaware portion of the Philadelphia-Wilmington-Trenton ozone nonattainment area consists of New Castle and Kent Counties and is classified as severe. Under section 184 of the CAA, at a minimum, moderate ozone nonattainment area requirements, including RACT as specified in sections 182(b)(2) and 182(f), apply throughout the OTR. The entire State of Delaware is in the OTR. Therefore, RACT is applicable statewide in Delaware.

On June 16, 1999 (64 FR 32187), EPA granted conditional limited approval of Delaware's Regulation 12, Control of NO X Emissions which requires all major sources of NO X to implement RACT. Section 5 of Regulation 12 provides for DNREC to make source-specific NO X RACT determinations and to submit them to EPA as SIP revisions. To fulfill the condition imposed by EPA in its June 16, 1999 conditional limited approval of Regulation 12, DNREC was required to certify, by no later than July 17, 2000, that it had submitted all required case-by-case NO X RACT determinations for all known subject sources to EPA. The conditional nature of EPA's June 16, 1999 approval of Regulation 12 would be removed once EPA determined that DNREC had satisfied this condition. The limited nature of EPA's June 16, 1999 approval would be removed once EPA had approved all of the case-by-case RACT determinations submitted by DNREC in fulfillment of the condition described above.

On July 13, 2000, DNREC formally submitted revisions to its SIP consisting of four case-by-case RACT determinations made for four processes located at three separate major sources of NO X in Delaware. The July 13, 2000 submittal also included certification by the Secretary of DNREC that the four case-by-case RACT determinations submitted to EPA to establish RACT at these three major sources of NO X represent all required case-by-case NO X RACT determinations for all known subject sources. EPA has determined that DNREC has satisfied the condition imposed in the June 16, 1999 conditional limited approval (64 FR 32187).

The three major sources for which DNREC has submitted case-by-case RACT determinations are: SPI Polyols, Incorporated, New Castle; CitiSteel, Claymont; and General Chemical Corporation, Claymont. The NO X RACT determinations and requirements of each source are included in the Delaware Register of Regulations, Volume 3, Issue 12, June 1, 2000. The specific NO X RACT determinations for these three sources are summarized below.

SPI Polyols, Incorporated, Atlas Point Site, New Castle, Delaware: SPI Polyols, Incorporated (SPI) operates a Polyhydrate Alcohol Catalyst Regenerative process at its Atlas Point Plant in New Castle County, Delaware. This batch process involves treatment and regeneration of the spent nickel catalyst that is recovered from process waste streams of the sugar reduction process. One step in the catalyst regeneration process involves the use of nitric acid (HNO 3 ) digesters. SPI operates 4 batch HNO 3 digesters. The exothermic reaction of HNO 3 with spent nickel catalyst generates NO X . The NO X emissions are mainly associated with the addition of HNO 3 to the digester tanks. Stack testing at the site indicates that the average emissions rate from this process is approximately 0.8 pounds per hour, or 3.5 tons of NO X per year. DNREC imposes two means of controlling the NO X emissions that come from this process: (1) Process control and (2) operation of a counter flow spray scrubbing system and packed column. With respect to process control, SPI must minimize the formation of NO X by controlling the rate of HNO 3 added to the digesters. SPI must submerge the HNO 3 feed into the mixing zone of the digester tank. SPI must add HNO 3 to only one digester tank at any particular time under a controlled temperature range. SPI must monitor the flow rate of HNO 3 addition and calibrate each HNO 3 flow meter and temperature monitor in accordance with the recommendations of the manufacturer, using sound engineering and air pollution control practices. With respect to the scrubber system, off-gas from the digester tanks will be collected and routed to the scrubber. There are to be no visible emissions at the scrubber outlet. There are two water spray nozzles at the bottom of the scrubber, upstream of the column, to cool the temperature of the gas before entering the column. The column is packed with plastic. The scrubbing system is equipped with an air dilution valve to promote the oxidation of any NO X to water soluble nitrogen dioxide. It should be noted that the scrubber treats NO X from a process that operates in batch mode. Therefore, NO X emissions are not continuous. Moreover, emissions of NO X from this process are inherently low. At temperatures of 70 to 120 degrees Fahrenheit, NO X concentrations of approximately 5 to 350 parts per million (ppm), and flow rates of 2000 to 9000 square cubic feet per minute (scfm); the reaction rates are slow and the removal of NO X using a water contact scrubber is minimal. Therefore, DNREC views NO X RACT as maintenance of these low NO X levels using the scrubber. SPI must inspect the components of the scrubber and calibrate the differential pressure gauge pursuant to the manufacturer's recommendation at least once per year. The scrubber will be operated using good engineering and air pollution control practices. DNREC has imposed record-keeping requirements on SPI sufficient to determine compliance with the applicable RACT determinations. EPA is approving the NO X RACT determination made by DNREC for SPI as a revision to the Delaware SIP.

CitiSteel USA, Incorporated, Claymont, Delaware: Citisteel USA, Incorporated (Citisteel) produces molten steel by melting scrap steel. Citisteel operates an Electric Arc Furnace (EAF) rated at a 150 tons per charge. The EAF is operated in a batch mode. Citisteel's EAF operates at temperatures above 3,000 degrees Farenheit, which is conducive to thermal NO X formation. The majority of the facility's NO X emissions result from conditions conducive for thermal NO X formation combined with the infiltration of ambient shop air. Nitrogen contained in the scrap steel is oxidized and released inside the EAF vessel, but contributes very little to the total NO X emissions. Stack tests conducted on April 24 and 25, 1996 established an average emission rate of 0.36 pounds per ton of steel produced or 97.2 tons of NO X per year based 540,000 tons of steel produced per year. Typical fuel fired combustion equipment applied to NO X emitting sources are not technically feasible for an EAF. As noted above, the EAF operates in batches and thus has varying temperatures and flow rates as well as high particulate concentrations that would blind a catalyst. Therefore, DNREC will impose no additional requirements on the Citisteel's EAF operations. A well designed exhaust system constitutes RACT in compliance with Regulation No. 12 of the Delaware Regulations Governing the Control of Air Pollution. EPA is approving Delaware's submittal containing the NO X RACT determination made by DNREC for Citisteel's steel manufacturing operations.

General Chemical Corporation, Claymont, Delaware: General Chemical Corporation (General Chem) has two process operations subject to a NO X RACT evaluation: (1) A sulfuric acid (H 2 SO 4 ) and interstage absorption system (ISA) process and (2) a metallic nitrite process. The H 2 SO 4 /ISA process involves burning elemental sulfur, spent H 2 SO 4 , and hydrogen sulfide to generate sulfur dioxide. Sulfur dioxide is catalytically oxidized to sulfur trioxide and is absorbed into strong H 2 SO 4 . General Chem uses two boilers rated at 46 million British thermal units (MMBtu) per hour to conduct this burning process. Nitrogen oxide emissions are only generated by the burning process. The combustion of sulfur is not is not burned primarily for heat. The sulfur used in the burning process is highly exothermic, providing the majority of the heat to the burners and is in and of itself a low nitrogen bound fuel. The combustion gases are an integral part of the ISA process. Therefore, DNREC determined that combustion modifications are not warranted. The DNREC also confirmed that the low exhaust concentrations of NO X (26.74 ppm or 0.2 lbs. per MMBtu), combined with the high flow rates (54,737 scfm), and the low combustion temperatures disqualifies wet scrubbing as a means of pollution control. Selective catalytic reduction cannot be used due to the existence of particulate matter. Therefore, DNREC imposed no additional controls on General Chem for its H 2 SO 4 /ISA processes. EPA is approving DNREC's NO X RACT determination for General Chem's H 2 SO 4 /ISA processes.

General Chem's metallic nitrite process is a batch process that produces a 50% solution of potassium nitrite (KNO 2 ). The process involves reacting controlled quantities of ammonia and air over a catalyst. The air-ammonia mixture reacts to form nitric oxide and water, which combines with oxygen to form nitrogen dioxide. The mixture of nitric oxide and nitrogen dioxide is absorbed using potassium hydroxide (KOH) which yields KNO 2 . The rate of NO X formation is proportional to the level of free alkalinity in the absorption tower. As the batch process progresses, the absorption of NO X by KOH decreases, so there is less potassium available to form KNO 2 . Hence, the air to ammonia feed rate is of particular interest in controlling NO X levels from this batch process. The metallic nitrite process incorporates an off-gas single stage packed tower scrubber which uses KOH to absorb the majority of the NO X emissions that are generated. The DNREC determined that RACT is continued operation of the scrubber. The scrubber must be tested and calibrated according to the manufacturer's specification and operated using good engineering and air pollution control practices. General Chem must also monitor and keep continuous records of pressure drop, the level of free alkalinity in the scrubber liquor, and the air to ammonia feed rate to the process. EPA is approving DNREC's NO X RACT determination for General Chem's metallic nitrite process.

EPA is approving revisions to the Delaware's SIP submitted by DNREC on July 13, 2000 which include certification by the Secretary of DNREC that the four case-by-case RACT determinations submitted to EPA (as part of that same July 13, 2000 submittal) establishing RACT for four processes located at three major sources of NO X represent all required case-by-case NO X RACT determinations for all known subject sources. EPA is also approving those RACT determinations made by DNREC for three major sources of NO X in Delaware. As a result of these approvals, both the conditional and limited nature of EPA's June 16, 1999 approval of Delaware's Regulation 12 are, hereby, removed and converted to a full approval. This action is being published without prior proposal because we view this as a noncontroversial amendment and because we anticipate no adverse comments. In a separate document in the “Proposed Rules” section of this Federal Register publication, we are proposing to approve the Delaware SIP revision that establishes and requires RACT for three major sources of NO X . This action will be effective without further notice unless we receive relevant adverse comment by July 16, 2001. If we receive such comment, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. Any parties interested in commenting must do so at this time. If no such comments are received by July 16, 2001, you are advised that this action will be effective on August 13, 2001.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 13, 2001. Filing a petition for reconsideration by the Administrator of the rule approving Delaware's NO X RACT regulation and three source-specific RACT determinations does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 (“CERCLA” or “the Act”), in response to the dangers of uncontrolled releases of hazardous substances. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act (“SARA”), Public Law 99-499, 100 Stat. 1613 et seq.

To implement CERCLA, EPA promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets guidelines and procedures for responding to releases and threatened releases of hazardous substances, pollutants, or contaminants under CERCLA. EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666).

As required under section 105(a)(8)(A) of CERCLA, the NCP also includes “criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable, taking into account the potential urgency of such action for the purpose of taking removal action.” (“Removal” actions are defined broadly and include a wide range of actions taken to study, clean up, prevent or otherwise address releases and threatened releases 42 U.S.C. 9601(23).)

The NPL is a list of national priorities among the known or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States. The list, which is appendix B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B) of CERCLA, as amended by SARA. Section 105(a)(8)(B) defines the NPL as a list of “releases” and the highest priority “facilities” and requires that the NPL be revised at least annually. The NPL is intended primarily to guide EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances. The NPL is only of limited significance, however, as it does not assign liability to any party or to the owner of any specific property. Neither does placing a site on the NPL mean that any remedial or removal action necessarily need be taken.

For purposes of listing, the NPL includes two sections, one of sites that are generally evaluated and cleaned up by EPA (the “General Superfund Section”), and one of sites that are owned or operated by other Federal agencies (the “Federal Facilities Section”). With respect to sites in the Federal Facilities Section, these sites are generally being addressed by other Federal agencies. Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each Federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody, or control, although EPA is responsible for preparing an HRS score and determining whether the facility is placed on the NPL. EPA generally is not the lead agency at Federal Facilities Section sites, and its role at such sites is accordingly less extensive than at other sites.

There are three mechanisms for placing sites on the NPL for possible remedial action (see 40 CFR 300.425(c) of the NCP): (1) A site may be included on the NPL if it scores sufficiently high on the Hazard Ranking System (“HRS”), which EPA promulgated as appendix A of the NCP (40 CFR part 300). The HRS serves as a screening device to evaluate the relative potential of uncontrolled hazardous substances to pose a threat to human health or the environment. On December 14, 1990 (55 FR 51532), EPA promulgated revisions to the HRS partly in response to CERCLA section 105(c), added by SARA. The revised HRS evaluates four pathways: ground water, surface water, soil exposure, and air. As a matter of Agency policy, those sites that score 28.50 or greater on the HRS are eligible for the NPL; (2) Each State may designate a single site as its top priority to be listed on the NPL, regardless of the HRS score. This mechanism, provided by the NCP at 40 CFR 300.425(c)(2) requires that, to the extent practicable, the NPL include within the 100 highest priorities, one facility designated by each State representing the greatest danger to public health, welfare, or the environment among known facilities in the State (see 42 U.S.C. 9605(a)(8)(B)); (3) The third mechanism for listing, included in the NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed regardless of their HRS score, if all of the following conditions are met:

• The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service has issued a health advisory that recommends dissociation of individuals from the release.

• EPA determines that the release poses a significant threat to public health.

• EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the release.

EPA promulgated an original NPL of 406 sites on September 8, 1983 (48 FR 40658). The NPL has been expanded since then, most recently on December 1, 2000 (65 FR 75179).

A site may undergo remedial action financed by the Trust Fund established under CERCLA (commonly referred to as the “Superfund”) only after it is placed on the NPL, as provided in the NCP at 40 CFR 300.425(b)(1). (“Remedial actions” are those “consistent with permanent remedy, taken instead of or in addition to removal actions * * *.” 42 U.S.C. 9601(24).) However, under 40 CFR 300.425(b)(2) placing a site on the NPL “does not imply that monies will be expended.” EPA may pursue other appropriate authorities to respond to the releases, including enforcement action under CERCLA and other laws.

The NPL does not describe releases in precise geographical terms; it would be neither feasible nor consistent with the limited purpose of the NPL (to identify releases that are priorities for further evaluation), for it to do so.

Although a CERCLA “facility” is broadly defined to include any area where a hazardous substance release has “come to be located” (CERCLA section 101(9)), the listing process itself is not intended to define or reflect the boundaries of such facilities or releases. Of course, HRS data (if the HRS is used to list a site) upon which the NPL placement was based will, to some extent, describe the release(s) at issue. That is, the NPL site would include all releases evaluated as part of that HRS analysis.

When a site is listed, the approach generally used to describe the relevant release(s) is to delineate a geographical area (usually the area within an installation or plant boundaries) and identify the site by reference to that area. As a legal matter, the site is not coextensive with that area, and the boundaries of the installation or plant are not the “boundaries” of the site. Rather, the site consists of all contaminated areas within the area used to identify the site, as well as any other location to which that contamination has come to be located, or from which that contamination came.

In other words, while geographic terms are often used to designate the site ( e.g., the “Jones Co. plant site”) in terms of the property owned by a particular party, the site properly understood is not limited to that property ( e.g., it may extend beyond the property due to contaminant migration), and conversely may not occupy the full extent of the property (e.g., where there are uncontaminated parts of the identified property, they may not be, strictly speaking, part of the “site”). The “site” is thus neither equal to nor confined by the boundaries of any specific property that may give the site its name, and the name itself should not be read to imply that this site is coextensive with the entire area within the property boundary of the installation or plant. The precise nature and extent of the site are typically not known at the time of listing. Also, the site name is merely used to help identify the geographic location of the contamination. For example, the name “Jones Co. plant site,” does not imply that the Jones company is responsible for the contamination located on the plant site.

EPA regulations provide that the “nature and extent of the problem presented by the release” will be determined by a remedial investigation/feasibility study (RI/FS) as more information is developed on site contamination (40 CFR 300.5). During the RI/FS process, the release may be found to be larger or smaller than was originally thought, as more is learned about the source(s) and the migration of the contamination. However, this inquiry focuses on an evaluation of the threat posed; the boundaries of the release need not be exactly defined. Moreover, it generally is impossible to discover the full extent of where the contamination “has come to be located” before all necessary studies and remedial work are completed at a site. Indeed, the known boundaries of the contamination can be expected to change over time. Thus, in most cases, it may be impossible to describe the boundaries of a release with absolute certainty.

Further, as noted above, NPL listing does not assign liability to any party or to the owner of any specific property. Thus, if a party does not believe it is liable for releases on discrete parcels of property, supporting information can be submitted to the Agency at any time after a party receives notice it is a potentially responsible party.

For these reasons, the NPL need not be amended as further research reveals more information about the location of the contamination or release.

EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met:

(i) Responsible parties or other persons have implemented all appropriate response actions required;

(ii) All appropriate Superfund-financed response has been implemented and no further response action is required; or

(iii) The remedial investigation has shown the release poses no significant threat to public health or the environment, and taking of remedial measures is not appropriate.

As of May 21, 2001, the Agency has deleted 232 sites from the NPL.

In November 1995, EPA initiated a new policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and available for productive use. As of May 21, 2001, EPA has deleted portions of 23 sites.

EPA also has developed an NPL construction completion list (“CCL”) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Inclusion of a site on the CCL has no legal significance.

Sites qualify for the CCL when: (1) Any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved; (2) EPA has determined that the response action should be limited to measures that do not involve construction ( e.g., institutional controls); or (3) the site qualifies for deletion from the NPL.

As of May 21, 2001, there are a total of 766 sites on the CCL. For the most up-to-date information on the CCL, see EPA's Internet site at http://www.epa.gov/superfund.

Yes, documents relating to the evaluation and scoring of the sites in this final rule are contained in dockets located both at EPA Headquarters and in the Regional offices.

The Headquarters docket for this rule contains, for each site, the HRS score sheets, the Documentation Record describing the information used to compute the score, pertinent information regarding statutory requirements or EPA listing policies that affect the site, and a list of documents referenced in the Documentation Record. The Headquarters docket also contains comments received, and the Agency's responses to those comments. The Agency's responses are contained in the “Support Document for the Revised National Priorities List Final Rule—June 2001.”

The Regional dockets contain all the information in the Headquarters docket, plus the actual reference documents containing the data principally relied upon by EPA in calculating or evaluating the HRS score for the sites located in their Region. These reference documents are available only in the Regional dockets.

You may view the documents, by appointment only, after the publication of this document. The hours of operation for the Headquarters docket are from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. Please contact the Regional dockets for hours.

Following is the contact information for the EPA Headquarters: Docket Coordinator, Headquarters, U.S. EPA CERCLA Docket Office, Crystal Gateway #1, 1st Floor, 1235 Jefferson Davis Highway, Arlington, VA, 703/603-8917.

The contact information for the Regional dockets is as follows:

You may obtain a current list of NPL sites via the Internet at http://www.epa.gov/superfund/ (look under the Superfund sites category) or by contacting the Superfund Docket (see contact information above).

This final rule adds 10 sites to the NPL; all to the General Superfund Section of the NPL. Table 1 presents the 10 sites in the General Superfund Section. Sites in the tables are arranged alphabetically by State.

With the 10 new sites added to the NPL in today's final rule; the NPL now contains 1,236 final sites; 1,076 in the General Superfund Section and 160 in the Federal Facilities Section. With a separate rule (published elsewhere in today's Federal Register ) proposing to add 10 new sites to the NPL, there are now 67 sites proposed and awaiting final agency action, 61 in the General Superfund Section and 6 in the Federal Facilities Section. Final and proposed sites now total 1,303. (These numbers reflect the status of sites as of May 21, 2001. Site deletions occurring after this date may affect these numbers at time of publication in the Federal Register .)

EPA reviewed all comments received on the sites in this rule. The Lower Darby Creek site was proposed May 11, 2000 (63 FR 30489). The Nuclear Metals, Inc. and Sutton Brook Disposal Area sites were proposed on July 27, 2000 (65 FR 46131). The Malone Service Company, Inc. site was proposed on Aug 24, 2000 (65 FR 51567). The Consolidated Iron and Metals, Taylor Lumber and Treating, and Elizabeth Mine sites were proposed on December 1, 2000 (65 FR 75215). The Copper Drum Company, Griggs & Walnut Ground Water Plume, and Shenandoah Road Ground Water Contamination sites were proposed on January 11, 2001 (65 FR 2380).

For the Copper Drum Company and the Griggs & Walnut Ground Water Plume sites, EPA received no comments and therefore, EPA is placing them on the final NPL at this time.

For Shenandoah Road Ground Water Contamination site, EPA received only comments supporting the listing of the sites to the NPL and therefore, EPA is placing them on the final NPL at this time.

EPA responded to all relevant comments received on the other sites. EPA's responses to site-specific public comments are addressed in the “Support Document for the Revised National Priorities List Final Rule—June 2001.”

Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the Agency must determine whether a regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

No, the Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866 review.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal Agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Before EPA promulgates a rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

No, EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments in the aggregate, or by the private sector in any one year. This rule will not impose any federal intergovernmental mandate because it imposes no enforceable duty upon State, tribal or local governments. Listing a site on the NPL does not itself impose any costs. Listing does not mean that EPA necessarily will undertake remedial action. Nor does listing require any action by a private party or determine liability for response costs. Costs that arise out of site responses result from site-specific decisions regarding what actions to take, not directly from the act of listing a site on the NPL.

For the same reasons, EPA also has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. In addition, as discussed above, the private sector is not expected to incur costs exceeding $100 million. EPA has fulfilled the requirement for analysis under the Unfunded Mandates Reform Act.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq. , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996) whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e., small businesses, small organizations, and small governmental jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

No. The RFA does not apply to NPL listings (See 65 FR 46135 (July 27, 2000)). The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule for which an agency must publish a notice of general rulemaking under the Administrative Procedure Act or any other statute. Under RFA section 601(2), however, the term “rule” means any rule for which the agency publishes a general notice of rulemaking but does not include a rule of “particular applicability relating * * * to facilities* * *.” 5 U.S.C. 601(2). Here, while EPA published a notice of rulemaking for these listings, each listing is based on determinations unique to individual sites and the listing applies only to one facility or site. Consequently, each listing is a rule of particular applicability and thus, the RFA does not apply to the listing of these individual sites on the NPL.

Moreover, the listing of these individual sites on the NPL does not impose any obligations on small entities or any other identifiable group. The rule sets no standards or a regulatory regime that any small entity must meet. The listing imposes no liability or costs on any small entity (65 FR 46135 (July 27, 2000)). Whether an entity, small or otherwise, is liable for response costs for a release of hazardous substances depends on whether that entity is liable under CERCLA 107(a). Any such liability exists irrespective of whether the site is listed on the NPL.

A commenter questioned whether we had adequately assessed the impact on small businesses located near one of the sites included in today's final rule (the Nuclear Metals, Inc. site). However, even if the RFA did apply to the listing of the Nuclear Metals Inc. site (or any of the other sites added to the NPL in today's rule), the statute does not require EPA to assess the impact on small entities which are not subject to a rule. Motor & Equipment Mfrs. Ass'n v. N Nichols, 142 F.3rd 449, 467 (D.C. Cir. 1998). As discussed above, the listing of a site on the NPL does not apply to any small entity because it imposes no obligations. Certainly, no regulatory obligations are imposed on small businesses which may be located near a site listed in today's final.

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 has submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A “major rule” cannot take effect until 60 days after it is published in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective on July 16, 2001.

Provisions of the Congressional Review Act (CRA) or section 305 of CERCLA may alter the effective date of this regulation.

Under the CRA, 5 U.S.C. 801(a), before a rule can take effect the federal agency promulgating the rule must submit a report to each House of the Congress and to the Comptroller General. This report must contain a copy of the rule, a concise general statement relating to the rule (including whether it is a major rule), a copy of the cost-benefit analysis of the rule (if any), the agency's actions relevant to provisions of the Regulatory Flexibility Act (affecting small businesses) and the Unfunded Mandates Reform Act of 1995 (describing unfunded federal requirements imposed on state and local governments and the private sector), and any other relevant information or requirements and any relevant Executive Orders.

EPA has submitted a report under the CRA for this rule. The rule will take effect, as provided by law, within 30 days of publication of this document, since it is not a major rule. Section 804(2) defines a major rule as any rule that the Administrator of the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) finds has resulted in or is likely to result in: an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. NPL listing is not a major rule because, as explained above, the listing, itself, imposes no monetary costs on any person. It establishes no enforceable duties, does not establish that EPA necessarily will undertake remedial action, nor does it require any action by any party or determine its liability for site response costs. Costs that arise out of site responses result from site-by-site decisions about what actions to take, not directly from the act of listing itself. Section 801(a)(3) provides for a delay in the effective date of major rules after this report is submitted.

Under 5 U.S.C. 801(b)(1) a rule shall not take effect, or continue in effect, if Congress enacts (and the President signs) a joint resolution of disapproval, described under section 802.

Another statutory provision that may affect this rule is CERCLA section 305, which provides for a legislative veto of regulations promulgated under CERCLA. Although INS v. Chadha, 462 U.S. 919,103 S. Ct. 2764 (1983) and Bd. of Regents of the University of Washington v. EPA, 86 F.3d 1214,1222 (D.C. Cir. 1996) cast the validity of the legislative veto into question, EPA has transmitted a copy of this regulation to the Secretary of the Senate and the Clerk of the House of Representatives.

If action by Congress under either the CRA or CERCLA section 305 calls the effective date of this regulation into question, EPA will publish a document of clarification in the Federal Register .

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), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

No. This rulemaking does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

Under Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” as well as through EPA's April 1995, “Environmental Justice Strategy, OSWER Environmental Justice Task Force Action Agenda Report,” and National Environmental Justice Advisory Council, EPA has undertaken to incorporate environmental justice into its policies and programs. EPA is committed to addressing environmental justice concerns, and is assuming a leadership role in environmental justice initiatives to enhance environmental quality for all residents of the United States. The Agency's goals are to ensure that no segment of the population, regardless of race, color, national origin, or income, bears disproportionately high and adverse human health and environmental effects as a result of EPA's policies, programs, and activities, and all people live in clean and sustainable communities.

No. While this rule revises the NPL, no action will result from this rule that will have disproportionately high and adverse human health and environmental effects on any segment of the population.

Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it is not an economically significant rule as defined by Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this section present a disproportionate risk to children.

According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , an agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under the PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations, after initial display in the preamble of the final rules, are listed in 40 CFR part 9. The information collection requirements related to this action have already been approved by OMB pursuant to the PRA under OMB control number 2070-0012 (EPA ICR No. 574).

No. EPA has determined that the PRA does not apply because this rule does not contain any information collection requirements that require approval of the OMB.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

On November 6, 2000, the President issued Executive Order 13175 (65 FR 67249) entitled, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 took effect on January 6, 2001, and revokes Executive Order 13084 (Tribal Consultation) as of that date. EPA developed this final rule, however, during the period when Executive Order 13084 was in effect; thus, EPA addressed tribal considerations under Executive Order 13084.

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Under section 3(b) of Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian Tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the Tribal governments, or EPA consults with those governments. The addition of sites to the NPL will not impose any substantial direct compliance costs on Tribes. While Tribes may incur costs from participating in the investigations and cleanup decisions, those costs are not compliance costs. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this final rule.

This is a synopsis of the Report and Order ( R&O ) in MM Docket No. 00-108, FCC 01-133, adopted April 19, 2001, and released May 15, 2001. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC and may also be purchased from the Commission's copy contractor, International Transcription Service (202) 857-3800, 445 12th Street, SW., Room CY-B402, Washington, DC. This R&O is also available on the Internet at the Commission's website: http://www.fcc.gov.

1. In this R&O we amend § 73.658(g), the “dual network” rule, to permit one of the four major television networks—ABC, CBS, Fox and NBC—to own, operate, maintain or control the UPN and/or the WB television network. The rule already permits any of the four major television networks to own any television network created subsequent to the date that the Telecommunications Act of 1996 was enacted. By this action, we recognize that the economics of the broadcast television network industry have changed to the point that retention of the rule in its current form is no longer in the public interest.

2. The dual network rule goes back some sixty years. The Commission first adopted a dual network rule in 1941, following its investigation of “chain” broadcasting. The rule adopted then mandated a flat prohibition on an entity maintaining more than a single radio network. As we noted in the Notice of Proposed Rule Making (“ NPRM ”) in this proceeding (65 FR 41393 (July 5, 2000)), when the Commission extended the rule to television networks in 1946, it determined that permitting an entity to operate more than one network might preclude new networks from developing and affiliating with desirable stations.

3. Title 47 CFR 73.658(g) sets forth the current version of the dual network rule. It reflects the provisions of section 202(e) of the 1996 Act. That section directed the Commission to modify its dual network rule to prohibit a television station from affiliating with any entity that owns more than one of the four major networks (ABC, CBS, Fox, or NBC) or one of the four major networks and an emerging English-language network which, on the date of the 1996 Act's enactment, “provides 4 or more hours of programming per week on a national basis pursuant to network affiliation arrangements with local television broadcast stations in markets reaching more than 75 percent of television homes. * * *” The legislative history of this provision indicated that it was intended to apply to only the UPN and WB television networks. Moreover, these two networks were the only two entities other than the four major networks that met this definition of a network on the relevant date. (Both UPN and WB argue that they did not meet the legislative definition of a network for these purposes. We rejected UPN's argument in this regard in considering the Viacom/CBS merger. We need not reach the merits of The WB Network's argument in this regard given our resolution herein, which renders its argument moot.)

4. The current dual network rule differs markedly from the dual network rule that existed from 1946 to 1996. The earlier rule prohibited a broadcast station from affiliating with a network organization that maintained more than one broadcast network. As such, the old rule effectively prevented network organizations from creating a new broadcast network or merging with an existing broadcast network. In contrast, the current dual network rule permits a broadcast station to affiliate with a network organization that maintains more than one broadcast network. Such affiliation is prohibited, however, if the multiple network combination is created by a merger among ABC, CBS, Fox, or NBC, or a merger between one of these four networks and UPN or WB. While the current rule gives all network organizations the opportunity to pursue any economic efficiencies that may arise from the maintenance of multiple broadcast networks, it restricts the manner in which specific network organizations become multiple broadcast networks. The current rule facilitates the maintenance of multiple broadcast networks created through internal growth and new entry. A broadcast network may develop multiple broadcast networks by creating new broadcast networks from scratch, or acquiring video networks from nonbroadcast media ( e.g., cable or satellite) and moving them to broadcast. In addition, the current rule facilitates the creation of multiple broadcast networks by permitting (1) mergers between a broadcast network created before the 1996 Act ( i.e., ABC, CBS, FOX, NBC, UPN, and WB) and broadcast networks created subsequent to the 1996 Act ( e.g., PAXtv); (2) mergers between broadcast networks created subsequent to the 1996 Act; and (3) a merger between UPN and WB.

5. Section 202(h) of the 1996 Act also requires the Commission to review its broadcast ownership rules, including rules such as the instant rule that were amended pursuant to Section 202, every two years beginning in 1998 and to “repeal or modify any regulation it determines to be no longer in the public interest.” In our first biennial review proceeding we examined, among other broadcast ownership rules, the dual network rule. Section 202(h) requires us to determine whether any of these rules remained “necessary in the public interest as the result of competition.” As a result of our analysis according to that standard we tentatively determined that the component of the dual network rule that currently prevents the UPN or WB networks from being owned by one of the four major networks may no longer be necessary in the public interest as a result of competition

6. As a result of the findings made in the Biennial Review Report, we issued the NPRM initiating the instant proceeding. In the NPRM, we analyzed the dual network rule pursuant to a framework that involved concepts developed in the transaction cost economics (“TCE”) literature. From a TCE perspective, the economic organization of firms and industries reflects specific attributes of the contracting process between buyer and seller. We stated that application of TCE concepts suggests that vertical integration between program suppliers and major networks may produce substantial economic efficiencies that might benefit both advertisers and viewers. We also stated that horizontal mergers between a major network and an emerging network may produce efficiencies that might benefit both advertisers and viewers. Moreover, we found that there should be little or no adverse effect on the price for network advertising as the result of such a merger. Therefore, we proposed to eliminate the major network/emerging network merger prohibition from our dual network rule.

7. In this R&O, we consider our proposal to relax the dual network rule by eliminating the restriction on mergers between the top 4 broadcast networks and UPN or WB. Our focus, pursuant to section 202(h), is whether this aspect of the rule remains “necessary in the public interest as the result of competition.” Accordingly, we first identify several competitive changes and trends in the video services market that we consider relevant to the continued necessity for the rule. We then apply the framework, developed in the NPRM, for analyzing both the vertical and horizontal competitive impacts of the potential combinations that are currently prohibited by the rule. After addressing the impact of the rule on competition, we turn to the impacts of maintaining or changing the rule on diversity, the other primary public interest concern. Weighing these factors, we decide, as proposed in the NPRM, to eliminate that portion of the rule that effectively prohibits mergers between UPN or WB and one of the four major networks. We conclude that this change will not harm, and indeed is likely to promote, both competitive efficiency and diversity. Although some commenters also urged us to go beyond the tentative conclusions of the Biennial Review Report and the NPRM and to eliminate the dual network rule in its entirety, we note that the questions presented in the NPRM related solely to the emerging networks portion of the rule. We therefore decline to eliminate the dual network rule in its entirety at this time, finding that more information and analysis would be necessary to address the more complex issues that action would involve.

8. Marketplace Developments. Since the enactment of the 1996 Act, significant changes have occurred to the competitive environment in which networks, including emerging networks, operate. These changes, which have occurred both within the television broadcast industry and throughout the multichannel video programming distribution (“MVPD”) industry, have substantial implications for both the competition and diversity concerns that underpin the dual network rule. We will first detail some of these developments and then turn to an analysis of the components of the rule in light of these changes.

9. Within the broadcast industry, the number of commercial and noncommercial television stations has increased from 1550 in August 1996 to 1663 as of September 2000. This represents an increase of over 7% in 4 years. During roughly the same time, prime time viewership among the top six broadcast networks declined from 71% in 1996 to 58% in 2000. Thus, within the last 4 years, there has been both a small but significant increase in the number of television broadcast outlets available to viewers (and potentially to new broadcast networks such as PAXtv) and a substantial decrease in the dominance of broadcast networks in terms of viewership.

10. Accompanying, and largely causing, the reduction in broadcast network viewership during the last 4 years has been the steady expansion of the cable industry. At the end of 1995, the cable industry had a penetration rate of 67.8% of homes passed. By 2000, the penetration rate had grown slightly to 69.7%. While this represents only an incremental increase in penetration, the increase is significant when viewed in connection with the increase in channel capacity on cable networks. As of October 1995, 15.6% of cable systems offered 54 or more channels of video programming, and 63.8% of cable systems offered between 30 and 53 channels, indicating that 79.4% of systems provided 30 or more channels of programming. In 2000, the number of high capacity cable systems was significantly higher. By 2000, 24.2% of cable systems offered 54 or more channels of programming. With the percentage of cable systems offering 30-53 channels virtually unchanged since 1996, the increase in high capacity cable systems means that in 2000 86.6% of cable systems offered 30 or more channels of programming to subscribers. We anticipate that channel capacity on cable systems will continue to expand as more cable systems adopt digital technology.

11. Because each additional channel of capacity on a cable system represents a distinct avenue that may be used to deliver video programming, the increase in channel capacity provides video programming producers a greater opportunity to distribute their programming to consumers. Many cable networks have been formed to take advantage of this opportunity, and, as a whole, they appear to have been successful in capturing a significant portion of viewers over the last 4 years. In 1996, there were 162 cable programming services; by 2000, the number had increased to 214. In 1996, cable networks had a 30% full-day audience share; in 2000, cable networks' share was 45.5%. As channel capacity grows, we expect that new cable networks will be formed and the reach of existing cable networks will be extended.

12. Perhaps the most significant competitive change over the last 4 years has been the rapid growth of the Direct Broadcast Satellite (“DBS”) industry. When the 1996 Act was enacted, DBS service had been available to consumers for less than 2 years. Although the DBS industry had garnered 3.82 million subscribers by October 1996, this represented only 5% of MVPD subscribers, and many of these subscribers were located in rural areas not served by cable. DBS also suffered from certain competitive disadvantages, such as the inability to offer subscribers access to local broadcast signals via the satellite signal. Over the last 4 years, the industry has significantly matured. By 2000, the DBS industry had almost 13 million subscribers, representing more than 15% of MVPD households. Moreover, bolstered in part by the new statutory right to provide “local-into-local” broadcast service, DBS has grown from a predominantly rural service to a viable alternative to cable in all parts of the country.

13. The growth of the DBS industry since 1996 significantly affects the opportunities available to network programming producers and consumers. Currently, the two operating DBS providers, DirecTV and EchoStar, each offer subscribers access to hundreds of channels of video programming. As with a cable channel, each DBS channel provides an independent avenue through which producers of video programming can distribute, and viewers may access, video programming. Although a certain number of DBS channels are used to provide the same network programming found on cable channels, a DBS operator could choose, except where must carry obligations are involved, to provide regional or local programming in response to market demand.

14. Mergers Between A Major Network and UPN or WB. The developments in the broadcast, cable, and DBS industry have had a significant effect on the competitive landscape in which broadcast networks operate. Where almost 84 percent of households subscribe to an MVPD service, and as television broadcast stations and MVPDs, because of the increase in the number of available channels, seek a greater number of attractive programs to offer their viewers, new opportunities are created for producers to obtain distribution channels. Moreover, non-broadcast networks, whose niche programming can provide advertisers with more focused demographics, may continue to erode the audience share of broadcast networks and compete for advertising revenue, especially with the emerging networks. While we cannot definitively predict how these competitive forces will play out, we believe that competitive developments since the enactment of the 1996 Act have diminished the importance of obtaining broadcast affiliates to establish a successful video programming network. We believe that these developments require us to consider whether the dual network rule should be modified.

15. As discussed above, markets for video services have broadened and grown, reflecting shifts in market demand and supply in recent years. Competitive rivalry between and among suppliers of video services has intensified as consumers find increased choice of video programming and new vendors that supply video programming and video delivery services. Increased competitive rivalry intensifies the pressure on management to (1) improve internal operating efficiency by using inputs of production more effectively and organizing the firm to reduce redundancy in staffing or business functions; and (2) reorganize the firm through horizontal and vertical mergers to achieve economies of scale and scope. We focus here on the effect our rules may have on the networks' ability to achieve economic efficiencies through vertical and horizontal integration. As explained in the NPRM, TCE provides a conceptual framework for assessing possible gains and losses in organizational efficiency that may result from the intensified pressure on firm management to improve operating efficiency induced by the greater competitive rivalry confronting the firm.

16. In the NPRM, the Commission noted that the commercial television broadcast network industry today consists of a number of vertically-integrated firms. For example, ABC (a broadcast network) is vertically integrated with Disney (a program supplier), Fox (a broadcast network) is vertically integrated with 20th Century Fox (a program supplier), UPN (a broadcast network) is vertically integrated with Viacom (a program supplier), and WB (a broadcast network) is vertically integrated with AOL Time Warner (a program supplier). In addition to these well-know examples, NBC produces programs through NBC Studios and CBS produces programs through CBS Enterprises (formerly Eyemark Entertainment and King World Productions). Because mergers between broadcast networks may involve mergers between vertically-integrated firms, the Commission examined and sought comment on (1) the potential efficiencies of vertical integration between a program supplier and a broadcast network and (2) the effects of a horizontal merger between two broadcast networks.

17. Our analysis of the economic effects of the dual network rule decomposes a hypothetical merger between two vertically-integrated broadcast networks into two parts. First, the relationship between a program supplier and a broadcast network is examined to determine whether vertical integration is either more or less efficient than simply negotiating an arms-length contractual relationship between the program supplier and the broadcast network. The comparative assessment of the efficiency of contracting versus vertical integration relies on TCE concepts. Second, the effects of a horizontal merger between two broadcast networks is assessed by relying on measures of market concentration and an analysis of price competition in the national market for network television advertising. Finally, the economic gains or losses resulting from the analysis of vertical integration are combined with the expected economic gains or losses resulting from the horizontal merger to determine the overall benefits and costs of a merger between two vertically-integrated firms.

18. As explained in the NPRM, our economic analysis focuses on the contemporary contracting environment between television networks and program producers. We have concluded that specific attributes of television network output and the complexities of contract negotiations between a television network and a program supplier tend to favor the replacement of market contracting with a vertical organizational relationship between the network and the program supplier. Applying TCE concepts, we further conclude that this substitution of vertical integration for a contractual relationship is most likely an economically-efficient response to the hazards of market contracting rather than the exercise of market power by the television network. Thus, the vertical integration of program suppliers and television networks (1) reflects competitive pressures induced by more intense competition for viewers that now enjoy greatly expanded video programming choices compared to a decade ago; and (2) minimizes transaction costs by eliminating the costly adverse effects of negotiating contractual relationships between the programmers and the networks. We conclude that the merger of a program supplier with a broadcast network would result in transaction efficiencies compared to a contractual relationship between the network and the program supplier. Given the growing competition for viewers of video programming, we anticipate that the efficiencies of vertical integration between the programming assets of an emerging network and a major network could accrue to the benefit of consumers.

19. We also explained in the NPRM how our analytical framework allows us to assess the horizontal effects of the merger of an emerging network with a major network on the national market for network advertising. We explained that within the national television advertising market, which includes national spot sales by affiliated and independent stations, a strategic group consisting of the major networks, i.e., ABC, NBC, CBS, and Fox, can be identified. (A strategic group refers to a cluster of independent firms within an industry that pursue similar business strategies.) At present, the network firms comprising this strategic group provide the greatest reach of any medium of mass communications. Major broadcast networks attract much larger audiences than emerging broadcast networks. Since delivering a mass audience is becoming more difficult for all media with the proliferation of media outlets, media that can still produce mass audiences have become more valuable. As a result, notwithstanding some recent erosion in revenue growth, broadcast networks have achieved substantial gains in revenues in recent years despite their loss of audience relative to years past. The major mobility barrier impeding entry into the major network strategic group is the availability of affiliated stations. Mobility barriers are barriers to entry that deter the movement of a firm within a given industry from shifting from one strategic group to another. Different strategic groups will be defended by different mobility barriers that vary in their effectiveness in restricting entry into a given strategic group. In general, firms protected by high mobility barriers will have greater profit potential than firms in other strategic groups protected by low mobility barriers. Notwithstanding some growth in the number of stations over the last decade, obtaining sufficient affiliated stations remains a major obstacle to developing a new broadcast network that can achieve sufficient national reach to be attractive to national advertisers seeking to reach a mass audience.

20. With respect to our analysis of the potential benefits of vertical integration of a program producer and a television network, Viacom was the only commenter to specifically address the potential efficiencies associated with vertical integration, and Viacom's pleadings support the Commission's findings. With respect to our analysis of the effects of horizontal integration of an emerging network with a major network, no commenter disagrees with our finding that a horizontal merger between a major network and an emerging network ( e.g. , UPN or WB) would generate net economic benefits.

21. We conclude that a merger between an emerging network, such as WB or UPN, and a major network is likely to produce net benefits to network advertisers and viewers of network television. With respect to vertical integration, such a merger may produce significant efficiencies by internalizing the contentious issue of program production risk-sharing within a vertical relationship. For example, an emerging network acquired by a major network provides the major network with an additional “window” for the distribution of network programming. In effect, this additional window allows the merged network to broadcast the same program in different time slots in the same market if both the major and emerging networks have affiliates in the same city. Alternatively, if the emerging and major network do not have affiliates in the same city, then the merged network entity will now reach more households than before the merger. In either case, the fixed costs of program production are spread over additional viewers in different time slots or additional cities. As a result, the effective program cost per viewer is reduced in either case. Similarly, a network program that fails, or is only marginally successful, on the major network's affiliated station might succeed when broadcast to the niche audience reached by the affiliates of the emerging network. The risks of network program development are clearly attenuated for the merged networks as a consequence of reaching additional viewers at different times or in additional cities or with audience attributes that may differ from the mass audience ordinarily targeted by a major network.

22. With respect to horizontal integration of a major and emerging television network, the merger should have little or no adverse effect on competition or pricing in the market for television network advertising, since major and emerging networks compete in different strategic groups. To the extent that the emerging network continues to offer programming following the merger that targets niche or special interest audiences, then the welfare of viewers of both mass audience and niche programming should not be adversely affected by the merger and may indeed be advanced by the resulting efficiencies.

23. Mergers Among the Four Major Networks. After the rule change we are making herein, the only multiple network operations that will be prohibited by our dual network rule will be the common ownership of multiple broadcast networks created by mergers between ABC, CBS, Fox, or NBC. Although the questions presented in the NPRM related solely to the emerging networks portion of the dual network rule, Fox, Viacom, and WB argue for elimination of the rule in its entirety. They contend that the rule, established over fifty years ago, is no longer justified in light of prevailing conditions. They argue that new competitors—both broadcast and nonbroadcast—have entered and attracted large portions of the market formerly controlled by the networks. They also argue that developments over the past 20 years have increased competition, reduced the networks' share of television viewership, and reduced the networks' share of television advertising revenue. These developments, they conclude, support elimination of the dual network rule.

24. The questions presented in the NPRM related solely to the emerging networks portion of the dual network rule; the question of eliminating the rule in its entirety was not squarely presented to this Commission for review. Therefore, we will not address that issue in this proceeding. This issue was considered in the 1998 Biennial Review, which was completed in 2000.

25. In addition to the competitive concerns discussed above, the modification of the dual network rule involves diversity issues. In fact, the only commenter urging retention of the entire current dual network rule did so on the basis that the proposed modification would undermine traditional Commission diversity concerns. In this regard, UCC argues that the NPRM in this proceeding ignored the “vital first amendment issues that animate the dual network rule.” Allowing one of the top four networks to buy UPN and/or WB will, by definition, result in the elimination of one or more independently owned broadcast outlet at the national level. The record demonstrates that emerging networks make a significant contribution to diversity of programming at the national level and the stability of their affiliates, thus promoting outlet diversity at the local level. The record also demonstrates, however, that maintaining the dual network rule in its current form would actually jeopardize those contributions to diversity, rather than promote them.

26. The record shows that some form of relief from the dual network rule will promote the viability of the UPN network and thus promote diversity at the national level. Viacom now owns and operates both the CBS and UPN broadcast networks. Absent today's action, Viacom/CBS would have until May 4, 2001, to come into compliance with the rule, which, as a practical matter, would involve divestiture of UPN. The record reflects that UPN is a financially struggling network that has suffered losses in every year of its existence. The reasons for UPN's financial struggles include competition from both broadcast and non-broadcast video sources, decreasing broadcast network viewership, and diversion of investment capital to other competitors partly as a result of the current dual network rule. These factors affect both UPN and the WB networks. Given these factors, there is substantial likelihood that the present level of independent network ownership would not be maintained absent the action we take herein. In addition, as noted above, our analysis suggests that the UPN broadcast television network benefits from the efficiencies of vertical integration with Viacom's program production facilities. Divestiture would deprive UPN of these efficiencies.

27. Retaining the current version of the dual network rule could also have cascading adverse consequences on diversity at the local level. Affiliates of a failed network, without network affiliation and the programming it brings, may not be able to sustain the increases in the cost of programming that they would have to bear should they have to purchase programming in the syndication market. Additionally, such affiliates would be deprived of a recognized brand that is promoted locally by each affiliate and nationally by the network and of first run programming that affiliates would have to replace by purchasing programming in the syndication market. Thus, the failure of a network could imperil the position of many of that network's affiliates and have a negative impact on diversity of outlets at the local level.

28. Additionally, we agree with those that argue that the proliferation of video programming networks warrants relaxing the rule. At present, some 83.8 percent of television households obtain their service from an MVPD such as cable, direct broadcast satellite or Multichannel Multipoint Distribution Service. Most of the subscribers to such systems have available to them a cornucopia of video services. As discussed above, nearly 87 percent of cable television systems have 30 or more channels. These systems serve 99 percent of cable subscribers. Although many of the video programming networks presented on cable systems are vertically integrated with cable multiple system operators, they nevertheless contribute to diversity by providing programming to most viewers that is from a source other than the six broadcast television networks covered by the instant rule. Such developments have diminished the importance of maintaining UPN and WB as independently owned network “voices.”

29. Also, we agree with commenters that a major network and an emerging network under common ownership would have a strong economic incentive to diversify their program offerings, particularly by increasing service to minority or “niche” tastes and interests. A single broadcast network has the incentive to attract the largest possible audience with mass appeal programming (which is similar to the programming offered by its rivals). However, if two networks are owned by a single entity, the entity has an incentive to attract an array of viewers with differing interests to produce the largest combined audience for the overall enterprise. This allows for the major network to pursue mass tastes, with the smaller network programming to minority and niche tastes.

30. The record also supports the proposition that eliminating the emerging network portion of the dual network rule will not adversely affect the provision of news and public affairs programming. As noted by Viacom, common ownership may offer the only realistic potential for the carriage of a substantial amount of news and public affairs programming by affiliates of the emerging network by allowing the resources of the larger network to be re-deployed in ways that serve the viewers of the emerging networks by providing them with news and public affairs.

31. The WB Network argues that if we relax the dual network rule we are obligated to also eliminate the cable/television cross-ownership rule. Otherwise, it contends, we will actually be allowing only the UPN Network to be merged with a major network because the cable/television cross-ownership rule precludes The WB from such a merger. It argues that the Commission cannot, as a matter of law, grant regulatory relief to certain competitors but not equivalent relief to others. Since the cable/television cross-ownership rule “stands in the way of similar creative business arrangements with an established network, The WB cannot be part of a corporate family with any attributable interests in licensed broadcast stations in numerous major DMAs. This, it asserts, violates fundamental fairness and administrative law that requires the Commission to accord comparable treatment to similarly situated parties.

32. Modification or elimination of the cable/television cross-ownership rule is not within the scope of the NPRM issued in this proceeding. We will consider it again in a future proceeding or our next biennial review of our broadcast ownership rules. WB network is receiving equal treatment by reason of the modification of the dual network rule we are making herein.

33. Additionally, the UPN and WB Networks have each raised arguments that the provision of the 1996 Act that defines an emerging network does not include it. Given our decision herein, this issue is moot.

34. Finally, we have previously granted Viacom, Inc., a period of twelve months, commencing May 3, 2000, within which to come into compliance with the dual network rule. Given our action herein, we will extend that temporary waiver of the rule until the effective date of the instant rule amendment.

35. Based upon the record and our own analysis, we find that the benefits of vertical integration between a program producer and television networks will not be lost and may well be augmented by a merger of one or more emerging networks with a major network. Additionally, the horizontal integration of an emerging and major network should not adversely affect competition or pricing in the relevant television advertising markets and may produce merger-specific efficiencies that provide new benefits to viewers and advertisers not otherwise available prior to the merger. The aggregation of the possible efficiencies of both vertical and horizontal integration that provide the resources for viewer and advertiser benefits support our decision to abolish today that part of the dual network rule that prohibits the merger of one or more emerging network with a major television network.

36. With regard to diversity, we do not believe that the loss of up to two independently owned networks that potentially could result from our modification of the dual network rule would seriously compromise our diversity concerns. On the contrary, diversity of programming will be fostered at the national level as a result of our permitting struggling emerging networks to combine with major networks, thereby allowing them to continue serving their current niche and minority audiences. At the local level, our action will contribute to outlet diversity by strengthening the emerging networks and thus promoting the stability of their affiliated stations. Therefore, on balance, we believe that the modification of the dual network rule is warranted on diversity grounds, as well.

37. We do not believe that a waiver is the better approach to this issue and so do not reach those arguments of commenters favoring such relief. The subject portion of the dual network rule is unusual because, while in form it is a rule of general applicability, in effect it only applies to one entity other than UPN ( i.e., the WB Network). Thus, the rule is so narrow that the specific facts concerning one of the only two parties to which the rule applies are quite relevant. Also, the two networks are similarly situated from the standpoint of economic analysis. Both UPN and WB are nascent broadcast networks that target younger audiences compared with the major networks. In addition, both networks use UHF stations and LPTV facilities that result in a substantial coverage disadvantage compared with the major networks. Our foregoing analysis pertains equally to UPN and WB and demonstrates that distinct benefits for either or both of them can be derived generally from elimination of that section of the rule that prohibits these two entities to merge with a major network. Accordingly, elimination of that provision of the rule itself, rather than grant of waiver relief to only one of the two parties affected by that portion of the rule, is appropriate.

38. In view of the foregoing, we conclude that the dual network rule should be amended by eliminating the provision prohibiting the common ownership of one of the four major networks and the emerging networks. We will reexamine that part of the dual network rule that prohibits mergers between the major networks in a future proceeding, possibly our next Biennial Review. At that time we will explore in greater detail how repeal or modification of that part of the rule may affect diversity and consider whether the rule remains necessary in the public interest as the result of competition.

39. Paperwork Reduction Act of 1995 Analysis. This R&O has been analyzed with respect to the Paperwork Reduction Act of 1995 and found to impose no new reporting requirements on the public.

40. Regulatory Flexibility Analysis. Pursuant to the Regulative Flexibility Act of 1980, as amended, 5 U.S.C. 601 et seq. , the Commission's Final Regulatory Flexibility Analysis in this R&O is as follows. As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM in this proceeding. The Commission sought written public comment on the proposals in this NPRM, including comment on the IRFA. The comments received are discussed below. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

41. Need For, and Objectives of, Report and Order. In February 1996, the Telecommunications Act of 1996 (“1996 Act”) was signed into law. Section 202 of the 1996 Act directed the Commission to make a number of significant revisions to its broadcast media ownership rules. Section 202(h) also requires us to review our broadcast ownership rules every two years commencing in 1998. One of the rules reviewed in our first such biennial reviews was § 73.658(g), the dual network rule. In our Biennial Review Report we tentatively concluded that a portion of this rule was no longer necessary in the public interest. Accordingly, we issued an NPRM proposing the elimination of this rule consistent with the goals of the 1996 Act.

42. Significant Issues Raised by the Public in Response to the Initial Analysis. No comments were received concerning the Initial Regulatory Flexibility Analysis.

43. Description and Estimate of the Number of Small Entities To Which the Proposed Rules Will Apply. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The Regulatory Flexibility Act defines the term “small entity as having the same meaning as the terms “small business,” “small organization,” and “small business concern” under section 3 of the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

44. Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency after consultation with the Office of Advocacy of the SBA and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register . A “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 1992, there were approximately 275,801 small organizations. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts with a population of less than 50,000.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities, and towns; of these, 37,566, or 96 percent, have populations of fewer than 50,000. Thus, of the 85,006 governmental entities, we estimate that 81,600 (91 percent) are small entities.

45. The SBA defines small television broadcasting stations as television broadcasting stations with $10.5 million or less in annual receipts. According to Commission staff review of the BIA Publications, Inc., Master Access Television Analyzer Database, fewer than 800 commercial TV broadcast stations (65%) have revenues of less than $10.5 million dollars. Approximately 90 of these small TV broadcast television stations are affiliates of the WB or UPN networks and may be affected by our rule change. We note, however, that under SBA's definition, revenues of affiliates that are not television stations should be aggregated with the television station revenues in determining whether a concern is small. Therefore, our estimate may overstate the number of small entities since the revenue figure on which it is based does not include or aggregate revenues from non-television affiliated companies. It would appear that there would be no more than 800 entities affected.

46. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements. The R&O imposes no reporting, recordkeeping, or compliance requirements.

47. Steps Taken to Minimize Significant Economic Impact on Small Entities and Significant Alternatives Considered. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

48. As indicated, the R&O allows licensees to affiliate with a network entity that maintains two or more networks unless such multiple networks consist of more than one of the “big four” networks (NBC, ABC, CBS and Fox). This eliminates the bar on affiliation with an entity that maintains one of the “big four” networks and the UPN and/or WB networks. All significant alternatives, i.e., retention of the existing rule, modification of the existing rule, and elimination of the dual network rule altogether, were considered in the Commission's 1998 biennial review of its broadcast ownership rules (MM Docket No. 98-35) and herein. In the Biennial Review proceeding the Commission tentatively determined that elimination of the subject provision would be in the public interest. The Commission considered the results of this top-to-bottom review of the subject rule in its consideration of alternatives to the course proposed herein in the instant proceeding. The instant action provides television licensees, including those considered to be “small businesses,” with increased flexibility with regard to the broadcast networks with which they may affiliate. It also may help small stations that are affiliated with the UPN or WB networks survive and prosper in an increasingly competitive media marketplace. Finally, it gives the four major and two emerging broadcast television networks, none of which are small businesses, more merger flexibility.

49. Report to Congress. The Commission will send a copy of this R&O, including this FRFA, in a report to be sent to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996, see 5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of this R&O, including FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of this R&O and FRFA (or summaries thereof) will also be published in the Federal Register . See 5 U.S.C. 604(b).

50. Accordingly, pursuant to the authority contained in 47 U.S.C. 154(i) and (j), 303(r), 308, 310 and 403, as amended, 47 CFR part 73 is amended as set forth in “Rule Change.”

51. Viacom, Inc.’s, temporary waiver of 47 CFR 73.658(g) of the Commission's Rules, will be extended until the effective date of this rule amendment.

52. The Commission's Consumer Information Bureau, Reference Information Center, will send a copy of this R&O, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

On December 19, 2000 (65 FR 79462), the Department published a final rule revising its drug and alcohol testing procedures (49 CFR Part 40). One provision of this rule, § 40.25, requires employers to make inquiries about the drug and alcohol testing history of applicants for employment in jobs involving the performance of safety-sensitive functions. The employee must provide a written consent to the inquiry before it is made. The purpose of the provision is to ensure that new employers have the opportunity to learn about recent violations (within two years of the application) of the Department's rules. This information is important to allow employers to comply with the obligation to ensure that employees fully complete return-to-duty process requirements. The provision is based on a long-standing provision of the Federal Motor Carrier Safety Administration's drug and alcohol testing rule (49 CFR Part 382).

The history of this provision in the Part 40 rulemaking is as follows: In § 40.329 of the Department's December 1999 notice of rulemaking (NPRM) on this subject, the Department proposed allowing medical review officers (MROs) to provide information on employees' drug test results to third-party employers under some circumstances. Most commenters, while agreeing that providing information to third-party employers about violations of drug testing rules has value for safety purposes, found the specifics of the proposal problematical. Some urged the Department to find an alternative. Employing a provision like the Federal Motor Carrier Safety Administration provision mandating pre-employment inquiries about applicants' drug and alcohol testing history was one suggestion mentioned in comments (see 65 FR 79475, December 19, 2000). An agency is entitled to respond to comments on a proposed rule by changing, adding, or deleting provisions. As explained in the preamble to the final rule, this is the course the Department chose in moving from the NPRM's § 40.329 to the final rule's § 40.25.

Nevertheless, a group of maritime organizations requested that the Department open a comment period for the purpose of commenting on § 40.25. While we believe the Department acted fully in accordance with all applicable rulemaking procedures, we will, in response to this request, open a comment period on the provision for 30 days. We are able to be responsive to this request because we have sufficient time, before the August 1, 2001, effective date of the revised Part 40, to consider comments and make any changes we believe to be appropriate without disrupting the implementation of the rule. We do not believe that a longer period is needed to provide comments on this one particular provision of the rule that we published on December 19, 2001. Interested persons should therefore be able to comment readily within the 30-day period.

The groups that requested the opportunity to comment on this provision of the final rule also requested that the Department suspend the implementation of § 40.25. This provision goes into effect August 1, 2001. It is not necessary to suspend a provision that is not yet in effect.

Please note that this opportunity for comment concerns only § 40.25, and the Department is not accepting comments on other provisions of the rule at this time. For readers' convenience, we are reprinting below the text of § 40.25:

(a) Yes, as an employer, you must, after obtaining an employee's written consent, request the information about the employee listed in paragraph (b) of this section. This requirement applies only to employees seeking to begin performing safety-sensitive duties for you for the first time (i.e., a new hire, an employee transfers into a safety-sensitive position). If the employee refuses to provide this written consent, you must not permit the employee to perform safety-sensitive functions.

(b) You must request the information listed in this paragraph (b) from DOT-regulated employers who have employed the employee during any period during the two years before the date of the employee's application or transfer:

(1) Alcohol tests with a result of 0.04 or higher alcohol concentration;

(2) Verified positive drug tests;

(3) Refusals to be tested (including verified adulterated or substituted drug test results);

(4) Other violations of DOT agency drug and alcohol testing regulations; and

(5) With respect to any employee who violated a DOT drug and alcohol regulation, documentation of the employee's successful completion of DOT return-to-duty requirements (including follow-up tests). If the previous employer does not have information about the return-to-duty process (e.g., an employer who did not hire an employee who tested positive on a pre-employment test), you must seek to obtain this information from the employee.

(c) The information obtained from a previous employer includes any drug or alcohol test information obtained from previous employers under this section or other applicable DOT agency regulations.

(d) If feasible, you must obtain and review this information before the employee first performs safety-sensitive functions. If this is not feasible, you must obtain and review the information as soon as possible. However, you must not permit the employee to perform safety-sensitive functions after 30 days from the date on which the employee first performed safety-sensitive functions, unless you have obtained or made and documented a good faith effort to obtain this information.

(e) If you obtain information that the employee has violated a DOT agency drug and alcohol regulation, you must not use the employee to perform safety-sensitive functions unless you also obtain information that the employee has subsequently complied with the return-to-duty requirements of Subpart O of this part and DOT agency drug and alcohol regulations.

(f) You must provide to each of the employers from whom you request information under paragraph (b) of this section written consent for the release of the information cited in paragraph (a) of this section.

(g) The release of information under this section must be in any written form (e.g., fax, e-mail, letter) that ensures confidentiality. As the previous employer, you must maintain a written record of the information released, including the date, the party to whom it was released, and a summary of the information provided.

(h) If you are an employer from whom information is requested under paragraph (b) of this section, you must, after reviewing the employee's specific, written consent, immediately release the requested information to the employer making the inquiry.

(i) As the employer requesting the information required under this section, you must maintain a written, confidential record of the information you obtain or of the good faith efforts you made to obtain the information. You must retain this information for three years from the date of the employee's first performance of safety-sensitive duties for you.

(j) As the employer, you must also ask the employee whether he or she has tested positive, or refused to test, on any pre-employment drug or alcohol test administered by an employer to which the employee applied for, but did not obtain, safety-sensitive transportation work covered by DOT agency drug and alcohol testing rules during the past two years. If the employee admits that he or she had a positive test or a refusal to test, you must not use the employee to perform safety-sensitive functions for you, until and unless the employee documents successful completion of the return-to-duty process (see paragraphs (b)(5) and (e) of this section).

The Department has previously considered all of 49 CFR Part 40 with respect to rulemaking process requirements (see 65 FR 79516-79518; December 19, 2000). The proposed rule, analyses concerning it, and the comments on it can be found in the Department's docket or on the Department's Dockets Management System (DMS) web site. The address for the Dockets office and the DMS web site are listed under Addresses above. This action is simply a response to an industry request for, essentially, the reopening of a comment period; the Department does not propose to take any new action through this document that would be subject to statutory or Executive Order requirements concerning the regulatory process.

1. Legislative: Congress made significant changes to the Endangered Species Act of 1973 (Act), as amended, with the addition of section 10(j), which provides for the designation of specific reintroduced populations of listed species as “experimental populations.” Previously, we had authority to reintroduce populations into unoccupied portions of a listed species' historical range when doing so would foster the conservation and recovery of the species. However, local citizens often opposed these reintroductions because they were concerned about the placement of restrictions and prohibitions on Federal and private activities. Under section 10(j), the Secretary of Interior can designate reintroduced populations established outside the species' current range, but within its historical range, as “experimental.”

Under the Act, species listed as endangered or threatened are afforded protection primarily through the prohibitions of section 9 and the requirements of section 7. Section 9 of the Act prohibits the take of a listed species. “Take” is defined by the Act as harass, harm, pursue, hunt, shoot, wound, trap, capture, or collect, or attempt to engage in any such conduct. Section 7 of the Act outlines the procedures for Federal interagency cooperation to conserve federally listed species and protect designated critical habitats. It mandates all Federal agencies to determine how to use their existing authorities to further the purposes of the Act to aid in recovering listed species. It also states that Federal agencies will, in consultation with the Service, insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Section 7 of the Act does not affect activities undertaken on private lands unless they are authorized, funded, or carried out by a Federal agency.

Section 10(j) is designed to increase our flexibility in managing an experimental population by allowing us to treat the population as threatened, regardless of the species' designation elsewhere in its range. Threatened designation gives us more discretion in developing and implementing management programs and special regulations for such a population and allows us to develop any regulations we consider necessary to provide for the conservation of a threatened species. In situations where we have experimental populations, most of the section 9 prohibitions that apply to threatened species no longer apply, and the special rule contains the prohibitions and exceptions necessary and appropriate to conserve that species. Regulations for NEP's may be developed to be more compatible with routine human activities in the reintroduction area.

Based on the best available information, we must determine whether experimental populations are “essential,” or “nonessential,” to the continued existence of the species. An experimental population that is essential to the survival of the species is treated as a threatened species. An experimental population that is nonessential to the survival of the species is also treated as a threatened species. However, for section 7 interagency cooperation purposes, if the NEP is located outside of a National Wildlife Refuge or National Park, it is treated as a species proposed for listing.

For the purposes of section 7 of the Act, in situations where there is a nonessential experimental population located within a National Wildlife Refuge or National Park (treated as threatened), section 7(a)(1) and the consultation requirements of section 7(a)(2) of the Act would apply. Section 7(a)(1) requires all Federal agencies to use their authorities to conserve listed species. Section 7(a)(2) requires that Federal agencies consult with the Service before authorizing, funding, or carrying out any activity that would likely jeopardize the continued existence of a listed species or adversely modify its critical habitats. When NEPs are located outside a National Wildlife Refuge or National Park, only two provisions of section 7 would apply; section 7(a)(1) and section 7(a)(4). In these instances, NEPs provide additional flexibility because Federal agencies are not required to consult with us under section 7(a)(2). Section 7(a)(4) requires Federal agencies to informally confer with the Service on actions that are likely to jeopardize the continued existence of a proposed species. However, since we determined that the NEP is not essential to the continued existence of the species, it is very unlikely that we would ever determine jeopardy for a project impacting a species within an NEP.

Individuals used to establish an experimental population may come from a donor population, provided their removal is not likely to jeopardize the continued existence of the species, and appropriate permits are issued in accordance with our regulations (50 CFR 17.22) prior to their removal.

2. Biological: Muscle Shoals (sometimes referred to as Mussel Shoals), a 53 RM (85-km) reach of the Tennessee River in Colbert and Lauderdale Counties, Alabama, once supported the world's greatest assemblage of freshwater mussels (van der Schalie 1939) and was one of the finest mussel habitats ever known (Isom 1969). Ortmann (1924) stated that no other place on earth could compare to this shoal with respect to freshwater mussels. This river reach historically contained nearly 80 percent of all the mussel taxa known from the entire Tennessee River system (ca. 100 taxa) and about 25 percent of the total North American mussel fauna (ca. 300 taxa). Ortmann (1925) listed 69 mussel species and varieties from this shoal complex. Stansbery (1964), using current nomenclatural concepts, excluding subspecies, and adding a species not reported by Ortmann (1925), reported the mussel diversity at 63 species. A biologist with the Alabama Division of Wildlife and Freshwater Fisheries (ADWFF) (J. Garner, personal communication, 1997) combined historic distribution records (Ortmann 1925, van der Schalie 1939, Scruggs 1960, Stansbery 1964, Gooch et al. 1979) with personal observations and the observations of malacologists (scientists who study mollusks) familiar with the area (P. Yokley and T. Richardson, University of North Alabama, and S. Ahlstedt, U.S. Geological Survey, personal communication, 1997) and found that a total of 78 mussel taxa had been reported from Muscle Shoals. Goodrich (1931) reported that Anthony's riversnail also occurred at Muscle Shoals. However, the species is no longer found in the area (Garner, personal communication, 1997).

With the completion of Wilson Dam (completed in 1924), Wheeler Dam (completed in 1936), and Pickwick Dam (completed in 1938), about 41 RM (66 km) of shoal habitat were impounded. Although some mussel species survived in the remaining 12 RM (19 km) of shoal habitat between Wilson Dam and the backwaters of Pickwick Reservoir, much of the diversity and abundance of mussels in that reach began to disappear. Based largely on a 1931 survey of Muscle Shoals, van der Schalie (1939) reported the resident mussel fauna at 40 species; Stansbery (1964) listed 30 species from a 1963 mussel survey of remaining shoal habitat; and Isom (1969) reported that 31 species existed on the shoal. Garner (personal communication, 1997) reviewed current and recent historical records (last 20 years) and concluded that possibly as many as 44 mussel species, including 6 federally listed mussels—fanshell ( Cyprogenia stegaria ), orange-foot pimple back pearlymussel ( Plethobasus cooperianus ), pink mucket ( Lampsilis abrupta ), ring pink ( Obovaria retusa ), rough pigtoe ( Pleurobema plenum ), and white wartyback (pearlymussel) ( Plethobasus cicatricosus )—are known, or presumed to still exist in the free-flowing riverine habitat below Wilson Dam. Because these six listed mollusks exist, or are believed to still exist in this river reach, they are not included in this reintroduction effort. However, these populations could be augmented with artificially propagated juveniles. They will retain their endangered status and associated protections. Based on a review of the most recent records, it is presumed that 34 mussel species, including 16 federally listed mussels and the Anthony's riversnail, have been extirpated from the Muscle Shoals complex (Garner, personal communication, 1997).

Although many aquatic mollusks have been lost from Muscle Shoals, habitat quality has been improving in the remaining shoal habitat in recent years. The Tennessee Valley Authority (TVA) (1993), reporting on their Clean Water Initiative, rated macroinvertebrates below Wilson Dam as excellent. The Reservoir Fish Assemblage Index, a measure the TVA uses to rate the health of the fish fauna at sites throughout the Tennessee River valley, was rated as good in the Wilson Dam tailwaters during 1993, 1994, and 1996; no figure was given for 1995 (E. Scott, TVA, personal communication, 1997). Additionally, the ADWFF Director, in a December 9, 1996, letter to us, points to the improving water quality and the improved health of mussel and snail populations below Wilson Dam and other TVA dams on the Tennessee River in Alabama.

The Tennessee River from about 1.4 RM (2.2 km) below Wilson Dam to the backwaters of Pickwick Reservoir (about 12 RM (19 km)) now appears suitable for a mollusk reintroduction effort for several reasons: (1) habitat quality in the Wilson Dam tailwaters has improved; (2) existing aquatic mollusk populations have responded positively to the improved habitat quality; (3) Muscle Shoals historically contained a rich mollusk fauna, and some of the shoal habitat that once supported this fauna still remains; and (4) the reestablishment of listed mollusks to historic habitat is identified as a high-priority task in listed aquatic mollusk recovery plans.

3. Recovery Efforts: The Alabama lampmussel ( Lampsilis virescens ) (Lea 1858), a Tennessee River system endemic, was listed as an endangered species on June 14, 1976 (41 FR 24064). We completed a recovery plan for this species in July 1985 (Service 1985a). The Alabama lampmussel was historically known from seven rivers in the Tennessee River system (Ortmann 1918, Bogan and Parmalee 1983, Service 1985a). The species was last collected at Muscle Shoals prior to 1925 (Ortmann 1925) and is presumed to be extirpated from the shoal. Currently, the species is known to survive only in the upper Paint Rock River system, Jackson County, Alabama (Service 1985a). The delisting objectives in the recovery plan call for: (1) restoring the viability of the population in the Paint Rock River and its tributaries; (2) reestablishing or discovering viable populations in two additional rivers; and (3) ensuring there are no foreseeable threats to the continued existence of any of the populations. No downlisting (reclassification from endangered to threatened) criteria are provided in the recovery plan.

The birdwing pearlymussel ( Conradilla caelata ) (Conrad 1834) was listed as an endangered species on June 14, 1976 (41 FR 24064). We finalized a recovery plan for the species in July 1984 (Service 1984c). This species was originally known from 11 rivers in the Tennessee River system, and one record exists from an unknown location in the Cumberland River. The species was last collected from Muscle Shoals prior to 1925 (Ortmann 1925) and is presumed to be extirpated from the shoal. It currently survives in the Clinch and Powell Rivers in Tennessee and Virginia and in the Duck and Elk Rivers in Tennessee (Service 1984c). The delisting objectives presented in the recovery plan call for: (1) Restoring the viability of the populations in the Clinch and Powell Rivers; (2) reestablishing or discovering viable populations in three additional rivers (only two rivers if Columbia Dam on the Duck River is not built); (3) ensuring there are no foreseeable threats to the continued existence of any of the populations; and (4) noticeable improvements in coal-related problems and substrate quality in the Powell River and no increase in coal-related sedimentation in the Clinch River. No downlisting criteria are given in the recovery plan.

The clubshell ( Pleurobema clava ) (Lamarck 1819) was listed as an endangered species on January 22, 1993 (58 FR 5642). We finalized a recovery plan for the species in September 1993 (Service 1993a). This widespread species occurred in the Ohio River and Lake Erie basins but now survives in only a few small and isolated populations in both basins (Service 1993a). It was last found at Muscle Shoals prior to 1925 (Ortmann 1925) and is presumed no longer to survive in this river reach. The downlisting objectives in the recovery plan call for the establishment of 10 viable populations and ensuring there are no foreseeable threats to the continued existence of any of the populations. The delisting objectives call for: (1) The establishment of 10 viable populations; (2) populations to be large enough to survive a single adverse ecological event; and (3) ensuring that there are no foreseeable threats to the continued existence of any of the populations.

The cracking pearlymussel ( Hemistena lata ) (Rafinesque 1820) was listed as an endangered species on September 28, 1989 (54 FR 39853). We finalized a recovery plan for the species in July 1991 (Service 1991). This widespread species historically occurred in the Ohio, Cumberland, and Tennessee River systems (Bogan and Parmalee 1983, Service 1991). It has been extirpated throughout much of its range. It was last collected at Muscle Shoals prior to 1925 (Ortmann 1925) and is presumed no longer to survive in this river reach. It is presently known to survive at only a few shoals in the Clinch and Powell Rivers in Tennessee and Virginia (Bogan and Parmalee 1983, Neves 1991). This species possibly survives in the Green River, Kentucky, and below Pickwick Reservoir in the Tennessee River, Tennessee (Service 1991). The downlisting objectives in the recovery plan call for the establishment of five viable populations and ensuring that there are no foreseeable threats to the continued existence of any of the populations. The delisting objectives call for the establishment of eight viable populations.

The Cumberland bean (pearlymussel) ( Villosa trabalis ) (Conrad 1834) was listed as an endangered species on June 14, 1976 (41 FR 24064). A recovery plan for the species was approved August 22, 1984 (Service 1984d). This species was historically known from 10 river systems in the Cumberland and Tennessee river basins (Service 1984d). It was last collected at Muscle Shoals, which may represent its type locality, prior to 1925 (Ortmann 1925) and is presumed to be extirpated from the shoal. The Cumberland bean currently survives only in the Hiwassee River in Tennessee and in Buck Creek, the Little South Fork of the Cumberland River, and the Rockcastle River system in Kentucky (Service 1984d). The delisting objectives in the recovery plan call for: (1) Restoring the viability of its populations in Buck Creek, the Rockcastle River, and the Little South Fork River in Kentucky; (2) reestablishing or discovering viable populations in two additional rivers; and (3) ensuring that there are no foreseeable threats to the continued existence of any of the populations. No downlisting criteria are given in the recovery plan.

The Cumberlandian combshell ( Epioblasma brevidens ) (Lea 1831) was listed as an endangered species on January 10, 1997 (62 FR 1647). This mussel was historically distributed throughout much of the Cumberlandian Region of the Tennessee and Cumberland River drainages in Alabama, Kentucky, Tennessee, and Virginia (Gordon 1991). Currently, only small populations survive in a few river reaches in both river systems (Gordon 1991). The species was last collected from Muscle Shoals prior to 1925 (Ortmann 1925) and is presumed to be extirpated from the shoal. Although there is no recovery plan for the Cumberlandian combshell, we developed a recovery outline, which briefly enumerates anticipated recovery actions, prior to publishing the final listing decision. The recovery outline identifies reintroduction into historic habitat as a method that would likely be needed to recover the species.

The Cumberland monkeyface pearlymussel ( Quadrula intermedia ) (Conrad 1836) was listed as an endangered species on June 14, 1976 (41 FR 24064). We completed a recovery plan for the species in July 1984 (Service 1984a). This species was historically known from 11 rivers in the Tennessee River system (Service 1984a). It was last collected from Muscle Shoals around 1900 by R. E. Call and A. A. Hinkley (Ortmann 1925) and is presumed to be extirpated from the shoal. Currently, the species survives only at a few shoals in the Powell River, Tennessee and Virginia, and the Elk and Duck Rivers, Tennessee (Service 1984a). The delisting objectives presented in the recovery plan call for: (1) Restoring the viability of the populations in the Powell and Elk Rivers; (2) reestablishing or discovering viable populations in two additional rivers; and (3) ensuring that there are no foreseeable threats to the continued existence of any of the populations. No downlisting criteria are given in the recovery plan.

The dromedary pearlymussel ( Dromus dromas ) (Lea 1845) was listed as an endangered species on June 14, 1976 (41 FR 24064). We completed a recovery plan for the species in July 1984 (Service 1984b). This species was historically widespread in the Cumberland and Tennessee River systems (Bogan and Parmalee 1983). It was last collected at Muscle Shoals prior to 1931 (van der Schalie 1939) and is presumed to be extirpated from the shoal. The species survives at a few shoals in the Powell and Clinch Rivers, Tennessee and Virginia, and possibly in the Cumberland River, Tennessee (Service 1983b, Neves 1991). The delisting objectives in the recovery plan call for: (1) Restoring the viability of the populations in the Clinch and Powell Rivers; (2) reestablishing viable populations in three additional rivers; and (3) ensuring there are no foreseeable threats to the continued existence of any of the populations. No downlisting criteria are provided in the recovery plan.

The fine-rayed pigtoe ( Fusconaia cuneolus ) (Lea 1840) was listed as an endangered species on June 14, 1976 (41 FR 24064). A recovery plan for the species was approved in September 1984 (Service 1984e). This species was historically known from 15 Tennessee River tributaries and is currently known from 7 rivers (Service 1984e). The species was last collected from Muscle Shoals prior to 1925 (Ortmann 1925) and is presumed to be extirpated from the shoal. The delisting objectives call for: (1) Restoring the viability of the populations in the Clinch, Powell, and North Fork Holston Rivers and in the Little River and Copper Creek (Clinch River tributaries); (2) reestablishing or discovering one additional viable population; and (3) ensuring there are no foreseeable threats to the continued existence of any of the populations. No downlisting criteria are given.

The oyster mussel ( Epioblasma capsaeformis ) (Lea 1834) was listed as an endangered species on January 10, 1997 (62 FR 1647). This mussel was historically distributed throughout much of the Cumberlandian Region of the Tennessee and Cumberland River drainages (Gordon 1991). Currently, only small populations survive in a few river reaches in both river systems (Gordon 1991). The species was last collected from Muscle Shoals prior to 1925 (Ortmann 1925) and is presumed to be extirpated from the shoal. Although there is currently no recovery plan for the oyster mussel, we developed a recovery outline, which briefly enumerates anticipated recovery actions, prior to publishing the final listing decision. The recovery outline identified reintroduction into historic habitat as a method that would likely be needed to recover the species.

The Catspaw (purple cat's paw pearlymussel) ( Epioblasma obliquata obliquata ) (Rafinesque 1820) was listed as an endangered species on July 10, 1990 (55 FR 28210). We finalized a recovery plan for the species in March 1992 (Service 1992). This once-widespread species historically occurred in the larger rivers of the Ohio River system (Service 1992). The species is currently known from two apparently nonreproducing populations (the Green River in Kentucky and the Cumberland River in Tennessee) and one reproducing population in Killbuck Creek, Muskingum River system, Ohio. It was last collected at Muscle Shoals by A. E. Ortmann sometime prior to 1925 (Ortmann 1925) and is presumed no longer to survive in this river reach. The downlisting objectives in the recovery plan call for: (1) The establishment of four viable populations; (2) establishment of two naturally produced year classes in each of the four populations; (3) completion of biological studies on the species; and (4) increasing the population density and/or length of the river inhabited. The delisting objectives call for the establishment of six viable populations in addition to criteria (2) through (4) above.

The shiny pigtoe ( Fusconaia cor ) (Conrad 1834) was listed as an endangered species on June 14, 1976 (41 FR 24064). We completed a recovery plan for the species in July 1984 (Service 1984f). This species was historically known from the Tennessee River and 10 of its tributaries. It is currently known from five river systems—the Clinch, Powell, North Fork Holston, Elk, and Paint Rock (Service 1984f). The species was last collected at Muscle Shoals prior to 1925 (Ortmann 1925) and is presumed to be extirpated from the shoal. The delisting objectives call for: (1) Restoring the viability of the populations in the Clinch, Powell, North Fork Holston, and Paint Rock Rivers; (2) reestablishing or discovering one additional viable population; and (3) ensuring there are no foreseeable threats to the continued existence of any of the populations. No downlisting criteria are provided in the recovery plan.

The tubercled blossom (pearlymussel) ( Epioblasma torulosa torulosa ) (Rafinesque 1820) was listed as an endangered species on June 14, 1976 (41 FR 24064). We completed a recovery plan for the species in January 1985 (Service 1985b). This species was historically known from nine rivers in the Ohio River system (Service 1985b). The species was last collected at Muscle Shoals around 1900 by A. A. Hinkley (Ortmann 1925); it has not been collected anywhere since 1969 (Stansbery 1976, Service 1985b). However, we continue our efforts to determine whether any extant populations occur; thus, the species is included in this NEP rule. If the species is found and can be propagated, the area below Wilson Dam could be considered for a reintroduction effort without going through a separate NEP rulemaking. No downlisting or delisting criteria are presented in the recovery plan. However, the plan does call for recovery efforts to be reevaluated if the species is found.

The turgid blossom (pearlymussel) ( Epioblasma turgidula ) (Lea 1858) was listed as an endangered species on June 14, 1976 (41 FR 24064). A recovery plan for the species was completed in January 1985 (Service 1985b). This widespread species was historically known from 12 rivers in Arkansas, Missouri, Tennessee, and Alabama (Service 1985b). The species was last collected at Muscle Shoals (its type locality, along with the Cumberland River in Tennessee) prior to 1925 (Ortmann 1925); it has not been collected anywhere since the early 1960s (Stansbery 1971, Service 1985b). However, we continue our efforts to determine whether any extant populations occur; thus, the species is therefore included in this NEP rule. If the species is found and can be propagated, the area below Wilson Dam could be considered for a reintroduction effort without going through a separate NEP rulemaking. No downlisting or delisting criteria are presented in the recovery plan. However, the plan does call for recovery efforts to be reevaluated if the species is found.

The winged mapleleaf (mussel) ( Quadrula fragosa ) (Conrad 1835) was listed as an endangered species on June 20, 1991 (56 FR 28349). We completed the final recovery plan for the species in June 1997 (Service 1997a). This species was historically reported from 34 rivers in 12 States in the Mississippi River drainage (Service 1997a). It is now believed to be extirpated from all but one remnant population in the St. Croix River between Minnesota and Wisconsin. The species was recorded in the Tennessee River, Mussel Shoals, Alabama by Ortmann (1924). The downlisting objectives in the recovery plan call for: (1) The existence of three distinct viable populations in at least two tributaries of the Mississippi River basin and (2) the long-term protection of all three populations. Delisting objectives call for: (1) The existence of five distinct viable populations and (2) the long-term protection of all five populations.

The yellow blossom (pearlymussel) ( Epioblasma florentina florentina ) (Lea 1857) was listed as an endangered species on June 14, 1976 (41 FR 24064). We completed a recovery plan for the species in January 1985 (Service 1985b). This species was historically known from 13 rivers in the Cumberland and Tennessee River systems (Service 1985b). The species was last collected at Muscle Shoals, its type locality, prior to 1925 (Ortmann 1925); it has not been collected anywhere in over 50 years (Stansbery 1971, Service 1985b). However, we continue our efforts to determine whether any extant populations occur; thus, the species is included in this NEP rule. If the species is found and can be propagated, the area below Wilson Dam could be considered for a reintroduction effort without going through a separate NEP rulemaking. No downlisting or delisting criteria are presented in the recovery plan; however, it does call for the recovery efforts to be reevaluated if the species is found.

Anthony's riversnail ( Athearnia anthonyi ) was listed as an endangered species on April 15, 1994 (59 FR 17994). We completed the final recovery plan for the species in August 1997 (Service 1997b). This snail was historically found in the Tennessee River and the lower reaches of some of its tributaries from Muscle Shoals, Colbert and Lauderdale Counties, Alabama, upstream to the Clinch and Nolichucky Rivers, Tennessee (Bogan and Parmalee 1983). Currently, two populations are known to survive—one in Limestone Creek, Limestone County, Alabama, and one in the Tennessee River and the lower portion of the Sequatchie River (a tributary to this reach of the Tennessee River), Marion County, Tennessee, and Jackson County, Alabama (Service 1997b). It is apparently extirpated from Muscle Shoals (Garner, personal communication, 1997). The downlisting objectives in the recovery plan call for: (1) The establishment of four viable populations; (2) establishment of two naturally produced year classes in each of the four populations; (3) completion of biological studies on the species; (4) documentation of noticeable improvements in water and substratum quality where habitat is degraded; (5) protection of each of the populations from present and foreseeable threats; and (6) maintaining all four populations as stable or increasing over a 10-year period. The delisting objectives call for the establishment of six viable populations in addition to criteria (2) through (5) above and for maintaining six populations as stable or increasing over a 15-year period.

The recovery objectives in the recovery plans and recovery outlines for the aforementioned species generally agree that, to reach recovery: (1) Existing populations should be restored to viable levels; (2) the species should be protected from threats to their continued existence; and (3) viable populations should be reestablished in historic habitat. The number of secure, viable populations (existing and restored) needed to achieve recovery varies from species to species, depending on the extent of the species' former range (i.e., species that were once widespread require a greater number of populations for recovery than species that were historically more restricted in distribution). However, the reestablishment of historic populations is a critical component to the recovery of all these species.

4. Reintroduction Site: In 1996, the Director of the ADWFF indicated that, due to recent improvements in water quality, mollusk populations below Guntersville, Wheeler, and Wilson Dams were in excellent condition. He indicated that, although several species have been extirpated from these areas in the past, both mussels and snails which now occur there are abundant and a healthy range of size classes are present.

Based on the improving status of mollusks in these river reaches and the fact that recent advances in mussel culture techniques will likely lead to the availability of endangered juvenile mussels for release, the ADWFF Director requested that we consider designating NEP status for the reintroduction of federally listed mussel and snail species that historically existed in the riverine habitat below these dams.

A Service biologist met with representatives of the ADWFF in January 1997 to discuss the possibility of designating NEP status for the reintroduction of federally listed mollusks into the tailwaters of Guntersville, Wheeler, and Wilson Dams. The consensus at that meeting was that: (1) The tailwaters of Wilson Dam (the remains of Muscle Shoals) provided the best opportunity for successfully reestablishing federally listed mollusks and (2) the tailwaters of Guntersville and Wheeler Dams should be considered for mollusk reintroductions at a later time.

We will reintroduce populations of 16 mussels—Alabama lampmussel, birdwing pearlymussel, clubshell, cracking pearlymussel, Cumberland bean (pearlymussel), Cumberlandian combshell, Cumberland monkeyface pearlymussel, dromedary pearlymussel, fine-rayed pigtoe, oyster mussel, catspaw (purple cat's paw pearlymussel), shiny pigtoe, tubercled blossom (pearlymussel), turgid blossom (pearlymussel), winged mapleleaf (mussel), and yellow blossom (pearlymussel)—and 1 freshwater snail, Anthony's riversnail, into the historical habitat of the free-flowing reach of the Tennessee River from about RM 258.0 (412.8 km) (1.4 RM [2.2 km]) below Wilson Dam downstream to about RM 248.0 (396.8 km) (2 miles [3.2 km]) above the backwaters of Pickwick Reservoir in Colbert and Lauderdale Counties, Alabama. None of these species is known to currently exist in this river reach or in tributaries to this reach.

5. Reintroduction Procedures: The date the mollusks will be reintroduced, the number of individuals to be released, and the exact locations of the releases within the NEP Area cannot be determined at this time. Individual endangered mussels that will be used for these reintroductions will be primarily artificially propagated juveniles. However, it is possible that wild adult stock of some mussels could also be released into the area.

Mussel propagation and juvenile rearing technology are currently being developed, and juvenile endangered mussels of some species could be available for reintroduction next year. The parent stock for juvenile mussels that will be used for the reintroductions will come from existing wild populations, and in most cases, they will be returned live to that wild population. Under some circumstances, adult endangered mussels could be permanently relocated to propagation facilities or could be moved directly into the NEP Area. Anthony's riversnails will be collected from a large naturally reproducing population located in the Tennessee River, Jackson County, Alabama, and Marion County, Tennessee, and relocated directly into the NEP.

The permanent removal of adults from the wild for their use in reintroduction efforts could occur when one or more of the following conditions exist: (1) Sufficient adult endangered mollusks are available within a donor population to sustain the loss without jeopardizing the species; (2) the species must be removed from an area because of an imminent threat that is likely to eliminate the population or specific individuals present in an area; or (3) when the population is not reproducing. An enhancement of propagation or survival permit under section 10 (a)(1)(A) of the Act will be issued before any take occurs, and we will coordinate these actions with the Service's appropriate lead regions and State natural resources agencies.

We determine that these reintroduced mussel populations are not essential to the continued existence of the species. Therefore, we believe it is appropriate to designate these populations as nonessential in accordance with section 10(j) of the Act. We will ensure, through our section 10 permit authority and the section 7 consultation process, that the use of animals from any donor population for these reintroductions is not likely to jeopardize the continued existence of the species. Therefore, if any of the reintroduced populations become established and are subsequently lost, it would not reduce the likelihood of the species' survival in the wild or jeopardize its continued existence. In fact, the anticipated success of these reintroductions will enhance the conservation and recovery potential of these species by extending their present ranges into currently unoccupied historic habitat.

The NEP Area, which encompasses all the sites for the planned reintroductions, will be located in the free-flowing reach of the Tennessee River between Wilson Dam and the backwaters of Pickwick Reservoir, Colbert and Lauderdale Counties, Alabama. The NEP Area is totally isolated from existing populations of these species by large reservoirs, and none of these mollusks are known to occur in reservoir habitat. These reservoirs will act as barriers to the expansion of these species upstream or downstream in the main stem of the Tennessee River and ensure that these NEPs remain geographically isolated and easily distinguishable from existing wild populations.

We do not believe these reintroductions will conflict with existing or proposed human activities or hinder public use of the NEP Area. Experimental population special rules contain all the prohibitions and exceptions regarding the taking of individual animals. These special rules are more compatible with routine human activities in the reintroduction area.

If any of the reintroduced endangered mollusks move beyond the current boundaries of this NEP Area, the animals will be presumed to have come from the NEP Area. In that case, the rule will be amended and the boundaries of the NEP Area will be enlarged to include the entire range of the expanded population.

On June 18, 1997, we mailed letters to 54 potentially affected congressional offices, Federal and State agencies, local governments, and interested parties to notify them that we were considering proposing NEP status for 17 mollusks. We received six written responses. The majority of these comments were very supportive of the potential reintroduction efforts, and few concerns were raised.

On May 27, 1999, we published the proposed rule in the Federal Register (64 FR 28779) to designate NEP status, under section 10(j) of the Act, for the reintroduction of the aforementioned 16 mussels and 1 snail into the Tennessee River below Wilson Dam in Alabama. Additionally, we announced this proposal in faxes dated May 26, 1999, in letters dated May 27, 1999, and in a legal notice published in the Times Daily, Florence, Alabama, on June 12, 1999. Those documents notified affected congressional offices, the Governor of Alabama, Federal and State agencies, local governments, scientific organizations, and interested parties of the proposed action, and requested comments and information that might contribute to the development of a final determination.

In the May 27, 1999, proposed rule (64 FR 28779), we opened a 60-day public comment period. We received two responses. These comments did not result in any changes to the final rule. Key issues raised in the comments are presented below.

Issue 1: Concerns were raised that a project by the Shoal Economic Development Authority (SEDA) along the Tennessee River, below the Colbert Steam Plant in Colbert County, Alabama, might be impacted by the NEP designation.

Our Response: Because of the regulatory flexibility provided through a NEP designation and the fact that the project is downstream of the NEP Area, we do not believe the reintroductions will have any effect on SEDA's project. The SEDA project, which starts at about RM 244 (390.4 km), is approximately 2 miles (3.2 km) below the downstream extent of the NEP Area (RM 246 [393.6 km]) and 3 to 4 miles (4.8 to 6.4 km) below the area where the species will be released. Because of habitat suitability problems, we do not expect these reintroduced species to inhabit the river below RM 246 (393.6 km). However, if they did move downstream into Pickwick Reservoir, we would assume that the animals came from the existing NEP Area, and we would amend the rule to extend the NEP Area boundaries downstream to include the expanded population.

Issue 2: The TVA was generally supportive of the NEP designation and offered their assistance in the reintroduction effort. They again expressed concerns about the long-term viability of mussels in this river reach but stated that their concern had been noted in the proposed rule. The TVA is concerned that, although reintroduced Cumberlandian mussel species might survive below Wilson Dam, they might not be able to reproduce there.

Our Response: Based on the improved reproductive success of the mussel fauna below Wilson Dam, we are optimistic that at least some of the Cumberlandian species will reproduce. However, even if these species are unable to reproduce, the establishment of nonreproducing populations of listed Cumberlandian mussels will assist in the recovery effort. Mussels are long-lived (40 years or more); thus, any surviving mussels could be available to researchers and managers for a number of years after they are reintroduced.

In accordance with the criteria in Executive Order 12866, the final rule to designate NEP status for 16 endangered mussels and 1 endangered aquatic snail in the free-flowing reach of the Tennessee River below Wilson Dam in Colbert and Lauderdale Counties, Alabama, is not a significant regulatory action subject to Office of Management and Budget review. This rule will not have an annual economic effect of $100 million and will not have an adverse effect on any economic sector, productivity, jobs, the environment, or other units of government. The area affected by this rule consists of a very limited and discrete geographic segment (only 12 RM (19 km)) of the Tennessee River in northern Alabama. Therefore, a cost-benefit and economic analysis is not required.

Shellfish harvesting in the United States is dominated by small firms. Of the 441 firms included in Standard Industrial Code 0913 for “establishments primarily engaged in the catching or taking of shellfish,” 421 have fewer than 20 employees, and 353 have fewer than 5 employees. These figures include saltwater shellfishing (lobsters, crabs, clams, etc.), so freshwater mussel harvesting is only a fraction of this small industry (Office of Advocacy, U.S. Small Business Administration, based on data provided by the Department of Commerce, Bureau of the Census).

A recent die-off of the pearl oyster stock in Japan has almost eliminated the market for freshwater mussels this year. In fiscal year 1998, there were 79 licensed mussel harvesters in the entire State of Alabama but almost no sales. In normal years, there may be as many as 270 mussel harvesters. County level data is not available.

Because there are no expected impacts or restrictions to existing human uses of the Tennessee River as a result of this rule, no entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients are expected to occur.

This rule will not raise novel legal or policy issues. Since 1984, we have promulgated 10(j) rules for many other listed threatened and endangered species in various localities. Such rules are designed to reduce the regulatory burden that would otherwise exist when reintroducing listed species to the wild.

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). This rule is not expected to have any impact on the use of the river. Mussels are harvested from the relevant reach, primarily by diving from one- or two-person boats. Harvesters are seeking larger mussels of a dozen specific permitted species to be used as seeds in the Japanese cultured pearl industry. Several endangered mussels still occur in the area, and divers are careful to identify species on site in order to avoid carrying extra weight to the surface. The addition of NEP species is not expected to complicate this task. Other river activities will not be affected.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule will not have an annual effect on the economy of $100 million or more for reasons outlined above. It will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The rule does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

The NEP designation will not place any additional requirements on any city, county, or other local municipalities. The ADWFF, which manages the aquatic mollusks in the Tennessee River below Wilson Dam, requested that we consider this reintroduction. However, they will not be required by the Endangered Species Act to specifically manage for any reintroduced species. Accordingly, this rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. Because this rulemaking does not require any action be taken by local or State government or private entities, we have determined and certify pursuant to the Unfunded Mandates Reform Act, 2, U.S.C. 1502 et seq. , that this rulemaking will not impose a cost of $100 million or more in any given year on local or State governments or private entities (i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act).

In accordance with Executive Order 12630, this rule does not have significant takings implications. A takings implication assessment is not required because this rule (1) will not effectively compel a property owner to suffer a physical invasion of property and (2) will not deny all economically beneficial or productive use of the land. This rule will substantially advance a legitimate government interest (conservation and recovery of listed freshwater mussel and snail species) and will not present a bar to all reasonable and expected beneficial use of private property. Because of the regulatory flexibility provided by NEP designations under section 10(j) of the Act, we do not believe the reintroduction of these mollusks would conflict with existing or proposed human activities or hinder public use of the Tennessee River system.

In accordance with Executive Order 13132, this rule does not have significant Federalism effects. This rule will not have substantial direct effects on the States in their relationship between the Federal government and the States or on the distribution of power and responsibilities among the various levels of government. We have coordinated extensively with the State of Alabama on the reintroduction of freshwater mussels into the Tennessee River. The State wildlife agency (ADWFF) requested that we undertake this rulemaking in order to assist the State in restoring and recovering its native aquatic fauna. Achieving the recovery goals for these 17 species will contribute to their eventual delisting and their return to State management. No intrusion on State policy or administration is expected, roles or responsibilities of Federal or State governments will not change, and fiscal capacity will not be substantially directly affected. The special rule operates to maintain the existing relationship between the States and the Federal government and is being undertaken at the request of a State agency. Therefore, this rule does not have significant Federalism effects or implications to warrant the preparation of a Federalism Assessment pursuant to the provisions of Executive Order 13132.

This rule contains no information collection. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a current valid OMB control number.

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and does meet the requirements of sections 3(a) and 3(b)(2) of the Order.

We have determined that the issuance of this rule is categorically excluded under our National Environmental Policy Act procedures (516 DM 6, Appendix 1.4 B(6)).

The principal author of this rule is Richard G. Biggins (see ADDRESSES section).

The Service (or “we”) promulgated regulations on February 16, 1999, (64 FR 7507; 64 FR 7517) that authorized additional methods of take of MCLG and established a conservation order for the reduction of the MCLG population. In issuing those regulations, we indicated that we would initiate preparation of an Environmental Impact Statement (EIS) on light goose management beginning in 2000. The light goose regulations were subsequently challenged in a United States District Court by several groups. Though the judge refused to preliminarily enjoin the program, he did indicate a likelihood that the plaintiffs might prevail on the EIS issue when the lawsuit proceeded. In light of our earlier commitment to prepare an EIS on light goose management and to preclude further litigation on the issue, we published a Notice of Intent to begin immediate preparation of the EIS on May 13, 1999 (64 FR 26268). Subsequent to this action, on June 17, 1999, we withdrew the regulations promulgated on February 16, 1999 (64 FR 32778). On November 10, 1999, Congress passed the Arctic Tundra Habitat Emergency Conservation Act (Act), which effectively reinstated the MCLG regulations that we withdrew on June 17, 1999. On December 20, 1999 (64 FR 71236) we published a final rule that reinstated the MCLG regulations in the CFR and stipulated that such regulations would remain in effect until May 15, 2001 at the latest. However, this stipulation is contrary to the expiration date that Congress mandated in the Act.

Lesser snow ( Anser caerulescens caerulescens ) and Ross' ( Anser rossii ) geese that primarily migrate through the Mississippi and Central Flyways are collectively referred to as mid-continent light geese (MCLG). MCLG breed in the central and eastern arctic and subarctic regions of northern Canada. The total MCLG population is experiencing a high population growth rate and has become seriously injurious to its Arctic and sub-Arctic breeding grounds through the feeding actions of geese. Our management goal is to reduce the MCLG population by 50% by the year 2005 in order to prevent further habitat degradation and impacts to other species.

On February 16, 1999, we published rules that: (1) authorized additional methods of take of MCLG (electronic calls and unplugged shotguns; 64 FR 7507); and (2) created a conservation order for the reduction of the MCLG population (64 FR 7517). These actions were designed to reduce the population of MCLG over a period of several years in order to bring the population to a level that their breeding habitat can support. We prepared an Environmental Assessment (EA) in support of this program, which resulted in a Finding of No Significant Impact.

On February 25, 1999, several groups filed a complaint in the District Court for the District of Columbia seeking an injunction against these regulations. On March 2, 1999, the plaintiffs filed a motion for a preliminary injunction against the two rules cited above. The lawsuit alleged that we had implemented the rules without adequate scientific evidence that MCLG were causing habitat destruction, that we did not have the authority under the Migratory Bird Treaty to allow take of MCLG after March 10 (the latest date allowable under the Treaty), and that an EIS should have been prepared prior to implementation of the rules. In his memorandum opinion the judge indicated that “the scientific evidence regarding the overpopulation of snow geese strongly favors FWS” and that we had exercised a reasonable use of our authority under the Migratory Bird Treaty Act to initiate population control measures. Although the judge refused to issue an injunction, he did indicate a likelihood that plaintiffs might succeed on their argument that an EIS should have been prepared. In order to avoid further litigation, and because we had earlier indicated we would begin preparing in the year 2000 an EIS on the larger, long-term program, we decided to withdraw the regulations and begin immediate preparation of the EIS. We concluded the public scoping phase of the EIS process on November 22, 1999. We anticipate publication of a draft EIS in the summer of 2001.

On November 10, 1999, Congress passed the Arctic Tundra Habitat Emergency Conservation Act (Pub. L. 106-108) to “reduce the population of mid-continent light geese,” and “to assure the long-term conservation of mid-continent light geese and the biological diversity of the ecosystem upon which many North American migratory birds depend”. The Act further states that,

The Act instructed the Secretary of the Interior, acting through the Director of the Service, to take such action as is necessary to appropriately notify the public of the force and effect of the rules referenced above. Furthermore, these provisions of the Act are to apply until,

We initiated preparation of an EIS on light goose management on May 13, 1999 (64 FR 26268). Nine public scoping meetings were held throughout the country during September and October, 1999 (64 FR 47332). We are currently completing an internal review of a draft EIS, and expect to release the draft for public comment by June 2001. However, we do not expect to publish a final EIS until at least the fall of 2001. Therefore, new rules that would implement our proposed alternative for controlling light goose populations will not be developed until after the fall of 2001. Because the milestones in paragraphs (A) and (B) will not be reached prior to May 15, 2001, paragraph (C) above is no longer germane. During preparation of our December 20, 1999 final rule (64 FR 71236), we mis-interpreted the language in the Act pertaining to expiration dates of light goose regulations and incorrectly identified May 15, 2001 as the latest of the milestones. In fact, May 15, 2001 is the earliest of the milestones, and therefore cannot serve as the expiration date of special light goose regulations. We note that the House Resources Committee report on the bill and some of the floor debate on the legislation identified May 15, 2001, as a “sunset”. However, the law does not establish a “sunset” date and provides that “force and effect” will expire when the last of the three triggers occurs. Therefore, according to the Act, the light goose regulations shall remain in effect until the latest of paragraphs (A) and (B) above. As we stated above, that is expected to be some time after the fall of 2001. Because in the December 20, 1999, final rule (64 FR 71236), we had erroneously added an expiration date of May 15, 2001, to the effective dates of certain paragraphs in 50 CFR 20.21, 20.22, and 21.60, those paragraphs have now expired. Through this rule, we are adding those paragraphs back to the CFR.

Under 5 U.S.C. 553(b)(3)(B) and 5 U.S.C. 553 (d)(3), we find good cause to take this action without prior notice and public procedure and to make this action effective upon publication because, for the following reasons, notice and public procedure are unnecessary and contrary to the public interest. We are clarifying, in the nature of a correction, the effective date of rules that were reinstated as a result of a directive contained in law. As we noted in our December 20, 1999, Federal Register notice (64 FR 71236), the rules with regard to light geese were in place previously and were adopted after notice and opportunity for public comment. Finally, the law imposing these rules requires that they remain effective as is provided herein.

On May 18, 2001, the President issued an Executive Order (E.O. 13211) on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. As this rule is not expected to significantly affect energy supplies, distribution, or use, this action is not a significant energy action and no Statement of Energy Effects is required.

We published all of the required determinations in the February 16, 1999, final rules (64 FR 7507; 64 FR 7517).