The gypsy moth, Lymantria dispar (Linnaeus), is a destructive pest of forest and shade trees. The gypsy moth regulations (contained in 7 CFR 301.45 through 301.45-12 and referred to below as the regulations) restrict the interstate movement of certain articles from generally infested areas in the quarantined States to prevent the artificial spread of the gypsy moth.

Section 301.45-2 provides that generally infested areas are, with certain exceptions, those States or portions of States in which a gypsy moth general infestation has been found by an inspector or each portion of a State that the Administrator deems necessary to regulate because of its proximity to infestation or its inseparability for quarantine enforcement purposes from infested localities. Less than an entire State will be designated as a generally infested area only if:

(1) The State has adopted and is enforcing a quarantine or regulation that imposes restrictions on the intrastate movement of regulated articles that are substantially the same as those that are imposed with respect to the interstate movement of such articles; and (2) The designation of less than the entire State as a generally infested area will be adequate to prevent the artificial interstate spread of infestations of the gypsy moth. Section 301.45-3 lists generally infested areas in the quarantined States.

Surveys conducted by the United States Department of Agriculture, in cooperation with the States, detected multiple life stages of the gypsy moth in 22 additional areas in 5 states (Illinois, Indiana, Ohio, West Virginia, Wisconsin). Based on these surveys, we determined that reproducing populations exist at significant levels in these areas. Eradication of these populations is not considered feasible because these areas are immediately adjacent to areas currently recognized as generally infested and are, therefore, subject to reinfestation.

In addition, the State of Michigan recommended that the remaining six counties in Michigan be designated as generally infested areas due to patterns of moth catches, the counties proximity to infestation, and the State's desire for uniform application of Federal regulations.

Therefore, in accordance with the regulations, we are designating Lake County, IL; DeKalb and Noble Counties, IN; Baraga, Gogebic, Houghton, Iron, Keweenaw, and Ontonagon Counties, MI; Fairfield, Huron, Knox, Morgan, Perry, Richland, and Washington Counties, OH; Braxton, Calhoun, Gilmer, Greenbriar, Nicholas, Pleasants, Ritchie, Wirt, and Wood Counties, WV; and Walworth, Waupaca, and Waushara Counties, WI, as generally infested areas, and we are adding them to the list of generally infested areas provided in § 301.45-3(a). In addition, we are adding Illinois to the notice of quarantined states provided in § 301.45(a).

We are also making nonsubstantive revisions to § 301.45-3(a) to address inconsistencies in the county listings and to correct misspellings in the entries for Maine, Virginia, West Virginia, and Wisconsin.

This rulemaking is necessary on an emergency basis because of the possibility that the gypsy moth could be artificially spread to noninfested areas of the United States, where it could cause economic losses due to the defoliation of susceptible forest and shade trees. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register .

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

This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived it 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 export certification regulations contained in 7 CFR part 353 (referred to below as the regulations) set forth the procedures for obtaining certification for plants and plant products offered for export or reexport. Export certification is not required by the regulations; rather, it is provided by the Animal and Plant Health Inspection Service (APHIS) as a service to exporters who are shipping plants or plant products to countries that require phytosanitary certification as a condition of entry. After assessing the condition of the plants or plant products intended for export relative to the receiving country's regulations, an inspector will issue an internationally recognized certificate, if warranted.

In a final rule that was effective and published in the Federal Register on August 17, 2000 (65 FR 50128-50131), we amended the regulations to create a new certificate of heat treatment and to establish procedures for issuing it to exporters who have heat treated their coniferous solid wood packing materials (SWPM) in order to ship goods to the People's Republic of China. We took this action in response to a new requirement imposed by the People's Republic of China that SWPM exported from the United States to China be certified as having been heat treated. As stated in that final rule, the information collection or recordkeeping requirements associated with the new certificate have been approved by the Office of Management and Budget (OMB) under OMB control number 0579-0147. One of the requirements of the final rule was that, to be certified, coniferous SWPM must be heat treated in the United States. That requirement was based on our belief that it would be extremely difficult for U.S. exporters to document that a heat treatment has been properly performed if it has been performed in a foreign country.

Since the final rule was published, we have received numerous requests to amend it to provide a means to certify coniferous SWPM that originated and was heat treated in Canada, but is later used to export U.S. goods to China. A great deal of the coniferous SWPM used in the United States is of Canadian origin. According to USDA's Foreign Agricultural Service (FAS), about 21 percent of coniferous SWPM used in the United States in 1999 was of Canadian origin. In that year—the last full year in which U.S. exporters could effectively use Canadian-origin coniferous SWPM in shipments to China—about 35 million pallets were imported from Canada, compared to a total U.S. inventory of about 168 million reusable pallets. The final rule's requirement that only coniferous SWPM treated in the United States may be certified causes adverse impacts on large and small U.S. exporters by denying them continued access to Canadian origin coniferous SWPM that is readily available at attractive prices for use in shipments to China.

We have examined this problem to determine whether there is a way for APHIS to certify that coniferous SWPM from Canada has been properly heat treated in accordance with the requirements of the People's Republic of China. Before issuing such certificates, APHIS must be confident that the required treatment was actually performed, and there must be sufficient documentation of the treatment. As discussed in the final rule of August 17, 2000, it is not practical for APHIS to coordinate or rely on records maintained by a multitude of foreign heat treatment facilities. However, the Canadian Food Inspection Agency (CFIA) is willing to provide U.S. exporters who use coniferous SWPM treated in Canada with a certificate documenting that the SWPM has been heat treated. CFIA has developed a heat treatment certification process for coniferous SWPM that meets the requirements of both APHIS and China. CFIA will issue a certificate only for coniferous SWPM that has been heat treated in accordance with the requirements of the People's Republic of China— i.e., a treatment process that increases the minimum core wood temperature to 56 degrees Celsius for 30 minutes. This CFIA certificate would provide the U.S. exporter with the necessary “documentation showing that heat treatment was performed on packing materials,” as required by § 353.7(e)(4). With this documentation on file, the exporter could apply for the APHIS heat treatment certificate required by the People's Republic of China. This Canadian heat treatment certification process for coniferous SWPM would enable U.S. exporters to use Canadian-origin heat treated SWPM in shipments to China.

To accomplish this change, we are amending the definition of certificate of heat treatment in § 353.1 of the regulations. In the part of the definition that states that the certificate endorses “the statement of an exporter that the coniferous packing materials associated with a shipment for export have been heat treated in the United States,” we are adding the phrase “or in Canada.” We are also amending § 353.7(e)(4), which deals with the records an exporter must keep on file at his office, by adding the following: “If the coniferous solid wood packing materials were heat treated in Canada, this documentation must include a certificate issued by the Canadian Food Inspection Agency stating that the packing materials have been heat treated through a treatment process that increased the minimum core wood temperature to 56 degrees Celsius for 30 minutes.”

The Administrator of the Animal and Plant Health Inspection Service has determined that there is good cause for publishing this interim rule without prior opportunity for public comment. Immediate action is necessary to relieve a restriction that prevents U.S. exporters from obtaining certificates that the Government of the People's Republic of China requires to accompany shipments of U.S. goods to China that are packaged with Canadian-origin SWPM.

Because prior notice and other public procedures with respect to this action are impracticable and contrary to the public interest under these conditions, we find good cause under 5 U.S.C. 553 to make this action effective less than 30 days after publication. 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. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

Effective January 1, 2000, the People's Republic of China required that SWPM exported from the United States to China be certified as having been heat treated. To be certified, coniferous SWPM must be heat treated in the United States. This rule changes that requirement to allow Canadian-origin coniferous SWPM to be heat treated in Canada. 1

This rule affects U.S. exporters—primarily manufacturers and freight forwarders who act on their behalf—who ship goods to China using coniferous SWPM. It is estimated that there are about 125,000 such shipments per year, spread among approximately 5,000 exporters. A wide variety of products are shipped to China using coniferous SWPM, such as pharmaceuticals, auto parts, diapers, and fruits and vegetables.

This rule restores U.S. exporters' ability to use Canadian-origin coniferous SWPM in shipments to China. At the present time, their ability to use that SWPM is effectively precluded, because it is not cost effective to heat treat Canadian-origin SWPM in the United States. In addition to giving them another, perhaps less costly, source of coniferous SWPM for their shipments to China, the rule change enables affected exporters to avoid separating their U.S. and Canadian-treated coniferous SWPM so as to ensure that only the former is used in shipments to China. 2 The dollar impact of this rule on U.S. exporters is unknown, but the rule is likely to benefit exporters, though the benefits will not constitute a significant economic impact on a substantial number of exporters.

U.S. producers of coniferous SWPM could also be affected by this change, to the extent that it causes exporters to switch to Canadian producers for their supply of SWPM for shipments to China. The number of U.S. exporters who would switch to Canadian producers is unknown. However, it seems unlikely that allowing the use of Canadian SWPM to be resumed for U.S. shipments to China would create significant harm to U.S. coniferous SWPM producers. (During the period from September through December, 2000—the first 4 full months that the current exclusion on Canadian SWPM was in effect—U.S. imports of pallets from Canada declined by about 3 million, or 27 percent, from the level for same 4-month period in 1999. However, that decline appears to be due more to competitive pressures faced by Canada in the U.S. market than to the current exclusion itself, as U.S. imports of pallets from all countries other than Canada showed an increase of about 4 million pallets during the same 4-month period. 3 In effect, Canadian exports of pallets to the United States were supplanted by exports from other countries. Since non-Canadian exports to the United States are also subject to the current exclusion, the decline in Canadian exports, therefore, would seem to be largely unrelated to the rule that became effective August 17, 2000.)

The Regulatory Flexibility Act (RFA) requires that agencies consider the economic impact of rule changes on small entities (i.e., businesses, organizations, and governmental jurisdictions). This rule potentially affects the approximately 5,000 U.S. exporters—primarily manufacturers and freight forwarders who act on their behalf—who ship goods to China using coniferous SWPM. However, for the reasons discussed above, there is no reason to believe that the rule change will have a significant economic impact on a substantial number of entities, large or small.

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

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 interim 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 new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Legal authority. The Blueberry Promotion, Research, and Consumer Information Order (Order) [7 CFR Part 1218] became effective on August 16, 2000 [65 FR 43961, July 17, 2000]. It was issued under the Commodity Promotion, Research, and Information Act of 1996 (Act) [7 U.S.C. 7401-7425].

The wild blueberry industry requested that USDA change the title of the Council in order to avoid confusion in the industry and to clarify that the program covers only cultivated blueberries.

No. The program as published on July 17, 2000 in the Federal Register remains the same.

This rule has been determined “not significant” for purposes of Executive Order (E.O.) 12866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB).

In addition, this rule has been reviewed under E.O. 12988, Civil Justice Reform. The rule is not intended to have retroactive effect. Section 524 of the Act provides that the Act shall not affect or preempt any other Federal or state law authorizing promotion or research relating to an agricultural commodity.

Under Section 519 of the Act, a person subject to the Order may file a petition with the Secretary of Agriculture (Secretary) stating that the Order, any provision of the Order, or any obligation imposed in connection with the Order, is not established in accordance with the law, and requesting a modification of the Order or an exemption from the Order. Any petition filed challenging the Order, any provision of the Order, or any obligation imposed in connection with the Order, shall be filed within two years after the effective date of the Order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, the Secretary will issue a ruling on a petition. The Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of the Secretary's final ruling.

In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C. 601 et seq. ], AMS has examined the economic impact of this rule on small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened.

There are approximately 2,000 producers, 200 first handlers, 50 importers, and 4 exporters of blueberries subject to the program. Most of the producers would be classified as small businesses under the criteria established by the Small Business Administration (SBA) [13 CFR 121.201]. Most importers and first handlers would not be classified as small businesses, and, while most exporters are large, we assume that some are small. The SBA defines small agricultural handlers as those whose annual receipts are less than $5 million, and small agricultural producers are defined as those having annual receipts of not more than $500,000 annually.

This rule will amend the Order to revise the title of the U.S.A. Blueberry Council to the “U.S.A. Cultivated Blueberry Council” (Council). All other provisions of the Order as published on July 17, 2000, in the Federal Register will remain the same. The amendment is not considered a substantial change that will impact the cultivated blueberry industry. The purpose of this change is to avoid confusion in the industry and clarify that only cultivated blueberries are covered by this program.

The amendment will not impose additional recordkeeping requirements on first handlers, producers, or importers or exporters of cultivated blueberries. Therefore, recordkeeping and reporting requirements for the promotion, research, and information program for cultivated blueberries will remain unchanged by this final rule.

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

The Order became effective on August 16, 2000. Under the Order, producers and importers pay an assessment of $12 per ton on the cultivated blueberries they produce in or import into the United States. The Secretary will appoint an industry group to administer the program under USDA supervision.

Although the Order states that the program covers only cultivated blueberries and not wild blueberries, the wild blueberry industry has continued to object, among other things, to the fact that the name of the Council does not specifically reference cultivated blueberries. The wild blueberry industry had submitted two comments on this issue, and others, in response to the first proposed rule on the Order which was published in the Federal Register on July 22, 1999 [64 FR 39790]. The comments were summarized in the second proposed rule on the Order, which was published in the Federal Register on February 15, 2000 [65 FR 7657]. The commenters requested that, throughout the proposal and in the name of the Council, the term “blueberry” be changed to “cultivated blueberry.” The commenters stated that the generic use of the term “blueberry” in the Order was misleading as to the specific type of blueberry and industry segment represented by the program. These comments were denied for the reasons explained in the February 15, 2000, rule.

However, since February 2000, the wild blueberry industry continued to contact USDA officials requesting that the name changes be made. Therefore, on September 21, 2000 [65 FR 57104], USDA published a proposed rule to change the official title of the program to the “Promotion, Research and Information Order for Cultivated Blueberries” and the name of the industry group from the U.S.A. Blueberry Council to the “U.S.A. Cultivated Blueberry Council.“ In addition, the proposed rule provided that all references to “blueberries” in the Order would be changed to “cultivated blueberries.” The deadline for comments was November 20, 2000.

In response to that proposed rule, USDA received four comments from the wild blueberry industry in favor of various aspects of the proposed rule, and six comments from the cultivated blueberry industry opposed to various aspects of the proposed rule. A summary of the comments and USDA's responses follow:

All four commenters from the wild blueberry industry stated that although the Order does not cover wild blueberries, the name U.S.A. Blueberry Council (Council) causes confusion regarding who the Council represents and which variety of blueberries it is promoting. The commenters believed that this potential confusion could adversely affect their various initiatives in support of wild blueberries. The commenters agreed with the proposal to change the Council's name of the “U.S.A. Cultivated Blueberry Council” in order to avoid any possibility of confusion.

We agree with the commenters that the Council's current name could cause confusion in the industry. Accordingly, we are adopting the proposal to change the U.S.A. Blueberry Council's name to the “U.S.A. Cultivated Blueberry Council.”

Two of the four commenters from the wild blueberry industry also supported the proposals to change the title of the Blueberry Promotion, Research, and Information Order to the “Promotion, Research, and Information Order for Cultivated Blueberries,” and to change every reference to blueberries in the Order to “cultivated blueberries.” They believed that these changes would further distinguish the wild blueberry industry from the cultivated blueberry industry.

After further view and careful deliberation on these issues, USDA believed that these changes are not necessary. Changing the name of the Council should be sufficient to distinguish the research and promotional efforts of the wild blueberry industry from the Order's cultivated blueberry industry. The Order's definition of blueberry excludes wild blueberries, and it is not uncommon in other USDA national research and promotional programs to use a generic name for a commodity that is defined in the Order with further specificity. Accordingly, USDA is not adopting the proposals to change the name of the Blueberry Promotion, Research, and Information Order to the “Promotion, Research, and Information Order for Cultivated Blueberries,” and to change every reference to blueberries in the Order to “cultivated blueberries.”

Promoting blueberries generically will be consistent with other national promotion programs, such as those for milk and potatoes. Even though the federal dairy and fluid milk boards cover only cow's milk, they promote milk generically. This is because cow's milk is the most common type of milk, and other types of milk (such as goat's milk) are identified as such to commercial buyers and consumers. Similarly, the potato board promotes potatoes generically, whereas the program covers only white potatoes. Sweet potatoes are identified as such. We view the blueberry program in the same way.

All of the comments from the cultivated blueberry industry opposed the proposals on the basis that there was no need to differentiate cultivated blueberries from wild blueberries. Our explanations above address the issues raised by the commenters.

It should also be noted that USDA is not supporting or endorsing the cultivated blueberry industry at the expense of the wild blueberry industry, as alluded to by one of the commenters. The cultivated blueberry industry voluntarily requested the Secretary to implement a national program to assess domestic and imported cultivated blueberries to increase demand for the commodity. Any agricultural commodity group, such as the wild blueberry industry, has the right to request the same type of program under the Act. In addition, the cultivated blueberry industry will finance the entire cost of the program, including the cost of this rulemaking proceeding. National research and promotion programs are considered industry self-help programs. The government's involvement is to ensure that the programs have the support of the industry affected and that the programs are carried out within the scope of their authority under the Act.

Accordingly, the proposed rule is adopted with the change discussed above.

This rule revises the special reopening provisions previously established in 8 CFR 3.43. The revisions account for changes in eligibility established by sections 1506 and 1510 of the Victims of Trafficking and Violence Protection Act of 2000 (Pub. L. 106-386, Div. B, tit. V, 114 Stat. 1464, 1527-29, 1531-32) (VTVPA) and section 1505(c) of the LIFE Act Amendments (Pub. L. 106-554, App. D, tit. XV, 114 Stat. 2763, 2763A-326 to 328). The rule permits aliens with reinstated final orders and aliens with newly issued final orders, where those new orders were issued based on their having reentered the United States illegally after having been removed or having departed voluntarily under an order of removal subject to reinstatement under section 241(a)(5) of the Immigration and Nationality Act (the Act), to move to reopen immigration proceedings for the sole purpose of applying for suspension of deportation or special rule cancellation of removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act of 1997 (Pub. L. 105-100, 111 Stat. 2160, 2196-200) (NACARA).

Section 241(a)(5) of the Act provides for the reinstatement of a removal order against any alien who illegally reenters the United States after having been removed or having departed voluntarily under an order of removal. It also bars any alien whose removal order has been reinstated from receiving any relief under the Act, and prohibits the reopening or review of the previous order.

Section 1505(c) of the LIFE Act Amendments added a new subsection (h) to the transition provisions in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act (Pub. L. 104-208, Div. C, tit. III, subtit. A, 110 Stat. 30009, 3009-625) (IIRIRA). Section 309(h)(1) of IIRIRA, as so amended, provides that aliens who are otherwise eligible for suspension of deportation or special rule cancellation of removal under section 203 of NACARA shall not be barred from applying for such relief by operation of section 241(a)(5) of the Act.

Section 309(h)(2) of IIRIRA, as amended, provides that aliens who have become eligible for relief based on new subsection (h)(1) will have the opportunity to submit an additional motion to reopen, within a designated period, solely for the purpose of adjudicating the NACARA claim. Consistent with the provisions of section 203(c) of NACARA, an alien with a final order of deportation or removal who has become eligible for suspension of deportation or special rule cancellation of removal as a result of section 1505(c) of the LIFE Act Amendments may file one such motion to reopen removal or deportation proceedings on or before October 16, 2001.

This rule also clarifies that those persons eligible for relief under new section 309(h) (as added by section 1505(c) of the LIFE Act Amendments) include the classes added to section 309(c)(5)(C)(i) of IIRIRA by sections 1506(b)(3) and 1510(b) of the VTVPA. These additional classes of eligible aliens include certain spouses and children who have been battered or subjected to extreme cruelty by a NACARA section 203 applicant, or by a United States citizen or lawful permanent resident.

The VTVPA also contains an additional provision making certain classes of battered aliens who are not covered by this rule eligible to submit a motion to reopen. See section 1506(c) of the VTVPA. The Department anticipates promulgating regulations in the near future regarding relief for those aliens who are addressed in the VTVPA, but are not covered by this rule.

The six classes of eligible aliens in section 309(c)(5)(C)(i) of IIRIRA, as amended by NACARA, are set forth in § 3.43(d)(1)-(6) of this rule. The VTVPA added two additional classes of eligible aliens, which are set forth in § 3.43(d)(7) and (8) of this rule.

The first new class of aliens (class 7) includes aliens (1) who were issued Orders to Show Cause or were in deportation proceedings before April 1, 1997, and (2) who applied for suspension of deportation under former section 244(a)(3) of the Act (as in effect before the date of enactment of section 309 of IIRIRA) as aliens who had been battered or subjected to extreme cruelty by a spouse or parent who is a United States citizen or lawful permanent resident.

The second new class of aliens (class 8) includes the spouses or children of aliens described in classes 1 through 4, 8 CFR 3.43(d)(1)-(4), as amended, if they were the spouse or child of such alien: (1) At the time a decision is rendered to suspend deportation or to cancel removal of that alien; (2) at the time that alien filed an application for suspension of deportation or cancellation of removal; or (3) at the time that alien registered for benefits under the settlement agreement in American Baptist Churches, et al. v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (ABC), applied for Temporary Protected Status (TPS), or applied for asylum. In addition, the spouse or child must demonstrate that he or she (or the child of that spouse) has been battered or subjected to extreme cruelty by the alien parent or spouse who is within one of the four classes described at 8 CFR 3.43(d)(1)-(4), as amended. Aliens in the new classes 7 and 8 are not required to be nationals of El Salvador, Guatemala, or former Soviet bloc countries.

Consistent with the existing provisions of 8 CFR 3.43, an individual submitting a motion to reopen under section 1505(c) of the LIFE Act Amendments must establish certain preliminary requirements. The motion to reopen must establish that the alien:

(1) Is prima facie eligible for suspension of deportation pursuant to former section 244(a) of the Act (as in effect prior to April 1, 1997) or cancellation of removal pursuant to section 240A(b) of the Act and section 309(f) of IIRIRA, as amended by section 203(b) of NACARA;

(2) Was or would be ineligible, by operation of section 241(a)(5) of the Act, for suspension of deportation pursuant to former section 244(a) of the Act (as in effect prior to April 1, 1997) or for cancellation of removal pursuant to section 240A(b) of the Act and section 309(f) of IIRIRA, but for enactment of section 1505(c) of the LIFE Act Amendments;

(3) Has not been convicted at any time of an aggravated felony; and

(4) Is within one of the classes of aliens described in section 309(c)(5)(C)(i) of IIRIRA, as amended by section 203 of NACARA and sections 1506 and 1510 of the VTVPA.

Section 3.43(d) of this rule describes with more particularity the eight classes of aliens covered by this special reopening procedure. Prima facie eligibility is discussed in greater detail in this rule under the section entitled “How is prima facie eligibility defined?”

Section 1505(c) of the LIFE Act Amendments requires that the Attorney General designate a specific time period for filing motions to reopen under this section. Section 1505(c) further provides that the time period is to begin no later than 60 days after the enactment of the LIFE Act Amendments and is to extend for a period not to exceed 240 days. See section 309(h)(2) of IIRIRA, as added by section 1505(c) of the LIFE Act Amendments. Consistent with that statutory directive, this rule designates the period from February 19, 2001, through October 16, 2001, as the time period for filing motions to reopen pursuant to section 1505(c) of the LIFE Act Amendments.

This rule does not address the provision in section 1506(c) of the VTVPA providing for motions to reopen proceedings by certain other classes of battered aliens. The Department anticipates promulgating regulations in the near future that will address the motions to reopen at issue in section 1506(c) of the VTVPA.

No. Only aliens who have final orders of removal and deportation that have been reinstated, or aliens who have newly issued final orders that were issued based on their having reentered the United States illegally after having been removed or having departed voluntarily under a prior order of removal that was subject to reinstatement under section 241(a)(5) of the Act, may move to reopen proceedings for the purpose of applying for suspension of deportation or special rule cancellation of removal under section 203 of NACARA. Although this rule amends the existing procedures of § 3.43, which originally dealt only with motions to reopen under section 203(c) of NACARA, this rule does not extend the September 11, 1998, filing deadline for those NACARA motions. Editorial changes within the text of former § 3.43 have been made for consistency purposes only and do not change or extend the requirements or procedures applicable to motions to reopen under section 203(c) of NACARA.

The Department has adapted for purposes of section 1505(c) motions to reopen the existing procedures of § 3.43, which originally dealt only with motions to reopen under section 203(c) of NACARA. An alien seeking to reopen proceedings pursuant to section 309(h) of IIRIRA, as added by section 1505(c) of the LIFE Act Amendments, must file a motion to reopen and include with that motion an application for suspension of deportation or cancellation of removal and supporting documents, on or before October 16, 2001. An eligible alien may file only one motion to reopen pursuant to section 309(h) of IIRIRA. The alien must establish in such motion that he or she satisfies each of the requirements for reopening in § 3.43(c). The front page of the motion to reopen and any envelope containing such motion should include the notation “Special LIFE 1505(c) Motion.” A copy of both the motion to reopen and the application for suspension of deportation or cancellation of removal, with all other supporting documents, must be served on the Immigration and Naturalization Service (Service). Persons filing a motion to reopen under section 309(h) should follow standard motion practice, as set forth in the regulations at 8 CFR 3.2(c) and 3.23(b)(3), with the exception that the fee (required under 8 CFR 3.8 and 3.24) for motions to reopen submitted pursuant to this rule will be waived.

If an alien has previously filed an application for suspension of deportation or cancellation of removal with the Immigration Judge or the Board of Immigration Appeals (Board), he or she must file a copy of that application or a new application with the motion to reopen. If the motion to reopen is granted, and the alien has previously filed an application, the alien will not be required to pay a new filing fee for the suspension/cancellation application.

If an alien has not previously filed an application for suspension of deportation or cancellation of removal, the alien must submit a suspension/cancellation application with the motion to reopen. Nothing in this notice changes the requirements and procedures in 8 CFR 3.31(b), 103.7(b)(1), and 240.11(f) for paying the application fee for suspension/cancellation after a motion to reopen is granted if such an application was not previously filed.

If an eligible alien fails to file the required motion, and the applicable application and supporting documents, by October 16, 2001, the alien will have lost his or her one opportunity to move under section 309(h)(2) to reopen proceedings to seek suspension of deportation or special rule cancellation of removal relief. However, an individual may still be eligible to reopen proceedings under other statutory and regulatory provisions.

An alien filing a motion to reopen pursuant to section 309(h) of IIRIRA, as added by section 1505(c) of the LIFE Act Amendments, must establish prima facie eligibility for suspension of deportation under former section 244(a) of the Act, as in effect prior to April 1, 1997, or special rule cancellation of removal under section 240A(b) of the Act and section 309(f) of IIRIRA, as amended by section 203(b) of NACARA. In general, the alien must have been physically present in the United States for a continuous period of at least 7 years immediately preceding the date of such application or at least 3 years in the case of certain battered aliens; must be a person of good moral character during such period; and must establish that deportation or removal would result in extreme hardship to the alien or to the alien's spouse, parent, or child who is a citizen of the United States or an alien lawfully admitted for permanent residence. Different standards apply to aliens who are deportable because of a criminal conviction or certain other grounds. See section 244(a)(2) of the Act, as in effect prior to April 1, 1997, and special rule cancellation of removal under section 240A(b) of the Act and section 309(f) of IIRIRA, as amended by section 203(b) of NACARA. The period of continuous physical presence must be established as of no later than October 16, 2001.

Further, to be prima facie eligible to apply for suspension of deportation or special rule cancellation of removal, the alien must not be subject to any of the statutory bars to seeking such relief which are discussed below.

Section 309(h)(1) of IIRIRA, as added by section 1505(c) of the LIFE Act Amendments, waives only the statutory bar created by the reinstatement provision in section 241(a)(5) of the Act; all other bars remain. Section 240A(c) of the Act and former section 244(f) of the Act (as it existed prior to April 1, 1997) provide that certain categories of aliens are ineligible for suspension of deportation or cancellation of removal. Moreover, an alien who was previously granted voluntary departure and received oral and written notice of the consequences of failing to depart, but did not depart the United States voluntarily within the time specified, is barred for a specific period of time from various forms of discretionary relief. See section 240B(d) of the Act and section 242B(e)(2), as in effect prior to April 1, 1997. These include suspension of deportation and cancellation of removal, pursuant to section 240B(d) of the Act and former section 242B(e)(2) of the Act (as it existed prior to April 1, 1997). Former section 242B(e)(1), (3) and (4) of the Act (as it existed prior to April 1, 1997) also bars eligibility for such relief for certain aliens who, after receiving the required oral and written notices, failed to appear at their removal or deportation hearings, failed to appear as ordered for deportation, or failed to appear at an asylum hearing. These and any other statutory bars to eligibility for suspension of deportation or cancellation of removal are not waived by section 1505(c) of the LIFE Act Amendments.

When filing a motion to reopen, aliens in the classes described in paragraphs (d)(1)-(d)(6) and (d)(8) must attach to the motion a copy of the Form I-881, Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to section 203 of Pub. L. 105-100). The Form I-881 is currently being revised to include specifically aliens described in paragraph (d)(8); aliens should attach the most current Form I-881 available to the motion to reopen. Aliens described in paragraph (d)(7) must attach to the motion a copy of the Form EOIR-40, Application for Suspension of Deportation. Aliens should follow the instructions for submitting the appropriate application to the Immigration Court or the Board of Immigration Appeals (Board), but should not submit evidence of payment of the filing fee, unless and until the motion to reopen is granted.

Any motion to reopen and all supporting documentation to apply for suspension of deportation or special rule cancellation of removal under section 309(h) of IIRIRA, as added by section 1505(c) of the LIFE Act Amendments, shall be filed with the Immigration Court or the Board, whichever last held jurisdiction over the case. If the Immigration Court has jurisdiction and grants only the motion to reopen proceedings to apply for suspension of deportation and cancellation of removal, the scope of the reopened proceeding shall be limited to a determination of the alien's eligibility for suspension of deportation or special rule cancellation of removal.

If the Board has jurisdiction and grants only the motion to reopen to apply for suspension of deportation or special rule cancellation of removal, it shall remand the case to the Immigration Court solely for adjudication of the application for suspension of deportation or special rule cancellation of removal.

Not all aliens are required to file a motion to reopen in order to obtain relief under section 309(h)(1) of IIRIRA, as added by section 1505(c) of the LIFE Act Amendments. Section 309(h)(1) removes the bar to applying for suspension of deportation or special rule cancellation of removal that would otherwise be imposed by section 241(a)(5) of the Act where the alien has reentered the United States illegally after being removed or having departed voluntarily under a final order of removal. Section 309(h)(1) removes that bar regardless of whether the prior order of deportation or removal has been reinstated by the Service. In those cases in which the prior order has not been reinstated, there is no final order to seek to reopen, and, consequently, the motion to reopen provision in section 309(h)(2) is inapplicable. Instead, aliens who are not in deportation or removal proceedings and whose prior orders have not been reinstated may apply for relief before the Service pursuant to the jurisdictional requirements for applications set forth in 8 CFR 240.62(a). Aliens who are currently in deportation or removal proceedings and whose prior orders have not been reinstated may apply for relief before the Immigration Court pursuant to the jurisdictional requirements for applications set forth in 8 CFR 240.62(b).

In those cases where a motion to reopen is denied by final order, the Service will evaluate the facts of the case to determine whether reinstatement of the prior order is required.

The Department's implementation of this rule as an interim rule, with provision for post-promulgation public comment, is based upon the exception for rules of agency organization, procedures, or practice in 5 U.S.C. 553(b)(3)(A) and upon the “good cause” exceptions found at 5 U.S.C. 553(b)(3)(B) and (d)(3). Section 1505(c) of LIFE Act Amendments became effective immediately on December 21, 2000. Publication of this rule as an interim rule will expedite implementation of that section and allow certain eligible aliens to submit motions to reopen their removal or deportation proceedings during the limited time period permitted by the LIFE Act Amendments for filing such motions to reopen. That period began on February 19, 2001, and terminates on October 16, 2001. It would be impracticable and contrary to the public interest to delay the effective date of this rule, as such a delay would have the effect of limiting the ability of eligible aliens to move to reopen their proceedings in order to seek the benefits of the LIFE Act Amendments.

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)) has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule allows certain individual aliens to apply for suspension of deportation or special rule cancellation of removal; it will have no significant effect on small entities as that term is defined in 5 U.S.C. 601(6).

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

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. See 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

This rule has been drafted and reviewed in accordance with Executive Order 12866, section 1(b), Principles of Regulation. The Attorney General has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f) and accordingly this rule has been reviewed by the Office of Management and Budget.

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

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

We try to write clearly. If you can suggest how to improve the clarity of these regulations, call or write Charles Adkins-Blanch, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2400, Falls Church, Virginia 22041, telephone (703) 305-0470.

This interim rule permits certain aliens to file motions to reopen proceedings to apply for suspension of deportation and special rule cancellation of removal pursuant to section 1505(c) of the LIFE Act Amendments. Motions to reopen under this rule must be filed on or before October 16, 2001, and must be accompanied by either a Form I-881 or a Form EOIR-40.

The information collection requirement of Form I-881 contained in this rule was previously approved for use by the Office of Management and Budget (OMB). The OMB control number for this collection is 1115-0227.

The Form EOIR-40 is also considered an information collection. The OMB control number on the Form EOIR-40 has expired. Accordingly, the Department of Justice, Executive Office for Immigration Review (EOIR), has submitted an information collection request to the Office of Management and Budget (OMB). Since a delay in issuing this interim rule would harm the public and disrupt EOIR's ability to receive and process motions to reopen proceedings under section 1505(c) of the LIFE Act Amendments within the limited time period permitted for the filing of such motions, EOIR has sought emergency review and clearance as provided for in the Paperwork Reduction Act of 1995. 44 U.S.C. 3507(j). Emergency review and approval has been granted by OMB. That emergency approval is only valid for 180 days.

A regular review of the information collection requirement of the Form EOIR-40 is also being undertaken. All comments and suggestions, or questions regarding additional information, including obtaining a copy of the proposed information collection instrument with instructions, should be directed to Charles Adkins-Blanch, General Counsel, Executive Office for Immigration Review, U.S. Department of Justice, 5107 Leesburg Pike, Suite 2400, Falls Church, Virginia 22041; telephone: (703) 305-0470. We request written comments and suggestions from the public and affected agencies concerning the proposed collection of information. Any comments on the information collection must be submitted on or before September 17, 2001. Your comments should address one or more of the following four points:

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

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

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

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

Overview of this information collection:

(1) Type of information collection: Reinstatement, with change, of a previously approved collection for which approval has expired.

(2) Title of Form/Collection: Application for Suspension of Deportation.

(3) Agency form number, if any, and the applicable component of the Department of Justice sponsoring the collection: Form EOIR-40, Executive Office for Immigration Review, U.S. Department of Justice.

(4) Affected public who will be asked or required to respond, as well as a brief abstract: Individuals or households. An alien who is deportable from the United States may request that the Attorney General suspend his or her deportation pursuant to 8 U.S.C. 1254 (as in effect prior to April 1, 1997, and as made applicable by section 1505(c) of the LIFE Act Amendments) and 8 CFR 240.56. To be granted such relief, the alien must prove that he or she meets all of the statutory requirements for suspension of deportation and that he or she is entitled to a favorable exercise of discretion. The proposed Form EOIR-40 would be completed by the applicant for suspension of deportation and would contain information necessary for the Attorney General to decide whether or not to suspend the alien's deportation from the United States.

(5) An estimate of the total number of respondents and the amount of time for an average respondent to respond: 1,518 responses per year at 5 hours and 45 minutes per response.

(6) An estimate of the total of public burden (in hours) associated with the collection: Approximately 8,728 annual burden hours.

If additional information is required contact: Robert B. Briggs, Department Clearance Officer, United States Department of Justice, Information Management and Security Staff, Justice Management Division, Suite 1220, National Place, 1331 Pennsylvania Avenue NW., Washington, DC 20530.

On March 22, 2000, we published in the Federal Register (65 FR 15216-15218, Docket No. 00-016-1) an interim rule that prohibits, until further notice, the importation of the following tortoises into the United States: All species and subspecies of leopard tortoise ( Geochelone pardalis ), African spurred tortoise ( Geochelone sulcata ), and Bell's hingeback tortoise ( Kinixys belliana ). The interim rule also prohibits the interstate movement of all species and subspecies of these land tortoises. These prohibitions were established in order to prevent the spread of exotic ticks known to be vectors of heartwater disease, an acute infectious disease of ruminants.

We solicited comments on our interim rule for 60 days, ending May 22, 2000. We received 53 comments by that date. They were from tortoise breeders and owners, representatives of the reptile industry, animal advocacy groups, and other interested individuals. Many commenters supported the prohibition on importation of these tortoises, but most expressed concerns about the effect of prohibiting the interstate movement of these tortoises. Because of the prohibition on interstate movement, these tortoises could not be moved interstate for sale, health care, or adoption. In addition, many domestic tortoise breeders who must move their tortoises interstate prior to exporting them could no longer export these tortoises.

Based on these comments, on July 21, 2000, we published in the Federal Register (65 FR 45275-45277, Docket No. 00-016-2) an interim rule that allowed the interstate movement of leopard tortoise, African spurred tortoise, and Bell's hingeback tortoise if they were accompanied by a health certificate signed by a Federal or accredited veterinarian stating that the tortoises had been examined by that veterinarian and found free of ticks. This action was necessary to enable the export, interstate commerce, health care, and adoption of these types of tortoises while providing protection against the spread of exotic ticks known to be vectors of heartwater disease.

We solicited comments on our second interim rule for 60 days, ending September 19, 2000. We received two comments by that date. They were from a State department of agriculture and an association. We discuss the comments we received on the second interim rule, as well as comments we received on the first interim rule that were not addressed by the action we took in the second interim rule, below.

Comment: You should allow the importation of leopard tortoise, African spurred tortoise, and Bell's hingeback tortoise with veterinary inspection and certification that the tortoises have been found free of ticks. This would allow the importation of these tortoises while protecting against the introduction of exotic ticks and could help decrease the potential for smuggled tortoises.

Response: Allowing the importation of leopard tortoise, African spurred tortoise, and Bell's hingeback tortoise with veterinary inspection and certification that the tortoises have been found free of ticks would require long-term preparation both for exporting regions and for the United States. Currently, most regions, including the United States, do not have a national export certification program for reptiles. Establishing such a program would require time, resources, and review by trading partners of the proposed components of the program. We are in the process of determining whether regions that export reptiles to the United States have any interest in establishing export certification programs.

In addition, if we were to allow the importation of leopard tortoise, African spurred tortoise, and Bell's hingeback tortoise with veterinary inspection and certification that the tortoises have been found free of ticks, we would have to hire additional port personnel and train our inspectors to examine documents, as well as tortoises, at U.S. ports of entry. We would also have to ensure that adequate facilities for tortoise inspection are available at U.S. ports. At this time, we do not have the resources necessary to implement such a program, but we are working to establish effective treatment and biosecurity controls for tortoises and other reptiles. Until those treatment and biosecurity controls are in place, we believe that it is necessary to continue to prohibit the importation into the United States of leopard tortoise, African spurred tortoise, and Bell's hingeback tortoise.

Therefore, we are making no changes to the interim rules in response to this comment.

Comment: You should prohibit the importation and interstate movement of only wild-caught leopard tortoises, African spurred tortoises, and Bell's hingeback tortoises. If a tortoise can be documented or certified as captive-bred, it should be allowed to be imported and to move interstate without restrictions.

Response: We are considering a certification program for captive-bred tortoises. Before instituting such a program, however, we would need to develop standards for establishments that breed tortoises in captivity and to inspect and certify those establishments as free of ticks. If we decide to pursue a certification program, we will publish a proposed rule for public comment in the Federal Register .

However, at this time, because it is impossible to certify that a tortoise has been captive-bred based on a visual inspection of the tortoise, we are making no changes to the interim rules in response to this comment.

Comment: You should limit the prohibition on the importation of leopard tortoises, African spurred tortoises, and Bell's hingeback tortoises to only those tortoises imported from Africa.

Response: International trade in leopard tortoises, African spurred tortoises, and Bell's hingeback tortoises is very active. We fear that limiting our prohibition on the importation of leopard tortoises, African spurred tortoises, and Bell's hingeback tortoises to only those tortoises imported from Africa would encourage transshipment of these animals from Africa through other countries to the United States. Our wider prohibition on the importation of leopard tortoises, African spurred tortoises, and Bell's hingeback tortoises from all foreign regions ensures that these tortoises will not be transshipped and, therefore, provides protection against the introduction of exotic ticks into the United States. Therefore, we are making no changes to the interim rules in response to this comment.

Comment: Florida, the location of the primary U.S. port of entry for importations of leopard tortoise and African spurred tortoise, developed a comprehensive set of protocols for imported tortoises. The set of protocols includes mandatory inspection of all shipments of tortoises and treatment and quarantine of all shipments found to possess ticks. The set of protocols has proven effective in ensuring that imported tortoises do not introduce exotic ticks into the United States. You should allow the importation of leopard tortoise, African spurred tortoise, and Bell's hingeback tortoise under a similar set of protocols.

Response: If we were to allow the importation of leopard tortoise, African spurred tortoise, and Bell's hingeback tortoise under a set of protocols like the one Florida developed, we would have to hire additional port personnel and train our inspectors to examine tortoises at U.S. ports of entry. We would also have to ensure that adequate facilities for tortoise inspection and quarantine are available at U.S. ports throughout the country. At this time, we do not have the resources necessary to implement this kind of national program, but we are working to establish practical, effective treatment and biosecurity controls for tortoises and other reptiles. Florida's protocols will offer us important data as we build our national program. However, until our treatment and biosecurity controls are in place, we believe that it is necessary to continue to prohibit the importation into the United States of leopard tortoise, African spurred tortoise, and Bell's hingeback tortoise. Therefore, we are making no changes to the interim rules in response to this comment.

Comment: Exotic ticks known to be vectors of heartwater disease cannot survive in all climates. Therefore, you should allow the importation of leopard tortoise, African spurred tortoise, and Bell's hingeback tortoise to States where the climate ensures that the ticks will not survive.

Response: Leopard tortoises, African spurred tortoises, and Bell's hingeback tortoises need a specific temperature and humidity range for survival, and that range adequately supports the survival of ticks. Therefore, although it is true that owners of these tortoises may live in areas with climates that seasonally do not support exotic ticks known to be vectors of heartwater disease (such as the northernmost United States during the winter months), these owners must house their tortoises indoors, where ticks can easily survive on their host during harsh, inclement, or otherwise unsuitable weather. Because of this, it is possible that when the season changes and an indoor tortoise is placed outside, that tortoise may still carry ticks that could act as vectors of heartwater disease to local wildlife or livestock. Therefore, we are making no changes to the interim rules in response to this comment.

Comment: You should also prohibit the importation of Savannah monitor lizards, plated lizards, ball pythons, and other reptiles and amphibians that may carry exotic ticks known to be vectors of heartwater disease. Alternately, you could prohibit the importation of all reptiles and amphibians from regions known to have heartwater disease and allow the importation of reptiles and amphibians from regions that do not have heartwater disease with veterinary inspection and certification that the reptiles or amphibians have been found free of ectoparasites.

Response: We are gathering information on whether other reptiles and amphibians present a risk of introducing exotic ticks known to be vectors of heartwater disease into the United States. At this time, however, we are prohibiting the importation of only leopard tortoise, African spurred tortoise, and Bell's hingeback tortoise because interception records from 1995-1999 report that 90 percent of the tropical bont ticks, African tortoise ticks, and ticks of the species Amblyomma sparsum found on reptiles entering the United States occurred on these three species of land tortoise. Further, tortoises generally live outdoors, unlike most other reptiles and amphibians, and, therefore, obviously present a greater risk of coming into contact with and spreading ticks to other potential hosts.

Regarding the commenter's alternate suggestion, we fear that limiting our prohibition on the importation of leopard tortoises, African spurred tortoises, and Bell's hingeback tortoises to only those tortoises imported from countries known to have heartwater disease would encourage transshipment of these animals from those countries through countries known to be free of heartwater disease to the United States. Our wider prohibition on the importation of leopard tortoises, African spurred tortoises, and Bell's hingeback tortoises from all foreign regions ensures that these tortoises will not be transshipped and, therefore, provides protection against the introduction of exotic ticks into the United States.

Therefore, we are making no changes to the interim rules in response to this comment.

Comment: U.S. exporters, in an effort to profit from the huge demand for turtle meat in many Asian countries, may decimate our native tortoise populations. Therefore, you should also ban the exportation of tortoises from the United States.

Response: This comment requests an action outside of our authority. Therefore, we are making no changes to the interim rules in response to this comment.

Comment: Ensuring that tortoises are free of ticks before importation or interstate movement may not be enough to protect against the introduction or spread of heartwater disease via tortoises. Research points out that an African tortoise was infected with heartwater rickettsia and remained a latent carrier, infective to ticks, for at least 3 months. In addition, at least three ticks native to the United States have been shown experimentally to be vectors of the rickettsia.

Therefore, a tick-free tortoise infected with the rickettsia could infect native ticks, which could in turn transmit the disease to domestic livestock or wildlife. Any changes made to the prohibition on importation and interstate movement of leopard tortoise, African spurred tortoise, and Bell's hingeback tortoise should include either a test for infection in tortoises, a minimum period of quarantine for tortoises, or a course of antibiotics.

Response: According to Dr. Michael Burridge, very recent research (unpublished data) conducted in Zimbabwe in conjunction with the University of Florida indicates that leopard tortoise is not a carrier of heartwater disease. Further, we have no evidence that either African spurred tortoise or Bell's hingeback tortoise is a carrier of the disease. Therefore, we are making no changes to the interim rules in response to this comment.

Comment: Instead of issuing health certificates for each shipment of leopard tortoises, African spurred tortoises, and Bell's hingeback tortoises moving interstate, you should inspect each tortoise breeder's facility, certify those facilities that are free of ticks, and then allow tortoises to be moved interstate from certified facilities without further restrictions. This would significantly reduce expenses for breeders who move their tortoises interstate.

Response: If we were to allow interstate movement of these tortoises based on inspection of each tortoise breeder's facility and certification that facilities are free of ticks, then APHIS personnel would have to inspect each facility and all of its tortoises. We would likely not approve other individuals to conduct these inspections. Therefore, it would take us months, if not years, to complete these initial inspections. This would mean that while many breeders wait for an undetermined amount of time to move their tortoises interstate, which would increase expenses for these breeders, a few breeders would be free to move their tortoises interstate and reap the profits that may be associated with a smaller supply of these types of tortoises. This would also mean that, at the outset of such a program, we would have to spend time establishing the criteria we would use to determine the order of such inspections. In addition, the inspections would have to be conducted on a regular basis, such as annually or every other year, to ensure that facilities remain free of ticks. Instead, we elected through our second interim rule to allow the interstate movement of leopard tortoise, African spurred tortoise, and Bell's hingeback tortoise if they were accompanied by a health certificate signed by a Federal or accredited veterinarian stating that the tortoises had been examined by that veterinarian and found free of ticks. We believe that this system ensured that every breeder's tortoises could move interstate as quickly as possible following the effective date of the second interim rule and, therefore, provided a method to allow interstate movement of these tortoises that is fair to all affected breeders. Therefore, we are making no changes to the interim rules in response to this comment.

Comment: In addition to Federal and accredited veterinarians, you should allow also State veterinarians to examine leopard tortoises, African spurred tortoises, or Bell's hingeback tortoises and sign the health certificate required for their interstate movement.

Response: We believe that State veterinarians should not sign health certificates for the interstate movement of leopard tortoise, African spurred tortoise, or Bell's hingeback tortoise for three reasons. First, several States have indicated to APHIS that they believe that the time spent performing the thorough inspection that would be required prior to the issuance of a health certificate would take time away from the State veterinarian's primary mission activities. Second, if State veterinarians were allowed to sign these health certificates, many accredited veterinarians, who are generally private practitioners, would lose business, and its accompanying revenue, to State veterinarians. Third, and perhaps most important, we believe that accredited veterinarians who have experience dealing with tortoises and other reptiles can perform a more knowledgeable and thorough examination of leopard tortoises, African spurred tortoises, or Bell's hingeback tortoises than could many State and Federal veterinarians, who are less likely to have experience with tortoises and other reptiles. Upon further consideration, we also believe that these same reasons provide a sound basis for withdrawing Federal veterinarians from those eligible to sign the health certificate for the interstate movement of leopard tortoises, African spurred tortoises, and Bell's hingeback tortoises. Therefore, we are amending the second interim rule by allowing only an accredited veterinarian to sign the health certificate for the interstate movement of leopard tortoises, African spurred tortoises, and Bell's hingeback tortoises. Further, in order to ensure that those tortoises are accompanied by a health certificate that can be reasonably expected to reflect their status at the time they are moved interstate, we are also amending the second interim rule to state that the certificate must be signed within the 30 days prior to the interstate movement.

Comment: You should change the name of the certificate required for the interstate movement of leopard tortoise, African spurred tortoise, and Bell's hingeback tortoise. Instead of “health certificate,” you should call it a “certificate of veterinary inspection.”

Response: “Health certificate” is the term we use most often in our regulations and is consistent with our approved forms. However, we agree that a certificate of veterinary inspection, which is used by many States, would also provide the necessary certification that tortoises have been examined by an accredited veterinarian and found free of ticks. Therefore, we are amending the regulations to allow the accredited veterinarian to sign either a health certificate or a certificate of veterinary inspection for the interstate movement of leopard tortoise, African spurred tortoise, and Bell's hingeback tortoise.

Therefore, for the reasons given in the interim rules and in this document, we are adopting the interim rules as a final rule, with the changes discussed in this document.

Pursuant to the administrative procedure provisions in 5 U.S.C. 553, we find good cause for making this rule effective less than 30 days after publication in the Federal Register . The interim rules adopted as final by this rule were effective on March 22, 2000, and July 17, 2000. This rule revises the second interim rule by allowing the certificate for interstate movement to be either a health certificate or a certificate of veterinary inspection and by providing that only an accredited veterinarian may sign the certificate. Immediate action is necessary to relieve an unnecessary burden on Federal veterinarians, who cannot be compensated through user fees for the time they spend inspecting and certifying tortoises for interstate movement. 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 the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

The United States accounts for about 80 percent of the world's live reptile trade. In 1998, a total of 1,921,272 reptiles were imported, valued at approximately $6.37 million. Of these, turtles, including tortoises, accounted for about 26.5 percent of imports. Three states, California (48 percent), Florida (33.2 percent), and Louisiana (11.7 percent), accounted for nearly 93 percent of turtle imports. Almost all turtles imported into the United States are wild caught.

The United States exports about 9 million live reptiles annually. Red-eared slider turtles make up about 85 percent of these exports every year. South Korea, Japan, and European countries are the major importers of U.S. turtles. However, Canada appears to be the major importer of leopard tortoise, African spurred tortoise, and Bell's hingeback tortoise. In 1995, the United States exported to Canada 32 leopard tortoises, 527 African spurred tortoises, and 2,332 Bell's hingeback tortoises. During the same year, U.S. imports of these species were 2,683, 1,223, and 952, respectively.

In 1996, between 1.5 million and 2.5 million households in the United States owned various reptiles as pets. Of these, about 534,000 households, or about 35 percent, owned a total of 950,000 turtles, including tortoises. Overall, turtles represented about 27 percent of the total reptile pet population. The prices paid for turtles ranged between $25 and $750, depending on species, size, and age. Between 1993 and 1996, the average price in the United States for a leopard tortoise was $190, for an African spurred tortoise $578, and for a Bell's hingeback tortoise $35.

This rule will require persons wishing to move these tortoises interstate to acquire a health certificate or a certificate of veterinary inspection from an accredited veterinarian. We estimate that a certificate will cost about $25 to $50 for the first tortoise, plus $2 to $5 for each additional tortoise in the shipment. These costs are small when compared to the potential losses in revenue and animals that could result from a reinstitution of the prohibition on the interstate movement of these species of tortoises. The health certificate will also help ensure the acceptability of these animals in international markets and prevent the spread of exotic ticks known to be vectors of heartwater disease, an acute infectious disease of ruminants, including cattle, sheep, goats, white-tailed deer, and antelope.

Heartwater disease has a 60 percent or greater mortality rate in livestock and a 90 percent or greater mortality rate in white-tailed deer. The direct contribution of the U.S. livestock industry to the gross domestic product is close to $60 billion; with indirect and induced impacts taken into account, that figure could reach about $150 billion. Considering the virulence and high mortality rate of heartwater disease, its introduction and spread in the United States could have severe economic consequences, even when a less than worst-case scenario is considered. Thus, the costs associated with this rule are far outweighed by the benefits of maintaining the United States' freedom from heartwater disease.

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

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

The information collection and recordkeeping requirements included in this rule have been approved by the Office of Management and Budget (OMB) under control number 0579-0156.

The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the approval design and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA, therefore, finds that good cause exists for making these special conditions effective upon issuance.

Interested persons are invited to submit such written data, views, or arguments as they may desire. Communications should identify the regulatory docket or notice number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. The special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must include a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. CE168.” The postcard will be date stamped and returned to the commenter.

On January 17, 2001, Raytheon Aircraft Services, Inc., 1115 Paul Wilkens Road, San Antonio, Texas, 78216, made an application to the FAA for a new Supplemental Type Certificate for the Raytheon C90A airplane. The C90A is currently approved under TC No. 3A20. The proposed modification incorporates a novel or unusual design feature, such as digital avionics consisting of a copilot's EFIS, that is vulnerable to HIRF external to the airplane.

Under the provisions of 14 CFR part 21, § 21.101, Raytheon Aircraft Services, Inc. (San Antonio) must show that the C90A aircraft meets the following provisions, or the applicable regulations in effect on the date of application for the change to Raytheon C90A: Under the provisions of 14 CFR part 21, 21.101, Raytheon Aircraft Services (San Antonio) must show that the C90A aircraft meets the following provisions, or the applicable regulations as specified in Type Certificate Data Sheet 3A20, Revision 58 dated March 15, 1999 and the special conditions adopted by this rule making action.

If the Administrator finds that the applicable airworthiness standards do not contain adequate or appropriate safety standards because of novel or unusual design features of an airplane, special conditions are prescribed under the provisions of § 21.16.

Special conditions are normally issued in accordance with § 11.19, as required by §§ 11.38, and become a part of the type certification basis in accordance with § 21.101(b)(2).

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model already included on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101(a)(1).

Raytheon Aircraft Services, Inc. (San Antonio) plans to incorporate certain novel and unusual design features into an airplane for which the airworthiness standards do not contain adequate or appropriate safety standards for protection from the effects of HIRF. These features include a copilot's EFIS, which are susceptible to the HIRF environment, that were not envisaged by the existing regulations for this type of airplane.

Protection of Systems from High Intensity Radiated Fields (HIRF): Recent advances in technology have given rise to the application in aircraft designs of advanced electrical and electronic systems that perform functions required for continued safe flight and landing. Due to the use of sensitive solid state advanced components in analog and digital electronics circuits, these advanced systems are readily responsive to the transient effects of induced electrical current and voltage caused by the HIRF. The HIRF can degrade electronic systems performance by damaging components or upsetting system functions.

Furthermore, the HIRF environment has undergone a transformation that was not foreseen when the current requirements were developed. Higher energy levels are radiated from transmitters that are used for radar, radio, and television. Also, the number of transmitters has increased significantly. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling to cockpit-installed equipment through the cockpit window apertures is undefined.

The combined effect of the technological advances in airplane design and the changing environment has resulted in an increased level of vulnerability of electrical and electronic systems required for the continued safe flight and landing of the airplane. Effective measures against the effects of exposure to HIRF must be provided by the design and installation of these systems. The accepted maximum energy levels in which civilian airplane system installations must be capable of operating safely are based on surveys and analysis of existing radio frequency emitters. These special conditions require that the airplane be evaluated under these energy levels for the protection of the electronic system and its associated wiring harness. These external threat levels, which are lower than previous required values, are believed to represent the worst case to which an airplane would be exposed in the operating environment.

These special conditions require qualification of systems that perform critical functions, as installed in aircraft, to the defined HIRF environment in paragraph 1 or, as an option to a fixed value using laboratory tests, in paragraph 2, as follows:

(1) The applicant may demonstrate that the operation and operational capability of the installed electrical and electronic systems that perform critical functions are not adversely affected when the aircraft is exposed to the HIRF environment defined below:

(2) The applicant may demonstrate by a system test and analysis that the electrical and electronic systems that perform critical functions can withstand a minimum threat of 100 volts per meter, peak electrical field strength, from 10 kHz to 18 GHz. When using this test to show compliance with the HIRF requirements, no credit is given for signal attenuation due to installation.

A preliminary hazard analysis must be performed by the applicant, for approval by the FAA, to identify either electrical or electronic systems that perform critical functions. The term “critical” means those functions whose failure would contribute to, or cause, a failure condition that would prevent the continued safe flight and landing of the airplane. The systems identified by the hazard analysis that perform critical functions are candidates for the application of HIRF requirements. A system may perform both critical and non-critical functions. Primary electronic flight display systems, and their associated components, perform critical functions such as attitude, altitude, and airspeed indication. The HIRF requirements apply only to critical functions.

Compliance with HIRF requirements may be demonstrated by tests, analysis, models, similarity with existing systems, or any combination of these. Service experience alone is not acceptable since normal flight operations may not include an exposure to the HIRF environment. Reliance on a system with similar design features for redundancy as a means of protection against the effects of external HIRF is generally insufficient since all elements of a redundant system are likely to be exposed to the fields concurrently.

As discussed above, these special conditions are applicable Raytheon C90A airplane. Should Raytheon Aircraft Services (San Antonio) apply at a later date for a supplemental type certificate to modify any other model on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well under the provisions of § 21.101(a)(1).

This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. For this reason, and because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Raytheon C90A airplane modified by Raytheon Aircraft Services (San Antonio) to add a copilot's EFIS.

1. Protection of Electrical and Electronic Systems from High Intensity Radiated Fields (HIRF). Each system that performs critical functions must be designed and installed to ensure that the operations, and operational capabilities of these systems to perform critical functions, are not adversely affected when the airplane is exposed to high intensity radiated electromagnetic fields external to the airplane.

2. For the purpose of these special conditions, the following definition applies: Critical Functions: Functions whose failure would contribute to, or cause, a failure condition that would prevent the continued safe flight and landing of the airplane.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Gulfstream Model G-V series airplanes was published in the Federal Register on February 15, 2001 (66 FR 10378). That action proposed to require repetitively replacing the existing nose wheel steering actuator with a new or reworked actuator having the same part number.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

In the preamble of the proposed rule, the FAA indicated that the actions proposed were considered to be interim action, and that further rulemaking was being considered. Since the issuance of the proposed rule, the manufacturer has developed a new improved nose wheel steering actuator, and the FAA has approved replacement of the actuator with the new improved actuator as terminating action for the repetitive inspection requirements specified in the final rule.

Since the public has not been given opportunity to comment on the replacement of the steering actuator with the new improved actuator, the FAA has included that replacement action as an optional terminating action in new paragraph (b) of the final rule.

The FAA is considering further rulemaking to require the replacement of the nose wheel steering actuator with the new improved actuator.

After careful review of the available data, the FAA has determined that air safety and the public interest require the adoption of the rule with the change described previously. The FAA has determined that this change, specifying an optional terminating action, will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 94 Model G-V series airplanes of the affected design in the worldwide fleet. The FAA estimates that 89 airplanes of U.S. registry will be affected by this AD, that it will take approximately 6 work hours per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. Required parts will cost approximately $15,000 per airplane. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $1,367,040, or $15,360 per airplane, per replacement.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

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

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

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

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

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

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

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

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

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

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Under the National Capital Revitalization and Self-Government Improvement Act of 1997, Public Law 105-33 (at D.C. Code Section 24-1231), the U.S. Parole Commission assumed jurisdiction to make parole, reparole, and parole revocation decisions for all eligible District of Columbia felony offenders, effective August 5, 2000. Prior to that effective date, and for a two-year period commencing August 5, 1998, the Commission had jurisdiction only to grant paroles and reparoles to eligible District of Columbia prisoners, while the D.C. Board of Parole retained jurisdiction to supervise District of Columbia parolees and to revoke their paroles. Under the procedures of the D.C. Board of Parole, when a decision was made to revoke parole on charges sufficiently serious to return the parolee to prison, the Board would continue the revoked parolee to a reconsideration hearing at a later date. Only at such a reconsideration hearing would the Board consider the offender for a new grant of parole, or “reparole,” pursuant to D.C. Code Section 24-206(a). Under that statute a prisoner whose parole has been revoked “* * * unless subsequently reparoled, shall serve the remainder of the sentence originally imposed less any commutation for good conduct which may be earned by him after his return from custody.” Accordingly, reconsideration hearings for such offenders, whether conducted by the D.C. Board of Parole prior to August 5, 1998, or by the U.S. Parole Commission after August 5, 1998, have been conducted under the procedures applicable to initial parole hearings.

When the Commission adopted a rule of procedure to govern reparole decisions pursuant to D.C. Code Section 24-206(a), it required that reparole hearings would be conducted according to the procedures set forth at 28 CFR 2.72 for initial parole hearings, and specified that “* * * the Commission's decision to grant or deny reparole on the parole violation term shall be made by reference to the reparole guidelines at § 2.21.” See 28 CFR 2.81(a) and (d), originally published at 63 FR 39183 (July 21, 1998), as 28 CFR 2.87, recodified at as 28 CFR 2.81 at 65 FR 45894 (July 26, 2000). These guidelines require the Commission to assess the seriousness of the prisoner's past misconduct while on parole.

At the time the Commission adopted its rule governing reparole decisions, it did not anticipate that it would be faced with a significant number of reparole applicants whose paroles had been revoked by the D.C. Board of Parole on charges sufficient to warrant revocation and return to prison, but without resolving all of the charges concerning the offender's conduct while on parole. For example, the Board would revoke parole on non-criminal charges, and make “no finding” on criminal charges if such charges were pending trial or had been dismissed. In order to determine the offender's suitability for a grant of reparole, and to apply the guidelines at 28 CFR 2.21, the Commission is obliged to consider all relevant information concerning the offender's conduct during his previous periods of parole, notwithstanding the Board's decision not to resolve all such matters at the revocation hearing. The Commission's duty to protect the public safety requires it to be fully apprised of each prisoner's real potential for further criminal conduct before it can responsibly grant a reparole.

The interpretation has been urged upon the Commission that, because 28 CFR 2.81 incorporates by reference the “reparole guidelines” at 28 CFR 2.21, it also incorporates the provision at § 2.21 that new criminal conduct “. . . may be determined either by a new federal, state, or local conviction or by an independent finding by the Commission at [a] revocation hearing.” See 28 CFR 2.21(a)(2) (2000). Proponents of this view believe that the Commission cannot consider any allegations of criminal conduct that were not adjudicated by the Board of Parole at the revocation hearing. This interpretation is incorrect because § 2.21(a)(2) is not a “guideline” for decision making, and was intended by the Commission to apply solely in the context of a reparole decision made by the Commission during a Commission-conducted revocation proceeding. Under the rules of the Commission for federal offenders (which are now applied to District of Columbia offenders whose revocation hearings are conducted by the Commission after August 5, 2000), the Commission will attempt to address and resolve, at the revocation hearing, all allegations of criminal and non-criminal conduct bearing upon the period of parole in question. The reparole guidelines at § 2.21 will be assessed based upon the Commission's findings of fact, and a reparole decision will be issued by the Commission at the same time as the revocation decision itself. Because this was not the practice of the D.C. Board of Parole, the Commission did not intend that the fact-finding provisions of § 2.21(a)(2) would be applicable in the context of a reconsideration hearing conducted for a D.C. offender whose parole was previously revoked by the D.C. Board of Parole. When issues of fact relevant to the question of reparole have been left unresolved by the Board, the Commission must be able to address them at the reparole stage.

When the Commission adopted 28 CFR 2.81, the Commission intended that such unresolved issues of fact be determined at a reconsideration hearing under the procedures of 28 CFR 2.72, just as in the case of any other parole applicant with unadjudicated allegations bearing upon the prisoner's suitability for release to the community. At an initial parole hearing, there may be unadjudicated allegations of criminal conduct, including dismissed criminal charges and other allegations of unlawful behavior described in the presentence investigation report or other documents, which the Commission must resolve in order to determine whether the prisoner is safe to release on parole. Under Rule 32(c)(1) of the Federal Rules of Criminal Procedure, federal sentencing judges have the option, when allegations in a presentence investigation report are challenged at the sentencing hearing, of determining that “no finding is necessary.” In such cases, the Commission is permitted to make an independent determination of fact notwithstanding the court's decision to make “no finding.” See, e.g., Ochoa v. United States, 819 F.2d 366 (2d. Cir. 1987) and Lewis v. Beeler, 949 F.2d 325(10th Cir. 1991). The same principle applies to a reparole applicant whose parole was revoked by the D.C. Board of Parole. Sparks v. Gaines, 2001 WL 568004 (D.D.C. May 17, 2001).

Moreover, the due process that governs the decision to revoke parole and to return a parolee to prison under Morrissey v. Brewer, 408 U.S. 471 (1972), no longer applies once the revocation proceeding is concluded, and the parolee has been returned to prison. Under D.C. Code Section 24-206(a), the offender is legally presumed to have been returned to prison to serve the remainder of his sentence “unless subsequently reparoled,” so the Commission's fact-finding procedures may constitutionally be the same for parole as well as reparole applicants.

The Commission is therefore amending 28 CFR 2.81(d) to clarify its intent that it will apply the guidelines of § 2.21, to call reparole decisions, but will follow the fact-finding procedures that apply to initial hearings under § 2.72. See 28 CFR 2.19(c), incorporated for D.C. offenders at 28 CFR 2.89 (2000).

This amendment to 28 CFR 2.81 shall be fully retroactive to all reparole decisions of the Commission from August 5, 1998, forward, and shall apply to all reparole decisions made by the Commission in the future with respect to offenders whose paroles were revoked by the D.C. Board of Parole. Moreover, the amended rule shall also apply to any reparole consideration by the Commission where new information has arisen since the time of the offender's revocation hearing, and that information is relevant to the offender's suitability for reparole. This interpretative rule conforms to Commission's original intent, and does not constitute in any respect a change in the Commission's decision-making policy or practice.

The U.S. Parole Commission has determined that this final rule does not constitute a significant rule within the meaning of Executive Order 12866. The final rule will not have a significant economic impact upon a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 605(b), and is deemed by the Commission to be a rule of agency practice that does not substantially affect the rights or obligations of non-agency parties pursuant to Section 804(30(c) of the Congressional Review Act.

On January 18, 2001 (66 FR 5196) OSHA published a final safety standard for steel erection, with an effective date of July 18, 2001. A number of provisions in the final rule address the safety of certain structural components. These provisions (“component requirements”) contain requirements for these components to help ensure that the structure can be erected safely. For example, there are provisions that prohibit shear connectors on members before they are erected (§ 1926.754(c)(1)(i)); require all columns to be anchored by a minimum of 4 anchor bolts, which must meet specified strength requirements (§ 1926.755(a)) (there is a comparable requirement for systems-engineered metal buildings, § 1926.758(b)); set requirements for double connections (§ 1926.756(c)(1)) (there is a comparable requirement for systems-engineered metal buildings § 1926.758(e)); require column splices to be at a specified height and meet a strength requirement (§ 1926.756(d)); require perimeter columns to have holes or other devices for perimeter safety cables (§ 1926.756(e)); in some instances require a vertical stabilizer plate to stabilize steel joists (§ 1926.757(a)(1)(i)); require certain joists to be strong enough to allow one employee to release the hoisting cable without the need for erection bridging (§ 1926.757(a)(3)), and require certain joists to be fabricated to allow for field bolting during erection (§ 1926.757(a)(8)(i)).

On January 20, 2001, Andrew H. Card, Jr., the Assistant to the President and Chief of Staff, issued a memorandum entitled “Regulatory Review Plan” (66 FR 7702). The memorandum directed that, with respect to regulations published in the Federal Register that had not yet taken effect, agencies were to temporarily postpone the effective date of the regulations for 60 days, subject to certain exceptions.

Since publication of the standard, a number of employers in the steel erection industry have asked whether the final rule will be applied to projects in various stages of completion as of the effective date. For example, they have asked if and how the standard will apply to a steel erection project when: (1) The project was designed before July 18, 2001; (2) the structural components were fabricated before that date and do not meet the requirements in the final rule, and (3) the steel erection work for the project began before that date and construction is continuing afterwards.

These questions have highlighted a need to give the industry additional time to comply with the final rule. As explained below, we believe that changing the effective date to January 18, 2002 will give the industry sufficient time to adjust to the new requirements.

Based on information available to the Agency, we understand that, while the design of structural components can be changed, some time is necessary to make changes needed to conform to the final rule's requirements. Components are typically fabricated 2 or 3 months prior to being erected. Not only would it be very costly to have to re-fabricate components that were already-made, such re-fabrication would cause serious delays to the project, affecting all the trades involved. The new effective date will give an additional 6 months to facilitate these changes. The additional 6 months should ensure that re-fabrication of already made components will be unnecessary. In addition, there will be additional time for the Agency to conduct outreach activities on the new standard, in order to inform employers and employees of the requirements of the standard.

There are two situations that could cause significant confusion under the new standard: (1) Components used in steel erection projects that were designed before the final rule was published (January 18, 2001), and for which a building permit was obtained prior to that date; and (2) components used in steel erection projects in which the steel erection work has begun before the final rule becomes effective (originally July 18, 2001, now to be January 18, 2002). We will apply the component requirements of the final rule to these situations as follows:

It is easier to alter a structural design before the building permit has been obtained, since changes prior to that point do not need as many reviews and approvals as are needed afterwards. Therefore, where a building permit was obtained before the final rule was published (January 18, 2001), the component requirements referred to above will not apply to the project.

It would be difficult, costly and confusing to begin to comply with the new component requirements to a project in which steel erection work has started under the previous steel erection standard. (For example, the column splice height on a lower floor affects the column splice height on successive floors. The new standard makes significant changes in this area.) Since the final rule was published on January 18, 2001, employers have been on notice that the new standard's stated effective date was July 18, 2001, and they have been expected to make plans to meet the new requirements. However, on May 14, 2001, the Department published its Semi-Annual Regulatory Agenda (66 FR 25679), in which the effective date of the final rule was listed as September 16, 2001. Since that publication, affected employers have expressed confusion as to when the final rule would actually go into effect.

As of January 18, 2002, some steel erection projects will be partly completed. Since some employers may have been expecting the rule to go into effect on September 16, 2001 (rather than July 18, 2001), we will use that date to determine whether projects partially completed on January 18, 2002 will be subject to the component provisions in the final rule. In sum, the component requirements of the final rule will not be applied to those projects if the steel erection had begun on or before September 16, 2001.

The Steel Joist Institute (SJI) has asked the Agency to delay implementation of § 1926.757(a)(3) for two years. That provision requires that, “where steel joists at or near columns span 60 feet (18.3m) or less, the joist shall be designed with sufficient strength to allow one employee to release the hoisting cable without the need for erection bridging.” SJI has informed OSHA that they have encountered unanticipated problems in developing some of the longer joists that will meet this requirement. OSHA intends to address this issue separately.

The information requirements of the steel erection standard have been approved under OMB Control Number 1218-0237. The present regulatory action delays the effective date of that standard and imposes no additional paperwork burdens.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601), the Acting Assistant Secretary certifies that the delay in the effective date of the steel erection standard will not have a significant adverse impact on a substantial number of small entities.

The delay in the effective date of the steel erection standard is not a significant regulatory action for the purposes of Executive Order 12866.

To the extent that 5 U.S.C. 553 applies to this action, the Secretary finds that good cause exists to exempt this action from notice and comment, and to make it effective immediately upon publication today in the Federal Register . 5 U.S.C. 553(b)(B), 553 (d)(3).

As discussed above, prior official statements may have left the regulated community uncertain about when it would need to comply with the steel erection rule. In the last several weeks, OSHA has received a significant number of inquiries manifesting this uncertainty. The rule is currently scheduled to take effect on July 18, and the regulated community has an immediate need to know its obligations under the standard. In addition, the additional time needed for notice and comment would add further uncertainty about compliance obligations during that period. Accordingly, the Agency has determined that there is good cause to dispense with notice and comment and to make this delay effective immediately.

In summary, given the imminence of the effective date of the steel erection standard, seeking prior public comment on this delay is unnecessary and impracticable, as well as contrary to the public interest in the orderly promulgation and implementation of regulations.

This document was prepared under the direction of R. Davis Layne, Acting Assistant Secretary for Occupational Safety and Health. It is issued under Section 107 of the Contract Work Hours and Safety Standards Act (Construction Safety Act) (40 U.S.C. 333), Sections 6 and 8 of the Occupational Safety and Health Act (29 U.S.C. 655, 657), and 5 U.S.C. 553.

Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) was not published for this regulation. Good cause exists for not publishing a NPRM.

This temporary final rule will extend the effective period previously published in the Federal Register on March 23, 2001 (66 FR 16128), as Drawbridge Operation Regulations Newtown Creek, Dutch Kills, English Kills, and their tributaries, New York. That temporary rule allowed a single span operation at the bridge from April 23, 2001 through August 31, 2001, to facilitate cleaning and painting the bridge.

The bridge owner subsequently advised the Coast Guard that the cleaning and painting operations would not be completed by August 31, 2001, due to lost work time as a result of inclement weather conditions. The bridge owner requested a second temporary final rule to extend the single span operation at the bridge an additional month from September 1, 2001 through September 30, 2001, to complete the maintenance at the bridge.

Accordingly, an NPRM was deemed unnecessary because no known waterway users have objected to the single span operation of the bridge and none have objected to extending it an additional 30 days. The additional 30 days of single span operation will further the public interest by permitting the uninterrupted completion of the necessary maintenance at the bridge.

The Pulaski Bridge, at mile 0.6, across Newtown Creek between Brooklyn and Queens has a vertical clearance of 39 feet at mean high water and 43 feet at mean low water. The existing regulations require the draw to open on signal at all times.

The bridge owner, New York City Department of Transportation, requested a single bascule span operation in order to facilitate sandblasting and painting at the bridge.

The Coast Guard contacted all known users advising of the extension of the single span operation until September 30, 2001. No objections were received.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). This conclusion is based on the fact that the bridge will continue to open at all times for navigation.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612) we considered whether this rule would have a significant economic impact on a substantial number of small entities. “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 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 conclusion is based on the fact that the bridge will continue to open on signal at all times for navigation.

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

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

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

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

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

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

The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (32)(e) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation because promulgation of changes to drawbridge regulations have been found to not have a significant effect on the environment. A written “Categorical Exclusion Determination” is not required for this rule.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have 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 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 energy action” under that order because 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 Carlton Bridge, at mile 14.0, across the Kennebec River has a vertical clearance in the closed position of 10 feet at mean high water and 16 feet at mean low water. The existing drawbridge operating regulations are listed at 33 CFR 117.525.

The bridge owner, Maine Department of Transportation (MDOT), requested a temporary deviation from the drawbridge operating regulations to facilitate the rehabilitation construction at the bridge. Scheduled bridge openings will allow the contractor to accomplish more work on a daily basis by eliminating work stoppage to provide bridge openings. Additionally, sufficient time is necessary to safely remove all construction workers and equipment from the bridge in order to provide timely bridge openings.

The bridge owner also requested that the bridge be allowed to remain in the closed position at various times to facilitate several phases of the rehabilitation construction. MDOT anticipates that the closures will not occur more than once a week and should not exceed 48 hours in duration. MDOT will provide three days notice prior to each closure to the Bath Harbor master, the local newspapers, and the Coast Guard in order to notify the public and assist marine interests.

This deviation to the operating regulations, effective from July 5, 2001 through August 31, 2001, allows the Carlton Bridge to need not open for vessel traffic between 6:30 a.m. and 4:30 p.m., Monday through Friday; except that, from 9 a.m. to 9:15 a.m., 12 p.m. to 12:30 p.m., and 2 p.m. to 2:15 p.m., the draw shall remain open for vessel traffic. The bridge will remain in the open position from 4:30 p.m. to 6:30 a.m., Monday through Friday, and all day on weekends. The bridge will also be allowed to remain closed to vessel traffic for periods up to 48 hours once a week during this deviation to facilitate bridge repairs. Inbound commercial fishing vessels will be passed as soon as possible, except during the 48 hour closure periods.

The bridge owner did not provide the required thirty-day notice to the Coast Guard for this deviation; however, this deviation was approved because the repairs are necessary in order to keep the bridge operating and prevent an unscheduled closure due to component failure.

In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible.

This deviation from the operating regulations is authorized under 33 CFR 117.35.

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 permit application was not received in time to publish an NPRM followed by a final rule before the necessary effective date. Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life or property. The Coast Guard has not received any complaints or negative comments with regard to this event.

This temporary safety zone is necessary to ensure the safety of vessels and spectators from hazards associated with a fireworks display. Based on recent accidents that have occurred in other Captain of the Port zones, and the explosive hazard of fireworks, the Captain of the Port Chicago has determined firework launches in close proximity to watercraft pose significant risks to public safety and property. The likely combination of large numbers of recreational vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platforms will help ensure the safety of persons and property at these events and help minimize the associated risks.

Entry into, transit through or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Chicago or his designated on-scene representative. The designated on-scene representative may be contacted on VHF/FM Marine Channel 16.

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

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 would not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities: the owners or operators of vessels intending to transit or anchor in a portion of Lake Michigan off Grand Haven from 9 p.m. to 10:30 p.m., August 1, 2001. This regulation would not have a significant economic impact for the following reasons. The regulation is only in effect for only 1 and 1/2 hours on one day. The designated area is being established to allow for maximum use of the waterway for commercial vessels to enjoy the fireworks display in a safe manner. In addition, commercial vessels transiting the area can transit around the area. The Coast Guard will give notice to the public via a Broadcast to Mariners that the regulation is in effect.

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. 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, Federalism, 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) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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 create an environmental risk to health or risk to safety that may disproportionately affect children.

We have 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 .

We have analyzed this 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 energy action” under that order because 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.

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.

In this document, we announce a final rule governing group registration of published photographs. The rule also liberalizes the deposit requirements for photographs included in unpublished collections of photographs registered pursuant to 37 CFR 202.3(b)(3). The new rule permits a group of photographs taken by the same photographer and published within the same calendar year to be submitted as a group for a single registration. If the claimant does not wish to or cannot identify the specific date of publication of each photograph, a range of publication dates may be stated provided that all of the photographs in the group were first published within three months before the date the application, fee and deposit are received by the Copyright Office. The deposit for the group registration of photographs, or for photographs submitted as unpublished collections pursuant to 37 CFR 202.3(b)(3), may consist of images on CD-ROMs or DVD-ROMs, unmounted prints measuring at least 3 inches by 3 inches, contact sheets, slides with single or multiple images, the photograph in a form in which it has been published (e.g., clippings from newspapers or magazines); photocopies; or a videotape clearly depicting each photograph.

Under the 1976 Copyright Act, as amended, an applicant may seek registration of a claim in an original work of authorship with the Copyright Office by submitting a completed application, the applicable fee, and a deposit of the work to be registered. Title 17, United States Code, sets forth some of the requirements for the deposit and authorizes the Register of Copyrights to specify by regulation the nature of the copies or phonorecords to be deposited. See 17 U.S.C. 408(b), 408(c). The legislative history of the 1976 Act also reflects Congress's intent to give the Register the ability to adjust deposit requirements. See H.R. Rep. No. 94-1476, at 153, 154 (1976) (“House Report”). Generally, one complete copy or phonorecord of an unpublished work is required as a deposit, and two complete copies or phonorecords of the best edition of a published work are required if the work is first published in the United States. However, the Register of Copyrights may permit the deposit of identifying material instead of copies or phonorecords “where copies or phonorecords are bulky, unwieldy, easily broken, or otherwise impractical to file and retain as records identifying the work registered * * *” Id. at 154. Congress has also authorized the Register to allow a single registration for a group of related works in order to alleviate expense for authors and administrative burdens on the Copyright Office. 17 U.S.C. 408(c). See also 65 FR 26162, 26163 (May 5, 2000). A group of photographs by one photographer was cited as one example where group registration might be appropriate. House Report at 154.

During congressional hearings on the proposed Copyright Reform Act of 1993, photographers complained that they were unable to take advantage of the benefits of registration because the Copyright Office practices were too burdensome. Photographers stated that it required a tremendous amount of time and effort to submit a copy of each image that they wished to register and that registration was financially burdensome. 1

In reaction to these concerns and following the 1993 recommendations of the Librarian of Congress's Advisory Committee on Copyright Registration and Deposit (ACCORD), see Library of Congress, Advisory Committee on Copyright Registration and Deposit, Report of the Co-Chairs, at 20 (1993), the Office initiated a proposed rulemaking in December 1995. 60 FR 61657 (Dec. 4, 1995). The Office initially proposed regulations which would have permitted group registration of mixed unpublished and published photographs, with a deposit of identifying material consisting of general descriptions of the photographs rather than a deposit of images of the photographs. Because the proposed rules elicited much controversy, the Office held a public hearing and allowed an additional comment period. See 61 FR 28829 (June 6, 1996). Sharply differing views were presented by interested parties.

Having reviewed all the comments and testimony, and having considered various approaches to facilitate copyright registration for photographers, a year ago the Office announced new proposed rules that would permit group registration of related published photographs and liberalize the deposit requirements for unpublished collections of photographs. 65 FR 26162 (May 5, 2000). Under this proposal, a group registration of up to 500 photographs created by one photographer published within the same calendar year would be permitted. Id. However, this proposal incorporated a less liberal deposit requirement than the original proposal; rather than accept general descriptions of the subject matter of the photographs in lieu of the photographs themselves, the Office proposed to require the deposit of a copy of each photograph in the group. The Office explained that it was reluctant to implement a procedure that would permit acceptance of deposits that do not meaningfully reveal the works for which copyright protection is claimed. On the other hand, the proposed rule would permit submission of images in a number of formats, in order to make it as easy and inexpensive as possible for photographers to register their works while still providing the actual images for which copyright was claimed. The proposed formats included digital images on CD-ROM or DVD-ROM, single images, contact sheets, slides with single images, slides each containing up to 36 images, multiple images on video tape, or the formats in which the images were originally published (e.g., clippings from newspapers or magazines). 65 FR 26164.

In this announcement, comment was requested on several issues, including: how many images should an applicant be permitted to include in one registration; how the date of publication should be provided for each photograph in a group; whether the Office's general continuation sheet (CON) should be used for identification purposes, or whether an optional specialized continuation sheet which would provide specific information about each photograph included in a group should be used; whether claimants should be required to number the photographs in a group consecutively, and the manner in which the numbering would be accomplished; whether the Office should accept deposits in formats other than those set forth in the proposed rule, and if so, in what formats; what file formats should be accepted for photographs submitted in electronic form; and whether the Office should consider offering the alternative of providing a range of dates for images covering a three-month period, rather than providing the specific date of publication of each photograph in the group. 65 FR 26165-26166.

The Office received eleven sets of comments in response to its proposed regulations published May 5, 2000. The comments covered not only the questions the Office presented May 5, 2000, but also other issues such as whether the Office should revisit its earlier proposal to permit the use of general descriptions of photographs in lieu of requiring deposit of the actual images; whether applicants for group registration of photographs should be required to comply with proposed “Photo Industry Copyright Guidelines” developed by associations representing manufacturers, photographers, photo processing firms and camera stores; and whether the proposed limit of 500 photographic images in a group should be rejected.

The American Society of Media Photographers (ASMP) suggested that for digital media, the file name for a particular image could be cross referenced to the image's date of publication by entering the file name and publication date on a reference sheet. For slides containing up to 36 images, each image should be numbered and that the number and the date of publication of the image could similarly be recorded on a list. For contact sheets, that date of publication could be written on an accompanying sheet with the frame number of the image cross-referenced to the date of publication. For videotapes, a cross-referenced list could be made on which the date of publication of each image is listed in the same sequence in which the images appear on the videotape. ASMP comments at 1. ASMP noted that the date of publication of each photograph can be indicated “by attaching * * * reference sheets * * * to the continuation sheet.” ASMP comments at 1. By doing so, “the date of publication is indicated.” Id. ASMP also endorsed the idea of fashioning a special continuation sheet tailored to the requirements for group registration of photographs.

A number of commenters asserted that requiring photographers to identify dates of publication specifically for each photograph submitted would be unduly burdensome, placing a hardship on photographers outweighing any benefit to the public record. Professional Photographers of America (PPA) suggested that if such a requirement is retained, photographers should have the flexibility to identify publication dates on the deposited image itself, the application form, or on a continuation sheet, and that photographers be given latitude to choose the most efficient methods of dating the photographs based upon the nature of their own businesses. PPA comments at 10. PPA also suggested that a photographer should be free to use any labeling system as long as it meets the goal of enabling one to identify the specific date of publication of any photograph in the group. Id. at 12. The Advertising Photographers of America, National (APA) suggested that the regulations should require only that a claimant indicate in a permanent manner the publication date of each photograph on the deposit or on the registration application or continuation sheet, and suggested that claimants choosing to note the publication date on the registration application or continuation sheet should number each photograph on the deposit and indicate the publication date for each image by photograph number. APA comments at 1-2. APA commented that claimants who choose to state the publication date on the continuation sheet should number each photograph on the deposit and, on the continuation sheet, indicate the publication date for each image by photograph number. APA comments at 2. APA also suggested that photographers be permitted to choose the form (Form CON or a new, specialized continuation sheet) most appropriate in a given case. The Graphic Artists Guild (Guild) commented that the simplest standard means of identifying and numbering images would be by referencing the numbers on a continuation sheet. Guild comments at 2.

Professor Peter Jaszi (Jaszi) suggested that applicants be required to provide not only information about the date on which each photograph in a group was taken, but also a brief amount of information about what each photograph or sequence of photographs depicts. Jaszi comments at 1-2. The Magazine Publishers of America and Newspaper Association of America (MPA/NAA) also suggested that descriptive information be required. MPA/NAA comments at 3. Both comments emphasized that such a requirement would foster a more meaningful and comprehensive public record.

Professor Jaszi and MPA/NAA also suggested that use of a continuation sheet should be mandatory in order to provide information about each photograph. Jaszi comments at 1; MPA/NAA comments at 5. ASMP agreed that a special continuation sheet should be made available for group registration of photographs. ASMP comments at 2. APA asserted that photo claimants should be allowed to choose the form that is most appropriate, on a case-by-case basis, to ease burdens on photographers while still creating meaningful identification of works being registered. APA comments at 2-3. The Guild agreed that a continuation sheet should be available, but expressed no views on whether the Office's existing continuation sheet should be used or whether a special continuation sheet for group registration of photographs should be created. Guild comments at 2.

As noted above, ASMP suggested using the file name for each photographic image or, in the case of contact sheets, assign a number to each image on the contact sheet, and coordinate the file name or number with the date of publication on a reference sheet. ASMP comments at 1-2. PPA asserted that requiring a uniform numbering system would be unduly burdensome for most photographers. PPA comments at 12. Other commenters agreed. E.g., APA comments at 3-4, Patti McConville Photography comments at 1. No comments supported imposition of a numbering requirement.

One commenter asserted that photocopies of images should also be accepted. ASMP comments at 1.C.3. Another commenter found the proposed regulations to be acceptable, but suggested that the Office should be prepared to accept deposits in additional formats as they become available. Guild comments at 2. Another commenter proposed that the advanced photo system (APS) be used, with enhancements that permit copyright-related information about each photograph to be electronically encoded on the film itself. It is not clear whether this proposal envisioned that applicants be required to use this technology, but the commenter admitted that the hardware and systems needed to implement the proposal do not currently exist. Coalition for Consumers' Picture Rights comments at 7-10.

One commenter urged the Office to return to an earlier proposal that would have permitted the use of descriptive identifying material in lieu of a deposit of actual images. PPA comments at 3-6.

Some commenters believed the Office's proposed formats were too liberal. For example, one commenter questioned what function would be served by including an analog option such as “a videotape clearly depicting each photograph” rather than proven and cost-effective new technologies for digital image storage and retrieval. The same commenter questioned the wisdom of including “slides containing up to 36 images” as a deposit option. Jaszi comments at 2. Another commenter criticized the inclusion of contact sheets and slides, observing that such deposits are difficult to search. That commenter also expressed concerns about the potential shelf-life of other formats, such as videotape. MPA/NAA comments at 5-6.

One commenter asserted that claimants should be permitted to submit digital deposits in any commercially available file format provided the format is identified. APA comments at 4. Another commenter wrote that the Office should not limit the types of electronic formats acceptable for meeting the deposit requirements to a static list. It noted that JPEG and GIF are currently the most common formats by which images are stored digitally. PPA comments at 12-13. Another commenter recommended accepting JPEG, TIFF and PCD formats, which it claimed are the most popular file formats for storage used by photographers. ASMP comments at 3.

PPA and ASMP observed that requiring claimants to provide the precise date of publication of each photograph in a group would impose an unjustifiable and burdensome hardship on photographers. They endorsed the Office's alternate proposal that would not require an application to specify the date of publication of each photograph in the group, but would permit the application to provide a range of dates of publication over a period of no more than three months. See PPA comments at 8-10; ASMP comments at 3. APA suggested that the range of dates should be as minimally restrictive as possible, although a three month range would be acceptable. APA comments at 4-5. The Graphic Artists Guild (Guild) did not favor allowing a range of publication dates, asserting that this practice could compromise the requirements of 17 U.S.C. 412 that permit claims for attorneys' fees and statutory damages when a work has been registered within three months after publication. Guild comments at 3.

Commenters also addressed a number of additional issues, such as the number of photographs that may be included in a group registration, whether works made for hire should be eligible for group registration, and whether claimants using the group registration procedure should be required to abide by Photo Industry Copyright Guidelines.

1. The number of photographs that may be included in a group registration. The May 2000 notice proposed that a maximum of 500 photographs could be included in a group registration. Many commenters objected to limiting a group registration to 500 photographs. PPA observed that many professional photographers take 500 images or more in the course of one or two days' work. PPA comments at 3, 6-8. Another commenter agreed, noting that it generates thousands of images per quarter. Patti McConville Photography comments at 1.

2. Works made for hire. PPA objected that the proposed regulation could be read as being available only to single individual photographers, ignoring the realities of the photography business where many photographs are works made for hire. PPA comments at 3, 11. In contrast, the Graphic Artists Guild objected that the proposed regulation was available to works made for hire. The Guild asserted that the proposed amendments are intended to ease the burdens of registration for individual authors and noted that in other contexts, the Office has restricted certain benefits such as the Short Form VA to individual authors. Guild comments at 2.

3. Adoption of Photo Industry Copyright Guidelines. Some commenters urged the Office to incorporate proposed Photo Industry Copyright Guidelines into the group registration regulations. These Guidelines were negotiated by ASMP, PPA, the Photo Marketing Association International (PMA), the Association of Professional Color Laboratories, the Professional School Photographers Association, and the Coalition for Consumers' Picture Rights (CCPR). PMA comments (Appendix). Among the guidelines are requirements that photographers advise customers of the photographer's ownership of copyright and give information on how to obtain additional copies of photographs; that when reasonably possible, photographers identify and mark their photographs to permit others to know whom to contact to obtain permission to copy them; that they respond promptly to requests for permission to copy their photographs; and that they give written notice to photo processors when they believe their copyrights have been infringed, in an effort to prevent further infringement, determine the cause of the alleged infringement, and permit possible resolution of the matter. Id.

Representatives of photo processors, camera stores, manufacturers of photographic equipment and others, concerned about the possibility of being sued for copyright infringement by professional photographers for duplicating photographs in cases where they were not aware of a photographer's copyright, urged that the Office require photographers who take advantage of group registration of photographs to agree to follow the guidelines and consent to application of the guidelines in any infringement action. PMA comments at 6. Under their proposal, photographers who take advantage of group registration of photographs would be required to waive any claims for statutory damages or attorney's fees in cases in which the infringer acted “innocently” in accordance with the Photo Industry Guidelines. Eastman Kodak Company comments at 2; PMA comments at 6 and Appendix.

PMA argues that because the Office is not required to institute a group registration of photographs proposal, it has the power to require photographers to waive their rights to statutory damages and attorney's fees in the circumstances where the guidelines would deny those remedies. PPA comments at 6-7. PPA cites two instances in which the Office has established special requirements as a condition of registration: (1) Regulations for registration of holograms that require deposit not only of the hologram itself, but also of detailed instructions for displaying and viewing the hologram and a photograph or other description of the hologram (37 CFR § 202.20(c)(2)(iii)); and (2) the Office's Federal Register notice accompanying the announcement of the final regulations for group registration of daily newsletters, 64 FR 29522 (1999), in which the Office stated that the group registration privilege is contingent upon the claimant meeting the conditions specified in the regulation. PMA comments at 7-8.

PPA also asserted that the Office could adopt the guidelines, but this assertion was made in the context of PPA's plea that the Office accept the earlier proposal that would have permitted group registration without requiring deposit of the actual images of the works being registered. PPA comments at 1-2 & n.2. PPA noted that in other contexts, the Office, Congress, and the courts have cited industry-endorsed guidelines with the intent that they be used by the courts in infringement litigation, referring to the Agreement of Guidelines for Classroom Copying in Not-For-Profit Educational Institutions, adopted in H.Rep. No. 94-1467, 96th Cong., 2d Sess. At 68-70 (1976). PPA comments at 2-3 n.2.

4. Other opposition to the proposal. Groups representing photo processors, camera stores, manufacturers of photographic equipment, consumers and others expressed their opposition to the group registration proposal. Although willing to accept the proposal if compliance with the Photo Industry Copyright Guidelines were required by claimants, PMA expressed concern that without such a provision, the group registration proposal would make it easy for photographers to collect statutory damages and attorney's fees for infringement, leading to a flood of litigation over minor matters. PMA comments at 5. The Coalition for Consumers' Picture Rights (CCPR), an ad hoc organization of camera store owners, minilab retailers, photo processors and photofinishers, film and paper manufacturers, camera and lens manufacturers, frame and album manufacturers, photographers, and consumers, asserted that the proposal “could jeopardize the successful photofinishing industry.” CCPR comments at 2. The Coalition noted the difficulty photofinishers have in determining whether a copyright in a photograph is owned by someone other than the customer who brings the photo into the shop or, in the internet environment, transmits a photo in digital form to a photofinisher. CCPR comments at 2-3. CCPR asserted that making it easier to register photographs without building in safeguards for users will lead to more copyright infringement litigation by photographers, to the detriment of photofinishers. CCPR (and MPA/NAA) urged that the Office refrain from announcing final rules on group registration of photographs until after the Office has conducted its study that will examine copyright deposit in general. CCPR comments at 6-7; MPA/NAA comments at 6.

The Office has carefully considered the comments described in part II of this notice and has resolved the issues addressed in those comments as follows.

1. Date of publication and continuation sheet. As is discussed below, the Office has decided to implement its alternative proposal that would permit applicants to designate a range of dates of publication within the three-month period immediately prior to registration, rather than require identification of the specific date of publication of each photograph in a group. Nevertheless, it is anticipated that many photographers will elect to register an entire year's worth of published photographs and to identify the specific date of publication of each photograph. For those who elect the latter alternative, the Office is persuaded by the commenters who asserted that a photographer should be free to use any labeling system as long as it meets the goal of enabling one to identify the specific date of publication of any photograph in the group. Accordingly, the final regulation provides that the date of publication of each photographic work within a group must be identified either on the deposited image or on a continuation sheet, in such a manner that for each photographic work in the group, the date of publication can be identified. So long as the applicant selects a method that clearly accomplishes this purpose, the application will be acceptable. For example, an applicant might choose to number the images, or to give each image a unique name, and cross-reference the number or name of each photograph on a continuation sheet along with the date of publication. The procedure suggested by ASMP appears to meet these requirements. 2

The Office will make available a special optional continuation sheet for group registration of photographs that applicants may use to provide information such as the date of publication of each photograph.

The proposal to require descriptive information about each photograph in a group has merit, in that such descriptions would assist in providing a more meaningful and comprehensive public record. However, the Office does not require such descriptions in other contexts. Indeed, one can currently register an individual photograph without providing any descriptive information about that photograph (apart from a title that may provide no information about the nature of the photograph), resulting in a public record that sheds no light about the nature of the photograph. One can also currently register an unpublished collection of photographs, pursuant to § 202.3(b)(3)(B), without providing any description of the subject matter of the photographs in the collection apart from a title that does not necessarily describe the works included in the collection. Indeed, apart from information on titles (which may or may not describe the subject matter of a work) and the generalized descriptions that appear in the “nature of this work” and “nature of authorship” spaces, a typical registration of any work will offer little information about the content of the work being registered. The Office concludes that the burdens that would result from requiring a description of each photograph in a group registration would outweigh the benefits of the proposed requirement.

However, applicants are encouraged to provide descriptive information for each photograph, or each group of related photographs. To that end, space will be set aside on the optional continuation sheet to permit the entry of such information.

2. Numbering of photographs. In light of the decision not to require any particular labeling system to identify the date of publication for each photograph in a group, the Office agrees with the weight of comments that no numbering requirement should be imposed.

3. Acceptable formats. The Office concludes that applicants should be permitted to submit photographs in any of the formats included in the list of acceptable formats in the May 2000 notice of proposed rulemaking. Although some commenters questioned the utility of options such as slides containing up to 36 images and videotapes depicting each photograph, the Office believes that providing applicants with a variety of options will serve the purpose of facilitating the registration of photographs.

The Office also concludes that the proposal to permit submission of photocopies of images has merit. This conclusion is reinforced by the Office's recognition that the current regulation governing registration of contributions to collective works, which can and often do include photographs, permit submission of a deposit in the form of “a photocopy of the contribution itself as it was published in the collective work” See 37 CFR 202.20(b)(2)(iii); 202.20(c)(2)(xv). However, this proposal is accepted with some hesitation, because the quality of photocopies of photographs can vary considerably. The final rule provides that photocopies must “clearly depic[t] the photograph,” and photocopies that do not present clear images of the underlying photograph will be rejected as deposits. The final rule also requires that when a photograph was first published in color, a photocopy deposit of the photograph must also be in color. This requirement will assist in insuring that photocopies received as deposits are clear representations of the photographs being registered.

The permitted formats are listed in § 202.20(c)(2)(xx) in the Library of Congress's order of preference, and applicants are encouraged to select a format as close to the top of that list as possible. It should be noted, however, that compliance with the requirements of § 202.20(c)(2)(xx) is not necessarily compliance with the mandatory deposit requirement of 17 U.S.C. 407. If the Library determines that it desires the “best edition” of a particular photograph as published in the United States for its collections, it may demand the deposit of that photograph in its best edition as set forth in 37 CFR 202.19. This is a separate legal requirement, independent of the deposit requirements for registration of copyright.

Finally, the Office rejects the plea of at least one commenter to permit the use of descriptive identifying material in lieu of the actual images. Although the Office had previously expressed a willingness to consider such a proposal, the most recent notice of proposed rulemaking noted that “the Office is reluctant to implement a procedure that would permit the acceptance of deposits that do not meaningfully reveal the work for which copyright protection is claimed.” 65 FR at 26164. Deposit of the work being registered is one of the fundamental requirements of copyright registration, and it serves an important purpose. As the legislative history of the Copyright Act of 1976 recognizes, copies of registration deposits may be needed for identification of the copyrighted work in connection with litigation or for other purposes. See H.R. Rep. No. 94-1476, at 171 (1976). See also Seiler v. Lucasfilm, Inc., 808 F.2d 1316, 1322 (9th Cir. 1986) (noting that “possibilities for fraud would be limitless” if reconstructions of claimant's original work could be submitted as registration deposits); Tradescape.com v. Shiraram, 77 F.Supp.2d 408, 413-14 (S.D.N.Y. 1999) (noting that when deposit of redacted version of computer program is permitted, the result in infringement litigation is uncertainty as to whether allegedly infringed code actually is the subject of an existing registration). The ability of litigants to obtain a certified copy of a registered work that was deposited with the Office prior to the existence of the controversy that led to a lawsuit serves an important evidentiary purpose in establishing the identify and content of the plaintiff's work. 3

It is true that, as PPA observed in its comments, current registration procedures permit the deposit of identifying material in some contexts. However, as noted in the May 2000 notice of proposed rulemaking, the Office intends to issue a notice of inquiry to reexamine the purpose of section 408 copyright deposit for all classes of works, and this examination may cause the Office to reconsider whether many or all of the circumstances in which it accepts identifying material are justified when the identifying material does not reveal the copyrightable expression for which protection is claimed. Prior to the conclusion of such a study, the Office will not initiate as far-reaching an expansion of the practice of accepting identifying material as that which is proposed by PPA. 4

4. File formats for deposits on CD-ROM. While the Office sympathizes with the comment that a deposit in digital form should be accepted in any commercially available file format, it is necessary to limit the acceptable formats to those which the computers in the Office's Examining Division are equipped to handle. The file formats specifically identified in comments were JPEG, GIF, TIFF, and PCD. The Office accepts the assertions by the proponents of these file formats that they are the formats most commonly used by photographers. Currently, a claimant who submits deposits of photographs in digital form will be required to use one of these formats, and the Office will ensure that the Examining Division is equipped to view deposits submitted in those formats. If the Office becomes aware that other file formats have come into common use, it will include them in the list of acceptable file formats and acquire the necessary equipment and/or software to view them.

5. The option of providing a range of dates. In the May 2000 notice of proposed rulemaking, the Office sought comments on whether applications for group registration of photographs should be permitted to state a range of dates of up to three months (e.g., January 1-March 31, 2001) in which all the photographs in the group were published, rather than stating specific dates of publication for each photograph. The Office noted that it would consider such an alternative only if it were persuaded that requiring specific dates of publication for each photograph would impose an unjustifiable and burdensome hardship on photographers, and that the advantages (to claimants and to the public record) of such an alternative would outweigh its disadvantages.

As noted above, a large number of commenters endorsed this alternative, noting the considerable difficulty and burden of identifying specific dates of publication for each photograph in a group of photos published over a period of as much as a year. The Office recognizes the burden and believes that some relaxation of the requirement that the date of publication be specified is justified. On the other hand, a key benefit of copyright registration is the availability of statutory damages and attorney's fees for a plaintiff in a copyright infringement suits who has registered a work within three months after first publication of the work. 17 U.S.C. 412(2). Moreover, 17 U.S.C. 409(7) requires that an application for copyright registration include the date and nation of first publication. 5

The Office believes that the requirements of section 409 and 412, and the needs of photographer claimants, can best be reconciled by offering the option to designate a range of dates of publication for all the photographs in a group, rather than requiring the specific date of publication for each photograph, so long as all of the photographs were first published within three months of the effective date of registration, i.e., the date on which an acceptable application, an acceptable deposit, and the applicable fee are received in the Copyright Office. Thus, a correctly completed application for group registration received (with the applicable fee and acceptable deposit) on March 31, 2002 could include photographs first published as early as January 1, 2002 and as late as March 31, 2002, and the date of publication could be entered in space 3 of the Form VA application as “January 1-March 31, 2002.”  6 Because all of the photographs would have been first published within three months of the effective date of registration, the applicant would legitimately obtain the benefit of section 412(2) without having to identify, in the application, the precise date of publication of each photograph. 7

6. The number of photographs that may be included in a group registration. In light of the comments from photographers observing that the proposed 500-photo limit is too low, the Office has reexamined its reasons for proposing such a limit. The Office has concluded that the administrative burdens of processing a group registration of a large number of photos in excess of 500 would be acceptable. Therefore, the final rule contains no limitation on the number of photographs that may be included in a group.

7. Works made for hire. The final rule clarifies that works made for hire may be included in a group registration of published photographs, but does not permit an employer for hire to include works by a number of different photographers in the same group registration. Rather, the rule provides that “[t]he photographer who photographed each of the photographic works submitted for registration as part of the group must be the same person.” Thus, a photographic studio that employs a number of photographers under work-for-hire agreements may register those photographers' works in group registrations, but must submit separate registrations for the photos taken by each photographer. The Office recognizes that many photographers work as employees of photographic studios, and that their employers—many of them small businesses—experience the same difficulties that individual photographers experience in registering their photographs. However, the Office is also mindful that its power to fashion group registrations is limited to cases involving “groups of related works.” 17 U.S.C. 408(c)(1). Some of the commenters objecting to this group registration proposal contended that it lacks the type of nexus required by the Copyright Act. See, e.g., MPA/NAA comments at 3. The Office disagrees with that objection, but it recognizes that there must nevertheless be a relationship between all the photographs in a group. The Office believes that limiting the group to photographs (1) taken by the same individual and (2) first published within the same year, satisfies that requirement. This conclusion finds support in the statutory and regulatory requirements for group registration of contributions to periodicals, a form of group registration similar in many respects to the new group registration of photographs. The Copyright Act limits the availability of group registration of contributions to periodicals to a group of works by the same individual author, and the Office's regulations implement this statutory requirement by providing that all the works in the group must be by the same author and that the author of each work must be an individual, and not an employer or other person for whom the work was made for hire. See 17 U.S.C. 408(c)(2); 37 CFR § 202.3(b)(7); see also 17 U.S.C. 408(c)(3). The legislative history of the 1976 Copyright Act also supports such a limitation, noting that group registration may be desirable for “a group of photographs by one photographer. ” House Report at 154 (emphasis added).

When a group registration consists of works made for hire, the claimant will be required to designate as the author, in space 2 of the Form VA, the name of the employer for hire as well as the name of the photographer who took the photograph (e.g., “XYZ Corporation, employer for hire of John Doe”).

8. Photo industry guidelines. The Office does not believe that it has the authority to impose those guidelines on photographers who register their copyrights using the group registration regulation, nor does it believe the incorporation of the guidelines is advisable. Although representatives of photographers, photofinishers and users agreed upon the Photo Industry Guidelines several years ago, that agreement was in the context of a proposal that would have permitted photographers to register groups of photographs without depositing the images of the works. The Office has declined to permit such a liberal registration scheme. We do not infer from PPA's endorsement of the guidelines in the former context that photographers would accept incorporation of the guidelines into the more modest group registration proposal adopted today.

Whatever the merits might have been when the guidelines were being considered in the context of a more liberal group registration scheme, the Office does not believe that requiring photographers to surrender valuable rights enjoyed by other copyright owners is justified in the context of the more modest group registration proposal adopted in the final regulation. Photographers have long been able to register collections of their unpublished photographs under conditions similar to those adopted today for published photographs, and have not been required to waive their rights to statutory damages and attorneys fees in order to do so. Photographers have also been able to register groups of published photographs so long as those photographs were published as contributions to periodicals, also without being required to waive those rights. The proposal adopted today is not a radical departure from those already-existing group registrations, and the Office does not believe that the case has been made for incorporating the guidelines into this particular group registration regulation.

On the merits, the arguments made in support of the Office's power to require photographers to comply with the guidelines in order to participate in the group registration program are unconvincing. The existing registration requirements cited by PMA in support of the guideline proposal related to the nature of the deposit or the application, and not to other legal obligations having nothing to do with registration. The requirement of additional identifying material to accompany applications to register holograms exists simply to assist the Office's examiners in their examination of the deposits. The Office's statement when it adopted regulations on group registration of daily newsletters that “[t]he group registration privilege is contingent upon the claimant meeting the conditions specified in the regulation,” 64 FR 2922 (1999), is a truism. None of the conditions in that regulation required claimants to comply with any industry guidelines or waive any rights; rather, all of the conditions related to registration and deposit. The guidelines on classroom copying cited by PPA have not been incorporated into any registration regulations; rather, Congress simply endorsed those guidelines, in legislative history, as offering guidance on fair use in the classroom.

The Office is unconvinced that it has the power to require copyright owners to waive statutory rights they have against infringers in order to take advantage of a registration option designed to facilitate the registration of their works. Even if the Office had such power, it does not appear that this would be a wise precedent to set. The purpose of the group registration regulation is to make it possible for photographers to obtain the benefits conferred by registration, not to require them to waive those benefits.

9. The threat of litigation. The Office understands the fears of photofinishers and others that by making it easier for photographers to register their works, the Office is also increasing the risk that those who process film and make copies of photographs will be sued for copyright infringement. With that risk comes the prospect of statutory damages and attorney's fee awards. But the concerns expressed by these opponents of the regulation really relate not to the group registration option being adopted today, but to longstanding provisions of copyright law that permit awards of statutory damages and attorney's fees to prevailing plaintiffs who have made timely registration of their works. A photofinisher who is truly an “innocent” infringer and who had no reason to believe that he was infringing probably has little to fear from this regulation. Courts are not likely to award attorney's fees to such innocent infringers, and the minimum award of statutory damages, even against a defendant who is not an innocent infringer, is very modest. Litigation can be burdensome and expensive, but those burdens and expenses are borne by plaintiffs as well as defendants. The Office has no reason to believe that photographers will wish to bear the burdens and expenses of litigation to pursue claims against photo finishers who have acted reasonably and in good faith, when the costs of such litigation are likely to outweigh any recovery. But photographers, like all other copyright owners, should be entitled to enforce their copyrights. The Office rejects any suggestion that a regulation that enables photographers to register their copyrights is unjustified because it makes it easier for them to assert their rights.

The final regulation announced today liberalizes requirements for registration of photographs by permitting photographers to register their published photographs in groups, with a variety of deposit options (all of which require deposit of the actual images of the works being registered). In practice, it represents an incremental expansion of current options available to photographers (such as group registration of contributions to collective works and registration of unpublished collections). It also expands the list of options for deposit for photographs registered under the existing regulation for registration of unpublished collections. The Copyright Office believes that this regulation will make it easier for photographers to register their works, thereby populating the public record with many more works in a field where registration has been difficult. The Office has attempted to strike the appropriate balance between those who urge adoption of a group registration scheme that would leave the public record bereft of any reliable indication of what works are actually included in a registration, and those who urge that liberalizing registration procedures for photographers will open the floodgates of litigation against those who unwittingly infringe copyrights in photographs.

Although the Copyright Office, located in the Library of Congress and part of the legislative branch, is not an “agency” subject to the Regulatory Flexibility Act, 5 U.S.C. 601-612, the Register of Copyrights has considered the effect of a proposed amendment on small businesses. The purpose of this regulation is to facilitate the ability of photographers, who usually constitute small businesses, to register the copyrights in their works, by simplifying the requirements for registration.

The Board is an administrative body that decides appeals from denials of claims for veterans' benefits. There are currently 57 Board members, who decide 35,000 to 40,000 such appeals per year.

This amendment was previously published in the Federal Register as an interim final rule on February 12, 1999 at 64 FR 7090, with a request for comments by March 15, 1999. We received no comments. Based on the rationale set forth in the interim final rule, we are adopting its provisions as a final rule with minor technical changes.

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

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

The Postal Service published a proposed rule on May 1, 2001 to amend DMM P030.1.4 to allow mailers to use information-based indicia (IBI) to show evidence of postage, as they would letterpress and digital meter stamps. Comments on the proposed rule were due on or before May 31, 2001. We did not receive any comments. Therefore, the rule is adopted as final without any changes.

Throughout this document, “we,” “us” and “our” refer to EPA.

Table 1 lists the rules we are approving with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board (CARB).

On the following dates, these rule submittals were found to meet the completeness criteria in 40 CFR part 51, appendix V: June 3, 1994, KCAPCD Rule 401; October 6, 2000, MBUAPCD Rule 400; and, February 28, 1991, MCAPCD Rule 4.1. These criteria must be met before formal EPA review may begin.

There are versions of all of these rule within the SIP. In all cases, the submitted rule consolidates several SIP rules into a single rule format. The TSD for each rule provides a detailed discussion of each consolidation. Only MBUAPCD adopted and submitted prior versions of Rule 400. While we can act on only the most recently submitted version of Rule 400, we have reviewed materials provided with previous submittals.

Each of these rules limit the emissions of visible air contaminants of any type; usually, but not always particulate matter from combustion sources and industrial sites. Specifically, these rules prohibit emissions beyond a defined opacity standard. The TSD has more information about these rules.

Generally, SIP rules must be enforceable (see section 110(a) of the Act), must meet Reasonably Available Control Measure (RACM) requirements for nonattainment areas (see section 189), and must not relax existing requirements (see sections 110(l) and 193). The KCAPCD regulates an PM nonattainment area (see 40 CFR part 81), so Rule 401 must fulfill RACM. MBUAPCD and MCAPCD meet the PM standard and are not required to meet RACM requirements.

We used the following guidance and policy documents to define our specific enforceability and RACT requirements:

1. Portions of the proposed post-1987 ozone and carbon monoxide policy that concern RACT, 52 FR 45044, November 24, 1987.

2. “Issues Relating to Cutpoints, Deficiencies, and Deviations; Clarification to Appendix D of November 24, 1987 Federal Register document,” (Blue Book), notice of availability published in the May 25, 1988 Federal Register .

We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACM, and SIP relaxations. KCAPCD and MBUAPCD rules contain agricultural exemptions that are narrowly construed by each district. Consequently, these exempted sources are a neglible source of emissions in each district. The TSDs have more information on our respective evaluations.

The TSDs describe additional rule revisions that do not affect EPA's current action but are recommended for the next time the local agency modifies the rules. In particular, MCAPCD has retained a 40% opacity standard. While MCAPCD need not meet the RACM 20% opacity standard given its PM attainment status, almost all air districts in California have adopted 20% opacity standard. This suggests that the standard is readily achievable and should be considered by MCAPCD.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by August 16, 2001, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on September 17, 2001. This will incorporate these rules into the federally enforceable SIP.

Visible emission rules with their opacity standards are basic components of an air quality regulation program and a general RACM requirement for PM-10 regulations. Section 110(a) of the CAA requires states to submit regulations that control VE emissions. Table 2 lists some of the national milestones leading to the submittal of these local agency VE rules.

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 . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 17, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document, “we,” “us” and “our” refer to EPA.

Table 1 lists the rules we are approving with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board (CARB).

On May 19, 2000 and October 4, 2000, these rule submittals were found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

These rules are new with no previous versions in the SIP.

BAAQMD Rule 8-52 contains the following requirements:

EDCAPCD Rule 240 contains the following requirements:

The TSDs have more information about these rules.

Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for major sources in nonattainment areas (see section 182(a)(2)(A)), and must not relax existing requirements (see sections 110(l) and 193). The BAAQMD and EDCAPCD regulate ozone nonattainment areas (see 40 CFR part 81), so both rules must fulfill RACT.

Guidance and policy documents that we used to define specific enforceability and RACT requirements include the following:

1. Portions of the proposed post-1987 ozone and carbon monoxide policy that concern RACT, 52 FR 45044, November 24, 1987.

2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations; Clarification to Appendix D of November 24, 1987 Federal Register document,” (Blue Book), notice of availability published in the May 25, 1988 Federal Register .

3. CARB's RACT/BARCT Guidance Document, “Polyester Resin Operations,” January 1991.

4. Control Technique Guidelines (CTG) entitled, “Control of Volatile Organic Compound Emissions from Manufacture of High-Density Polyethylene, Polypropylene, and Polystyrene Resins” (EPA-450/3-83-008).

We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. The TSDs have more information on our evaluation.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by August 16, 2001, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on September 17, 2001. This will incorporate these rules into the federally enforceable SIP.

VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions. Table 2 lists some of the national milestones leading to the submittal of these local agency VOC rules.

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 . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 17, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

EPA believes that it is appropriate to make today's final rule effective immediately upon today's publication in the Federal Register . Because of the limited geographic scope of this rule, and because this rule generally provides for additional flexibility, it should not be problematic for regulated parties to immediately utilize and/or comply with the provision of this rule. Although this final rule includes some new requirements, these requirements are reasonable and necessary to provide the increased flexibility also included in this rule. EPA notes that the general requirement in 5 U.S.C. 553(d) of the Administrative Procedure Act (APA), concerning publication or service of a substantive rule not less than 30 days prior to its effective date, does not apply here. CAA section 307(d)(1) provides that section 553 of the APA does not apply to promulgation or revision of any regulation pertaining to fuels or fuel additives under section 211 of the CAA. Even if section 553(d) of the APA were to apply, there is good cause under section 553(d)(3) to provide less than 30 days notice, for the reasons noted above.

The purpose of the RFG program is to improve air quality in specified areas of the country by requiring reductions in emissions of ozone-forming volatile organic compounds (VOCs) and oxides of nitrogen (NO X ), and in emissions of toxic air pollutants, through the reformulation of gasoline, pursuant to 211(k) of the Clean Air Act (CAA or the Act), as amended. In the Act, Congress specified that RFG contain at least 2.0 weight percent oxygen. MTBE and ethanol are the two forms of chemical oxygen (or oxygenates) that gasoline producers most commonly use to add oxygen to gasoline. MTBE and ethanol have also been used in conventional gasoline, as octane enhancers, since the 1970s.

In September 1996, EPA awarded a contract to the National Research Council (NRC) to determine whether the reactivity (i.e., ozone-forming capacity) of VOCs can be taken into account in the RFG program without adversely impacting RFG's air quality benefits. In a report released in May 1999, the NRC found significant air quality benefits from RFG and recommended that “the contribution of carbon monoxide (CO) to ozone formation should be recognized in assessments of the effects of RFG.” Ozone-Forming Potential of Reformulated Gasoline, National Academy Press, at p. 6 (1999). Mobile sources are a major source of CO emissions, contributing approximately 90 percent of the total CO for Chicago and Milwaukee.

In December 1998, EPA established the Blue Ribbon Panel on Oxygenates in Gasoline, a panel of independent experts, to examine MTBE's performance in gasoline, its presence in water, and alternatives to its use. (While EPA established the panel for reasons that were independent of ethanol issues and the NRC study on RFG, its relevance to this rulemaking is discussed further below.) Panel recommendations made to EPA in July 1999 include:

• Ensure no loss of current air quality benefits from RFG.

• Reduce the use of MTBE, and seek Congressional action to remove the RFG oxygen requirement in the Act.

• Strengthen the nation's water protection programs, including the Underground Storage Tank (UST), Safe Drinking Water, and private well protection programs.

On July 12, 2000, EPA proposed to adjust the VOC performance standard for RFG with 3.5 weight percent oxygen (equivalent to 10 volume percent ethanol) by 1.0 percentage point. As proposed, this adjustment to the VOC performance standard would apply to RFG marketed in all areas of the nation using RFG. As discussed in the Notice of Proposed Rulemaking for this adjustment (65 FR 42922; July 12, 2000), EPA proposed to exercise its discretion under Section 211(k)(1) of the Clean Air Act which directs EPA, in promulgating emission reduction standards for RFG, to consider the cost of achieving such emission reductions as well as any nonair-quality and other air-quality related health and environmental impacts. The intent of the proposed rule was to increase the flexibility available to refiners to formulate RFG with ethanol while continuing to achieve ozone benefits similar to those of the current Phase II RFG program. Finally, the proposed rule was also intended to implement the NRC recommendation that EPA take into consideration the contribution of CO to ozone formation. 1

In the proposal for the 1.0 percentage point adjustment (equivalent to an increase in RVP of approximately 0.2 psi), we also solicited comment on a recommendation by the Illinois Environmental Protection Agency (IEPA) for a VOC adjustment of 3.7 percentage points (equivalent to an increase in RVP of 0.5 psi). IEPA's recommendation was based in part on a photochemical modeling study conducted for the lower Lake Michigan region.

We received approximately 30 comments on the proposed rule, from states and state associations, refiners and their trade associations, automobile manufacturing associations, oxygenate producer associations, and 200 post cards from citizens of Illinois advocating adoption of the larger adjustment recommended by IEPA. Comments from refiners generally expressed concern that the adjustment as proposed would not provide sufficient flexibility to switch from MTBE to ethanol because the size of the adjustment would not result in a significant cost reduction. Ethanol industry representatives commented that the adjustment should be larger than proposed, specifically endorsing IEPA's recommendation of an adjustment equivalent to a 0.5 psi increase in RVP. States were divided on the proposal which was not restricted to Chicago and Milwaukee; some maintained that the adjustment would have an adverse effect on air quality, while others supported an adjustment.

Refiners and representatives of the ethanol industry opposed the proposed prohibition of oxygen credit generation for batches of RFG that comply with the adjusted VOC standard and argued that the prohibition might increase the use of MTBE among refiners that would otherwise rely upon such credits. Refiners also opposed the Product Transfer Document requirements, claiming that they would result in higher costs because refiners would need to build more tankage to ensure segregation of VOC adjusted RFG from other RFG.

After evaluating all of the comments, EPA has decided to finalize the VOC adjustment rule, with certain modifications and clarifications. We are limiting application of the adjusted VOC standard to the Chicago and Milwaukee RFG areas where ethanol RFG currently makes up 100 percent of the market. With 100 percent ethanol penetration, there is no mixing of ethanol and non-ethanol RFG in vehicle gas tanks. When gasoline with ethanol is mixed with non-ethanol gasoline in a car's fuel tank (often referred to as “commingling”), the evaporation rate of the mixture is increased, resulting in an increase in emissions of smog-causing pollutants and which is not currently accounted for in the RFG program. In areas like St. Louis, where less than 100 percent of the RFG contains ethanol, the rule as proposed had the potential to cause more ethanol RFG to be made in these mixed RFG areas. If more ethanol RFG is used, the amount of commingling will tend to increase, resulting in an increase in emissions of VOC in addition to those associated with the adjustment to the VOC performance standard itself. To avoid the possibility of any significant VOC increases associated with commingling (which EPA has not fully analyzed or evaluated), the rule as finalized will be restricted to Chicago and Milwaukee. Analysis and quantification of the VOC increases—as well as the existing unaccounted for VOC emissions—associated with commingling would need to be factored into any consideration of a potential adjustment of the RFG performance standard in areas outside of Chicago and Milwaukee. Finally, the adjusted standard is based on photochemical modeling conducted by IEPA that is unique to the Chicago/Milwaukee area (discussed in further detail in Section I.G. below). We do not believe that the results of this modeling can be extended to areas outside this region and we currently lack photochemical modeling similar to IEPA's for other regions that would allow us to make conclusions about the appropriateness of adjustments to the VOC standard in other RFG areas.

While we are not adopting IEPA's recommended adjustment of 3.7 percentage points, we are increasing the 1.0 percentage point adjustment to 2.0 percentage points (equivalent to an increase in RVP of approximately 0.3 psi). We have concluded that IEPA's approach does not provide sufficient confidence that adverse ozone effects would not occur in the Chicago nonattainment area with the larger adjustment of 3.7 percentage points. We found several deficiencies in the emission calculations which IEPA used in its justification of a 0.5 psi adjustment. These are discussed in detail in Section I.G. below.

Finally, we are not taking or proposing action at this time regarding elimination or adjustment of the 1.5 weight percent oxygen minimum. We are continuing to review the comments received, however, and may consider action in the future.

The contents of today's preamble are listed in the following outline.

Regulated categories and entities potentially affected by this action include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could be potentially regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether an entity is regulated by this action, one should carefully examine the RFG provisions at 40 CFR Part 80, particularly § 80.41 dealing specifically with the RFG standards. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

EPA has determined that a 2.0 percentage point adjustment to the VOC performance standard for 10 percent ethanol RFG (equivalent to an increase in RVP of approximately 0.3 psi) is appropriate in the Chicago and Milwaukee RFG areas. As expressed in our notice of proposed rulemaking (65 FR 42920, 42924, July 12, 2000), EPA's intent is to offset partially the incremental cost associated with the production of ethanol-blended RFG in order to provide additional flexibility to refiners. 2 EPA is also taking a reasonable approach to ensure that RFG will continue to provide a similar level of overall benefits.

By limiting application of the VOC adjustment to the Chicago and Milwaukee RFG areas, we will provide additional flexibility for fuel providers that currently produce RFG for ethanol blending in the two metropolitan areas that use ethanol exclusively in RFG. This flexibility will help to ensure that the refiners that make ethanol RFG are able to continue to do so at reduced cost. Moreover, we are confident based on modeling that Illinois Environmental Protection Agency (IEPA) has conducted (discussed in more detail in Section I.G.) that a 2.0 percentage point adjustment to the VOC standard (equivalent to an RVP increase of approximately 0.3 psi) for these areas will still realize ozone benefits similar to those of the current Phase II program.

Based on our evaluation of the relevant data, however, we have concluded that there is sufficient uncertainty regarding the potential for adverse environmental consequences from a VOC adjustment in RFG areas outside of Chicago and Milwaukee to allow such an adjustment at this time. Specifically, several commenters  3 pointed out that in areas where both MTBE-blended and ethanol-blended RFG are used, increased VOC emissions could occur due to the additional commingling of MTBE and ethanol RFG in automobile gasoline tanks. (See the discussion of commingling in section I.C. for further details.) Therefore, commenters suggested that if EPA established a VOC adjustment for RFG areas where ethanol is not the predominant oxygenate (i.e., areas other than Chicago and Milwaukee), EPA would need to consider the emissions impact of commingling. Additionally, several comments suggested that any increase in ethanol use might be accompanied by an increase in evaporative VOC emissions due to increased permeation of ethanol through vehicle fuel system components such as hoses and seals. We agree that any evaluation of the appropriateness of a VOC adjustment should include consideration of commingling and permeation as well as other emission-related impacts. Based on uncertainty regarding the potential emissions impact of mixed ethanol/MTBE pools in RFG areas outside of Chicago and Milwaukee, we are unable to conclude at this time that a VOC adjustment is appropriate for such areas.

In addition, the size of the adjusted VOC standard itself is derived from data specific to the Chicago/Milwaukee region. As discussed in detail in Section I.G below, the 2.0 percentage point adjustment (equivalent to an RVP increase of 0.3 psi) was based on photochemical modeling that Illinois Environmental Protection Agency (IEPA) conducted. The modeling represents the specific lower Lake Michigan region to which the standard will apply. As such, because the modeling results are dependent on the pollutant mix and geographic and meteorological features specific to that region, the photochemical modeling results cannot be extended to other areas.

Overall, we believe that a 2.0 percentage point adjustment to the VOC performance standard (equivalent to an RVP increase of approximately 0.3 psi) is appropriate for RFG with 10 volume percent ethanol sold in the Chicago and Milwaukee RFG area. Because ethanol RFG constitutes virtually 100 percent of the RFG market in the Chicago and Milwaukee area, they are significantly different from other RFG areas. Today's rule is unlikely to change this market share. For this reason, and because EPA is relying on modeling data specific to these areas, we believe it is appropriate to limit the rule to Chicago and Milwaukee. (See Section I.C. for a more detailed discussion of commingling.)

Several questions remain regarding the impact that such a VOC performance standard adjustment might have on overall emissions from RFG in the future. Specifically, newer car technology and low sulfur gasoline will tend to lower CO emissions generally, and therefore decrease the amount of CO reduction resulting from the higher oxygen levels associated with RFG containing 10 volume percent ethanol. Also, while it is our expectation that the market share of ethanol-blended RFG in the Chicago and Milwaukee areas will remain at 100 percent, some question exists regarding the future market share of ethanol blends in these areas based in part on future demand for ethanol in other areas of the U.S. and how that might affect supply, prices, and penetration level in the Midwest. Therefore, EPA will continue to evaluate the effect of Tier 2 technology and Tier 2 low sulfur gasoline on CO emissions as well as market conditions with respect to ethanol and MTBE use.

Several parties commented that, in areas that currently use RFG with MTBE, increases in the use of ethanol-blended RFG associated with the proposed rule would result in an increase of commingling of MTBE and ethanol RFG blends in automobile gasoline tanks. Since the presence of ethanol causes an increase in the volatility of gasoline (as measured by Reid Vapor Pressure or RVP), such additional commingling would contribute to an increase in VOC emissions beyond that associated with the adjustment itself. Some comments raised this issue, and pointed out that our estimates of VOC emission increases resulting from the VOC adjustment should have taken commingling effects into account.

In Chicago and Milwaukee, however, virtually 100 percent of the RFG has been oxygenated with ethanol since 1995, and EPA generally does not expect that pattern to change significantly in the foreseeable future; in fact, one of the outcomes of this rule is to help ensure that this pattern continues, by making ethanol use more cost-effective. EPA believes that this rule will not result in any additional VOC emissions due to commingling in the Chicago and Milwaukee RFG areas.

Given that there may be unaccounted commingling emissions in other areas (unlike in Chicago and Milwaukee), and that EPA has not fully evaluated such areas, we are finalizing the VOC adjustment only for the Chicago and Milwaukee areas.

Today's final rule allows refiners to trade oxygen credits that are generated by production of VOC adjusted RFG. EPA proposed to prohibit refiners from generating oxygen credits for adjusted VOC RFG because we believed that trading such credits might result in less overall ozone reduction from the oxygen content requirement than the statute implicitly anticipates. Many comments opposed EPA's proposed prohibition on oxygen credit generation for adjusted VOC RFG, arguing that the prohibition would limit refiner flexibility and could result in increased use of MTBE by refiners that would otherwise rely on oxygen credits. Comments further argued that the emission benefits in the region where RFG containing 3.5 weight percent oxygen is used are not diminished even if the oxygen credits are traded, because such credits are traded to other areas that use predominantly MTBE.

Currently, some RFG contains oxygen in excess of 2.0 weight percent (e.g., most ethanol blends contain 3.5 weight percent oxygen). Such blends provide greater CO reductions than RFG blends with 2.0 percent or lower oxygen. Oxygen trading allows refiners to bank and trade credits for the oxygen content of their RFG above 2.0 by weight (or above 2.1 percent if the refiner complies on average). The refiner may then sell these credits to other refiners that produce RFG with less than 2.0 weight percent oxygen, allowing them to meet the oxygen content limit. However, no gallon of RFG may contain less than 1.5 weight percent oxygen (subject to EPA raising—or ratcheting—the per gallon minimum if an RFG area fails an annual oxygen content survey). See 40 CFR 80.67. The oxygen credit trading program may result in different CO benefits for different areas of the country; i.e., where oxygen is used at higher rates, RFG provides a greater CO benefit, and where oxygen is used at lower rates, RFG provides less CO benefit. The minimum oxygen requirement, however, limits the potential for differing effects and assures some degree of CO benefit everywhere RFG is used.

The RFG program has not generally accounted for the impact that its various requirements may have on CO emissions. Today's rule is the first rule under the RFG program that attempts to take CO emissions into account. Nonetheless, this rule is not intended to establish a comprehensive mechanism for recognizing the CO benefits of the RFG program.

Conceptually, a limit on the trading of oxygen credits for VOC adjusted RFG might help to ensure that the greater CO benefits from ethanol RFG areas are not used to both offset a VOC increase in the ethanol RFG areas and result in less CO benefits in non-ethanol RFG areas through credit trading. However, this would be, at best, an indirect approach to addressing the issue of a comprehensive accounting for CO. Additionally, such a restriction would not, in fact, have provided any assurance that greater CO reductions would have actually been achieved by non-ethanol blends. That is, refiners wishing to market gasoline with less than 2.0 percent oxygen by weight might simply turn to other sources of oxygen credits.

Moreover, because the actual gasoline oxygen content in a non-ethanol RFG area is not likely to be below 2.0 weight percent for all the gasoline in the area (and if it is, there is already a mechanism in the regulations to address the situation), and because the level cannot fall below 1.5 percent for any gallon of RFG (subject to ratcheting), the reduction in CO benefits for non-ethanol areas (if any) will be small relative to the increase in benefits associated with ethanol RFG. In any event, implementation of today's VOC adjustment, without any restriction on credit generation or trading, will not result in any increase or change in emissions in non-ethanol areas above current levels.

Finally, because oxygen credits are generally used by refiners producing non-ethanol gasoline sold in Northeast RFG areas, any shortage of credits resulting from a trading restriction is likely to result in an increase in MTBE use in the Northeast, which would run directly contrary to one of the reasons for today's action.

Based on the above considerations, EPA has determined that it is not appropriate at this time to prohibit the generation and trading of oxygen credits for batches of RFG that are subject to the adjusted VOC standard.

In the proposed rule, we introduced a requirement that refiners identify RFG blendstock for oxygenate blending (RBOB) destined to be used in making adjusted VOC RFG. We also proposed that the Product Transfer Document specify the use of the RBOB. Several comments pointed out that EPA's establishment of VOC adjusted RFG would create additional slates of RFG requiring segregation. Additional tankage for segregation would increase refiner costs and the complexity of gasoline storage and distribution.

Since EPA is not requiring refiners to choose between taking advantage of the adjusted VOC standard and generating oxygen credits, as we proposed, segregation is of minimal importance. EPA expects that refiners providing RFG for the Chicago and Milwaukee markets will produce adjusted VOC RFG. Enforcement of the downstream per-gallon VOC standard in the Chicago and Milwaukee RFG areas will be to the level of the adjusted VOC standard. Mixtures of adjusted VOC RFG with non-adjusted VOC 10 volume percent ethanol RFG will not result in VOC noncompliance, since the non-adjusted standard is stricter. As a result, EPA does not believe that mixing VOC adjusted and non-VOC adjusted RFG together will result in any harmful environmental consequences. For RFG sold in areas outside the Chicago and Milwaukee RFG areas, the downstream per-gallon VOC standard will be enforced to the ordinarily applicable Phase II limit.

For the reasons above, therefore, EPA is not requiring segregation of VOC adjusted RFG from non-VOC adjusted RFG in those areas where the VOC adjustment applies. In the final rule, segregation is not required downstream of the refinery. Refiners must still keep track of the volume of adjusted VOC RFG or RBOB that they produce, but the Product Transfer Document will not track whether RBOB is destined to be used for adjusted VOC gasoline beyond the refinery gate. Instead, we will require refiners to specify on the Reformulated Gasoline and Anti-Dumping Batch Report that RFG with 10 volume percent ethanol complies with either the current (i.e., non-adjusted) VOC performance standard, or the adjusted standard as “adjusted VOC gasoline” per the fuel certification procedures in 40 CFR 80.40.

Some comments stated that the VOC adjustment rule could adversely impact NO X and toxics overcompliance in the RFG program because RFG areas that switch from MTBE to ethanol may experience increased toxics, mostly attributable to increased acetaldehyde emissions, and increased NO X , from increased oxygen. EPA does not believe any loss of overcompliance is likely. In December 2000, EPA promulgated a gasoline toxics emission performance standard that will maintain the current level of toxics overcompliance in the RFG program. Additionally, changes in NO X performance are a function of many fuel properties, particularly sulfur content and olefins. The overall impact of the VOC adjustment on NO X emissions is highly uncertain given the variety of other fuel parameters such as aromatics, olefins, and other gasoline components that can affect NO X emissions. Specifically, there is no adequate basis to conclude what the effect on NO X would be absent information about what impact this rule (or oxygen levels) will have on how refineries reformulate their gasoline for all of the fuel parameters relevant to NO X . In any event, today's action will not result in an increase in ethanol use in the Chicago and Milwaukee RFG areas above current levels.

As discussed in the Notice of Proposed Rulemaking for this adjustment (65 FR 42922; July 12, 2000), the VOC adjustment is motivated primarily by Section 211(k)(1) of the Clean Air Act which directs EPA, in promulgating emission reduction standards for RFG, to consider the cost of achieving such emission reductions as well as any nonair-quality and other air-quality related health and environmental impacts. We then proposed an adjustment to the VOC performance standard specific to that provision in the Clean Air Act in order to limit cost, but based the adjustment ultimately on a level that we felt achieved ozone air quality benefits similar to those for the Phase II RFG program.

Prior to publication of the Notice of Proposed Rulemaking (NPRM), the Illinois Environmental Protection Agency (IEPA) submitted to EPA a proposal and supporting analysis which suggested that EPA should allow a VOC adjustment of 3.7 percentage points, approximately equal to an increase in RVP of 0.5 psi, for RFG using 10 percent volume ethanol. (See Documents II-D-4, 5 and 6 in Docket A-99-32.)

Briefly, IEPA's analysis compared the VOC and CO emissions associated with a complying fuel with an RVP of 6.8 psi, and an oxygen content of 2.0 weight percent, to the emissions associated with a fuel having an RVP of 7.3, representing an increase in RVP of 0.5 psi, and an oxygen content of 3.5 weight percent. IEPA concluded that the ozone impact of these two fuels would be identical, and that EPA should therefore provide an adjustment that corresponds to an RVP increase of 0.5 psi.

The IEPA analysis used a combination of urban airshed modeling (see Document II-D-4 in Docket A-99-32), and VOC and CO emission calculations (see Document II-D-6 in Docket A-99-32) to establish the relationship between VOC and CO and its effect on ozone formation. We evaluated IEPA's analysis (see Document II-D-13 in Docket A-99-32) and believe that the photochemical modeling portion of the analysis is generally useful for evaluating the conditions studied in the Chicago area. While the modeling covered only a portion of the Lake Michigan airshed and a single 4-day ozone episode, this portion of the airshed contained projections of significant ozone violation. Also, the episode was fairly typical of ozone episodes in the lower Lake Michigan region inclusive of Milwaukee, based on geographic proximity and the lake-influenced meteorology.

In contrast, we found several deficiencies with IEPA's emission calculations  4 which were used in their justification of a 0.5 psi adjustment. Specifically, the motor vehicle VOC emission rates were taken from the EPA Complex Model and represent emissions from solely 1990 model year vehicles rather than those of the in-use fleet post-2000. IEPA then obtained the emission factor for CO by multiplying the Complex Model-derived VOC emission factor by a ratio of nationwide CO to VOC emissions for onroad vehicles, taken from the 1997 EPA Emissions Trends report rather than using values contained in the emission inventory for this region. This method is highly inaccurate, in that it represents a blend of emissions in areas with conventional and reformulated gasoline, summer and winter conditions and a wide range of local emission control programs, such as I/M, rather than the specific conditions existing in Chicago during the ozone episodes. Finally, IEPA's estimate of a 10 percent reduction in CO due to 10 volume percent ethanol in RFG relative to the required 2.1 weight percent oxygen is overstated; using draft MOBILE6 methodology,  5 we estimate a reduction of approximately 7 percent. We therefore found that their approach did not provide adequate technical support for an adjustment to the VOC standard of 3.7 percentage points (0.5 psi). Also, IEPA relied upon the use of relative reactivity factors for exhaust and evaporative VOC emissions. EPA does not support the use of relative reactivity factors, for reasons stated in the preamble of the NPRM. See 65 FR 42924.

While we do not accept IEPA's recommendation for an adjustment equivalent to 0.5 psi, we find that the photochemical modeling that IEPA conducted does reasonably support a larger adjustment to the VOC standard than we originally proposed when more recent information on emissions of CO and VOC from onroad vehicles is used. The photochemical modeling consisted of a four day ozone episode from 1991. IEPA modeled reductions in VOC and CO emissions independently, determining the impact of each on peak ozone during each day. A comparison of the impact of differing levels of VOC and CO emissions on peak ozone during each day showed that, on a mass basis, CO was 4.3 to 8.6 percent as effective in producing ozone as VOC.

At the lower end of this range, the results indicate that for each ton of VOC increase, approximately 23 tons of CO decrease are necessary to maintain ozone levels. At the high end of the range, a 12 ton reduction in CO emissions would be required to compensate for a one ton increase in VOC emissions. As discussed in the Response to Comment Document for this rulemaking (see Document II-B-3 in Docket A-99-32), at the VOC adjustment level of 1.0 percentage point (i.e., an equivalent RVP increase of approximately 0.2 psi), CO emissions would be reduced by 45 tons for each one ton increase in VOC emissions. 6 We believe that in light of IEPA's photochemical model results, the proposed level of 1.0 percentage point (0.2 psi equivalent increase in RVP) is overly conservative.

The mean value of the CO to VOC ozone forming capacities obtained from IEPA's analysis is 6.8 percent, at which level the minimum ratio of CO reductions to VOC increase needed to maintain ozone levels is 14.7:1. As shown in the above referenced Response to Comment Document for this rulemaking, we determined that the use of RFG with ethanol at 10 volume percent (3.5 weight percent oxygen) in these areas can generally be expected to reduce emissions of CO (compared to RFG with 2.0 weight percent oxygen) by approximately 15 tons for every 1 ton increase in VOC emissions associated with a VOC adjustment of 2.0 percentage points (i.e., the equivalent RVP increase of 0.3 psi).

Significantly, the modeled day producing the ratio of 15:1 yielded the highest ozone concentration of the four days modeled. Because the highest ozone concentration is associated with the 15:1 ratio, adjustments based on lower ratios (i.e., 12:1 and 13:1) should not be used. We believe, therefore, that IEPA's analysis provides reasonable assurance that the 0.3 psi adjustment level is appropriate and would tend to preserve the ozone air quality benefits of the Phase II RFG program.

Finally, we note that the photochemical analysis for Chicago can be said to be generally representative of the Milwaukee area due to the similarity in fuel formulations (100 percent ethanol blended RFG), their geographical proximity (less than 100 miles apart), and the fact that lake effects on local meteorology would be expected to be similarly important in the formation of ozone in these two areas.

Consequently, we are promulgating an adjustment of 2.0 percentage points to the VOC performance standard for 10 percent ethanol RFG sold in the Chicago and Milwaukee RFG areas (RVP equivalent increase of approximately 0.3 psi). We believe that IEPA's photochemical modeling reasonably supports a finding that the level of CO decrease likely to occur in the Chicago and Milwaukee areas will offset the potential ozone air-quality impacts of a 2.0 percentage point adjustment to the VOC performance standard (0.3 psi equivalent RVP increase). As such, we believe the adjustment will result in ozone air quality benefits similar to those generally achieved under Phase II of the RFG program.

In the proposal, EPA explained that it believed states should not be required to account in their ROP plans, in the near term, for any potential increase in mass VOC emissions associated with the VOC adjustment, based on uncertainty related to market conditions and the predictability of such emission. We proposed to amend the “Guidance on the Post-1996 Rate-of-Progress Plan and the Attainment Demonstration” to indicate that, for several years, states are not required to evaluate whether their ROP plans would be affected by will be an increase in mass VOC emissions as a result of adjusted VOC gasoline. We also proposed to assess the impact of any mass VOC increases on state attainment of the 3.0 percent rate of progress goal at a later date, when more data on oxygenate use and distribution and the effect of the VOC adjustment are available. No comments were received on the appropriateness of this approach, and we will assess the impact of any VOC increases on state attainment of the 3.0 percent rate of progress goal as a component of our continued evaluation of this adjustment.

Under 5 U.S.C. 801 (a)(1) (A), 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 report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. We 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 the publication of the rule in today's Federal Register . This is not a “major rule” as defined by 5 U.S.C 804 (2).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget (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 entitlement, 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.

The Agency has determined that this regulation results in none of the adverse economic effects set forth in Section 1 of the Order because it generally relaxes the requirements of the RFG program by providing regulated parties with more flexibility with respect to compliance with the RFG requirements. Pursuant to the terms of Executive Order 12866, OMB has notified EPA that it considers this a “significant regulatory action” within the meaning of the Executive Order because it raises novel legal or policy issues. EPA submitted this action to OMB for review. Changes made in response to OMB suggestions or recommendations will be documented in the public record.

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

If EPA complies by consulting, Executive Order 13132 requires EPA to provide to the Office of Management and Budget (OMB), in a separately identified section of the preamble to the rule, a federalism summary impact statement (FSIS). The FSIS must include a description of the extent of EPA's prior consultation with state and local officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of state and local officials have been met. Also, when EPA transmits a draft final rule with federalism implications to OMB for review pursuant to Executive Order 12866, EPA must include a certification from the agency's Federalism Official stating that EPA has met the requirements of Executive Order 13132 in a meaningful and timely manner.

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. The rule provides regulatory relief, by adjusting the VOC performance standard, for refiners that choose to make RFG with 10 volume percent ethanol. As discussed in the preamble, we believe that the increased VOC associated with the adjusted VOC standard should not affect states' ROP plans in the near term, and does not impose any substantial direct effects on the states. 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 and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. Today's rule does not create a mandate for any tribal governments. This rule applies to gasoline refiners, blenders and importers that supply gasoline to RFG areas. Today's action generally relaxes certain RFG requirements, and does not impose any enforceable duties on communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this final rule.

EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this final rule. EPA has also determined that this rule will not have a significant economic impact on a substantial number of small entities. For purposes of assessing the impact of today's rule on small entities, small entities are defined as: (1) A small business that has not more than 1,500 employees (13 CFR 121.201); (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's final rule on small entities, EPA has concluded that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analysis is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities.” 5 U.S.C. sections 603 and 604. Thus, an agency may conclude that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. Today's rule provides regulatory relief by making the VOC standard for RFG that contains 10 volume percent ethanol used in Chicago and Milwaukee slightly less stringent. This action will provide more flexibility for refiners to reduce MTBE use by decreasing the cost of ethanol-blended RFG. We have therefore concluded that today's final rule will relieve regulatory burden for all small entities.

The information collection requirements in this rule have been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An Information Collection Request (ICR) document was prepared by EPA (ICR No. 1591.11) and a copy may be obtained from Sandy Farmer by mail at OP Regulatory Information Division; U.S. Environmental Protection Agency (2137); 401 M St., SW; Washington, DC 20460, by e-mail at farmer.sandy@epa.gov, or by calling (202) 260-2740. A copy may also be downloaded off the internet at http://www.epa.gov/icr.

The action will result in revision of the Reformulated Gasoline and Anti-Dumping Batch Report form (EPA Form 3520-20C) that refiners must complete. The form would be revised to include under Item 4.0 a new product type called “Adjusted VOC gasoline.” This revision does not represent significant new reporting requirements, nor a substantial increase in the amount of time spent filling out the form.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.

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 to state, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA 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.

Today's final rule contains no federal mandates (under the regulatory provisions of Title II of the UMRA) for state, local or tribal governments or the private sector. The rule imposes no enforceable duty on any state, local or tribal governments or the private sector. This rule applies to gasoline refiners, blenders and importers that supply RFG areas. Today's action provides regulated parties with more flexibility with respect to compliance with RFG requirements.

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.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This final rule is not subject to Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), because it does not involve decisions on environmental health risks or safety risks that may disproportionately affect children. For reasons stated in the preamble, we believe that the adjusted VOC standard for RFG with 10 volume percent ethanol will continue to provide a similar level of ozone benefits to those anticipated from the current standard, and will assure that the Phase II RFG program will continue to achieve the significant environmental benefits that it was designed to provide.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This rule does not involve technical standards, and does not specify the use of technical methods. Therefore, EPA did not consider the use of any voluntary consensus standards.

Sections 114, 211, and 301(a) the Clean Air Act as amended (42 U.S.C. 7414, 7545, and 7601(a)).

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.”

Regulations governing the black sea bass fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is allocated into four quota periods based upon percentages of the annual quota. The quarter 3 (July through September) commercial quota is distributed to the coastal states from Maine through North Carolina. The process to set the annual commercial quota is described in § 648.140.

The initial total commercial quota for black sea bass for the 2001 calendar year was 3,024,742 lb (1,372,000 kg) (66 FR 12902, March 1, 2001). The quarter 3 period quota, which is equal to 12.33 percent of the annual commercial quota, was 372,951 lb (169,168 kg). The quota allocation was adjusted downward to compensate for 2000 quarter 3 landings in excess of the 2000 quarter 3 quota, consistent with the procedures in § 648.140. The final adjusted quarter 3 quota was 276,875 lb (125,588 kg).

The Regional Administrator, Northeast Region, NMFS (Regional Administrator) monitors the commercial black sea bass quota for each quota period on the basis of dealer reports, state data, and other available information to determine when the commercial quota has been harvested. NMFS is required to publish a notification in the Federal Register advising and notifying commercial vessels and dealer permit holders that, effective upon a specific date, the black sea bass commercial quota has been harvested and no commercial quota is available for landing black sea bass for the remainder of the quarter 3 period, north of 35°15.3′ N. lat. The Regional Administrator has determined, based upon dealer reports and other available information, that the black sea bass commercial quota for the 2001 quarter 3 period has been harvested.

The regulations at § 648.4 (b) provide that Federal black sea bass moratorium permit holders agree as a condition of the permit not to land black sea bass in any state after NMFS has published a notification in the Federal Register stating that the commercial quota for the period has been harvested and that no commercial quota for the black sea bass is available. The Regional Administrator has determined that the quarter 3 period for black sea bass no longer has commercial quota available. Therefore, effective 0001 hrs local time, July 17, 2001, further landings of black sea bass in coastal states from Maine through North Carolina, north of 35°15.3' N. lat., by vessels holding commercial Federal fisheries permits are prohibited through September 30, 2001. The 2001 quarter 4 period for commercial black sea bass harvest will open on October 1, 2001. Effective July 17, 2001, federally permitted dealers are also advised that they may not purchase black sea bass from federally permitted black sea bass moratorium permit holders who land in coastal states from Maine through North Carolina, north of 35°15.3′ N. lat., for the remainder of the quarter 3 period (through September 30, 2001).

The regulations at § 648.4 (b) also provide that, if the commercial black sea bass quota for a period is harvested and the coast is closed to the possession of black sea bass north of 35°15.3′ N. lat., any vessel owners who hold valid commercial permits for both the black sea bass and the NMFS Southeast Region snapper-grouper fisheries may surrender their black sea bass moratorium permit by certified mail addressed to the Regional Administrator (see Table 1 at § 600.502) and fish pursuant to their snapper-grouper permit, as long as fishing is conducted exclusively in waters, and landings are made, south of 35°15.3′ N. lat. A moratorium permit for the black sea bass fishery that is voluntarily relinquished or surrendered will be reissued upon the receipt of the vessel owner's written request after a minimum period of 6 months from the date of cancellation.

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

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

The 2001 TAC of Pacific ocean perch for the Central Regulatory Area was established as 9,610 metric tons (mt) by the Final 2001 Harvest Specifications and Associated Management Measures for the Groundfish Fisheries Off Alaska (66 FR 7276, January 22, 2001).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2001 TAC for Pacific ocean perch in the Central Regulatory Area will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 8,610 mt, and is setting aside the remaining 1,000 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch in the Central Regulatory Area of the GOA.

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

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

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

NMFS manages the groundfish fisheries in the exclusive economic zone off Alaska under the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area and the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMPs). The Council prepared the FMPs under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801, et seq. Regulations governing U.S. fisheries and implementing the FMPs appear at 50 CFR parts 600 and 679. NMFS also has management responsibility for certain threatened and endangered species, including Steller sea lions, under the Endangered Species Act (ESA), 16 U.S.C. 1531, et seq. , and the authority to promulgate regulations to enforce provisions of the ESA to protect such species.

This preamble consists of two parts. Part I explains the process followed for developing and the basis for the amendments to the Steller sea lion protection measures. Part II contains amendments to several harvest specifications for groundfish harvest for the second half of 2001.

On January 22, 2001, NMFS published an emergency interim rule, effective January 18, 2001, that established 2001 harvest specifications for the BSAI and GOA groundfish fisheries and implemented 2001 Steller sea lion protection measures for these fisheries (66 FR 7276). These protection measures initiated a 1-year phase-in of the RPA developed in the Comprehensive Biological Opinion (See Addresses ) as directed under section 209 of Public Law 106-554. NMFS determined that the 2001 protection measures provided a sufficient degree of protection to endangered Steller sea lions for 2001 and were consistent with the RPA, the ESA, and with section 209 of Public Law 106-554. Public Law 106-554, which was signed by the President on December 21, 2000, provides for independent scientific review and additional public and Council assessment of the Comprehensive Biological Opinion and the RPA prior to full implementation of the RPA in 2002.

The January 18, 2001, emergency interim rule extended the Steller sea lion protection measures that were in place during 2000 for the BSAI and GOA pollock fisheries, with several changes. These changes included two fishing seasons for GOA Pacific cod and for non-Community Development Quota (CDQ) Pacific cod in the BSAI. A complete description and justification of the 2001 Steller sea lion protection measures can be found in the preamble to the January 18, 2001, emergency interim rule (66 FR 7276). A 30-day public comment period on the emergency interim rule ended February 21, 2001. One letter of comment was received during this period and is summarized and responded to under Response to Comments, below.

On March 20, 2001, NMFS issued a correction to the January 18, 2001, emergency interim rule that addressed various technical and editorial errors (66 FR 15656). Effective March 23, 2001, NMFS amended the emergency interim rule to change fishing restrictions on vessels fishing for groundfish off Alaska with jig gear and on vessels less than 60 ft (18.3 m) length overall (LOA) fishing for BSAI Pacific cod with hook-and-line or pot gear (66 FR 17083, March 29, 2001). A 30-day public comment period on the amendment ended April 23, 2001. One letter of comment was received and also is summarized and responded to under Response to Comments. Also effective March 23, 2001, NMFS also amended the emergency interim rule to adjust the seasonal apportionment of Pacific halibut bycatch limits for the trawl and hook-and-line groundfish fisheries of the GOA (66 FR 17087, March 29, 2001). Effective June 10, 2001, NMFS amended the rule to prohibit directed fishing for Pacific cod in the Western and Central GOA and by vessels equal to or greater than 60 ft (18.3 m) LOA using pot or hook-and-line gear in the BSAI (66 FR 31845, June 13, 2001). A 30-day public comment period on this amendment ended July 9, 2001. No written comments were received during the comment period. To reserve halibut PSC bycatch amounts to support the delayed Pacific cod season in the GOA, NMFS amended the emergency interim rule to prohibit shallow water trawl fisheries effective on June 27, 2001 (66 FR 34852, July 2, 2001).

The RPA measures were independently reviewed by a committee (RPA Committee) established by the Council. This RPA Committee developed recommendations for Steller sea lion protection measures for the second half of the 2001 groundfish fisheries. These recommendations were approved by the Council in April 2001 and forwarded to NMFS. By this action today, NMFS implements those recommendations.

Amendments to the emergency interim rule include: (1) Adjustments to the open and closed pollock, Atka mackerel, and Pacific cod directed fishing areas in Steller sea lion critical habitat; (2) adjustments to specific Pacific cod fishing seasons; (3) exemptions for various Pacific cod non-trawl gear vessels from several fishing closure areas; (4) establishment of the Chiniak Gully pollock research program; and (5) elimination of the pollock harvest limit in the Steller sea lion conservation area in the Bering Sea.

The RPA Committee recommended directed fishing closures that are consistent with the criteria established under the Comprehensive Biological Opinion for minimum levels of protection. The criteria for protection in the Comprehensive Biological Opinion require protection of more than 50 percent of critical habitat, more than 50 percent of the areas used by non-pups and more than 75 percent of the area where pups are born. The recommended closures by the RPA Committee protect 57 percent of critical habitat and 80 percent of the areas for pups birthing and non-pups use. The RPA Committee recommended closures to directed fishing of 10 nautical miles (nm) in the trawl fisheries for pollock, Pacific cod, and Atka mackerel. This was different than the level of protection provided by the RPA in the Comprehensive Biological Opinion, under which many rookery and haulout sites were closed to all directed fishing for pollock, Pacific cod, and Atka mackerel out to 20 nm. The reason for the difference in protected areas is based on the results of analyses of recent telemetry data and the importance of certain areas to commercial fishing. Previous data indicated that maximum foraging distances from the point of tagging ranged between 20 to 60 nm. While this still remains valid for some individuals, the more recent telemetry data show that Steller sea lions spend a significant amount of their time at sea within 10 nm of the shoreline. Tagged animals ranged in a line that was parallel to and within 10 nm of the shoreline. Therefore, even though the telemetry data indicated that an animal may travel a great distance during a foraging trip, most of that movement is parallel to the shoreline and not perpendicular to it.

The RPA Committee recommended that the 3 nm no-entry zones established around selected rookeries under the authority of the ESA remain in effect. The RPA Committee also recommended that major rookeries and haulouts be closed to directed fishing for pollock, Pacific cod, and Atka mackerel out to 10 nm in all three fishery areas—the Gulf of Alaska, the Aleutian Islands, and the Eastern Bering Sea—and that rookeries that had experienced an annual decline in Steller sea lion population of 10 percent or greater since 1991 be closed out to 20 nm. Exceptions were recommended in some areas for non-trawl gear.

Some allowance is provided for fishing outside of 3 nm, but within 10 nm by pot and hook-and-line vessels equal to or greater than 60 ft (18.3 m) LOA, given the slower rate of harvest by these vessels, the limited amount of groundfish harvested by these vessels during the remainder of 2001, and commensurate reduction of concerns about competition with Steller sea lions during this time period. Based on this information, NMFS believes that the protection of rookeries and haulouts out to 10 nm adequately protects a significant portion of the Steller sea lion population.

The January 18, 2001, emergency interim rule established two fishing seasons for the BSAI and GOA Pacific cod fisheries, January 1 to June 10 (with 60 percent of the TAC available for harvest) and June 10 to December 31 (with 40 percent of the TAC available for harvest), except that directed fishing for Pacific cod with trawl gear was prohibited after November 1, 2001. The emergency interim rule effective March 23, 2001, removed the season restrictions for the BSAI jig gear fisheries and BSAI vessels less than 60 ft (18.3 m) LOA using pot or hook-and-line gear. Separate allocations of the BSAI Pacific cod TAC for these two groups of vessels at § 679.20(a)(7)(i)(C) facilitated separate seasonal fishing restrictions. Justification for this relief of seasonal harvest constraints was discussed in the preamble to the emergency interim rule (66 FR 17083, March 29, 2001).

In April, the Council recommended delaying the June 10 opening date of the GOA Pacific cod fishery and the BSAI Pacific cod fishery by vessels greater than 60 ft (18.3 m) LOA using pot or hook-and-line gear. The Council's recommendation was based on the following management considerations: Poor product recovery and quality in summer months; competition with summer salmon fisheries for processing facilities; potential gear conflicts between pot and trawl gear fleets; and coordination between BSAI Pacific cod fisheries within the CDQ and non-CDQ sectors. The Council's recommended season delays also would address salmon and Pacific halibut bycatch concerns and are intended to manage the Pacific cod fisheries in a manner consistent with the objectives of 2001 Steller sea lion protection measures to avoid localized depletion of Pacific cod.

Specifically, the Council recommended, and NMFS approves, except for the Eastern GOA, the second season opening date for the Gulf of Alaska Pacific cod fisheries be delayed from June 10 to September 1. In the preamble to the emergency interim rule amendment effective June 10, 2001 (66 FR 31845, June 13, 2001), all of the GOA was intended to be closed to directed fishing for Pacific cod until the emergency interim rule extension took place in July. Due to a technical error, the regulatory text closed only the Western and Central areas of the GOA. As of June 28, 2001, only 3 percent of the annual TAC for the Eastern GOA has been harvested. Five Steller sea lion sites are located in the Eastern GOA. By this action today, each of these sites is protected by a 20 nm no Pacific cod fishing zone. Because the Eastern GOA area is not likely to harvest much of the TAC apportioned and because Steller sea lion sites within the Eastern GOA are now protected by 20 nm no Pacific cod fishing zones, NMFS has determined that the season delay is necessary only for the Western and Central GOA. Except for an allocation between inshore and offshore sectors under § 679.20(a)(6)(iii), the GOA Pacific cod TAC is not allocated among different gear sectors. Therefore, separate treatment of vessels using jig, pot, hook-and-line, or trawl gear is not feasible and the season delay affects vessels using any gear type.

Also, the Council recommended a delay of the second season opening date of the BSAI hook-and-line vessels equal to or greater than 60 ft (18.3 m) LOA in the fisheries for Pacific cod from June 10 until August 15. In taking this action, the Council recognized that NMFS already has implemented the 2001 seasonal apportionment of the non-trawl Pacific halibut bycatch limit in a manner that currently delays the BSAI hook-and-line Pacific cod fisheries to August 1. The additional delay from August 1 to August 15 was adopted by the Council to maintain temporal distribution of the fishery consistent with the objectives of existing Steller sea lion protection measures and to minimize high halibut bycatch rates during summer months. The delay also reduces the potential for interaction of the hook-and-line gear fisheries with the endangered short-tailed albatross and other seabird species during summer months.

The Council recommended a June 10 to September 1 delay in the second season opening date for the BSAI Pacific cod pot gear fishery by vessels equal to or greater than 60 ft (18.3 m) LOA. This action was taken because the amount of BSAI Pacific cod that remains to be harvested by these vessels in the second season represents less than 2 percent of the BSAI Pacific cod TAC. The Council also recognized that harvest removals by this gear type are slow paced and are unlikely to affect Steller sea lions in a manner not already considered by NMFS.

The Pacific cod seasons recommended by the Council and approved by NMFS impose no seasonal harvest constraints for vessels fishing in the BSAI using jig gear, for vessels less than 60 ft (18.3 m) LOA using pot or hook-and-line gear, or for vessels participating in the CDQ fisheries. The start dates for the second season in 2001 for Pacific cod sectors are summarized in the following table:

The June 10 second season opening date for BSAI Pacific cod harvested by trawl vessels remained unchanged to maintain overall spatial and temporal distribution of the BSAI Pacific cod fisheries. Potential bycatch concerns ensuing from a summer trawl effort for Pacific cod was assumed by the Council to be self limiting due to low summer catch rates and the fleets' avoidance of high Pacific halibut bycatch rates that could preempt more lucrative fall fishing. Salmon bycatch in the non-pollock trawl fisheries typically has not posed a concern given that summer trawl fisheries are limited due to halibut bycatch concerns and restrictions. These fisheries also tend to operate on fishing grounds that avoid high bycatch rates of salmon.

Pacific cod fishing prohibitions were effective by June 10, 2001, to meet the intent of the Council for adjustments to the second season start dates and to avoid industry confusion and a race for the available Pacific cod TAC. NMFS prohibited fishing for Pacific cod by specified vessels consistent with the Council's recommendation by an amendment to the January 18, 2001, emergency interim rule published on June 13, 2001 (66 FR 31845). The closures resulting from the fishing prohibitions are in effect until the new season dates established by this amendment to the emergency interim rule take effect.

The Council recommended exemptions for selected non-trawl gear vessels fisheries closures in the GOA designed to protect Steller sea lions. These exemptions are in addition to those already implemented by NMFS. On March 23, 2001, NMFS amended the emergency interim rule to relieve fishing restrictions on vessels fishing for groundfish off Alaska with jig gear and on vessels less than 60 ft (18.3 m) LOA fishing for BSAI groundfish with hook-and-line or pot gear (66 FR 17083, March 29, 2001). Vessels under the March 23, 2001, exemption are permitted to fish to the shore around haulouts and beyond 3 nm around rookeries in areas closed to groundfish, pollock, Atka mackerel, and Pacific cod fishing. The Council's recommendation expands the areas opened and the types of vessels exempted. Areas specified in the Council's recommendation are identified by specific locations in Tables 21, 22, and 23 of 50 CFR part 679 and in § 679.22. Exemptions include:

1. In Area 8 of the Bering Sea, all pot vessels may operate within 3 nm to 10 nm or 20 nm Pacific cod fishing closures around rookeries and haulouts.

2. In Areas 5 and 6 of the GOA, non-trawl gear vessels less than 60 ft (18.3 m) LOA may operate Pacific cod and pollock fisheries within 3 nm to 10 nm around haulouts and rookeries.

3. In Area 2 of the GOA, non-trawl gear vessels less than 60 ft (18.3 m) LOA may operate Pacific cod and pollock fisheries within 3 nm to 20 nm around haulouts.

Based on the continuation of 3 nm no groundfish fishing zones under the exemption specified above, these exemptions will not locally deplete important prey species and thus will not detrimentally impact Steller sea lions.

The Council endorsed a research project proposed by NMFS in the Chiniak Gully off Kodiak Island to determine the effect of pollock fisheries on short term changes in the pollock school dynamics, and if the pollock fisheries cause localized depletion of Steller sea lion prey off the east side of Kodiak Island. The experiment will include the closure of Chiniak Gully to trawl fishing from August 1 to no later than September 20. The 20 nm Pacific cod and pollock fishing closure in the Chiniak Gully area around Cape Chiniak and Long Island haulouts will be reduced to 10 nm closures from October 1 through December 31. A more detailed description of the experiment is provided in the draft environmental assessment/regulatory impact review/final regulatory flexibility analysis for the proposed rule to implement a seasonal closure of a portion of the Central Regulatory Area, GOA, to vessels using trawl gear (65 FR 41044, July 3, 2000). For copies of these documents, please contact NMFS (see ADDRESSES ). Amendments are made to the emergency interim rule (66 FR 7276) to implement this experiment including trawl closures necessary to conduct the experiment.

The Council recommended the elimination of the pollock harvest limit for the SCA for the second half of 2001. The January 18, 2001, emergency interim rule established a harvest limit for pollock in the SCA based upon the level of harvest established for the 2000 fishing season. This was done to ensure adequate prey resources were available for Steller sea lions. Additional information may be found in the January 18, 2001, emergency interim rule (66 FR 7276, January 22, 2001). The Council based its recommendations on the following:

1. Steller sea lion population growth. Non-pup counts of Steller sea lions in the areas of the Bering Sea where the pollock and Pacific cod fisheries occur have experienced the least decline or increase. Steller sea lion abundance near Unimak Island and to the east, including the rookery on Amak Island, are increasing at a 3-percent annual rate. Steller sea lion abundance on rookeries near Dutch Harbor are increasing at a 7-percent annual rate, the fastest increase of any group within the western population. However, NMFS notes that when looking at the eastern Aleutian Islands subpopulation of Steller sea lions, which includes animals from the Dutch Harbor area, Unimak Island, Amak Island, and waters on the south side of the Aleutian Island from these areas, the overall trend is a population decline of 1.75 percent.

2. Steller sea lion diet. Recent scat analysis indicates that sea lion diet may be more variable in the summer and early fall than previously thought. Primary prey for sea lions on Amak Island is highly varied and dependent on spawning aggregations. The top three species appearing in scat samples in the summer were herring, pollock, and sand lance. Scats collected from Amak Island were found to include a dozen fish species that occurred in more than 10 percent of the scats. For the rookeries and haulouts from Unimak and west to Dutch Harbor, the top summer prey were salmon, pollock, herring, and some Atka mackerel. Although pollock is one of the primary prey species from Unimak west to Dutch Harbor, the sea lions in these areas eat many different species, particularly in the summer. The frequency of occurrence of Pacific cod in Steller sea lion scat is less in the summer than in the winter, approximately 28 percent in the winter and 7 percent in the summer.

3. Steller sea lion foraging distance. Telemetry data indicate that the great majority of at-sea locations for the lactating females, juveniles, and pups that were tagged were very close to shore, with 60-to-75 percent occurrences within 2 miles of the shore and 85-to-92 percent occurrences within 10 miles of the shore. Although the data cannot specify whether the animals were foraging, the extremely high percentage of “hits” so close to shore must include most foraging trips.

4. Summer/fall Pacific cod fishery. The Pacific cod fishery by all gear groups is significantly dispersed in the summer and fall because of the dispersion of the Pacific cod. During the period 1995 through 1999, when no critical habitat restrictions on Pacific cod were in place, hook-and-line catch of Pacific cod occurred in significant amounts northwest of the Pribilof Islands and north of the SCA. Pacific cod fishing by trawl gear occurred both inside and outside the SCA, but the summer trawl fishery is small because of the low catch per unit of effort.

5. Catcher Vessel Operational Area (CVOA) exclusion. Current closure regulations prohibit pollock fishing during the “B season” inside the CVOA by the catcher/processor offshore component, which has 40 percent of the pollock TAC. Section 679.22(a)(5) of 50 CFR is amended with this action to ensure continued closure in the CVOA to pollock catcher processor vessels during the C/D season, June 10 through November 1. This closure reduces the amount of fishing effort in a large portion of the SCA.

6. Reduction of the inshore pollock trawl fleet. The American Fisheries Act (AFA) authorized the Bering Sea pollock trawlers to organize into cooperatives. This allowed the sector to decapitalize, which resulted in a 24-percent reduction in the number of boats in the inshore pollock fleet. Consequently, the amount of fishing effort on pollock at any one time has been reduced in the last 2 years.

7. Vessel safety. Although summer weather in the Bering Sea is certainly less threatening than winter weather, smaller boats are at risk when they must travel far from land and far from processing facilities. The SCA boundaries and harvest limits would require vessels to travel more than 60 miles offshore and even further from their processing facilities to fully utilize available resources. The Magnuson-Stevens Act requires NMFS to consider safety in fishery management decisions (national standard 10).

8. Product quality and cost. Pollock quality varies considerably by location and an exclusion from the SCA often results in poor quality because of fishing location and long trips back to processing facilities. In addition, costs increase significantly, particularly with the current high cost of fuel. The Magnuson-Stevens Act requires that efficiency and cost minimization be goals in fisheries management (national standards 5 and 7).

9. Salmon bycatch. Concerns over poor chum salmon returns in Western Alaska have put serious pressure on the pollock trawl fleet to reduce chum salmon bycatch. For the 2001 season, the AFA cooperatives have established a salmon savings plan to address salmon bycatch. If pollock trawling is largely excluded from the SCA, salmon bycatch will be higher than if the fleet has more flexibility to move away from bycatch hotspots. The Magnuson-Stevens Act requires fishery management measures to minimize or avoid bycatch (national standard 9).

10. Limited period of applicability. The second half of a year is not considered as critical to Steller sea lions as the first half of the year. The Council's recommendations are for the second half of 2001 only.

11. Availability of new information. Extended foraging areas were originally established in 1993 based on the platform of opportunity data (POP data), on the theory that indirect competition could exist with the fisheries. Yet, with Steller sea lion populations currently at a low level, and pollock populations at a near record high, 8 to 15 times more pollock are available per Steller sea lion today than in 1993. Further, new telemetry information suggests that sea lions spend very little time beyond 10 nm during this time of the year.

NMFS approves the elimination of the SCA limit for the second half of 2001 because the action is for a short duration, prey resources are likely to be available because of the increase in pollock biomass over 2000, and the telemetry data indicate that foraging may be occurring closer to shore than thought when the SCA was established so that a large foraging area may not be necessary for prey availability.

In summary, for the reasons set forth above, NMFS approves all the Council's recommendations and implements them by this action. It should be noted that (1) these measures are limited to the second half of 2001; (2) a large increase in 2001 pollock biomass has occurred without the equivalent large increase in total allowable catch (TAC) over 2000 levels, making prey more likely to be available to Steller sea lions; (3) the protection measures are in the process of being reassessed through NEPA and ESA analyses; and (4) the recommended protection measures met the Comprehensive Biological Opinion criteria for closure areas by meeting or exceeding minimum requirements for protection of critical habitat, protection of the non-pup population, and protection of areas where pups are born.

This emergency interim rule extends the 2001 harvest specifications through December 31, 2001, including corrections and amendments made to the January 18, 2001, emergency interim rule (66 FR 7276, January 22, 2001; 66 FR 15656, March 20, 2001; 66 FR 17083, March 29, 2001; 66 FR 17087, March 29, 2001), recommendations made by the Council at its April 2001 meeting for pollock and Pacific cod season dates for the remainder of 2001, recommendations made by the Council at its June 2001 meeting for CDQ non-specified reserve allocations and halibut PSC seasonal allocations, and further corrects some errors found in the January 18, 2001, emergency interim rule specifications not previously corrected. A detailed discussion on the 2001 harvest specifications appears in the preamble to the January 18, 2001, emergency interim rule and in the preambles to the corrections and amendments to the January 18, 2001, emergency interim rule (66 FR 7276, January 22, 2001; 66 FR 15656, March 20, 2001; 66 FR 17083, March 29, 2001; 66 FR 17087, March 29, 2001; 66 FR 31845, June 13, 2001; and 66 FR 34852, July 2, 2001, halibut PSC reapportionment and shallow water trawl closure). The discussion in this preamble is limited to the amendments contained in this emergency interim rule.

The amendments included in this action are: (1) A technical correction for AFA sectoral allocations in the BSAI fisheries; (2) elimination of the SCA pollock harvest limits; (3) changes to Pacific cod seasons; (4) corrections to AFA inshore cooperative allocations; (5) corrections to the non-exempt AFA catcher vessel groundfish harvest specifications; (6) an increase in the contribution of arrowtooth flounder to the CDQ non-specific reserve; and (7) reallocation of GOA halibut PSC apportionment in the shallow water trawl fishery to account for the Pacific cod season changes. The following is a discussion of each amendment to the 2001 harvest specifications included in this emergency interim rule.

Section 679.20(a)(5)(i)(C) contains the sectoral allocations for AFA vessels in the BSAI. This section expired January 16, 2001, and was inadvertently left out of the January 18, 2001, AFA emergency interim rule (66 FR 7327, January 22, 2001), and the January 18, 2001, 2001 harvest specifications and Steller sea lion protection measures emergency interim rule (66 FR 7276, January 22, 2001). This section is added to the regulations and appears in the regulatory text under the same section number. No changes were made to the language.

As explained in Part I of the preamble, in April 2001 the Council recommended that the SCA pollock harvest limits be eliminated for the C/D fishing season. Table 5 is amended and published to show the allocations of the pollock TAC for the C/D season without SCA harvest limits. Offshore components of catcher/processors continue to be prohibited from fishing in the CVOA within the SCA per § 679.22(a)(5), which is amended by this emergency interim rule.

Effective June 10, 2001, NMFS prohibited directed fishing for Pacific cod in the GOA and by vessels equal to or greater than 60 ft (18.3 m) LOA using hook-and-line or pot gear in the BSAI (66 FR 31845, June 13, 2001). This action was necessary to prohibit certain Pacific cod fisheries, which had been authorized to start on June 10, 2001, and was intended to provide for orderly implementation of Steller sea lion protection measures for the second half of 2001. The text of this emergency interim rule incorporates Council recommendations in the January 18 emergency interim rule preamble and republishes Table 7 for the opening date of the Pacific cod B season by vessels using trawl gear and non-trawl gear. Table 7 also lists the 2001 gear shares and seasonal apportionments of the BSAI Pacific cod TAC. Under § 679.23(e)(6)(ii)(B), directed fishing for Pacific cod in the B season in the BSAI by vessels using trawl gear closes 0001 hours, A.l.t., November 1, 2001. As recommended by the Council in April 2001 and as discussed in Part I of the preamble, the beginning dates for the B season for vessels equal to or greater than 60 ft (18.3 m) LOA using hook-and-line gear is August 15, 2001, and for vessels equal to or greater than 60 ft (18.3 m) LOA using pot gear is September 1, 2001.

The Council also recommended that the harvest by vessels less than 60 ft (18.3 m) LOA using pot gear be applied to the 18.3 percent harvest share of the vessels equal to or greater than 60 ft (18.3 m) LOA using pot gear only when directed fishing by vessels equal to or greater than 60 ft (18.3 m) LOA using pot gear is open. When Pacific cod directed fishing by vessels equal to or greater than 60 ft (18.3 m) LOA using pot gear is closed, the harvest by vessels less than 60 ft (18.3 m) LOA using pot gear will be applied to the 1.4 percent Pacific cod allocation for this vessel size. This recommendation is implemented by amending the regulatory text in § 679.20(a)(7)(i)(C)( 4 ). This amendment will provide the larger pot vessels more opportunity to harvest the amount of Pacific cod allocated to them under the 2001 harvest specifications.

Table 12 of the January 18, 2001, emergency interim rule preamble lists the pollock allocations to the seven inshore catcher vessel pollock cooperatives that have been approved and permitted by NMFS for the 2001 fishing year. These allocations are revised based on corrections to AFA vessels' catch history and Table 12 is amended and published as follows.

Regulations at § 679.31(f) establish the CDQ non-specific reserve, comprised of 15 percent of the CDQ reserves of arrowtooth flounder and “other species” (skates, sharks, sculpin, and octopus). These species are taken incidentally in the CDQ fisheries. A CDQ group may request that NMFS transfer amounts in the CDQ non-specific reserve back into either its arrowtooth flounder or “other species” CDQ categories to reduce the possibility that the catch of these species would limit overall CDQ catch. Species or species groups that comprise the CDQ non-specific reserve are low-valued species for which no target fishery currently exists. These species have an adequate buffer between the TAC and the overfishing limit (OFL).

During the 2001 harvest specification process for the BSAI fisheries, the Bering Sea pollock TAC was set at 1,400,000 mt, based on increases to the 2001 pollock ABC and OFL. This is a 23-percent increase over the 2000 pollock TAC of 1,139,000 mt. The total BSAI TAC for all groundfish must be maintained within a required optimum yield range of 1.4 million to 2.0 million mt. In order to stay within the 2.0 million mt limit, the Council chose to decrease the arrowtooth flounder TAC to approximately 20 percent of the arrowtooth flounder ABC. This meant that the amount of the arrowtooth flounder CDQ reserve and the subsequent contribution of this amount to the CDQ non-specified reserve was proportionately decreased for 2001.

During the first 3 years of the groundfish CDQ fisheries, the non-specific reserve contained sufficient amounts of quota to support the bycatch needs in the “other species” CDQ category. Arrowtooth flounder was the largest contributor to the non-specific reserve in 1999 and 2000, the first complete years of groundfish CDQ fishing. For these years, the arrowtooth flounder TAC was set at or close to the acceptable biological catch (ABC) level. However, in 2001, the arrowtooth flounder TAC was set significantly less than the arrowtooth flounder ABC.

At the April 2001 Council meeting, CDQ representatives testified about their concern that vessels fishing for the groups were going to catch the “other species” CDQ allocation before they fully harvested target species such as pollock, Pacific cod, sablefish, and Greenland turbot. One of the primary reasons they cited for the shortfall in “other species” CDQ was the reduction in the 2001 arrowtooth flounder TAC. The concern about the effect of reducing the arrowtooth flounder TAC on the CDQ fishery was not recognized at the time the Council recommended the 2001 TACs in December 2000. NMFS regulations limit the amount of “other species” CDQ available to each CDQ group and prohibit the groups from exceeding their allocations.

In response to the groups' testimony, the Council asked staff to prepare an analysis of alternatives to address whether the catch of target species in the CDQ fisheries are constrained by the “other species” CDQ allocation and options to address this issue. Initial review of this analysis is scheduled for the October 2001 meeting and final action at the December 2001 meeting. The Council also stated that the CDQ non-specific reserve was “intended, in part, to provide adequate ‘other species’ quota to allow reasonable CDQ fisheries.” At its June 2001 meeting, the Council requested that NMFS adjust the contribution of arrowtooth flounder CDQ to the CDQ non-specific reserve from 15 percent to 50 percent via emergency rulemaking.

In response to the Council's request, NMFS is amending the CDQ non-specific reserve to increase the contribution of arrowtooth flounder to the CDQ non-specific reserve from 15 percent of the arrowtooth flounder CDQ reserve to 50 percent of the arrowtooth flounder CDQ reserve for the remainder of 2001. This increase will allow the CDQ groups to transfer quota from the CDQ non-specific reserve to the “other species” CDQ account to reduce the possibility that the incidental catch of “other species” would prevent the CDQ groups from fully harvesting their target species allocations.

The maximum amount of “other species” available for harvest in the combined CDQ and non-CDQ fisheries is the aggregate amount of the following components: The open access ITAC (22,525 mt), the CDQ reserve (1,988 mt), and the current amount of arrowtooth flounder in the CDQ non-specific reserve that could be released to the “other species” category (248 mt). The sum of these components is 24,761 mt. If 50 percent (826 mt) of the arrowtooth flounder CDQ reserve is moved to the non-specific CDQ reserve and subsequently released to the “other species” CDQ category, the revised total amount of “other species” available for harvest in the combined open access and CDQ fisheries would increase to 25,339 mt. This is 578 mt more than the currently available total “other species” amount of 24,761 mt. However, the increase in the amount of “other species” CDQ available for harvest through transfers from the CDQ non-specific reserve is still less than the combined CDQ and non-CDQ fisheries 2001 “other species” TAC of 26,500 mt and will not likely result in the total catch of “other species” exceeding the 2001 “other species” TAC. NMFS has determined that the TAC, ABC and OFL controls associated with both the “other species” and arrowtooth flounder species categories are not compromised by this action.

This emergency interim rule corrects the January 18, 2001, emergency interim rule preamble for the opening and closing date of the B season Pacific cod fishery by vessels using trawl gear in the Western and Central Regulatory Areas of the GOA. The reasons for changing the season dates is discussed in detail in Part I of this preamble and in the preamble to the amendment to the emergency interim rule published June 13, 2001 (66 FR 31845). Under amendments to § 679.23(d)(4)(ii)(B) in this emergency interim rule, directed fishing for Pacific cod in the B season in the Western and Central Regulatory Areas of the GOA by vessels using trawl gear opens at 1200 hours, A.l.t., September 1, 2001, and closes at 0001 hours, A.l.t., November 1, 2001. The B season for non-trawl vessels directed fishing for Pacific cod in the GOA is changed to 1200 hours A.l.t. September 1, 2001, through 2400 hours A.l.t. December 31, 2001, by amending § 679.23(d)(4)(i)(B).

At its April 2001 meeting, the Council recommended changing the GOA Pacific cod B season to September 1, without recommending changes to the Pacific halibut PSC seasonal allowance. Pacific halibut PSC seasonal allowance was still available starting June 10. At the Council's June 2001, meeting, certain industry representatives expressed their concern that fishermen could start fishing for the other species in the “shallow water trawl fishery” and could catch substantial amounts of the Pacific halibut PSC seasonal limit, leaving insufficient amounts of this seasonal limit to support the September 1 Pacific cod fishery.

In response to industry concerns, at its June meeting, the Council recommended that NMFS close by emergency interim rule directed fishing for the shallow-water complex by vessels using trawl gear until July 1 and to reapportion what remained of the original 150 mt seasonal apportionment of the Pacific halibut trawl PSC to the September 1 through October 1 period instead of during the June 10 through July 1 period. Trawl gear bycatch of Pacific halibut in the GOA Pacific cod fishery is deducted from the Pacific halibut PSC seasonal allowance established for the shallow-water complex trawl fishery. Effective June 27, 2001 (66 FR 34852, July 2, 2001), NMFS prohibited directed fishing in the shallow-water complex fishery by vessels using trawl gear in the GOA, except for vessels fishing for pollock using pelagic trawl gear in those portions of the GOA open to directed fishing for pollock. This closure was intended to ensure that remainder of the original June 10 through July 1 halibut PSC allocation is available for reallocating to a September 1 through October 1 season. NMFS has determined that as of July 1, 2001, 100 mt remains of the original 150 mt apportionment of halibut PSC to trawl vessels targeting the shallow-water complex from the June 10 to July 1, 2001 period.

The text of this emergency interim rule incorporates the Council's recommendation to reapportion the remaining 100 mt of the 150 mt Pacific halibut PSC allocated June 10 through July 1 to a new September 1 through October 1 season to provide for the Pacific cod trawl fishery. Accordingly, Tables 24 and 25 of the 2001 harvest specifications (66 FR 7276, January 22, 2001, amended 66 FR 17087, March 29, 2001) are adjusted to read as follows:

Non-exempt AFA catcher vessel groundfish harvest in 2001 are shown in Table 27 to the preamble in the January 18, 2001, emergency interim rule. In this emergency interim rule, NMFS is correcting several numerical errors that appeared in the preamble in Table 27 in the January 18, 2001, emergency interim rule and is publishing in this preamble the amended Table 27. In column 3, Ratio of 1995-1997 non-exempt AFA CV catch to 1995-1997 TAC, the pollock annual ratio in the Southeast Outside District is corrected from 0.3542, to read 0.3642, the Pacific cod ratio in the Western GOA for the offshore component during the A and B seasons is corrected from 0.1206, to read 0.1026, and the Pacific ocean perch ratio in the Eastern GOA is corrected from 0.0255, to read 0.0225. In column 5, 2001 non-exempt AFA catcher vessel sideboard (amounts in mt), the amount for trawl sablefish in the Central and Eastern GOA is corrected from 44 and 7, to read 42 and 6, respectively, and the amount for “other rockfish” in the Central GOA is corrected from 3 to 30 mt. These corrected amounts are presented in Table 27 listing the final 2001 GOA groundfish harvest limitations (sideboards).

NMFS received one letter of comment in response to the January 18, 2001, emergency interim rule (66 FR 7672). The letter indicated concern over the economic impact of the Steller sea lion protection measures on the freezer longliners fishing for Pacific cod in the BSAI and expressed support for NMFS working with the Council in the development of Steller sea lion protection measures for 2002.

Comment 1. The Comprehensive Biological Opinion provides little data regarding the decline of the Steller sea lions and the relationship to the Pacific cod fisheries. The Comprehensive Biological Opinion refers to the hook-and-line method of fishing as conducive to minimizing adverse effects on Steller sea lions. In spite of this determination, the 2001 protection measures will be economically harmful to the freezer longliner fishery and will impose disproportionate and adverse impacts on this sector with the implementation of closure areas in 2001.

Response. The Comprehensive Biological Opinion contained the best available information at the time the document was prepared on: (1) The importance of Pacific cod to the diet of Steller sea lions; and (2) the competition between fish and Steller sea lions for prey. NMFS has acknowledged that the harvest rates for the Pacific cod hook-and-line sector as reported in the Comprehensive Biological Opinion were higher than actual rates and that future consultations will use the corrected information.

The Steller sea lion protection measures phased-in for 2001 impose some, but not all, of the protection measures specified in the RPA to the Comprehensive Biological Opinion to reduce impacts on industry and coastal communities while maintaining consistency with the goals of the Comprehensive Biological Opinion. As a result, potential impacts in 2001 on the fishing industry and coastal communities have been reduced from what they would have been if the RPA had been fully implemented. Further, the freezer longliner fishery for BSAI Pacific cod typically is spatially distributed over a wide geographic area so that closure of some critical habitat during the second half of 2001 should not impose undue hardship.

For 2002, NMFS has reinitiated consultation on the effects of the pollock, Pacific cod, and Atka mackerel fisheries on the threatened and endangered populations of the Steller sea lions. The consultation will include accurate harvest rates for the Pacific cod hook-and-line fishery and other fisheries. Based on the best scientific and commercial data available, and with input from the Council and the RPA Committee, NMFS will reconsider the potential impact of the hook-and-line gear fisheries on the Steller sea lions and their critical habitat. Based on this consultation, NMFS will implement 2002 protection measures. However, until that consultation is complete, NMFS must take a cautious approach and implement the measures contained in this emergency interim rule extension and amendments for the second half of 2001.

Comment 2. Closing portions of the Aleutian Islands to freezer hook-and-line vessels will force these vessels into less productive fishing grounds already dominated by trawl and pot gear vessels. As a result, gear conflicts will increase.

Response. NMFS agrees that incidences of gear conflicts may increase if various gear sectors share fishing areas that have not been shared in the past as portions of critical habitat are closed to fishing. Some of these areas also may be less productive. Nonetheless, the critical habitat closures implemented for the Pacific cod fisheries during the second half of 2001 have been modified from those established in the Comprehensive Biological Opinion to better accommodate historical fishing practices while ensuring minimal thresholds established in the Comprehensive Biological Opinion for protection of critical habitat and Steller sea lion pups and non-pups are met.

Comment 3. Hook-and-line vessels will have higher halibut bycatch outside of closed areas, leading to earlier closure of the fishery.

Response. NMFS disagrees. A 2000 draft environmental assessment of the interaction between the Pacific cod fisheries in the BSAI and GOA and Steller sea lions  1 determined that in 1999, the rate of Pacific halibut bycatch was similar inside and outside critical habitat. On June 10, 2001, NMFS prohibited directed fishing for Pacific cod by most vessels using hook-and-line gear (66 FR 31845, June 13, 2001) to allow the Pacific cod hook-and-line seasons to be delayed to August 15 in the BSAI and September 1 in the GOA with this emergency interim rule amendment. The delay in the season will help reduce the amount of halibut bycatch in the summer and will likely allow the Pacific cod hook-and-line fishery to have halibut bycatch allocations available for the fall fishery that would have otherwise been taken in the summer.

Comment 4. If the hook-and-line fleet cannot harvest a large portion of the TAC in the early part of the year, the potential exists that part of the annual TAC will not be harvested and the CDQ portion of the TAC may not be harvested, which is important to Native communities.

Response. The 2001 Steller sea lion protection measures authorized up to 60 percent of the non CDQ TAC to be harvested early in the year and no limitation was placed on the amount of Pacific cod CDQ that could be harvested early in the year. These provisions, as well as the delay of the second season start date from June 10 to September 1, are intended to increase the opportunity to harvest the Pacific cod CDQ reserve and reduce the potential of premature closure of the non CDQ hook-and-line gear Pacific cod fishery due to halibut bycatch restrictions.

Comment 5. The Pacific cod freezer hook-and-line fishery will experience a disproportionate and adverse impact with the implementation of the 40 percent A season and 60 percent B season TAC allocation in 2002.

Response. The 2002 seasonal apportionments of TAC have not been established at this time and comments on the 2002 protection measures are outside the scope of the subject action that implement protection measures for the second half of 2001. NMFS is working with the Council to develop Steller sea lion protection measures, including TAC seasonal allocations for 2002. The impact of Pacific cod TAC allocations will be analyzed in the supplemental environmental impact statement and regulatory impact review being prepared for 2002 Steller sea lion protection measures. This analysis will be considered by the Council and NMFS before 2002 protection measures are implemented.

Comment 6. Freezer hook-and-line vessels do not create “holes in the prey field”.

Response. See response to Comment 1. NMFS acknowledges that the hook-and-line fishery generally removes fish at rates slower than trawl gear. Nonetheless, removal rates by hook-and-line gear are not inconsequential and will be reassessed in the SEIS and biological opinion being prepared for proposed Steller sea lion protection measures in 2002 and beyond.

Comment 7. Freezer hook-and-line vessels are affected by near shore closures.

Response. NMFS agrees and acknowledges that all groundfish fisheries are affected by the 3 nm groundfish fishing closures around rookeries and haulouts. See also response to comment 1.

Comment 8. The freezer longliner sector is committed to pursuing conservation measures that are supported by sound science.

Response. NMFS commends this commitment.

NMFS received one letter of comment on the March 23, 2001, amendments (66 FR 17083, March 29, 2001) to the emergency interim rule exempting jig vessel off Alaska and vessels less than 60 ft (18.3 m) LOA using pot or hook-and-line gear in the BSAI from certain Steller sea lion protection measures. In general, the letter did not support the exemptions.

Comment 1. NMFS must rethink its entire RPA proposal from the Comprehensive Biological Opinion.

Response. NMFS has reinitiated consultation on the 2002 Steller sea lion protection measures under development by the Council and the proposed action will be analyzed to determine if it avoids jeopardy to Steller sea lions and adverse modification to their critical habitat. If the 2002 Steller sea lion protection measures are determined to not avoid jeopardy for Steller sea lions or result in adverse modification of their critical habitat, an RPA will be developed.

Comment 2. NMFS' action to exempt specified small non-trawl vessels from critical habitat closures within 3 nm of Steller sea lion haulouts in the BSAI will encourage the use of these areas and further erodes the protections afforded to the most vulnerable segments of the sea lion populations.

Response. NMFS agrees that near shore waters will be more accessible to small non-trawl gear vessels with the exemptions in the amendment to the emergency interim rule. NMFS believes that the important aspect of protection for these sites is maintaining prey availability for the Steller sea lions. As stated in the justification accompanying the amendment, the relatively small harvest of Pacific cod and Atka mackerel by the jig gear fleet and other small non-trawl vessels in the BSAI during the 2001 phase-in year of the RPA poses little concern to Steller sea lions or their critical habitat. In 2000, jig gear vessels in the BSAI harvested no Atka mackerel and only 77 mt of Pacific cod. For comparison, the BSAI 2001 ABC specifications for Atka mackerel and Pacific cod are 69,300 mt and 188,000 mt, respectively. In the GOA, jig gear vessels harvested 42 mt of Pacific cod during the Federal waters fishery. For comparison, the GOA 2001 ABC for Pacific cod is 67,800 mt. The amount of Pacific cod harvested in 2000 in the BSAI by vessels less than 60 ft (18.8 m) LOA using pot or hook-and-line gear was 501 mt, which, by comparison, amounts to only 0.3 percent of the 2001 Pacific cod ABC (188,000 mt). NMFS did not provide relief for small vessels using pot or hook-and-line gear in the GOA because the amount of Pacific cod harvested by these vessels approached 17 percent of the ABC.

Comment 3. Haulouts and rookeries are traditionally used by generations of sea lions making it important that disturbances in the immediate vicinity of these sites is minimized so that sea lions are not driven away. Oregon studies of rookeries and urchin fisheries show that sea lions were displaced during fishing activities. These disturbances with the small non-trawl gear vessel exemptions are also likely around haulouts.

Response. NMFS acknowledges that near shore activity around rookeries could disturb Steller sea lions and will maintain the 3 nm groundfish fishing closures around all rookeries. It is not known if Steller sea lions on haulouts have the same potential for disturbance from near shore fishing activity, as seen with Oregon sea lions on rookeries and the urchin fishery. NMFS will be reconsidering this issue in the biological opinion being prepared for the 2002 protection measures.

Comment 4. Young-of-the-year Steller sea lions may be in near shore waters around haulouts while their mothers are foraging, and fishing activities may have an adverse effect on these animals.

Response. NMFS agrees that small fishing vessels within 3 nm may interact with Steller sea lions. The specific effect on young-of-the-year animals is not known. However, NMFS determined that the relatively small number of vessels and harvest levels resulting from the exemption likely would not pose irreversible harm to Steller sea lions or their critical habitat during the 2001 phase-in year of the RPA.

Comment 5. Near shore habitat (3 nm or less) around rookeries and haulouts should remain off-limits to all fishing.

Response. See response to comment 3.

The Administrator, Alaska Region, NMFS (Regional Administrator), has determined that this emergency interim rule is necessary for the conservation and management of the groundfish fisheries of the BSAI and GOA. The Regional Administrator also has determined that this emergency interim rule is consistent with the Magnuson-Stevens Act and other applicable laws.

This action has been determined to be significant for purposes of Executive Order 12866 and a regulatory impact review was prepared. Consistent with the National Environmental Policy Act, an environmental assessment was prepared for this action. This rule contains no reporting, recordkeeping, or compliance requirements, and no relevant Federal rules exist that may duplicate, overlap, or conflict with this action.

This amended emergency interim rule is consistent with the objectives for Steller sea lion protection measures implemented in 2001 under section 209(c)(6) of Pub. L. No. 106-554, the ESA, and other applicable law. This action also will minimize bycatch rates of salmon and Pacific halibut in the pollock and Pacific cod fisheries while providing for continued temporal and spatial distribution of the pollock and Pacific cod fisheries. As such, the opportunity for harvest of pollock and Pacific cod will be optimized under prohibited species catch restrictions and the desire to avoid high bycatch rates of chum salmon in the Bering Sea and GOA groundfish fisheries. The extension and amendments to the emergency interim rule must be in place by July 18, 2001, to allow the continued management of the 2001 groundfish fisheries with Steller sea lion protection measures. Thus, this action must be implemented as soon as practical and in a manner that makes it impracticable to provide prior notice and an opportunity for public comment. Therefore, good cause exists to waive those requirements pursuant to 5 U.S.C. 553(b)(3). For the same reason, good cause exists to waive the 30-day delay in effective date. Accordingly, under 5 U.S.C. 553(d)(3), a delay in the effective date is hereby waived. Because prior notice and opportunity for public comment are not required for this emergency interim rule by 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. are not applicable. Therefore, no regulatory flexibility analysis has been prepared.