This final rule is issued under Marketing Agreement No. 97 and Order No. 948, both as amended (7 CFR part 948), regulating the handling of Irish potatoes grown in Colorado, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

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

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

This final rule decreases the number of positions on the Committee from five producer and four handler members to three producer and two handler members, respectively. Each position will continue to have an alternate. The Committee has been unable to fill several positions on the Committee and has been unable to conduct business at some meetings because of the lack of a quorum. Reducing Committee membership will allow the Committee to function more effectively while still providing equitable representation for producers and handlers.

Section 948.50 of the order establishes three areas within the State of Colorado and provides authority for the establishment of a committee to be the administrative agency for each area. This section further provides that each area committee shall be comprised of members and alternates as set forth in that section or as reestablished by § 948.53. Section 948.53 provides authority for the reestablishment of each area committee.

Section 948.150 of the order's administrative rules and regulations prescribes the membership on each area committee. Prior to this final rule, the Area No. 3 Committee consisted of five producers and four handlers. Three producers and two handlers were from Weld County, and two producers and two handlers were from all other counties in Area No. 3.

At its meeting on June 13, 2002, the Committee did not have enough members in attendance to constitute a quorum. Those members present recommended that a mail vote be held by the Committee to reduce the number of positions on the Committee from five producer and four handler members to three producer and two handler members, respectively. In addition, they recommended the removal of all requirements that positions be filled from nominees from certain counties. A subsequent mail vote to all Committee members and alternates was conducted. Seven Committee members voted in favor of this change and one member voted against it. The member who voted against the motion supported suspension of regulations because of the decline in the size of the industry. One handler member and alternate position was not voted as both positions were vacant.

The number of Area No. 3 potato producers and handlers has decreased significantly in recent years. Reasons for this decline include low potato prices, water shortages, and increasing production costs. With a total of only 13 producers and handlers (several producers are also handlers), the Committee was unable to fill the 18 positions (nine members and nine alternates) on the Committee. One member and six alternate positions were vacant. This resulted in the Committee being unable to conduct business at certain meetings because of the lack of a quorum. The Committee believed that the requirement that only producers and handlers from specific counties be nominated to certain positions did not serve any useful purpose. They believed that those requirements, in some instances, contributed to the difficulty the Committee had in filling positions. This reduction in Committee membership will allow the Committee to function more effectively while still providing equitable representation for producers and handlers.

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

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

Based on Committee data, there are 12 producers, (9 of whom are also handlers) and 10 handlers (9 of whom are also producers) in the production area subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural firms are defined as those whose annual receipts are less than $5,000,000.

Based on Committee data, the production of Area No. 3 Colorado potatoes for the 2001-2002 marketing year was 773,053 hundredweight. Based on National Agricultural Statistics Service data, the average producer price for Colorado summer potatoes for the 2001-2002 marketing year was $7.63 per hundredweight. The average annual producer revenue for the 12 Colorado Area No. 3 potato producers is therefore calculated to be approximately $491,533. Using Committee data regarding each individual handler's total shipments during the 2001-2002 marketing year and a Committee estimated average F.O.B. price during the 2001-2002 marketing year of $9.83 per hundredweight ($7.63 per hundredweight plus estimated packing and handling costs of $2.10 per hundredweight), all of the Colorado Area No. 3 potato handlers ship under $5,000,000 worth of potatoes. In view of the foregoing, it can be concluded that the majority of the Colorado Area No. 3 potato producers and handlers may be classified as small entities.

This final rule decreases the number of positions on the Committee from five producer and four handler members to three producer and two handler members, respectively. Each position will continue to have an alternate.

The number of Area No. 3 potato producers and handlers has decreased significantly in recent years. Reasons for this decline include low potato prices, water shortages, and increasing production costs. With a total of only 13 producers and handlers, the Committee was unable to fill the 18 positions (nine members and nine alternates) on the Committee. One member and six alternate member positions were vacant. This resulted in the Committee being unable to conduct business at certain meetings because of the lack of a quorum. This reduction in Committee membership will allow the Committee to function more effectively while still providing equitable representation for producers and handlers.

This rule is expected to slightly decrease the costs of administering the order. With a smaller Committee, meeting costs should decline slightly and the ability of the Committee to obtain a quorum and conduct business should increase. The benefits of this rule are not expected to be disproportionately greater or less for small producers or handlers than for larger entities.

The Committee discussed alternatives to this change, including not reducing the Committee membership. The Committee also considered suspension of all regulations and activities under Area No. 3. However, the Committee believes that the regulations issued under the order are beneficial to the Colorado Area No. 3 potato industry and the benefits of the program outweigh the costs.

This final rule decreases the number of positions on the Committee. Accordingly, this action will not impose any additional reporting or recordkeeping requirements on either small or large Area No. 3 Colorado potato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.

In addition, the Committee's meeting was widely publicized throughout the Area No. 3 Colorado potato industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the June 13, 2002, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

A proposed rule concerning this action was published in the Federal Register on September 11, 2002 (67 FR 57537). Finally, the rule was made available through the Internet by the Office of the Federal Register and USDA. A 15-day comment period ending September 26, 2002, was provided to allow interested persons to respond to the proposal. No comments were received.

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

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

It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register (5 U.S.C. 553) because this rule needs to be in place as soon as possible so that the Colorado Area No. 3 potato industry can nominate members and alternates to the new Committee as soon as possible. Further, the Colorado Area No. 3 potato industry is aware of this rule, which was recommended at a public meeting. Also, a 15-day comment period was provided for in the proposed rule, and no comments were received.

The regulations in 9 CFR parts 93 and 98 (referred to below as the regulations) restrict the importation of specified animals, birds, poultry, and their products into the United States to prevent the introduction of communicable diseases of livestock and poultry. The regulations designate land border ports along the U.S.-Canadian border that have inspection facilities for the importation of certain animals, birds, poultry, and animal germ plasm requiring inspection.

The regulations in part 93 specify, among other things, the Canadian border ports through which certain animals may be imported into the United States. The designated Canadian border ports for ratites are listed in § 93.107(b)(2); for poultry, in § 93.203(b); for horses, in § 93.303(b)(1); for ruminants, in § 93.403(b); for swine, in § 93.503(b); and for miscellaneous animals, in § 98.703(a)(2). In part 98, § 98.6 provides that animal embryos regulated under subpart A of part 98 may be imported at the ports of entry listed in § 93.303 for horses, § 93.403 for ruminants, or § 93.503 for swine, and § 98.33(b) lists the Canadian border ports through which certain animal semen from Canada may be imported.

Blaine, Lynden, and Sumas, WA, which are in geographical proximity to one another, are among the ports of entry currently listed in the regulations. Of those three ports, Sumas, WA, is now used exclusively for the importation of certain animals, ratites, poultry, and animal germ plasm into the United States because Blaine and Lynden, WA, have not been used as ports of entry for those purposes in approximately 4 years. Therefore, in accordance with the procedures explained below under “Dates,” we are amending § 93.107(b)(2) by removing Blaine, WA, from the list of Canadian border ports for ratites from Canada, and by removing Blaine and Lynden, WA, from the lists of Canadian border ports in §§ 93.203(b), 93.303(b)(1), 93.403(b), 93.503(b), 93.703(a)(2), and 98.33(b).

Removing Blaine and Lynden, WA, from the lists of Canadian border ports will update the regulations so that they accurately reflect the ports of entry for the importation of certain animals, birds, poultry, and animal germ plasm into the United States.

We are publishing this rule without a prior proposal because we view this action as noncontroversial and anticipate no adverse public comment. This rule will be effective, as published in this document, on January 7, 2003, unless we receive written adverse comments or written notice of intent to submit adverse comments on or before December 9, 2002.

Adverse comments are comments that suggest the rule should not be adopted or that suggest the rule should be changed.

If we receive written adverse comments or written notice of intent to submit adverse comments, we will publish a document in the Federal Register withdrawing this rule before the effective date. We will then publish a proposed rule for public comment.

As discussed above, if we receive no written adverse comments or written notice of intent to submit adverse comments that are postmarked, delivered, or e-mailed within 30 days of publication of this direct final rule, this direct final rule will become effective 60 days following its publication. We will publish a document in the Federal Register before the effective date of this direct final rule, confirming that it is effective on the date indicated in this document.

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

This rule will remove Blaine, WA, as a port of entry for the importation of ratites into the United States. It will also remove Blaine and Lynden, WA, as ports of entry for the importation of poultry, horses, ruminants, swine, and animal germ plasm. We are taking these actions because neither port has been used for the importation of animals or animal germ plasm in over 4 years. These actions would update the regulations so that they accurately reflect the ports used for the importation of certain animals and germ plasm into the United States.

Since the ports of Blaine and Lynden, WA, have not been used to inspect animals and animal germ plasm imported into the United States in approximately 4 years, this action will have no economic effect on any entity. Small entities located at or around the ports of Blaine and Lynden, WA, will not be affected by this proposed rule for the same reason that no economic entity of any size will be affected.

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 2000-06-12, Amendment 39-11653 (65 FR 19300, April 11, 2000), which is applicable to Turbomeca Artouste III B, B1, and D series turboshaft engines with injection wheels part numbers (P/N's) 218.25.700.0, 218.25.704.0, 243.25.709.0, 243.25.713.0, 0.218.27.705.0, 0.218.27.709.0, and 0.218.27.713.0 installed, was published in the Federal Register on May 10, 2002, 67 FR 31737). That action proposed to require in accordance with Turbomeca Artouste III alert service bulletin (ASB) No. A218 72 0099, Update 1, dated June 6, 2001, smoke emission checks after every ground engine shutdown. If smoke is detected, that action proposed to require inspecting for fuel flow. If fuel flow is not detected, the engine may have injection wheel cracks, which would require removing the engine from service for repair. If fuel flow is detected, the engine may have a malfunctioning electric fuel cock, which would require removing the electric fuel cock from service and replacing with a serviceable part. That action also proposed to require the smoke emissions to be checked after the last flight of the day as opposed to after every flight as required by the original AD. That action also proposed to require inspection of central labyrinths not previously inspected or not replaced after the engine logged 1,500 operating hours, and, replacement if necessary, in accordance with Turbomeca Artouste III ASB No. A218 72 0100, Update 1, dated March 13, 2001. That action also proposed to require the removal of injection wheels at a new lower life limit.

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

One commenter, the manufacturer, states that injection wheels on Turbomeca Artouste III series turboshaft engines are not life-limited. The commenter requests that the FAA remove paragraph (c) and (d) of the proposal. Paragraph (c) states that injection wheels are now life-limited to no more than 3,000 flight hours time-since-new (TSN) or time-since-overhaul (TSO), or 6,000 cycles-since-new (CSN) or cycles-since overhaul (CSO), whichever occurs first. Paragraph (d) requires replacement of all injection wheels that are over the life limits, before further flight, and to replace all other injection wheels before reaching the new life limits.

The FAA agrees. The FAA misunderstood the intent of the Direction Generale de L'Aviation Civile (DGAC), which is the airworthiness authority for France, regarding their reference in AD 2001-235(A) to the use of injection wheel limits. The 3,000 flight hours TSN or TSO, and 6,000 CSN or CSO limits are in the manufacturer's manual and are not mandated by the DGAC. Therefore, the FAA has removed the paragraphs for life limits from the final rule.

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

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

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 the 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 by contacting the Rules Docket at the location provided under the caption ADDRESSES .

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that is applicable to certain Titeflex Corporation high-pressure and medium-pressure hoses was published in the Federal Register on June 3, 2002 (67 FR 38212). That action proposed to require inspecting certain Titeflex hoses for a date of manufacture, and if necessary, replacing the hose with a serviceable part, in accordance with Titeflex Corporation service bulletin (SB) 73-2, dated November 27, 2000.

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

Two commenters state that the only Canadair airplane having suspect hoses installed is the CL-600 1A11. The commenters request that the final rule applicability be corrected to list only the Canadair CL-600 1A11 airplane.

The FAA agrees and has revised the applicability accordingly.

One commenter states that the only CFM56 engine having suspect hoses installed is the CFM56-5C. The commenter requests that the final rule applicability be corrected to list only the CFM56-5C engine.

The FAA agrees and has revised the applicability accordingly.

One commenter states that in accordance with the Titeflex Corporation service bulletin (SB) 73-2, the applicable Boeing airplane models stated in the NPRM should have been “all Boeing models except 737-600, 737-700, 737-800, 737-900, and 777.”

The FAA agrees that the NPRM is in error and in addition has verified with Boeing Co. that the applicable Boeing models are DC-8, 707, 727, 737-200, 737-200C, 747, 757, and 767 airplanes. Therefore, the final rule has been revised to list these models.

One commenter approves of the AD as proposed.

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

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

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 the 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 by contacting the Rules Docket at the location provided under the caption ADDRESSES .

A proposal to amend 14 CFR part 39 to include an AD for specified model helicopters was published in the Federal Register on May 21, 2002 (67 FR 35763). On July 31, 1980, the FAA issued AD 80-17-09, Amendment 39-3876 (45 FR 54014, August 14, 1980), Docket No. 80-ASW-25. That AD requires replacing certain TT straps on or before attaining 1200 hours time in service (TIS) or 24 months, whichever occurs first, for the BHTI Model 204B, 205A-1, 212, 214B, 214B-1, and the Model UH-1 series military helicopters. That action was prompted by an offshore accident of a BHTI Model 212 helicopter in which a TT strap reportedly failed in flight after 2,140 hours TIS with resulting loss of the main rotor blade. The requirements of that AD are intended to prevent failure of a TT strap, loss of a main rotor blade, and subsequent loss of control of the helicopter.

Since the issuance of that AD, a separate AD was issued (67 FR 61771, October 2, 2002) for the military surplus restricted category helicopters that includes the Model UH-1 series helicopters, hence the removal of the Model UH-1 series helicopters from the applicability of this AD. Also, further review indicates that the affected TT straps are eligible for installation on the BHTI Model 205A and 205B helicopters. Therefore, this AD includes those models in the applicability.

To further address this unsafe condition that is likely to exist or develop on other helicopters of these same type designs, this AD supersedes AD 80-17-09. This AD contains the requirements of AD 80-17-09 but changes the applicability by removing the restricted category Model UH-1 series helicopters and adding the BHTI Model 205A and 205B helicopters.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial changes. These changes will neither increase the economic burden on operators nor increase the scope of the AD.

The FAA estimates that this AD will affect 168 helicopters of U.S. registry. The FAA also estimates that it will take 8 work hours to replace the TT straps at an average labor rate of $60 per work hour. The TT straps will cost approximately $10,484 per helicopter. Based on these figures, the total cost impact of the AD on U.S. operators is estimated to be $1,840,352.

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 FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas.

Title VI of the North American Free Trade Agreement Implementation Act, 107 Stat. 2057 (Pub. L. 103-182; December 8, 1993), popularly known as the Customs Modernization Act (Mod Act), amended a number of Customs and navigation laws.

Some of these amendments affected the treatment of general order merchandise. General order merchandise is merchandise that is required to be deposited in a bonded warehouse at the risk and expense of the consignee because it is not timely entered as provided by law or regulation, entry for it is incomplete because estimated duties, fees or interest has not been paid, entry cannot be made for it due to lack of proper documentation or other cause, or because it is not correctly or legally invoiced. See 19 U.S.C. 1490(a). Customs has denominated the type of bonded warehouse in which this type of merchandise must be deposited as a general order warehouse. See 19 CFR 127.1.

In particular, section 656 of the Mod Act amended 19 U.S.C. 1448(a) to provide, among other things, that the owner or master of any vessel or vehicle, or agent thereof, would be required to notify Customs of any merchandise or baggage unladen from the vessel or vehicle, for which entry was not made within the time prescribed by law or regulation; and if entry were not made within the prescribed time, the master or person in charge of the importing vessel or vehicle, or agent thereof, would be responsible for such unentered merchandise until it was removed from the carrier's control and placed in general order status in accordance with 19 U.S.C. 1490.

In concert with this, section 658 of the Mod Act amended 19 U.S.C. 1490 by deleting the requirement that a Customs officer take unentered merchandise into Customs custody and send it to a bonded warehouse. Instead, carriers are now required to notify both Customs and a bonded warehouse of the unentered merchandise, and the bonded warehouse is then responsible for arranging for the transportation and storage of the merchandise at the risk and expense of the consignee.

These, and related, statutory amendments were implemented by a final rule document amending the Customs Regulations, that was published in the Federal Register (63 FR 51283) on September 25, 1998, as T.D. 98-74.

Based on the statutory amendments, and the Customs Regulations implementing them, imported merchandise could not remain at the wharf, pier or other place of unlading more than 15 calendar days after its landing; or, if transferred from the arriving carrier to any party under a Customs-authorized permit to transfer or in-bond entry, the merchandise could not remain in the custody of that party more than 15 calendar days after its receipt under a Customs-authorized permit to transfer or more than 15 calendar days after its arrival at the port of destination, as provided in §§ 4.37, 122.50, 123.10, Customs Regulations (19 CFR 4.37, 122.50, 123.10). There is no provision in these regulations for any extension of this 15-day period.

Customs and the trade have consequently seen an increase in the amount of unentered merchandise moving into general order facilities, including merchandise, such as hazardous materials, requiring specialized storage facilities. Due to this increase in merchandise moving into temporary storage in general order status, the trade community has sought the establishment of national, uniform criteria for the approval and operation of general order warehouses.

Accordingly, by a document published in the Federal Register (65 FR 42893) on July 12, 2000, Customs proposed that a new class of bonded warehouse, a class 11 warehouse, be established exclusively to handle the receipt of general order merchandise as described in § 127.1, Customs Regulations (19 CFR 127.1).

It was further proposed that a class 3, 4, or 5 bonded warehouse, as described in § 19.1(a)(3), (4), or (5), Customs Regulations (19 CFR 19.1(a)(3), (4), or (5)), could likewise be used for the deposit of general order merchandise, but only if there were no class 11 warehouse otherwise available to receive the merchandise, and provided the class 3, 4, or 5 warehouse had also been certified by the port director as meeting the criteria for a class 11 warehouse, following an application under § 19.2, Customs Regulations (19 CFR 19.2).

To this end, § 19.1 was proposed to be amended to include provisions for general order warehouses. Matters relating to inventory control and minimum space requirements for general order warehouses were also addressed in the proposed rule, in §§ 19.2 and 19.12, respectively.

Additionally, an amendment to § 19.2(f) was proposed to allow the port director to require a business entity seeking approval to establish a Customs bonded warehouse to submit fingerprints, as part of the application process, for all its employees, as opposed to only those of all officers and managing officials of the business entity, as is currently the case; this proposed change would pertain to an application by a business entity to establish any Customs bonded warehouse, including a general order warehouse.

Furthermore, the proposed rule put forth amendments to §§ 4.37, 19.9, 122.50 and 123.10, Customs Regulations (19 CFR 4.37, 19.9, 122.50 and 123.10), that would make it the responsibility of the warehouse proprietor to prepare a Customs Form (CF) 6043 (Delivery Ticket), or other similar Customs document as designated by the port director or an electronic equivalent as authorized by Customs, that covered the proprietor's receipt of the merchandise and its transport to the warehouse from the custody of the carrier (or from any other party to whom custody of the merchandise had been transferred by a Customs-authorized permit to transfer or in-bond entry). This was intended to recognize and specifically implement the existing requirement described above that the warehouse proprietor be responsible for the transportation and storage in general order status of unentered merchandise following due notification by the arriving carrier or other bonded carrier of the presence of such merchandise.

Moreover, §§ 4.37, 122.50 and 123.10 were to be amended to provide that if a carrier or other party to whom the original carrier had properly transferred unclaimed and abandoned goods refused to relinquish custody over the goods to a general order warehouse proprietor, the carrier or other party would be liable for liquidated damages under the international carrier or custodial bond, as applicable; and §§ 4.37, 122.50 and 123.10 were to be further amended to provide that in cases where the warehouse proprietor was unable to accept goods into general order because the goods were required to be exported or destroyed, or for other good cause, the carrier or other party to whom the original carrier had properly transferred the goods would be responsible under bond for exporting or destroying the goods, as necessary. It was further proposed that § 127.13, Customs Regulations (19 CFR 127.13), be changed consistent with §§ 4.37, 122.50 and 123.10.

Also, the proposed rule would revise § 127.14 to require that the warehouse proprietor assume the responsibility and expense for the destruction of general order merchandise, in the event that such destruction were found to be warranted under the circumstances ( i.e. , where the port director concludes that the merchandise has no commercial value or cannot be disposed of at public auction (unsalable)); however, before destroying the merchandise, the warehouse proprietor would first have to make a reasonable effort to identify and inform the importer (owner) or consignee of the merchandise regarding its intended destruction.

In addition, under the proposed rule, § 127.14(a) would be revised and a new subpart E would be added to part 127 essentially to conform with and implement a number of amendments made by section 659 of the Mod Act to 19 U.S.C. 1491 concerning the provision that under certain conditions title to unclaimed and abandoned merchandise could vest in the United States, as an alternative to the Government having to sell such merchandise at public auction.

Finally, in conformance with the changes already made under T.D. 98-74 to §§ 4.37, 122.50, and 123.10, as discussed above, the proposed rule would similarly revise §§ 141.5 and 142.2, Customs Regulations (19 CFR 141.5, 142.2), to require that the entry of merchandise be made within 15 calendar days (as opposed to 5 working days) after landing from a vessel, aircraft or vehicle, or after arrival at the port of destination in the case of merchandise transported in bond.

Six commenters responded to the notice of proposed rulemaking. A description of the issues raised by these commenters, and Customs response to each issue, is set forth below.

It is initially noted, however, that one commenter made certain suggestions during the proposed rulemaking comment period that were outside the scope of the notice, in particular: in connection with the unentered merchandise described in §§ 4.37(b), 122.50(b) and 123.10(b), to require that a carrier notify a general order warehouse of the presence of such unentered merchandise within the 15-day period, as opposed to the 20-day period, described in those sections; and to add a requirement in part 127 that carriers provide all information to the warehouse that they have on the consignee of unclaimed merchandise in order to facilitate the preparation of notices of sale for the merchandise. Such recommendations which, while related, fell outside the scope of the original notice of proposed rulemaking, are not addressed in this document. If found warranted, they would need to be the subject of another rulemaking document.

One commenter objected to the provision in proposed § 19.1(c) requiring that an available class 11 (General Order) warehouse be used to handle general order merchandise, in preference to another available general order (G.O.) warehouse of class 3, 4, or 5. The commenter asserted that a mandatory requirement to this effect would be unfair, would competitively disadvantage G.O. warehouses of class 3, 4 or 5, and would eliminate choice for the importing public in this area.

Customs agrees. Section 19.1(c) is revised to eliminate any requirement to use a class 11 warehouse over an existing class 3, 4 or 5 warehouse that has been approved to handle general order merchandise. Carriers and the importing community should, and will, continue to have a choice as to the particular G.O. warehouse to which their shipments may be sent.

One commenter suggested that class 11 G.O. warehouses be allowed to rent or lease additional space for the storage of G.O. merchandise.

Section 19.1(c) already provides for this. Any warehouse eligible to receive general order merchandise (a class 3, 4, 5, or 11 warehouse) may rent or lease suitable premises for the storage of such merchandise, if there is no space at the warehouse otherwise available.

Several commenters requested that Customs elaborate on the provision in proposed § 19.2(d) regarding minimum space requirements and other criteria for becoming a G.O. facility. In particular, one commenter asked that Customs impose regulatory limits on the number of G.O. warehouses that could operate in a port and, furthermore, that Customs specify in its regulations those parties that could not qualify to operate a G.O. warehouse.

Customs does not believe that further elaboration upon these matters in the regulations is warranted. Both the number of facilities and the space required for G.O. merchandise will vary from port to port; therefore no one standard can or should be applied.

One commenter objected to proposed § 19.2(f) which provided that the port director “may” require a business entity seeking to establish a Customs bonded warehouse to submit fingerprints from all its employees, as part of the application process, instead of limiting the submission of fingerprints to those of all officers and managing officials of the business entity, as is currently the case. On the other hand, several commenters wanted the word “may” in proposed § 19.2(f) replaced with “should”.

Customs disagrees with both views. The port director should have the discretion to determine the extent of scrutiny that is called for in given circumstances with respect to a business entity that is applying for approval to establish a Customs bonded warehouse, including the ability to require fingerprints from all employees of the business entity.

In proposed § 19.12(a), one commenter was concerned about the expense of an automated inventory system that would be a requirement for a general order warehouse. The commenter requested that small warehouses be allowed to continue with a manual system. In the alternative, it was suggested that Customs should bear some of the costs associated with an automated inventory system.

Customs has concluded that the requirement for an automated inventory system should apply to all general order warehouses. Most warehouses already have an automated system that could likewise be extended to include G.O. merchandise; against this backdrop, automation should not impose an unreasonable cost. In addition, it is noted that in § 19.12(a) existing G.O. warehouses will be given a phase-in period of 2 years within which to automate their recordkeeping. This time frame should be adequate and provide ample time especially for smaller operators to defray some of the costs that they incur with automation. In this regard, Customs will not be involved in the cost, support, or maintenance of an automated inventory system. It is properly the responsibility of the warehouse proprietor to choose an automated system that best suits the particular needs of the warehouse and that fulfills Customs regulatory requirements.

In proposed § 19.12(a), several commenters thought that the “phase-in” period for automation was overly long.

Customs finds that this two-year phase-in allowance is reasonable and prudent. As already observed, it will afford some of the smaller G.O. warehouses needed time to acquire and install an automated record system and to defray their cost in so doing.

One commenter asked that an explicit statement be included in §§ 4.37(b), 122.50(b) and 123.10(b) limiting to 15 calendar days the period during which unentered merchandise may remain in the custody of the arriving carrier or other bonded carrier to whom such merchandise was properly transferred.

Customs believes that this 15 calendar-day limitation is already clearly set forth in the cited regulatory provisions and that no change is needed.

Two commenters objected to the provision in proposed §§ 4.37(c), 19.9(a), 122.50(c) and 123.10(c) making it the responsibility of the G.O. warehouse proprietor to prepare the transfer documentation (CF 6043 or other approved form or an electronic equivalent) to cover the proprietor's receipt of unentered merchandise and its transport to the G.O. warehouse from the custody of the arriving carrier (or other bonded carrier).

Customs agrees. The preparation of the transfer documentation (CF 6043 or other approved form or electronic equivalent) should remain with the bonded carrier (or other party to which the bonded carrier has properly transferred the merchandise). Customs acknowledges that this is the existing procedure in most ports. As a practical matter, the G.O. warehouse proprietor does not have sufficient information as to the identity and quantity of the unentered cargo to expeditiously and knowledgeably prepare such transfer documentation prior to acceptance of the goods. Thus, shifting the responsibility for preparation of the delivery ticket from the arriving carrier (or other bonded carrier) to the warehouse proprietor would unnecessarily delay the transfer of unentered merchandise to general order. Sections 4.37(c), 19.9(a), 122.50(c) and 123.10(c) are changed accordingly.

Two commenters suggested that the phrase “Customs-approved bonded warehouse” appearing in proposed §§ 4.37(d), 122.50(d), and 123.10(d) should be replaced by “Customs-approved bonded General Order warehouse”.

Customs agrees. Sections 4.37(d), 122.50(d), and 123.10(d) are changed accordingly.

One commenter requested clarification as to the difference between the liquidated damages provision in proposed § 4.37(d) and the penalties authorized under § 4.37(a). This commenter also requested that the phrase “carrier or other party may be liable for* * *” in proposed § 4.37(d) be changed to “the carrier shall, as determined by the port director, be liable for* * *”.

The penalty contained in § 4.37(a) (also see §§ 122.50(a) and 123.10(a)) may be assessed against the master or owner of an arriving vessel, or the agent of the master or owner, for failing to timely notify Customs of the presence of unclaimed merchandise that has been unladen from the vessel. The penalty is up to $1,000 per bill of lading; however, if the value of the unclaimed merchandise on the bill is less than $1,000, the penalty will simply be equal to the value of such merchandise.

Liquidated damages in § 4.37(d) (also see §§ 122.50(d) and 123.10(d)) may be assessed against an arriving carrier or other party to whom the arriving carrier has properly transferred the unentered, unreleased merchandise if the carrier or other party fails to timely relinquish custody over the merchandise to a warehouse authorized to receive it. To this end, § 4.37(d) is changed to make clear that liquidated damages would only apply if the carrier fails to “timely” relinquish custody over the subject merchandise. Sections 122.50(d) and 123.10(d) are likewise changed. However, Customs finds that the change suggested by the commenter is not needed. If applicable, liquidated damages would be assessed under the international carrier bond of the arriving carrier or the custodial bond of the other party, as appropriate.

With respect to proposed §§ 4.37(e), 122.50(e) and 123.10(e), several commenters wanted to give G.O. warehouse proprietors the right to refuse any shipments that they did not want to accept. One commenter wanted a right to return merchandise to the carrier, and asked that a provision be added to the regulations that the carrier must accept the return of such merchandise, if the merchandise was sent to the warehouse improperly because it was hazardous material or was otherwise required to be exported or destroyed.

A bonded warehouse proprietor may not lawfully decline to accept general order merchandise that the warehouse is eligible to receive and is capable of storing. The underlying general order statute (19 U.S.C. 1490(a)) does not envision an unfettered right on the part of the warehouse proprietor to refuse general order goods. However, as already stated in §§ 4.37(e), 122.50(e) and 123.10(e), if the port director finds that the warehouse proprietor cannot accept goods because they are required by law to be exported or destroyed, or for other good cause, such goods will remain in the custody of the arriving carrier or other bonded carrier for purposes of export or destruction. It is incumbent upon the warehouse proprietor to take reasonable steps to inquire about and ascertain the nature and condition of the goods before accepting them. Once goods are accepted into the custody of the warehouse proprietor, the appropriate disposition of the goods would at that point accordingly become the responsibility of the proprietor.

Several commenters objected to the provisions in proposed subpart E of part 127 regarding unclaimed merchandise the title to which vests in the U.S. Government. In particular, they wanted to be compensated by the Government for their storage and transportation charges on cargo to which the Government decides to take title and retain for its own use. These commenters contended that not being reimbursed for any expenses they incurred for the six-month G.O. period would impose a great financial burden upon them.

Customs believes that the commenters' concerns are unfounded. It is true that under the conditions specified in 19 U.S.C. 1491(b), the title to unclaimed merchandise may vest in the U.S. Government free and clear of any liens or encumbrances. Yet, while the Government may retain title to unclaimed merchandise free and clear of any liens or encumbrances, all transfer and storage charges or expenses accruing on the merchandise are, nevertheless, required to be paid by the Federal, State or local government agency that receives the merchandise, pursuant to 19 U.S.C. 1491(c). Such transfer and storage charges would include those accruing with respect to the merchandise while subject to general order. Section 127.42(b) is revised to make this clear.

In view of the foregoing, and following careful consideration of the comments received and further review of the matter, Customs has concluded that the proposed amendments with the modifications discussed above and the additional changes discussed below should be adopted as a final rule.

Section 19.1(b) is amended to provide that a class 11 (general order) warehouse may be designated as a constructive manipulation (class 8) warehouse when the exigencies of the service so require.

Also, § 127.21 is changed to grant port directors the authority to defer sales of unclaimed and abandoned (general order) merchandise. Currently, § 127.21 requires that unclaimed and abandoned merchandise be sold at the first regular sale held after the merchandise becomes subject to sale, unless a deferment on selling it is authorized by the Commissioner of Customs. Customs has decided that this deferral authority be at the port level.

Furthermore, § 127.28(a) is changed so as to more clearly emphasize the necessity that drugs, seeds, plants, nursery stock and other articles, when so required, must be inspected by a representative of the Department of Agriculture to determine whether the articles comply with the law and regulations administered by that Department, especially given that, where found to be in noncompliance, such articles would need to be immediately destroyed.

Finally, Customs has decided that § 127.41(a) should be revised to state that the port director may provide for the vesting of title to unclaimed and abandoned merchandise in the United States, with the concurrence of the Assistant Commissioner, Office of Field Operations, rather than with the concurrence of the Commissioner of Customs, as initially proposed.

The amendments primarily dealing with general order warehouses are intended to expedite the handling and disposition of general order merchandise, and to further facilitate consistent and uniform treatment in the administration of general order warehouses. Also, the amendments dealing with the Mod Act are intended to conform with, implement and enforce the provisions of the statutory law and ensure the protection of the revenue. As such, pursuant to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), it is certified that these amendments will not have a significant economic impact on a substantial number of small entities. Accordingly, the amendments are not subject to the regulatory analysis or other requirements of 5 U.S.C. 603 and 604. Nor do they meet the criteria for a “significant regulatory action” as specified in E.O. 12866.

The collections of information in this final rule document had in part already been reviewed by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) and assigned OMB Control Numbers 1515-0121 (Information to be supplied by owner or lessee in support of application to establish a bonded warehouse facility); and 1515-0220 (Notification regarding imported merchandise or baggage for which entry has not been made). This document restates these collections of information without material change.

The remaining collection of information in this final rule document was submitted for review and has been approved by the Office of Management and Budget (OMB) in accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1515-0224. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

This latter collection of information is contained in §§ 4.37(c), 19.9(a), 122.50(c), and 123.10(c). This information is necessary to: Expedite the handling and disposition of general order merchandise; ensure that merchandise and baggage imported into the United States has been properly accounted for in accordance with the requirements of the statutory law; and facilitate consistent and uniform treatment in the administration of general order warehouses. The likely respondents and/or recordkeepers are business organizations, including importers and carriers. The estimated average annual burden associated with this information collection is 33 hours per respondent or recordkeeper.

Comments on the accuracy of this burden estimate and suggestions for reducing this burden should be sent to the Office of Management and Budget, Attention: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503. A copy should also be sent to the Regulations Branch, Office of Regulations and Rulings, U.S. Customs Service, 1300 Pennsylvania Avenue, NW., 3rd Floor, Washington, DC 20229.

Part 178, Customs Regulations (19 CFR part 178), containing the list of approved information collections, is appropriately revised to reflect this additional information collection.

On April 26, 2002, the Commission published a notice of proposed rulemaking (NOPR) in the Federal Register . 67 FR 20709, April 26, 2002. In the NOPR, the Commission proposed amending its rules of practice and procedure to (a) permit persons the option of filing certain documents electronically instead of just in paper form; (b) allow electronic service of documents in limited circumstances; and (c) require persons to complete and submit a standard cover sheet, whether filing electronically or in paper form. In its NOPR, the Commission invited public comment on its proposed rule amendments and the EDIS-II cover sheet (cover sheet) for use in filing documents in the Commission's Electronic Document Information System (EDIS-II). The Commission received a total of three sets of comments from the ITC Trial Lawyers Association (ITCTLA) and two law firms. The Commission carefully considered all comments that it received. The Commission's response to those comments that relate to the rule amendments is provided below in a section-by-section analysis. Since the NOPR was published, the Office of Management and Budget (OMB) has determined that the cover sheet does not require OMB approval because of the minimal paperwork burden on the public; nevertheless, the Commission has summarized below comments to the cover sheet and its response thereto. The Commission appreciates the time and effort the commenters took to present their views, and believes that the comments have improved the amendments and the cover sheet. The Commission is also publishing a notice containing the Handbook on Electronic Filing Procedures (Handbook) referenced in amended § 201.8 of the rules, which includes information regarding registration for electronic filing and the list of documents that may be filed electronically. Please review the Handbook in its entirety prior to registering for electronic filing.

The Commission has determined that these amended rules do not meet the criteria described in section 3(f) of Executive Order 12866 (58 FR 51735, Oct. 4, 1993) and thus do not constitute a significant regulatory action for purposes of the Executive Order. The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) and Executive Order 13272 (67 FR 53461, Aug. 13, 2002) are inapplicable to this rulemaking because it is not one for which a NOPR is required under 5 U.S.C. 553(b) of the APA or any other statute. Although the Commission published a NOPR, these proposed regulations are “agency rules of procedure and practice,” and thus are exempt from the notice requirement imposed by 5 U.S.C. 553(b). These amended rules do not contain federalism implications warranting the preparation of a federalism summary impact statement pursuant to Executive Order 13132 (64 FR 43255, Aug. 4, 1999). No actions are necessary under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et. seq. ) because the amended rules will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and will not significantly or uniquely affect small governments. The amended rules are not major rules as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et. seq. ). Moreover, they are exempt from the reporting requirements of the Contract With America Advancement Act of 1996 (Pub. L. 104-121) because they concern rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties.

The Commission has amended § 201.8 by adding paragraphs 201.8(f) and (g). Section 201.8(f) provides that persons may file certain documents electronically at the Commission's Internet website without violating the relevant provisions of the rules that govern paper filing of documents. The Commission did not receive any specific comments with respect to § 201.8(f). Section 201.8(g) requires that persons filing documents either in paper form or electronically must complete a cover sheet to be submitted to the Commission along with their filings. The law firm of Adduci, Mastriani & Schaumberg, L.L.P. proposed amending § 201.8 to state that filings without a cover sheet will be accepted, and that cover sheets may be submitted the following business day. The Commission has determined to retain the requirement that filers must complete and submit a cover sheet with their filings, whether the filings are in electronic or paper form, because the information in the cover sheet is required for EDIS-II to docket filings. The Commission has revised § 201.8(g) to require parties submitting paper filings to fill-out the cover sheet on-line and print it out for submission to the Office of the Secretary with the paper filing. Persons filing documents electronically are required to complete and submit the cover sheet on-line with the electronic filing. This cover sheet requirement is to ensure accurate processing of filings.

The Commission has amended § 201.16 by adding paragraph (e) to permit persons the option of serving documents on other parties electronically, if the Secretary consents to such electronic service. However, electronic service is not permitted in proceedings under section 337 of the Tariff Act of 1930 unless parties obtain the prior permission of the presiding administrative law judge. The ITCTLA proposed amending the final sentence of the proposed Rule to require a party who participates in electronic service to notify all parties if it withdraws its consent to electronic service. The Commission has incorporated the comment of the ITCTLA into § 201.16(e). The law firm of Collier Shannon Scott, PLLC, commented that the Commission should not leave all disputes regarding electronic service of documents to be resolved among the parties themselves; rather, the Commission should establish procedures and remedies to address electronic service failures. Because electronic service is on a voluntary basis, the Commission has determined, in the initial phase of electronic filing, to retain the requirement that electronic service disputes should be resolved by the parties themselves, without the Commission's involvement. Collier Shannon Scott, PLLC, commented that § 201.16(e) should be amended to state that, even if a dispute regarding electronic service of a document arises among parties in a Commission proceeding, such a dispute will not affect the Commission's acceptance of the document for filing. Because § 201.16(e) already provides that electronic service disputes must be resolved by the parties themselves, without the Commission's involvement, any such disputes will not affect the Commission's acceptance or rejection of a document for filing. Therefore, the Commission finds that it is not necessary to make any further amendments to § 201.16(e).

The ITCTLA suggested three changes to the cover sheet that appeared in the NOPR. First, the ITCTLA commented that the name of the “Security” field on the cover sheet should be changed to “Confidential or Public.” Second, the ITCTLA commented that the name of the “Document Type” field on the cover sheet should be changed to include a list of document types typically received by the Commission. Third, the ITCTLA recommended that the “Add Attachments” field on the cover sheet should include a citation to the “Document” definition in section II(A) of the Handbook to clarify that this field only applies to electronic filings. As to the first comment, the Commission has determined not to make the proposed change because the “drop-down” list next to the “Security” field also contains a reference to “privileged documents for internal use.” As to the second comment, the Commission has adopted the ITCTLA's recommendation by including a list of document types normally filed with the Commission in the “Document Type” field of the cover sheet. The public is advised, however, that the “drop-down” menu of document types may be altered as experience dictates. The Commission also has adopted the ITCTLA's third comment to the cover sheet by adding a reference to the EFP Handbook's “document” definition in the “Add Attachments” field.

For the reasons discussed in the preamble, the Commission amends 19 CFR part 201 as follows:

Docket. The docket is an organized and complete file of the administrative record compiled by EPA in the development of the final rule to which this correction document refers. The docket is a dynamic file because material is added throughout the rulemaking process. The docketing system is intended to allow members of the public and industries involved to readily identify and locate documents so they can effectively participate in the rulemaking process. Along with the proposed and promulgated rules and their preambles, the contents of the docket will serve as the record in the case of judicial review. Other material related to this rulemaking is available for review in the docket or copies may be mailed on request from the Air Docket by calling (202) 260-7548. A reasonable fee may be charged for copying docket materials.

Worldwide Web (WWW). In addition to being available in the docket, an electronic copy of this action will also be available through the WWW. Following signature, a copy of this action will be posted on EPA's Technology Transfer Network (TTN) policy and guidance page for newly proposed or promulgated rules: http://www.epa.gov/ttn/oarpg . The TTN at EPA's web site provides information and technology exchange in various areas of air pollution control. If more information regarding the TTN is needed, call the TTN help line at (919) 541-5384.

Regulated Entities. Regulated categories and entities are secondary aluminum production facilities and 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 the Agency is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your facility is regulated by this action, you should carefully examine the applicability criteria in § 63.1500 of the rule. If you have questions regarding the applicability of this action to a particular entity, consult the contact person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

We are taking this action to correct the erroneous effective date in the September 24, 2002 notice in part because the rule as it existed prior to the amendments might have been construed to impose certain compliance obligations on affected sources prior to November 25, 2002. Since one of the stated purposes of the amendments was to eliminate confusion concerning these same compliance obligations, failure to correct the erroneous effective date would frustrate this purpose. We do not believe that any affected source will be adversely impacted by correction of the effective date.

Under Executive Order 12866 (58 FR 5173, October 4, 1993), the EPA 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 Executive Order defines “significant regulatory action” as one that is likely to result in standards 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.

Pursuant to the terms of Executive Order 12866, it has been determined that this correction notice does not constitute a “significant regulatory action” because it does not meet any of the above criteria. Consequently, this action was not submitted to OMB for review under Executive Order 12866.

Potentially Regulated Entities

No one is regulated by this rule. This rule merely withdraws Federal water quality criteria applicable to Michigan.

In 1992, EPA promulgated a final rule known as the “National Toxics Rule,” or “NTR,” to establish numeric water quality criteria for 12 States and two Territories, including Michigan, (hereafter “States”) that had not complied fully with section 303(c)(2)(B) of the CWA (57 FR 60848). The criteria, codified at 40 CFR 131.36, became the applicable water quality standards in those 14 States for all purposes and programs under the CWA effective February 5, l993.

As described in the preamble to the final NTR, when a State adopts, and EPA approves, water quality criteria that meet the requirements of section 303(c)(2)(B) of the CWA, EPA will issue a rule amending the NTR to withdraw the Federal criteria for that State. If the State's criteria are no less stringent than the promulgated Federal criteria, EPA will withdraw its criteria without notice and comment rulemaking because additional comment on the criteria is unnecessary ( see 65 FR 19659). However, if a State adopts criteria that are less stringent than the federally promulgated criteria, but that in the Agency's judgment fully meet the requirements of the Act, EPA will provide an opportunity for public comment before withdrawing the federally promulgated criteria. ( See 57 FR 60860, December 22, 1992) Michigan adopted water quality standards, effective July 29, 1997, pursuant to the requirements of 40 CFR part 132, Water Quality Guidance for the Great Lakes System (60 FR 15366), hereafter referred to as the “GLI.” These standards include numeric criteria for the protection of aquatic life for 15 toxic pollutants and numeric criteria for the protection of human health for 18 toxic pollutants. Michigan also adopted a methodology to derive numeric criteria and values as needed to implement the State's narrative criteria of “no toxic in toxic amounts”. EPA approved these water quality standards on August 4, 2000 (65 FR 47864-47874). All waters in the State of Michigan are within the Great Lakes drainage basin. Therefore, the standards that were adopted and approved to comply with 40 CFR part 132 (which applies to all waters in the Great Lakes basin) apply statewide.

In 1988, EPA published guidance to States on how to adopt water quality standards to comply with CWA section 303(c)(2)(B) ( see Rebecca W. Hanmer memo, December 12, 1988, “Guidance for State Implementation of Water Quality Standards for CWA Section 303(c)(2)(B)” at www.epa.gov/waterscience/library/wqstandards/finalguidance.pdf) . This guidance was reflected in the preamble to the National Toxics Rule (57 FR 60853, December 22, 1992). EPA described three options for satisfying the requirements of CWA section 303(c)(2)(B). These options are:

As described earlier, Michigan's water quality standards include a procedure to derive a numeric criterion from a narrative water quality criterion that prohibits toxicity in receiving waters. EPA's guidance describes numerous conditions that EPA indicated, if satisfied, would ensure acceptable scientific quality and full involvement of the public and EPA and therefore allow the State to use Option 3 to satisfy the requirements of section 303(c)(2)(B). Michigan has satisfied these conditions:

By adopting numeric criteria for some priority toxic pollutants and a methodology to translate the narrative criterion into numeric values for the remaining priority toxic pollutants, Michigan has complied with the requirements of section 303(c)(2)(B) of the CWA to have numeric criteria for priority toxic pollutants. As mentioned earlier, EPA approved these water quality standards on August 4, 2000 (65 FR 47864-47874). Since Michigan now has criteria, effective under the Clean Water Act, for the same priority toxic pollutants in the NTR, EPA has determined that the Federally-promulgated criteria are no longer needed.

While EPA has determined that Michigan has fully complied with the requirements of CWA section 303(c)(2)(B), EPA recognizes that Michigan's standards differ from NTR criteria in certain respects because Michigan's standards reflect EPA's most recent guidance as published by EPA in the GLI. Under the procedures set out in the NTR, EPA would normally take comment prior to withdrawal from the NTR. However, as required by the GLI, EPA took comment on its decision to approve the portion of Michigan's standards relevant to today's action in a notice published in the Federal Register on September 14, 1999 (64 FR 49803). Because the public had the opportunity to comment both on the State's adoption of criteria and EPA's approval of the State's criteria, EPA does not anticipate any adverse comments on withdrawal of Michigan from the NTR. For this reason, EPA is taking this action in a direct final rule. However, in the “Proposed Rules” section of today's Federal Register publication, EPA is publishing a separate document that will serve as the proposal to withdraw Federal water quality criteria for toxic pollutants applicable to Michigan if adverse comments are filed. This rule will be effective on February 6, 2003 without further notice unless EPA receives adverse comment by December 9, 2002. If EPA receives adverse comment, the Agency will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

This action withdraws Federal requirements applicable to Michigan and imposes no regulatory requirements or costs on any person or entity, does not interfere with the action or planned action of another agency, and does not have any budgetary impacts or raise novel legal or policy issues. Thus, it has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to OMB review.

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 because it is administratively withdrawing Federal requirements that no longer need to apply to Michigan.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally requires an agency to prepare a regulatory flexibility analysis of a rule that is subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have significant economic impact on a substantial number of small entities. This rule imposes no regulatory requirements or costs on any small entity. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Title III of the Unfunded Mandates Reform Act (UMRA) (Pub. L. 104-4) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, Tribal, and local governments and the private sector. Today's rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, Tribal, or local governments or the private sector because it imposes no enforceable duty on any of these entities. Thus, today's rule is not subject to the requirements of UMRA sections 202 and 205 for a written statement and small government agency plan. Similarly, EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments and is therefore not subject to UMRA section 203.

Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure State and local government officials have an opportunity to provide input in the development of regulatory policies 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 governments. This rule imposes no regulatory requirements or costs on any State or local governments, therefore, it does not have federalism implications under Executive Order 13132.

Again, this rule imposes no regulatory requirements or costs on any Tribal government. It does not have substantial direct effects on Tribal governments, 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 in Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000).

This rule is not subject to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant and EPA has no reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

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.

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 because this rule does not involve technical standards.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2) and will be effective on February 6, 2003.

On March 15, 2002, FRA and the STB published joint final rules in the Federal Register establishing procedures for developing and implementing SIPs by a Class I railroad proposing to engage in certain specified merger, consolidation, or acquisition of control transactions with another Class I railroad, or a Class II railroad with which it proposes to amalgamate operations. 67 FR 11582, 11604, and 11607, March 15, 2002. The effective date of the final rules was April 15, 2002. Id . at 11583. FRA and the STB invited interested persons to file petitions for reconsideration of the final rules, id ., with FRA requiring that a petition summarize the complaint and explain “why compliance with the rule is not possible, is not practicable, is unreasonable, or is not in the pubic interest.” 49 CFR 211.29(a).

Two parties—the Association of American Railroads (“AAR”) and the Canadian National Railway Company (“CN”) filed petitions with FRA, seeking amendments to FRA's final rule governing SIPs. (The STB received no petitions and accordingly, its final rule remains unchanged.) The parties request that FRA revise its regulations concerning the approval of SIPs and SIP amendments and personnel staffing information required in a SIP. (Collaterally, CN raises questions about the agency's Regulatory Impact Analysis (“RIA”) and information collection requirements (“ICRs”) under the Paperwork Reduction Act of 1995 (“PRA”), 44 U.S.C. 3501 et seq. )

In response to the petitions, FRA agrees that certain amendments to its final rule are warranted. The changes, which are fully discussed in the “Section-by-Section Analysis” portion of the preamble, are practicable and consistent with the public interest. The agency, however, denies other aspects of the petitions for the reasons provided below.

As summarized earlier, the AAR and CN request that FRA reconsider the regulation governing the approval of SIPs and SIP amendments. Under § 244.19, FRA reviews and approves a railroad's SIP based on the plan's “reasonable assurance of safety at every step of a transaction,” and the company's execution of the elements in the plan, including any amendments thereto. See 49 CFR 244.19(a), (b) at 67 FR 11607. Both the AAR and CN take issue with the agency's formal review process codified in the rule text. They assert that FRA's authority to approve a SIP, and amendments to it, seems to duplicate the STB's approval of the transaction as a whole. The petitioners also claim that the paradigm invites confusion and uncertainty in the application process vis-a-vis FRA's and the STB's respective roles.

Concurrently, the AAR and CN maintain that the process does not promote flexibility in responding to new information and experience that an informal iteration process facilitates. During an application process, the parties assert that integration plans, targets, and programs are fluid based on new information received, experience of the parties that are participants in the transactions, and unforeseen circumstances. CN, for example, cites its mergers with the Illinois Central Railroad Company  1 and the Wisconsin Central Transportation Corporation  2 in support of establishing an informal “collaborative relationship” with FRA in developing and implementing SIPs rather than the formal approval process currently provided in FRA's SIP rules. Petition of Canadian National Railway Company for Reconsideration of Federal Railroad Administration Rules (“CN Petition”) 5 (filed April 5, 2002). Informal consultations, the petitioners reiterate, promote expeditious changes to a plan or its implementation, whereas the approval process invites delay in reviewing a SIP and correspondingly, imposes added costs on the applicant. At bottom, the AAR and CN suggest that FRA amend its rule to reflect the agency's consultative role on SIPs in past mergers.

In the event that FRA maintains the SIP approval requirement, the petitioners ask the agency to modify the procedures for handling SIP amendments. The parties submit that the current amendment process, which requires the agency to approve all amendments to a plan that are requested by an applicant before they take effect, should be changed to authorize approval of any amendment filed with FRA absent any objections by the agency. The AAR and CN propose that the amendment would promote flexibility in addressing a change in circumstances, reduce regulatory delay in the application process, conserve regulatory resources, and facilitate implementation of time-sensitive changes to a SIP while enabling the agency to reject an amendment within its discretion. This change, the parties contend, would prove beneficial to both the regulated community and FRA without any compromise to railroad safety.

The basic arguments advanced by the petitions in support of their position that FRA should adopt the informal SIP consultative process used in the past were fully considered and rejected by the agency when it issued the final rule. The agency's reasoning was discussed in detail in the preamble to the final rule and is reaffirmed by this response to the petitions for reconsideration. Rather than fully restating this discussion, FRA will only lightly touch upon some of the points made in the preamble.

First, the agency restates that a SIP and its implementation present critical safety issues during the merger, consolidation, or acquisition of a Class I or Class II railroad. FRA's approval process provides a mechanism to oversee railroad operations subject to a transaction and enables the agency to exercise its expertise in the railroad disciplines—operating practices, motive power and equipment, signal and train control, track safety, and hazardous materials—that are the subject of those operations. See 67 FR 11585. FRA believes that its approval process will provide a forum for the agency to coordinate informally with an applicant in approving a SIP and monitoring its implementation, thereby meeting the flexibility needs of an applicant. See id. at 11586, 11599. FRA thus concludes that an approval process regulates the safety aspects of a SIP in a coordinated, consistent, and efficient manner.

Second, FRA disagrees with the petitioner's assertion that its approval process overlaps with the STB's approval process. As the agency explained in its final rule:

More important, FRA posits that the approval process is necessary to provide a baseline for enforcement. Contrary to the consultative process proposed, an approval process enables the agency to take enforcement action if a railroad fails either to obtain an approved SIP or implement the approved plan. See 67 FR 11586, 11599. Such remedies include assessing civil penalties, issuing compliance, disqualification, or emergency orders, seeking the issuance of an injunction, or referring certain matters to the Department of Justice for criminal investigation and prosecution. See id . at 11591-92; 63 FR 72225, 72229, Dec. 31, 1998. Put another way, the approval process ensures that an applicant “obtain[s] agency approval of a proposed SIP before implementing a regulated transaction.” 67 FR 11592. SIP compliance and railroad safety thus mandate that FRA retain the approval process. Accordingly, FRA reaffirms its approval process and denies the petitioners' request to eliminate the formal SIP approval provision from its regulations at § 244.19(b).

FRA agrees with the petitioners that amendments to a SIP should be presumed approved unless it rejects the changes because the modifications do not, e.g. , provide a logical and workable transition or are insufficiently detailed to provide “a reasonable assurance of safety.” See id . at 11586; 49 CFR 244.19(a). The AAR proposed that the amendments become effective 20 days after their submission to FRA unless rejected by the agency. This is too short of a time period for adequate agency review of amendments that may have serious safety consequences. Instead, FRA will amend § 244.19(c)(1) to provide for a 30-day review period before proposed amendments can become effective absent earlier FRA approval or disapproval.

The AAR requests that FRA modify the personnel staffing rule (49 CFR 244.13(j)). As currently worded, § 244.13(j) requires an applicant to identify in its SIP the number of current and proposed employees in each of eight job classification categories when there is a projected change of operations that will impact workforce duties or responsibilities. The AAR requests that § 244.13(j) be changed to require the applicant to provide information on personnel staffing with respect to only those job categories that are impacted by a transaction. The organization believes that this modification would narrow the safety issues of job categories that an applicant would be required to address, obviating the need to file extraneous or irrelevant personnel staffing information in a plan.

FRA agrees with the AAR's suggestion that § 244.13(j) should be clarified, and has adopted the language proposed by the organization. The agency intended to require a railroad to “only address the personnel staffing element when it project[ed] a change of operations that [would] impact workforce duties or responsibilities.” 67 FR 11597. An applicant “may omit this section if it expects operations will remain constant after the transaction is consummated.” Id .

In its petition, CN questions FRA's RIA based on its experience in the CN/IC and CN/WCTC mergers. Specifically, CN argues that the agency erred in its cost/benefits analysis because the costs identified are based on transactions that were consummated before the final rule was effective, and the benefits identified do not show any material gain in adopting a formal rather than an informal review process. Consequently, CN contends that the agency's regulatory impact statement is arbitrary and capricious, in violation of the Administrative Procedure Act, 5 U.S.C. 706(2)(A). 3

FRA believes that CN's analysis is misplaced. Consistent with Executive Order 12866, the agency issued its RIA that evaluated the potential costs and benefits of its final rule, and addressed the assumptions, inferences, and conclusions employed in its assessment. See 67 FR 11600-01. The cost estimates are premised on the transactions cited in the final rules, namely, the Conrail Acquisition , 4 which was the first transaction in which the parties—Norfolk Southern Railway Company and CSX Transportation, Incorporated—prepared SIPs. The agency analyzed the railroads' individual and collective expenses in establishing the cost figures identified in its final rule. Evidence in the administrative record supports the cost estimates, which FRA incorporated in the preamble to its final rule. See id . at 11600.

Likewise, the benefits measured are founded on, for example, the merger of the Union Pacific Railroad Company and the Southern Pacific Transportation Company and societal losses associated with the service difficulties caused by the disruption of safety and operating practices during the merger. See id . The RIA also considered alternatives to the rulemaking action, but concluded that the SIP process ensured that safety programs were continued and closely monitored. See id . Accordingly, FRA's assessment satisfies the regulatory analysis requirements under the Executive Order.

Finally, FRA notes that CN's efforts to draw a distinction between voluntary and required information filed in a SIP is irrelevant. The model used in the RIA is predicated on a SIP/no SIP analysis because SIPs were not prepared as a matter of normal business practice before the Conrail Acquisition proceeding. See 63 FR 72228; Conrail Acquisition , STB Decision No. 52, served Nov. 3, 1997. This model provides the necessary analytical tools in determining the costs and benefits associated with the rule given the lack of any such planning before the Conrail Acquisition . See Administrative Conference of the United States Recommendation 85-02, Agency Procedures for Performing Regulatory Analysis of Rules , 50 FR 28364, July 12, 1985 (agency should discuss selected set of models employed in regulatory analysis). FRA submits that this model comports with the Executive Order and thus withstands judicial review. See Center for Auto Safety v. Peck , 751 F.2d 1336, 1342 (D.C. Cir. 1985) (court will not substitute its judgment for that of an agency “when the agency is called upon to weigh the costs and benefits of alternative policies, since such cost-benefit analyses epitomize the types of decisions that are most appropriately entrusted to the expertise of an agency”) (internal quotations and citation omitted); Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Ins. Co. , 463 U.S. 29, 43 (1983) (“arbitrary and capricious” standard of review requires an agency to “examine the relevant data and articulate a satisfactory explanation for its action, [including] a rational connection between the facts found and the choice made”); Western Coal Traffic League v. Surface Transportation Board , 216 F.3d 1168, 1177 (D.C. Cir. 2000) (agency action is not arbitrary and capricious when it provides “ample opportunity for public comment in its proceeding [and] ample justification for its decision”); State of Louisiana v. Verity , 853 F.2d 322, 327 (5th Cir. 1988) (“agency's decision need not be ideal * * * so long as [it] gave at least minimal consideration to relevant facts contained in the record”).

FRA is making minor modifications to certain provisions of 49 CFR part 244 in response to the petitions for reconsideration. This section of the preamble explains the changes made to the final rule in response to the petitions. FRA respectfully refers interested parties to the agency's Section-by-Section Analysis of the final rule and the Notice of Proposed Rulemaking for a full discussion of those aspects of the rulemaking action that remain unchanged. See 67 FR 11590-600; 63 FR 72228-35.

Paragraph (j) of this section is modified in response to the AAR's suggestion that the regulatory text be clarified to reflect that an applicant need only provide information on personnel staffing with respect to those job categories that are impacted by a transaction. The amendment requires an applicant to identify the number of employees by job category, currently and proposed, to perform the types of functions enumerated at § 244.13(j)(1)-(8) when there is a projected change of operations that will impact workforce duties or responsibilities for employees of that job category.

FRA is revising paragraph (c)(1) of this section in response to the AAR's and CN's petitions for reconsideration. As amended, the regulation authorizes an applicant to amend its SIP, provided it explain the need for the amendment and inform FRA about the change. An amendment to a plan is presumed approved and takes effect no sooner than 30 days after it is filed with FRA, unless the agency either approves or disapproves the change within that period. Consistent with FRA's approval of a plan, the agency must determine that the amendment does not provide “a reasonable assurance of safety” should it reject the modification. See 49 CFR 244.19(a), (b).

FRA agrees with the petitioners that this revision promotes flexibility in enabling a railroad to address a change in circumstances should it decide to amend its SIP. This change, which is consistent with the agency's Railroad Workplace Safety and Qualification and Certification of Locomotive Engineers rules at 49 CFR 214.307(c) and 240.103(c), respectively, facilitates a railroad's ability to implement time-sensitive changes to a plan yet retains agency discretion to intervene should circumstances warrant.

The response to petitions for reconsideration of the final rule has been evaluated in accordance with Executive Order 12866 and DOT policies and procedures. Although the final rule met the criteria for being considered a significant rule under those policies and procedures, the amendments contained in the response to the petitions are not considered significant because they either clarify requirements currently contained in the final rule or allow for greater flexibility in complying with the rule. The economic impact of the amendments and clarifications contained in this response will generally reduce the cost of compliance with the rule.

The cost reduction, however, is not easily quantified and does not significantly alter FRA's original analysis of the costs and benefits associated with the original final rule. Additionally, the agency believes that the modifications and clarifications increase the benefits associated with the final rule by facilitating amendments to a SIP and conserving agency resources in reviewing and approving a plan. Accordingly, FRA reaffirms the economic arguments and estimates advanced in its RIA for the final rule.

The Regulatory Flexibility Act of 1980 (“RFA”), 5 U.S.C. 601 et seq. , requires an assessment of the impact of rules on “small entities.” FRA certifies that the response to petitions for reconsideration does not have a significant impact on a substantial number of small entities. Because the amendments contained in this document either clarify requirements currently contained in the final rule or allow for greater flexibility in complying with the rule, FRA has concluded that there is no substantial economic impact on small units of government, businesses, or other organizations.

The response to petitions for reconsideration of the final rule has been reviewed in accordance with Executive Order 13272 (67 FR 53461, August 16, 2002), which requires agencies to assess and take appropriate account of the potential impact on small businesses, small governmental jurisdictions, and small organizations, as provided by RFA. FRA certifies that this rulemaking action does not have a significant economic impact on these entities under the RFA.

The response to petitions for reconsideration of the final rule does not significantly change any of the ICRs contained in the original final rule.

FRA has evaluated the response to petitions for reconsideration of the final rule in accordance with its “Procedures for Considering Environmental Impacts” (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act, 42 U.S.C. 4321 et seq. , other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined that this document is not a major FRA action for environmental purposes.

The response to petitions for reconsideration of the final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and it has been determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

The response to petitions for reconsideration of the final rule has been reviewed in accordance with Executive Order 13211 (66 FR 28355, May 22, 2001), which requires agencies to prepare a Statement of Energy Effects describing the effects of certain regulatory actions on energy supply, distribution, or use when such measures are identified as “significant energy actions.” FRA certifies that this rulemaking action is not a significant energy action to warrant the preparation of such a statement.

Regulations implemented under the authority of the Atlantic Tunas Convention Act (16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq. ) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT landings quota recommended by the International Commission for the Conservation of Atlantic Tunas among the various domestic fishing categories. The General category landings quota, including time-period subquotas and the New York Bight set-aside, are specified annually as required under § 635.27(a)(1). The 2002 fishing year General category quota and effort control specifications were issued October 1, 2002 (67 FR 61537).

The New York Bight set-aside area is defined as the waters south and west of a straight line originating at a point on the southern shore of Long Island where the shoreline intersects 72° 27′ W. long. (Shinnecock Inlet) and running SSE 150 true, and north of 38° 47′ N. lat. (Delaware Bay). Under § 635.27(a)(1)(iii), NMFS may make available all or part of the 10 mt landings quota set aside for the New York Bight area when the coastwide General category fishery has been closed in any quota period. NMFS closed the coastwide General category fishery on October 25, 2002 (67 FR 66072). At that time, NMFS announced that it would open the New York Bight fishery when it is determined that large medium and giant BFT are available in the New York Bight area. Allowing a few days transition between the closure of the coastwide fishery and the opening of the New York Bight fishery reduces concerns regarding enforcement of regulations applicable to that area. Based on the presence of large medium and giant BFT in the New York Bight area, fishermen have contacted NMFS requesting an opportunity to participate in this fishery. Since the coastwide General category fishery is closed and large medium and giant BFT are now available in the New York Bight, NMFS will open the New York Bight set-aside fishery effective 1 a.m., November 5, 2002, until the date that the set-aside quota of 10 mt is determined to have been taken, which will be published in the Federal Register .

For vessels permitted in the General category: upon the effective date of the New York Bight opening, retaining or landing large medium or giant BFT is authorized only within the set- aside area, until the set aside quota for that area has been harvested. The daily retention limit for the set-aside fishery will be one large medium or giant BFT (measuring 73 inches (185 cm) or larger) per vessel per day. BFT harvested from waters outside the defined set-aside area may not be brought into the set-aside area. General category permit holders may tag and release BFT in all areas while the General category is closed, subject to the requirements of the tag-and-release program at § 635.26.

For vessels permitted in the Highly Migratory Species (HMS) Charter/Headboat category: when participating in the General category New York Bight fishery, i.e., fishing for large medium and giant BFT intended for sale, HMS Charter/Headboat category vessels are subject to the same rules as General category vessels. HMS Charter/Headboat category vessels may continue to fish in all areas under the Angling category regulations while the Angling category is open. Vessels permitted in the HMS Charter/Headboat category that are still eligible for the Angling category trophy fish allowance under § 635.23(c)(1) or (2) may land one large medium or giant trophy BFT prior to May 31, 2003. Trophy BFT may not be sold and must be reported.

The announcement of the New York Bight fishery closure date will be filed with the Office of the Federal Register , and further communicated through the HMS Fax Network, the Atlantic Tunas Information Line, HMS web sites, NOAA weather radio, and Coast Guard Notice to Mariners. Although notification of the closure will be provided as far in advance as possible, fishermen are encouraged to call the Atlantic Tunas Information Line or check the HMS web sites to verify the status of the fishery before leaving for a fishing trip. The phone numbers for the Atlantic Tunas Information Line are (978) 281-9305 and (888) USA-TUNA. The web sites are www.nmfspermits.com and www.nmfs.noaa.gov/sfa/hmspg.html.

This action is taken under § 635.27(a)(1) and is exempt from review under Executive Order 12866.