This rule is issued under Marketing Agreements Nos. 124 and 85, and Marketing Order Nos. 916 and 917 (7 CFR parts 916 and 917) regulating the handling of nectarines and peaches grown in California, respectively, hereinafter referred to as the “orders.” The marketing agreements and orders are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

This 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 the Secretary a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing the Secretary would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This final rule revises the orders' rules and regulations pertaining to reporting requirements under the orders. This rule establishes procedures in the orders' rules and regulations for handlers to file reports on the destinations of their shipments of fresh nectarines and peaches. Under the orders the term “handler” is synonymous with the term “shipper.” This rule was unanimously recommended by the committees at their meetings on December 2, 1998.

In §§ 916.60 and 917.50 of the orders, authority is provided for the committees to require handlers to file reports with the committees. The information authorized includes, but is not limited to: (1) The name of the shipper and the shipping point; (2) The car or truck license number (or name of the trucker), and identification of the carrier; (3) The date and time of departure; (4) The number and type of containers in the shipment; (5) The quantities shipped, showing separately the variety, grade, and size of the fruit; (6) The destination; and (7) The identification of the inspection certificate or waiver pursuant to which the fruit was handled. Handlers have not been required to report the destinations of their shipments of fresh nectarines and peaches.

The Nectarine Administrative Committee's (NAC) and the Peach Commodity Committee's (PCC) discussions on destination reports were prompted by recommendations of two subcommittees which met prior to the December 2, 1998, committee meetings. At a Domestic Promotion Subcommittee meeting, the merits of destination reports were discussed, among other issues. The subcommittee unanimously recommended adding a requirement to the orders' rules and regulations for destination reports. The subcommittee believed that having information about markets to which nectarines and peaches are shipped will be a valuable marketing tool. The members believed that such information will allow the subcommittee to target markets more effectively for promotion, and permit a more effective analysis of the effectiveness of industry funded media and promotional campaigns. At an International Programs Subcommittee meeting, the merits of destination reports also were discussed. The members of this subcommittee also believed that such reports will provide invaluable information to assist the NAC and PCC in targeting their promotional activities in the most-promising markets for these two fruits.

The NAC and PCC discussed the subcommittees' recommendations and the merits of destination reporting. Both the NAC and PCC agreed that the establishment of such a report requiring each handler to list the destination of his/her shipments of nectarines and peaches in both domestic and international markets will provide invaluable information and greatly benefit the industries.

With destination information from handlers, the committees will be able to make better-informed decisions about marketing research and development projects conducted, and gauge the success of such activities knowing the volume of fruit shipped to various markets. With this information, the committees will also be able to direct their marketing research and development activities and funds to the most-promising markets, and tailor the activities to meet the needs of the particular markets, focus on the more successful promotional activities, and target markets based on consumption.

Current market analysis tools, such as consumer and retail surveys, provide useful information based on a small group of respondents, but specific shipment and destination information will enable the committees to direct their activities to the most successful markets, and perform a more thorough analysis of the benefits of their promotional activities.

Without exact destination information, the committees do not know precisely the quantities of nectarines and peaches shipped to various markets, and, therefore, may be spending funds on promotional activities not appropriate for the particular market. Experience has shown that certain types of promotion are appropriate for developing markets and other activities are more appropriate when trying to expand markets. With the ability to determine the markets to which nectarines and peaches are not shipped, the committees will have the ability to direct their marketing research and promotion funds to open those markets for future shipments. In addition, such information will permit the committees to constructively evaluate the effectiveness of their marketing promotion and research programs by helping them get a better handle on promotions that have been working and those that have not, and determine the reason(s) for any lack of success. The industries have long recognized the importance of this information in making their promotion activities more effective and in helping to sell more nectarines and peaches. They have tried voluntary reporting, but this has not worked.

The shipping season for nectarines begins April 1 and ends on October 31 of each year, and the shipping season for peaches begins on April 1 and ends on November 23 of each year. The destination report will be required from all handlers by the fifteenth of the month following the month in which the shipments were made. Handlers will be required to report the number of packages of peaches and nectarines shipped to each destination, and indicate whether the fruit were white-fleshed or yellow-fleshed, and whether the fruit were “CA Utility” quality. Destination information for domestic market shipments will include the city and state, and zip code, if known. Destination information for international market shipments will include the country to which shipped.

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.

There are approximately 300 California nectarine and peach handlers subject to regulation under the orders covering nectarines and peaches grown in California, and about 1,800 producers of these fruits in California. Small agricultural service firms, which includes handlers, have been defined by the Small Business Administration (13 CFR 121.201) as those whose annual receipts are less than $5,000,000. Small agricultural producers are defined as those having annual receipts of less than $500,000.

Based upon committees' staff data, it is estimated that there are less than 20 handlers in the industry who could be defined as other than small entities. If the average handler price received were $9.00 per box or box equivalent of nectarines or peaches, a handler would have to ship at least 555,000 boxes to have annual receipts of $5,000,000. Less than 20 handlers ship more than 555,000 boxes of nectarines and/or peaches. Small handlers would, therefore, represent approximately 94 percent of the handlers within the industry. In addition, there are approximately 400 producers who could be defined as other than small entities. If the average producer price received were $6.00 per box or box equivalent for nectarines and $5.65 per box or box equivalent for peaches, producers would have to produce approximately 84,000 boxes or box equivalents of nectarines and approximately 89,000 boxes or box equivalents of peaches to have annual receipts of $500,000. More than 1,400 producers produce less than 84,000 boxes of nectarines or 89,000 boxes of peaches. Therefore, small producer entities would represent approximately 78 percent of the producers within the industry. For these reasons, a majority of the handlers and producers may be classified as small entities.

This final rule revises §§ 916.160 and 917.178 of the orders' administrative rules and regulations to require handlers to file destination reports on a monthly basis during the shipping season by adding a new paragraph (c) to each section. The information obtained from such reports will improve decision making and program administration with regard to marketing research and development activities undertaken to expand shipments of fresh nectarines and peaches domestically and in foreign markets.

Two comments were received as a result of a proposed rule published in the Federal Register on June 7, 1999 (64 FR 30252). The commenters raised issues concerning both the initial regulatory impact analysis and the information collection requirements, as proposed. These comments are discussed more fully later in this document.

Requiring handlers to file this report on a monthly basis will impose an additional reporting burden on both small and large handlers. The report is estimated to take three-quarters of an hour to complete. It is further estimated that handlers will file an average of four destination reports per year, creating an estimated total annual burden of three hours per handler. The total industry annual burden is, therefore, estimated at approximately 900 hours per year for nectarine and peach shipments each.

Although this action creates an additional burden on handlers of fresh nectarines and peaches, the benefits of collecting additional and timely information regarding destinations are anticipated to outweigh the estimated increased reporting burden. The committees will have detailed information about markets to which fruit is sent; and, therefore, will be able to make better-informed decisions about marketing research and promotion fund expenditures and activities undertaken. Such reports and forms will be filed by all handlers, regardless of size; and thus, the increased burden will be equitably distributed to all handlers. Finally, as with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public-sector agencies.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection requirements that are contained in this rule have been approved by the Office of Management and Budget (OMB) and have been assigned OMB No. 0581-0072 for documents required under the nectarine marketing order, and OMB No. 0581-0080 for documents required under the peach marketing order. The estimated burden has been revised based upon a comment received. The revised estimated total annual burden for nectarine and peach handlers is reduced from 1,200 hours to 900 hours. As previously stated, this comment is discussed more fully later in the document. In addition, the Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.

An alternative to this action would be to continue operations without required destination reporting. Most committee members agreed that the value of having destination information outweighed the burden on handlers of filing such reports in terms of targeting marketing and promotion funds and activities. In recent years, the committees have decided to keep their marketing and promotion expenses relatively constant. Because of this, the committee members felt that greater emphasis should be placed on using the funds to their greatest advantage.

All committee members agreed that continuing to spend promotion funds, without the information to be provided by destination reports, was not in the best interest of the industries. Further, as the percentage of promotion funds either decreases or remains constant in relationship to total committee funds, and as shipments of nectarines and peaches increase over time, detailed information on the destinations of nectarine and peach shipments will be valuable in targeting promising markets. The committee members also noted that voluntary destination reports have been requested in the past, but very few handlers provided the information. The committees, therefore, voted unanimously at all the meetings to require destination reports from nectarine and peach handlers.

During the deliberations, some committee members indicated their concern that destination information will not be kept confidential by committee staff. The Act states, in part, in § 608d(2), that “all information furnished to or acquired by the Secretary of Agriculture pursuant to this section, as well as information for marketing order programs that is categorized as trade secrets and commercial or financial information * * *, shall be kept confidential by all officers and employees of the Department of Agriculture.” In addition, §§ 916.60(d) and 917.50(d) of the orders also require committee employees to maintain confidentiality of all reports and records submitted by handlers. Therefore, each handler is generally protected against disclosure of any confidential information the handler furnishes to the committees. Further, under the Act, persons found guilty of revealing confidential information could be subject to a fine, imprisonment, or both, or could be removed from office.

The committee meetings were widely publicized throughout the tree fruit industry and all interested persons were invited to express their views and participate in committee deliberations on all issues. Like all committee meetings, the December 2, 1998, meetings were public meetings, and all entities, large and small, were able to express their views on this issue. The subcommittee meetings were also public meetings at which large and small entities were invited to express their views and participate in all deliberations. Finally, interested persons were invited to submit information on the regulatory and informational impacts of this action on small businesses.

A proposed rule concerning this action was published in the Federal Register on June 7, 1999 (64 FR 30252). The proposal also announced AMS's intent to request a revision to the currently approved information collection requirements issued under the orders. Copies of the proposal were also mailed to handlers on June 9, 1999, by the California Tree Fruit Agreement staff, who conduct day-to-day business operations for the committees. Finally, the proposed rule was made available through the Internet by the Office of the Federal Register. A 60-day comment period, ending August 6, 1999, was provided to allow interested persons to respond to the proposal.

Two comments were received during the comment period in response to the proposal. One commenter, a handler, made two points concerning the proposed rule. First, the commenter was of the view that the proposed information to be collected was not necessary to ensure the high quality of nectarines and peaches and adequate returns to producers. This commenter went on to state that the marketing orders have never been concerned with the returns to the producer, only moving the crop at whatever price necessary to move it, in addition to collecting the mandatory assessment. The Department disagrees with the commenter's views. The marketing orders were issued consistent with the provisions of the Act. The regulations issued in this rulemaking are authorized under the orders and their purpose is to provide additional and timely information to the committees and the industries, thereby facilitating improved decision making and program administration with regard to marketing research and development, and promotional activities. Accordingly, the Department believes that the information required by the regulations is needed to accomplish their stated objectives.

With regard to the commenter's second point, the commenter stated that the number of producers that are small entities should be based on an average of boxes shipped over 3-5 years. The regulatory flexibility analysis discusses and sets forth the identification and estimates of small entities under criteria established by the Small Business Administration. The information is based on the most current and accurate information available, and, as such, the Department believes is best suited to accomplish the objectives of the Regulatory Flexibility Act and this program. The commenter went on to state that there should be a minimum of perhaps 50,000 shipped boxes before a destination report should be required of producers who are also handlers. While minimum exemptions are and have been used as an alternative in a variety of regulatory schemes, they may not be appropriate in all programs. For example, with regard to this program, a second commenter noted that given the structure of the industries, it was important that all handlers report their destinations and that the report be compiled collectively to measure trends and to analyze marketing effectiveness. Accordingly, given the purpose and nature of these regulations, the Department does not believe that a minimum exemption is appropriate. Further, based upon information in another comment received concerning the proposed rule, the committees have revised the detail in the forms to be used to further minimize the burden.

The second commenter, the manager of the California Tree Fruit Agreement, the body which manages the PCC and NAC, supported the proposed rule, stating that destination reports will help in providing information for the committees to make long-term decisions designed to improve the marketing of nectarines and peaches grown in California. This commenter noted, as well, the importance of requiring all handlers to file destination reports. This commenter also discussed requirements for similar information in other programs, the confidentiality of the information submitted, and the need to finalize this action as soon as possible.

The comment went on to state that the NAC and the PCC have revised the destination reports since the proposed rule was issued to make it more simple for handlers to complete. For example, requested information concerning grade and size has been removed, and zip code information would be required only if known by the handler. Reporting “CA Utility” quality fruit also would be required. It was suggested that the computer technology that is being used in the industries may also assist handlers in completing the destination report in less time that it would take to complete the report by hand.

The Department has revised its estimate of the time it would take to complete the destination report from one hour to three-quarters of an hour. The revised estimated total annual burden to nectarine and peach handlers is reduced from 1,200 hours to 900 hours.

Accordingly, appropriate changes have been made to the rule as proposed, based on this second comment. Finally, this rule will be effective for the beginning of the 2000 shipping season.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at the following website: 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 matters presented, including the information and recommendation submitted by the committees 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.

This final rule is issued under Marketing Order No. 985 (7 CFR part 985), as amended, regulating the handling of spearmint oil produced in the Far West (Washington, Idaho, Oregon, and designated parts of Nevada and Utah), hereinafter referred to as the “order.” This order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the provisions of the marketing order now in effect, salable quantities and allotment percentages may be established for classes of spearmint oil produced in the Far West. This rule establishes the quantity of spearmint oil produced in the Far West, by class, that may be purchased from or handled for producers by handlers during the 2000-2001 marketing year, which begins on June 1, 2000. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

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

Pursuant to the authority in sections 985.50, 985.51, and 985.52 of the order, the Committee recommended the salable quantities and allotment percentages for the 2000-2001 marketing year at its October 6, 1999, meeting. With 7 members in favor and 1 member opposed, the Committee recommended the establishment of a salable quantity and allotment percentage for Class 1 (Scotch) spearmint oil of 1,211,207 pounds and 65 percent, respectively. The member in opposition favored the establishment of a lower salable quantity and allotment percentage. The Committee unanimously recommended the establishment of a salable quantity and allotment percentage for Class 3 (Native) spearmint oil of 1,033,648 pounds and 50 percent, respectively.

This final rule limits the amount of spearmint oil that handlers may purchase from, or handle for, producers during the 2000-2001 marketing year, which begins on June 1, 2000. Salable quantities and allotment percentages have been placed into effect each season since the order's inception in 1980.

The U.S. production of spearmint oil is concentrated in the Far West, primarily Washington, Idaho, and Oregon (part of the area covered by the marketing order). Spearmint oil is also produced in the Midwest. The production area covered by the marketing order currently accounts for approximately 63 percent of the annual U.S. production of Scotch spearmint oil and approximately 93 percent of the annual U.S. production of Native spearmint oil.

When the order became effective in 1980, the United States produced nearly 100 percent of the world's supply of Scotch spearmint oil, of which approximately 72 percent was produced in the regulated production area in the Far West. International production characteristics have changed in recent years, however, with foreign Scotch spearmint oil production contributing significantly to world production. The Far West's market share as a percent of total world sales fell to a low of about 38 percent during the 1994-95 season. Beginning with the 1996-97 marketing year, the Committee has employed a marketing strategy for Scotch spearmint oil that is intended to foster market stability and that would retain and expand market share. Using this approach, the Far West's market share has increased to approximately 43 percent of total world sales. The Committee's current recommendation for Scotch spearmint oil could maintain market stability by avoiding extreme fluctuations in supplies and prices, and would help the industry remain competitive on an international level by hopefully regaining more of the Far West's historical share of the global market.

The order has contributed extensively to the stabilization of producer prices, which prior to 1980 experienced wide fluctuations from year to year. For example, between 1971 and 1975 the price of Native spearmint oil ranged from $3.00 per pound to $11.00 per pound. In contrast, under the order, prices have generally stabilized between $10.50 and $11.50 per pound. During the past year, however, the price of Native spearmint oil has decreased about $2.00 per pound despite the Committee's efforts to balance available supplies with the demand for the oil. Based on comments made at the Committee's meeting, factors contributing to the low price could include the relatively poor returns being realized from other essential oils, as well as the overall weak farm situation.

With approximately 90 percent of the U.S. production located in the Far West, and with nearly 80 percent of total world sales originating in the Far West, the Committee's method of calculating the Native spearmint oil salable quantity and allotment percentage continues to primarily utilize information on price and available supply as they are affected by the estimated trade demand.

The salable quantity and allotment percentage for each class of spearmint oil for the 2000-2001 marketing year is based upon the Committee's recommendation and the data presented below.

(A) Estimated carry-in on June l, 2000—869,206 pounds. This figure is derived by subtracting the estimated 1999-2000 marketing year trade demand of 887,500 pounds from the revised 1999-2000 marketing year total available supply of 1,756,706 pounds.

(B) Estimated global sales for the 1999-2000 marketing year—2,082,500 pounds. This figure is based on preliminary information the Committee has compiled.

(C) Estimated Far West sales for the 1999-2000 marketing year—900,000 pounds.

(D) Approximate Far West percentage of estimated total world sales in 1999-2000—43 percent. This is down from the 1980 level of approximately 72 percent, but up from the low of approximately 38 percent during the 1994/95 marketing year.

(E) Total estimated allotment base for the 2000-2001 marketing year—1,863,396 pounds. This figure represents a one percent increase over the revised 1999-2000 allotment base.

(F) Recommended 2000-2001 allotment percentage—65 percent. This figure is based upon recommendations made at the October 6, 1999, meeting, as well as at the five Scotch spearmint oil production area meetings held during September 1999.

(G) The Committee's computed 2000-2001 salable quantity—1,211,207 pounds. This figure is the product of the recommended allotment percentage and the total estimated allotment base.

(H) Estimated available supply for the 2000-2001 marketing year—2,080,413 pounds. This figure is derived by adding the computed salable quantity to the estimated June 1, 2000, carry-in volume, and represents the total amount of Scotch spearmint oil that could be available to the market during the 2000-2001 marketing year.

(I) Estimated trade demand for Far West Scotch spearmint oil during the 2000-2001 marketing year—887,500 pounds. This figure is based upon estimates provided to the Committee by buyers of spearmint oil.

(J) Estimated carry-out on May 31, 2001—1,192,913 pounds. This figure is the difference between the 2000-2001 estimated trade demand and the 2000-2001 estimated available supply.

(A) Estimated carry-in on June 1, 2000—64,602 pounds. This figure is the difference between the estimated 1999-2000 marketing year trade demand of 1,168,474 pounds and the revised 1999-2000 marketing year total available supply of 1,233,076 pounds.

(B) Estimated trade demand (domestic and export) for the 2000-2001 marketing year—1,170,974 pounds. This figure is based on the average of the estimates provided at the four production area meetings held in September 1999.

(C) Salable quantity required from the year 2000 production—1,106,372 pounds. This figure is the difference between the estimated 2000-2001 marketing year trade demand and the estimated carry-in on June 1, 2000.

(D) Total estimated allotment base for the 2000-2001 marketing year—2,067,296 pounds. This figure represents a one percent increase over the revised 1999-2000 allotment base.

(E) Computed allotment percentage—53.5 percent. This percentage is computed by dividing the required salable quantity by the total estimated allotment base.

(F) Recommended allotment percentage—50 percent. This is the Committee's recommendation based on the computed allotment percentage and takes into account the recent sharp decline in the Native spearmint oil price.

(G) The Committee's recommended salable quantity—1,033,648 pounds. This figure is the product of the recommended allotment percentage and the total estimated allotment base.

The salable quantity is the total quantity of each class of spearmint oil which handlers may purchase from or handle on behalf of producers during a marketing year. Each producer is allotted a share of the salable quantity by applying the allotment percentage to the producer's allotment base for the applicable class of spearmint oil.

The Committee's recommended Scotch spearmint oil salable quantity of 1,211,207 pounds and allotment percentage of 65 percent are based on the Committee's goal of maintaining market stability by avoiding extreme fluctuations in supplies and prices, and thereby helping the industry remain competitive on the international level. The Committee's recommended Native spearmint oil salable quantity of 1,106,372 pounds and allotment percentage of 50 percent are based on the anticipated supply and trade demand during the 2000-2001 marketing year. The salable quantities are not expected to cause a shortage of spearmint oil supplies. Any unanticipated or additional market demand for spearmint oil which may develop during the marketing year can be satisfied by an increase in the salable quantities. Both Scotch and Native spearmint oil producers who produce more than their annual allotments during the 2000-2001 season may transfer such excess spearmint oil to a producer with spearmint oil production less than his or her annual allotment or put it into the reserve pool.

This regulation is similar to those which have been issued in prior seasons. Costs to producers and handlers resulting from this action are expected to be offset by the benefits derived from a stable market, a greater market share, and possible improved returns. In conjunction with the issuance of this final rule, the Committee's marketing policy statement for the 2000-2001 marketing year has been reviewed by the Department. The Committee's marketing policy statement, a requirement whenever the Committee recommends volume regulations, fully meets the intent of section 985.50 of the order. During its discussion of potential 2000-2001 salable quantities and allotment percentages, the Committee considered: (1) The estimated quantity of salable oil of each class held by producers and handlers; (2) the estimated demand for each class of oil; (3) prospective production of each class of oil; (4) total of allotment bases of each class of oil for the current marketing year and the estimated total of allotment bases of each class for the ensuing marketing year; (5) the quantity of reserve oil, by class, in storage; (6) producer prices of oil, including prices for each class of oil; and (7) general market conditions for each class of oil, including whether the estimated season average price to producers is likely to exceed parity. Conformity with the Department's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” has also been reviewed and confirmed.

The establishment of these salable quantities and allotment percentages allows for anticipated market needs. In determining anticipated market needs, consideration by the Committee was given to historical sales, and changes and trends in production and demand. This rule also provides producers with information on the amount of spearmint oil which should be produced for next season in order to meet anticipated market demand.

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

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

There are 7 spearmint oil handlers subject to regulation under the order, and approximately 119 producers of Class 1 (Scotch) spearmint oil and approximately 105 producers of Class 3 (Native) spearmint oil in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers have been defined as those whose annual receipts are less than $500,000.

Based on the SBA's definition of small entities, the Committee estimates that 2 of the 7 handlers regulated by the order could be considered small entities. Most of the handlers are large corporations involved in the international trading of essential oils and the products of essential oils. In addition, the Committee estimates that 25 of the 119 Scotch spearmint oil producers and 7 of the 105 Native spearmint oil producers could be classified as small entities under the SBA definition. Thus, a majority of handlers and producers of Far West spearmint oil may not be classified as small entities.

The Far West spearmint oil industry is characterized by producers whose farming operations generally involve more than one commodity, and whose income from farming operations is not exclusively dependent on the production of spearmint oil. Crop rotation is an essential cultural practice in the production of spearmint oil for weed, insect, and disease control. A normal spearmint oil producing operation would have enough acreage for rotation such that the total acreage required to produce the crop would be about one-third spearmint and two-thirds rotational crops. An average spearmint oil producing farm would thus have to have considerably more acreage than would be planted to spearmint during any given season. To remain economically viable with the added costs associated with spearmint oil production, most spearmint oil producing farms fall into the SBA category of large businesses.

This final rule establishes the quantity of spearmint oil produced in the Far West, by class, that handlers may purchase from, or handle for, producers during the 2000-2001 marketing year. The Committee recommended this rule for the purpose of avoiding extreme fluctuations in supplies and prices, and thus help to maintain stability in the spearmint oil market. This action is authorized by the provisions of sections 985.50, 985.51, and 985.52 of the order.

Small spearmint oil producers generally are not extensively diversified and as such are more at risk to market fluctuations. Such small farmers generally need to market their entire annual crop and do not have the luxury of having other crops to cushion seasons with poor spearmint oil returns. Conversely, large diversified producers have the potential to endure one or more seasons of poor spearmint oil markets because incomes from alternate crops could support the operation for a period of time. Being reasonably assured of a stable price and market provides small producing entities with the ability to maintain proper cash flow and to meet annual expenses. Thus, the market and price stability provided by the order potentially benefit the small producer more than such provisions benefit large producers. Even though a majority of handlers and producers of spearmint oil may not be classified as small entities, the volume control feature of this order has small entity orientation.

The order has contributed extensively to the stabilization of producer prices, which prior to 1980 experienced wide fluctuations from year to year. For example, between 1971 and 1975 the price of Native spearmint oil ranged from $3.00 per pound to $11.00 per pound. In contrast, under the order, prices have generally stabilized between $10.50 and $11.50 per pound. During the past year, however, the price of Native spearmint oil has decreased about $2.00 per pound despite the Committee's efforts to balance available supplies with the demand for the oil. Based on comments made at the Committee's meeting, factors contributing to the low price could include the relatively poor returns being realized from other essential oils as well as the overall weak farm situation.

With approximately 90 percent of the U.S. production located in the Far West, and with nearly 80 percent of total world sales originating in the Far West, the Committee's method of calculating the Native spearmint oil salable quantity and allotment percentage continues to primarily utilize information on price and available supply as they are affected by the estimated trade demand.

Alternatives to this rule included not regulating the handling of spearmint oil during the 2000-2001 marketing year, and recommending either higher or lower levels for the salable quantities and allotment percentages. The Committee reached its recommendation to establish salable quantities and allotment percentages for both classes of spearmint oil after careful consideration of all available information, including: (1) The estimated quantity of salable oil of each class held by producers and handlers; (2) the estimated demand for each class of oil; (3) prospective production of each class of oil; (4) total of allotment bases of each class of oil for the current marketing year and the estimated total of allotment bases of each class for the ensuing marketing year; (5) the quantity of reserve oil, by class, in storage; (6) producer prices of oil, including prices for each class of oil; and (7) general market conditions for each class of oil, including whether the estimated season average price to producers is likely to exceed parity. Based on its review, the Committee believes that the salable quantity and allotment percentage levels recommended will achieve the objectives sought.

Without any regulations in effect, the Committee believes the industry would return to the pattern of cyclical prices of prior years, as well as suffer the potentially price depressing consequence that a release of over a million pounds of spearmint oil reserves would have on the market. According to the Committee, higher or lower salable quantities and allotment percentages would not achieve the intended goals of market and price stability, with market share maintenance and growth.

Annual salable quantities and allotment percentages have been issued for both classes of spearmint oil since the order's inception. Reporting and recordkeeping requirements have remained the same for each year of regulation. These requirements have been approved by the Office of Management and Budget under OMB Control No. 0581-0065. Accordingly, this action will not impose any additional reporting or recordkeeping requirements on either small or large spearmint oil producers and handlers. All reports and forms associated with this program are reviewed periodically in order to avoid unnecessary and duplicative information collection by industry and public sector agencies. The Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

Finally, the Committee's meeting was widely publicized throughout the spearmint oil industry and all interested persons were invited to attend and participate on all issues. Like all Committee meetings, the October 6, 1999, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Interested persons were also invited to submit information on the regulatory and informational impacts of this action on small businesses.

A proposed rule was published in the Federal Register (64 FR 238) on December 13, 1999. A 30-day comment period was provided to allow interested persons the opportunity to respond to the proposal, including any regulatory and informational impacts of this action on small businesses. A copy of the proposed rule was faxed and mailed to the Committee office, which in turn notified Committee members and spearmint oil producers and handlers of the proposed action. In addition, the Committee's meeting was widely publicized throughout the spearmint oil industry and all interested persons were invited to attend and participate on all issues. A copy of the proposal was also made available on the Internet by the U.S. Government Printing Office. No comments were received. Accordingly, no changes are made to the rule as proposed.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at the following web site: 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.

The Animal Welfare Act (AWA) (7 U.S.C. 2131 et seq. ) authorizes the Secretary of Agriculture to promulgate standards and other requirements governing the humane handling, housing, care, treatment, and transportation of certain animals by dealers, research facilities, exhibitors, carriers, and intermediate handlers.

The regulations established under the Act are contained in title 9 of the Code of Federal Regulations, chapter I, subchapter A, parts 1, 2, and 3. Part 1 defines various terms used in parts 2 and 3.

As defined in § 1.1 of the regulations prior to this final rule, field study meant any study that is “conducted on free-living wild animals in their natural habitat, which does not involve an invasive procedure, and which does not harm or materially alter the behavior of the animals under study.”

We have always intended that field studies not include any invasive procedures, harm the animals under study, or materially alter the behavior of the animals under study. However, we were concerned that the definition, as worded above, could be interpreted to mean that a field study could include any one of these situations.

On July 31, 1998, we published in the Federal Register (63 FR 40844-40845, Docket No. 98-043-1) a proposal to amend the definition of field study in § 1.1 of the regulations by defining field study as any study conducted on free-living wild animals in their natural habitat. We also proposed to add the provision that the term field study excludes any study that involves an invasive procedure or has the potential to harm or materially alter the behavior of the animals under study. This proposed action was based on the need to ensure that studies conducted in free-living wild animals in their natural habitat are correctly classified as field studies based on the definition of field study.

We solicited comments concerning our proposal for 60 days ending September 29, 1998. We received seven comments. They were from universities; animal welfare organizations; an association representing birds; an association representing fish, reptiles, and amphibians; and an association representing zoos and aquariums. Two commenters supported the proposal as written. However, one of these commenters and the remaining commenters had concerns that are discussed below.

One commenter stated that the previous definition of field study was perfectly clear and unambiguous and did not need to be amended. In addition, two commenters stated that the proposed change in the definition of field study would exclude all projects that involve invasive procedures. One commenter requested that we delay the change of the definition. Two commenters stated that any study has the potential to harm or materially alter the behavior of the animals under study; therefore, no study could be classified as a field study.

We do not believe that the previous definition was clear to everyone. For instance, two commenters stated that the proposed change in the definition of field study would exclude all projects that involve invasive procedures. However, the previous definition of field study always excluded studies that involved invasive procedures, harmed the animals under study, or materially altered the behavior of the animals under study. In addition, in the past, some entities interpreted the definition to mean that a field study may include any one of these situations as long as it did not include all of them. In our proposed definition of field study, we clarified that a study that includes any one of the situations could not be considered a field study.

As to the use of the word potential, we agree that it is unnecessary; therefore, we are removing the word potential from the definition of field study in this final rule.

One commenter stated that the definition is internally inconsistent. The commenter stated that if a field study is any study conducted on free-living wild animals in their natural habitat (emphasis added), then the second part of our definition, which excludes a subset of those studies (those that involve invasive procedures or have the potential to harm or materially alter the behavior of an animal), does not make sense.

This is a question of sentence structure, which we have addressed in this final rule by changing the word “any” in the first sentence to “an” and beginning the second sentence with “However,”. We believe that this change solves the sentence structure problem.

One commenter stated that the words “harm,” “invasive,” and “materially alter” should be defined or else the determination of whether a study should be classified as a field study will be left to the discretion of the Institutional Animal Care and Use Committee (IACUC) at different facilities. One commenter stated that the Animal and Plant Health Inspection Service (APHIS) should provide definitions for invasive or noninvasive, and one commenter stated that APHIS should provide guidelines or regulations for defining invasive procedure and standard animal husbandry procedures. In addition, one commenter stated that APHIS should issue guidelines or a policy to state what the Agency classifies as a field study.

We do not believe that the terms “harm,” “invasive,” and “materially alter” need to be defined. However, we are considering the development of a policy statement that would provide examples of what APHIS considers invasive or noninvasive procedures. We do not believe that guidelines or regulations for defining standard animal husbandry procedures are necessary. Standard animal husbandry procedures are procedures that are necessary for the health and maintenance of animals on a premises.

One commenter stated that the proposed definition of field study obscures rather than clarifies the intent of field studies. This commenter stated that restriction of the term field study to exclude invasive procedures does not clarify the definition. This commenter stated that field studies have no inherent implication of invasiveness and should retain the common and professional meaning of “the study of organisms in the field,” and after classification as a field study, the study should then be qualified as invasive or noninvasive.

The term field study has always excluded any study that involved an invasive procedure; therefore, we have not altered the intent of the definition. In order to be absolutely clear as to what constitutes a field study, the definition of field study had to provide the situations that would exclude a study from being considered a field study under the AWA regulations.

One commenter requested clarification that our proposal would not make changes in the administration of the AWA regulations by APHIS and IACUC's and that it would not prohibit or restrict field studies or impose additional requirements on researchers.

We only clarified the definition of field study by removing the word “and” and any ambiguity created by the word “and.” We did not make substantive changes, prohibit or restrict field studies, or impose additional requirements on researchers.

One commenter stated that the composition of the members of the IACUC can vary greatly and the expertise of the membership may not represent all disciplines that are subject to review. This commenter further stated that the IACUC may not have members experienced in the activities commonly conducted in field studies or experience in performing certain procedures under field conditions. Another commenter stated that most IACUC's do not include field researchers who are able to appreciate the unique conditions of field research. One commenter stated that a growing number of investigators, institutions, and granting agencies require any research use of animals in the field or laboratory to be reviewed by their IACUC, and self-determination by the investigator does not protect him or her or the institution, nor does it provide for consistent peer-reviewed determination of invasive procedures.

Comments regarding the membership and function of IACUC's are beyond the scope of this rule; however, in accordance with § 2.31(a) of the regulations, the Chief Executive Officer of the research facility is responsible for appointing the members of the IACUC. Members of the IACUC are required to have the experience and expertise to assess the research facility's animal programs, facilities, and procedures, including the review of all proposed and ongoing research projects.

The principal investigator is responsible for determining whether a study is a field study. If the principal investigator reviews a field study protocol and has questions regarding whether a procedure is invasive or noninvasive, the investigator can consult with the IACUC of the facility. In addition, in accordance with the regulations in § 2.31(c)(1), at least once every 6 months the IACUC must review the research facility's program for the humane care and use of animals by using the AWA regulations as a basis for evaluation. Therefore, if a study is misclassified as a field study, the IACUC will have the opportunity to take action to reclassify the study.

One commenter stated that there are studies that involve implantation of transponders or radiotransmitters and procedures, such as marking the animals with minor clipping or branding, that could technically be considered invasive procedures and are not conducted under sterile conditions. The commenter further stated that trauma to subjects is minimized by reducing the handling time.

An invasive procedure is typically one in which the living animal is entered by either perforation or incision in a manner that could cause more than short-lived pain or distress and may materially alter the behavior of the animal for more than a short period of time. For instance, opening the body cavity of an animal would be considered invasive and could cause the animal to materially alter its behavior until completely healed from the surgery. However, implantations of microchips and transponders may not be invasive depending on the site and method of implantation.

One commenter asked if a facility that is currently licensed as an exhibitor under the AWA would have to register as a research facility if an employee is approved to initiate a noninvasive research project in the field. The commenter stated that it was unclear when a research project is considered a regulated research project.

If the research project meets the definition of field study, the research project would not fall under the AWA regulations. However, if the research project does not meet the definition of field study ( i.e., includes an invasive procedure, harms, or materially alters the behavior of the animals) the research project would need to be regulated under the AWA, and the facility would need to be registered as a research facility.

One commenter stated that he could not locate the statutory authority given to the U.S. Department of Agriculture (USDA) over animal care in the wild, whether or not the animals are involved in research. The commenter stated that the AWA assigns APHIS authority over specific warm-blooded animals on public display or intended for use in research facilities (7 U.S.C. 2131). The commenter added that it is not clear how USDA has authority if the noninvasive research does not involve animals or activities that are in interstate or foreign commerce or does not substantially affect such commerce or its free flow as provided in the AWA (7 U.S.C. 2131).

The purpose of defining the term field study in our regulations is to exclude from the regulations those activities that meet the definition. Thus, if a study is conducted on free-living wild animals in their natural habitat and the study does not involve an invasive procedure, does not harm the animals under study, and does not materially alter the behavior of the animals under study, then that activity is not regulated.

The AWA defines animal as any live or dead dog, cat, nonhuman primate, guinea pig, hamster, rabbit, or such other warm-blooded animal as the Secretary may determine is being used, or is intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet. This definition does not exclude animals in the wild. If a research facility conducts a study on animals in the wild that does not meet the criteria for a field study, then that activity would be regulated. The AWA defines research facility as any school (except an elementary or secondary school), institution, organization, or person that uses or intends to use live animals in research, tests, or experiments and that: (1) Purchases or transports live animals in commerce; or (2) receives funds under a grant, award, loan, or contract from a department, agency, or instrumentality of the United States for the purpose of carrying out research, tests, or experiments. * * *”

One commenter stated that researchers appear to be circumventing the AWA by claiming that trap tests performed on wildlife are field studies. Trapping, including the testing of traps, is not regulated by the AWA.

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

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

This final rule will clarify that a field study cannot include an invasive procedure, harm the animals under study, or materially alter the behavior of the animals under study.

We have always intended that field studies not include any invasive procedures, harm the animals under study, or materially alter the behavior of the animals under study. This rule makes no substantive changes to the definition. By clarifying the definition of field study, this final rule will help ensure that studies that should be covered under the Animal Welfare regulations are covered.

The only entities that will be affected by this rule will be entities that perform studies conducted on free-living wild animals in their natural habitat. We estimate that at least 50 entities may be affected by this final rule. These entities may be considered small and large entities by Small Business Administration standards, but this final rule will only affect a small portion of the entities' activities. As we are not proposing a substantive change in the definition, the effect on these entities will not be significant.

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

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

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. This rule would not preempt any State and local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act does not provide administrative procedures which must be exhausted prior to a judicial challenge to the provisions of this rule.

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

On March 15, 1999, DOE published an interim final rule in the Federal Register (64 FR 12862) that comprehensively revised the regulations for the DOE contractor employee protection program, which are codified at 10 CFR part 708. DOE became aware during the comment period on the interim final rule that three provisions in the original Part 708 had been inadvertently omitted from the interim final rule. DOE published an amendment to the interim final rule on July 12, 1999 (64 FR 37396) to correct the omission.

DOE provided a 60-day public comment period for the interim final rule published on March 15, 1999. DOE did not invite public comments on the July 12, 1999, amendment to the interim final rule because those changes were procedural and DOE determined that no purpose would be served by inviting comments.

Section 3164 of the National Defense Authorization Act for Fiscal Year 2000 directs DOE to establish a whistleblower protection program for covered individuals (DOE and DOE contractor employees engaged in the defense activities of the Department) who disclose to certain Governmental (including certain Congressional) personnel “classified or other information” that they reasonably believe provides evidence of violations of law, gross mismanagement, a gross waste of funds or abuse of authority, or a false statement to Congress on an issue of material fact. DOE is aware of the new statutory requirement, and we are working separately on the implementation of the program mandated in section 3164. We are evaluating its effect, if any, on the DOE contractor employee protection program regulations.

DOE received written comments from five interested organizations and individuals on the interim final amendments to the DOE contractor employee protection program regulations. This section of the Supplementary Information summarizes the issues raised in the comments and gives DOE's response, as follows:

Comment: Three different commenters expressed concern about the definition of the term “contractor” in § 708.2, which was changed in the interim final rule to extend protection to certain employees who do not work at DOE sites. Under the old rule, an employee eligible for protection under this rule must have been employed by a contractor performing work on sites that DOE owns or leases. The new language covers employees of contractors performing work “directly related to activities” at DOE-owned or DOE-leased sites, even if the contractor is located, or the work is performed, off-site. Two of the comments express the concern that the phrase directly related to activities does not draw a bright line between those employees who will now be protected by these regulations and those who will not, and that the definition of contractor will be difficult to apply. The third comment challenges the decision to expand the scope of coverage, arguing that off-site coverage will be “difficult to manage,” will drive away potential bidders for DOE contracts, thus raising the costs of procurement, and is unnecessary because “other laws adequately protect employees of commercial entities.”

Response: We have decided that this language should remain unchanged from the interim final rule. As with any rule, determining who is and who is not covered by Part 708 will sometimes require interpretation. Even the previous formulation, though it appeared to present more of a bright line distinction, was subject to interpretation. See C. Lawrence Cornett, 26 CCH Fed. Energy Guidelines ¶87,504 (1996); META, Inc., 26 CCH Fed. Energy Guidelines ¶87,501 (1996) (these cases are also available on the Office of Hearings and Appeals Internet web site, http://www.oha.doe.gov). More important, the definition of contractor in the interim final rule will cover the employees we intend to protect, i.e. those performing work that promotes the mission of the Department of Energy. Clearly, some interpretation through case law will be needed as we face some particular factual circumstances, but we believe that the rule is adequately clear as it applies to most cases.

To furnish additional guidance to the DOE contractor community, without considering any specific case, examples of contractor employees we intend to cover by this rule include contractor employees engaged in defense-related industrial activities that are central to the DOE's mission, such as workers processing or transporting nuclear materials, or workers involved in the preparation of environmental assessments of proposed actions involving radioactive waste or mixed waste, wherever they work, on-site or off-site. By contrast, part 708 is not intended to cover contractor employees delivering office supplies or servicing vending machines, regardless of where they are located, because their work is ancillary to, rather than central to DOE's mission. In addition, this rule is meant to cover employees who work on the Department's mission under the terms of a procurement “contract,” but not employees who work under the terms of a “grant” or a “cooperative agreement,” as those terms are defined in the Federal Grant and Cooperative Agreement Act, 31 U.S.C. 6301 et seq. , or under the terms of a “cooperative research and development agreement” (CRADA), as that term is defined by the Stevenson-Wydler Technology Innovation Act, 15 U.S.C. 3710a(d)(1).

Comment: One commenter maintains that DOE has created a “camouflaged loophole” by the interim final rule's use of the word “retaliation,” instead of “discrimination,” to define actions prohibited by contractors against employees who engaged in conduct protected by part 708. According to this commenter, retaliation “is a legal term of art requiring animus or hostility,” so that a claim of retaliation can be defeated by a showing that the contractor officials had no “hard feelings” against a whistleblower.

Response: A reading of the definition of retaliation in § 708.2 shows that this commenter has misinterpreted the significance of the interim final rule's use of a different generic term to describe the types of conduct prohibited by this rule. The term was changed as part of DOE's effort to rewrite Part 708 in “plain language.” The kinds of conduct prohibited by the definition of retaliation in the interim final rule are the same as those previously prohibited in the definition of discrimination under the old rule. Moreover, the term retaliation more precisely describes the nature of the conduct prohibited under Part 708, and avoids possible confusion with “discrimination” as that term is used in Title VII of the Civil Rights Act of 1964 and other Federal anti-discrimination statutes, as EEO violations are not covered by the DOE contractor employee protection program.

Court decisions under the Whistleblower Protection Act of 1989, Pub. L. 101-12, 103 Stat. 16 (1989) (codified as amended in scattered sections of 5 U.S.C.), do consider “the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision” to take action against a Federal employee covered by that whistleblower protection program as one of several factors to determine whether an employer has met its burden of proving by clear and convincing evidence that it would have taken the same action absent the protected conduct. Cadell v. Dep't of Justice, 66 M.S.P.R. 347, 351 (1995), aff'd 96 F.3d 1367, 1370 (Fed. Cir. 1996); Sanders v. Dep't of the Army, 64 M.S.P.R. 136 (1994), aff'd 50 F.3d 22 (Fed. Cir. 1995). Evidence of an employer's motive is therefore relevant in a whistleblower case, but contrary to the commenter's assertion, evidence of a benign motive in and of itself will not meet the contractor's burden under Part 708.

Comment: Also concerning the definition of retaliation in ? 708.2, this same commenter asserted that the use of the phrase “action with respect to the employee's compensation, terms, conditions or privileges of employment” in that provision does not include common forms of harassment such as retaliatory investigations, removal of support staff, removal from a case or assignment, or tampering with (denying, suspending or revoking) a security clearance. The commenter also asserts that the rule should be changed to explicitly cover psychiatric examinations, and security clearances, as well as “any other significant change in duties, responsibilities or working conditions.”

Response: The other types of adverse actions mentioned in the comment are generally meant to be covered by the broad definition of retaliation used in § 708.2. The definition enumerates examples of prohibited employment practices, but the list does not purport to be exclusive. For example, OHA decisions have recognized that the removal of the complainant from one job assignment and his reassignment to another job constituted retaliation, even though removal from an assignment is not specifically mentioned in § 708.2. Ronald Sorri, 23 CCH Fed. Energy Guidelines ¶87,503 at 89,010 (1993). It is not necessary to rewrite the definition of retaliation in order to give DOE the necessary flexibility to carry out the policy objectives of Part 708.

Actions taken regarding “security clearances,” i.e., resolving questions about the eligibility of an individual for DOE access authorization, are governed by another regulation, 10 CFR part 710, subpart A. The preamble to the interim final rule explains that the resolution of national security concerns about an employee's eligibility for a DOE security clearance under part 710 takes precedence over individual retaliation claims under part 708. See 64 FR 12862 at 12867. However, the preamble recognizes that retaliation “could include actions by a contractor that cause the questioning, suspension, or termination of a security clearance,” and that “with respect to consequences beyond the eligibility determination, Part 708 may apply.” With regard to psychiatric examinations, psychiatric evaluations can be a proper tool to resolve questions of an individual's eligibility for a security clearance under § 710.8(h).

Comment: The same commenter also contends that “the audience for protected activity is too limited” under § 708.5. According to this commenter, the interim final rule “only protects communications directly to recipients such as an official at the Department of Energy, a member of Congress and other governmental agencies with oversight responsibility at a DOE facility.” The comment urges that the language of the rule and the preamble should specify that it will be interpreted consistently with the case law for employee protection statutes administered by the Department of Labor, such as amendments to the Energy Reorganization Act of 1992 (ERA), codified in 42 U.S.C. 5851, the provision that protects employees of Nuclear Regulatory Commission (NRC) licensees. The commenter claims that Department of Labor and the Federal courts have consistently interpreted those statutes to mean that employees are also protected for disclosures to the media and citizen associations, which are “frequently the breeding ground for investigations and/or enforcement actions by the relevant regulatory agency.”

Response: As first proposed in 1990, part 708 only would have covered disclosures to DOE (55 FR 9326). Comments were received that advocated expanding the coverage to encompass disclosures to citizen groups, the media, state and Federal regulatory officials, and members of Congress. The final 1992 version of part 708 extended the coverage beyond DOE, to include in-house disclosures to the complainant's employer, higher tier contractors, and to Congress, but went no further (57 FR 7535). In explaining why we chose to limit coverage to those parties, DOE noted that a fundamental purpose of this rule is to encourage DOE contractor employees to feel free to disclose to the DOE information about health and safety problems or mismanagement at DOE facilities so that DOE can take corrective action. The Department reasoned that disclosures to other parties would not foster that objective. Additionally, DOE believed that “extension of this rule to employees making disclosures to other parties could unduly complicate these procedures with evidentiary problems respecting whether a disclosure had actually been made.” (57 FR 7535). We believe that reasoning is still sound. Nevertheless, the interim final rule expanded the coverage to include disclosures made to other government officials, such as those from other Federal or state agencies who have responsibility for oversight of activities on DOE-owned or -leased sites. This reflects the fact that some DOE sites are now subject to regulatory oversight by other agencies. But there is still no compelling reason to expand the coverage of this rule to include disclosures to citizen groups or the media. The Federal courts have granted protection under 42 U.S.C. 5851 to employees who made disclosures to parties other than their employers or to the Federal government to a very limited extent. See Stone & Webster Engineering Corp. v. Herman, 115 F.3d 1568 (11th Cir., 1997). In Stone & Webster, the U.S. Court of Appeals affirmed the Secretary of Labor's determination that a nuclear power plant worker was acting in furtherance of safety compliance when, after speaking to his employer about his safety concerns, he spoke to his co-workers about those same concerns, and thus communication to those workers was protected by the ERA. According to the holding in that case, which does not control proceedings under part 708, disclosures to outside parties must be closely related to the “regular channels” of protected activity in order to be protected under 42 U.S.C. 5851.

Comment: In the same vein, this commenter contends that the scope of protected activity in § 708.5(a) is unclear because “it is possible that employee would be denied relief merely for doing his/her job.” The commenter argues that this result “would cancel protection for employees whose jobs require them to take risks of whistleblowers—auditors, inspectors and investigators who make a record of violations that are too politically hot to handle. . . .” The commenter conjectures that the protection of the rule is only available to employees who make protected disclosures “after hours,” outside of their regular duty assignments.

Response: The rule clearly protects employees such as safety and quality inspectors whose job it is to make disclosures about violations of rules and dangers to employees and public health and safety. The commenter has misinterpreted the plain language of § 708.5(a), which contains nothing that would exclude disclosures that are routinely made in the course of an employee's work assignment.

Comment: The same commenter expressed concern over the requirement of § 708.5(a)(1) that an employee's disclosure must concern a “substantial” violation of law in order to be protected. This commenter correctly notes that both the Federal whistleblower protection statutes and the case law have used an objective standard to determine whether activities are protected. According to this commenter, the insertion of this term ‘introduces an unprecedented, subjective wild-card” that would present an unduly burdensome test for a worker seeking whistleblower protection.

Response: The imposition of this requirement in § 708.5(a)(1) would not result in the adoption of a subjective test that a whistleblower would have to pass to qualify for protection. As noted in the preamble to the interim final rule, “substantial violation of law” is the same standard that is used in the Section 6006 of the Federal Acquisition Streamlining Act of 1994 (FASA), Pub. L. 103-355, codified in 41 U.S.C. 265, and implemented by the regulation found at 48 CFR part 3, Subpart 3.9, “Whistleblower Protection for Contractor Employees.” The interim final rule emulated the standard in the FASA because it represents a balanced approach designed to ensure that minor, insubstantial issues do not waste limited resources, so whistleblower protection is available to those workers who legitimately need it.

Comment: The same commenter expressed concern about the phrase “in good faith” that appears in §§ 708.5(a) and 708.6(a), claiming it could impose a “motives test” that “allows an employee's intentions to be put on trial as a precondition to using the rule.” This commenter correctly notes that the inclusion of a good faith test in those provisions is inconsistent with the Whistleblower Protection Act, which uses the standard that the employee must “reasonably believe” the matters they are disclosing are among the types of concerns enumerated in the Act.

Response: The commenter's views on the “good faith” test have considerable merit. DOE did not intend to place the employee's state of mind into issue. We think the “reasonable belief” standard is sufficient, in and of itself. None of the other federal whistleblower protection statutes contains a similar “good faith” requirement. Accordingly, the final rule omits this phrase in order to conform to the current state of the Federal law on whistleblower protection.

Comment: The same commenter noted that under § 708.13, employees are now required to “exhaust all applicable grievance-arbitration procedures” before being eligible to file a whistleblower complaint with DOE under part 708. According to the commenter, this disadvantages employees because “grievance systems cannot order mandatory relief and are run by the same institution that will be an adverse party in any future litigation.” The commenter fears that this “forces the whistleblower to preview his or her case to the defendant, before even filing it with the DOE,” and that the employer will have an advance opportunity to “perfect pretexts or defenses,” “destroy evidence” and learn the identity of witnesses to “pressure” them. The commenter states that it “regularly advises employees to bypass any system of protection that requires them first to tell their side of the dispute to the defendant.”

Response: The requirement to exhaust all applicable grievance-arbitration procedures reflects DOE's commitment to solving problems at the earliest possible stage. We want the employee and the contractor to share information about alleged reprisals for protected conduct as quickly as possible, so that little problems do not escalate into big ones. We hope that by dealing with the concerns sooner rather than later and by using existing grievance-arbitration procedures, the parties will resolve the problem and the employee will not need to file a complaint under part 708. That is why the new rule requires employees to use grievance-arbitration processes before filing a complaint under part 708. DOE has worked to change the culture across the Department's nationwide complex to sensitize its contractors against reprisal, and we believe this effort has been reasonably successful. We know of few recent cases involving the circumstances alluded to by the commenter.

In addition, under the National Labor Relations Act, a recognized labor organization serves as the exclusive representative for collective bargaining purposes of the employees in the recognized bargaining unit. Successful collective bargaining results in a collective bargaining agreement between the labor organization and the employer concerning the terms and conditions of employment of the employees in the bargaining unit. The collective bargaining agreement usually includes the establishment of an employee grievance arbitration procedure and describes how it will operate. A grievance arbitration procedure represents a continuation of the collective bargaining process, which the National Labor Relations Act protects. An employer, even an employer who has allegedly retaliated against a whistleblower, ignores the bargained-for grievance procedure at its peril. The National Labor Relations Board, which is responsible for the enforcement of the provisions of the National Labor Relations Act, does not permit an employer to bypass dealing with the union in such a manner. Thus, the provisions of § 708.13 requiring exhaustion of all applicable grievance arbitration procedures prior to filing a complaint with DOE under part 708 is a recognition of the importance of the collective bargaining process in maintaining effective labor-management relations at DOE's facilities.

Comment: The same commenter noted its approval of § 708.20, which encourages the parties to use mediation as an alternative dispute resolution tool, but contends that the rule should also require mandatory arbitration if mediation does not work.

Response: We decline to adopt this suggestion. If allegations of reprisal cannot be resolved informally by mediation, the OHA hearing should be the next step in the process.

Comment: The same commenter has reiterated the argument it raised twice before (in response to the 1996 Notice of Inquiry and again in response to the 1998 Notice of Proposed Rulemaking) that discovery must be mandatory, instead of being subject to the discretion of the hearing officer. Discovery is authorized in § 708.28(b) of the interim final rule, which states that the hearing officer “may order discovery at the request of a party.”

Response: OHA hearing officers generally leave discovery to the parties to work out between themselves. It is usually unnecessary for the hearing officer to become involved in the process. However, to make certain the discovery process cannot be abused in the ways described in the comment, it is important for the hearing officer to have the authority to rule on contested discovery issues if they arise. We therefore decline to adopt the commenter's suggestion.

Comment: Another comment maintains that the scope of relief permitted under part 708 is “unclear” because § 708.36(a) does not specifically authorize “personal and/or institutional discipline for violating anti-retaliation provisions.” This commenter maintains that without the power to punish “bureaucratic bullies” who commit acts of retaliation, the rule cannot deter harassment.

Response: As noted in the preamble to the interim final rule, 64 FR 12867, the restitutionary remedies authorized under § 708.36 are intended to correct unwarranted employment actions, by restoring employees to the position they would have occupied but for the retaliation. They are not designed to punish the persons who are found to have committed acts of retaliation. Other remedies are available in different forums for employees who are seeking more than the abatement of the retaliatory practices and basic restitution. We therefore decline to adopt the approach suggested by the commenter.

Comment: One comment seeks clarification that the decision of an arbitrator will not be disturbed in cases in which a claim of retaliation, already the subject of arbitration, is also eligible for review under this rule. The interim final rule addresses this concern in § 708.4(c)(3), which provides that an employee may not file a complaint under these regulations if it is based on the same facts for which the employee has chosen to pursue a remedy through final and binding grievance-arbitration procedures or other state or other applicable law, except as provided by § 708.15(a).

Response: Section 708.15(a)(3) answers this question. An employee may file a complaint under part 708 after submitting the same facts to arbitration after he or she has “exhausted grievance-arbitration procedures pursuant to § 708.13, and issues related to alleged retaliation for conduct protected under § 708.5 remain.” Whether retaliation issues remain is a question that depends on the facts in each case.

Comment: This comment also requests clarification of the kinds of claims precluded, in § 708.4(e), from coverage under these regulations because they deal with “terms or conditions of employment” within the meaning of the National Labor Relations Act.

Response: As noted in the preamble to the interim final rule, 64 FR 12868, “terms and conditions of employment” are subject to review under part 708 when the complaint alleges that they have been changed in retaliation for a protected disclosure. Part 708 is not otherwise intended to intrude into the domain traditionally covered by the National Labor Relations Act.

Comment: The same comment points out a perceived discrepancy between paragraphs (a) and (b) of § 708.15. Paragraph (a) provides that a complaint may not be filed if a remedy under the same facts was sought “under State or other applicable law, including final and binding grievance-arbitration procedures, unless” one of the exceptions from the binding election of remedies described in the ensuing subsections of § 708.15 is met. Paragraph (b) states, “Pursuing a remedy other than final and binding grievance-arbitration procedures does not prevent you from filing a complaint under this part.” The comment asks whether remedies listed in paragraph (a), other than the grievance-arbitration procedures, i.e., remedies under “State or other applicable law,” also fall within the exception under paragraph (b).

Response: The comment reads paragraph (b) to mean that as long as an employee does not pursue final and binding grievance-arbitration procedures, a remedy sought under State and other applicable law does not bar a complaint under these regulations. This is not what we intended. Rather, paragraph (b) means that seeking a remedy through an informal procedure that is non-binding and non-final, such as a contractor's internal employee concerns program, will not bar the filing of complaints under part 708. Paragraph (b) thus describes one of the limited conditions under which an employee who has first sought another remedy will still have recourse to part 708. Paragraph (c) of § 708.15 makes it clear that electing to pursue a formal legal remedy “under State or other applicable law” does bar a complaint under part 708.

Comment: Finally, the same comment perceives a discrepancy between paragraphs (e) and (f) of § 708.22, which state that an individual being interviewed has the right to representation and that representatives of parties to the complaint are not entitled to be present at interviews.

Response: We do not find a discrepancy. While representatives of parties to the complaint (e.g., their attorneys) do not have a right to be present during a witness interview, they may attend at the request of the person being interviewed. Thus, a contractor's counsel may be present, but only if requested by the subject of the interview. It is for the interview subject to choose whether he or she wishes to speak to the investigator with no one else present, or with a representative present. The comment also seeks clarification whether this section applies to the procedures of the DOE's Employee Concerns Program. The provisions of § 708.22 apply to the investigation, hearing and appeal procedures in subpart C; they do not apply to informal resolution procedures undertaken by DOE offices, which are described in subpart B.

Finally, we are correcting a typographical error in § 708.15(d), which in the interim final rule refers to § 708.17(c)(2) when it should refer to § 708.17(c)(3), and we are adding the following new section at the end of the final rule to restore an important policy statement in the original 1992 version of part 708 that was inadvertently omitted from the interim final rule:

Yes. DOE contractors may not retaliate against any employee because the employee (or any person acting at the request of the employee) has taken an action listed in sections 708.5(a)-(c).

DOE never meant to imply that contractors do not have an affirmative duty not to retaliate against employees who take protected actions. This new § 708.40 is restating what has always been a part of the rule (see old § 708.5, “Prohibition against reprisals”), and thus it does not require notice and comment.

Today's regulatory action has been determined not to be “a significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Accordingly, this action was not subject to review under that Executive Order by the Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB).

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996) imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this proposed rule meets the relevant standards of Executive Order 12988.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. Because DOE is not required by the Administrative Procedure Act (5 U.S.C. 553) or any other law to propose the rule for public comment, DOE did not prepare a regulatory flexibility analysis for this rule.

No new collection of information is imposed by this interim final rule. Accordingly, no clearance by the Office of Management and Budget is required under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

DOE has concluded that promulgation of this rule falls into a class of actions that would not individually or cumulatively have a significant impact on the human environment, as determined by DOE's regulations implementing the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). Specifically, this rule deals only with administrative procedures regarding retaliation protection for employees of DOE contractors and subcontractors, and, therefore, is covered under the Categorical Exclusion in paragraph A6 to subpart D, 10 CFR part 1021. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

Executive Order 13132 (64 FR 43255, August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policy making discretion of the States and carefully assess the necessity for such actions. DOE has examined today's rule and has determined that it does not preempt State law and does 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. No further action is required by Executive Order 13132.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each federal agency to prepare a written assessment of the effects of any federal mandate in a proposed or final rule that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million in any one year. The Act also requires a federal agency to develop an effective process to permit timely input by elected officers of state, local, and tribal governments on a proposed “significant intergovernmental mandate,” and it requires an agency to develop a plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirement that might significantly or uniquely affect them. This interim final rule does not contain any federal mandate, so these requirements do not apply.

As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of today's final rule. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 801(2).

The rules were last updated in 1979. Since that time, new and reliable, readily available methods of transmittal, such as facsimile and electronic mail, have become available while previously relied on methods, such as the telegram, are no longer used.

The proposed amendments would affect the manner in which the Secretary gives notice to members of the Committee of calls for meetings by the Chairman or requests by members for the calling of a meeting. They would also affect the means by which the Secretary transmits the relevant information and recommendations for an action to modify an outstanding Committee authorization or directive at a time when it is not feasible to call a meeting. The amendments to the rules also would permit a member to communicate with the Secretary by telephone or electronic means to request a meeting, to inform the Secretary when he or she will not be available to attend a meeting, and also to transmit his or her vote on an action proposed between meetings.

Accordingly, the Committee is amending its Rules of Procedure by changing all references to “in writing or by telegram” to “in writing, by telephone, or by electronic means” as the accepted methods of communication.

The amendments adopted by the Committee are rules of procedure. Accordingly, neither 5 U.S.C. 553(b), requiring notice and opportunity for public comment, nor the Congressional Review Act, 5 U.S.C. 801 et seq. , applies. In addition, the amendments are technical amendments to update the rules to reflect new methods of communication, and its prompt implementation will improve the Committee's operational efficiency without adversely affecting any other persons. Accordingly, the Committee finds good cause not to delay the effective date of the amendments pursuant to 5 U.S.C. 553(d).

The Tupelo, MS, Airport Authority has changed the name of the airport to better describe the area served. This amendment is necessary to reflect that change. The dimensions, configuration and operating requirements of the affected airspace do not change. This rule will become effective on the date specified in the DATES section. Since this action does not change the dimensions, configuration or operating requirements of the Class D, Class E2 or Class E5 airspace for the airport, and as a result, has no impact on users of the airspace in the vicinity of the Tupelo Regional Airport, notice and public procedure under 5 U.S.C. 553(b) are unnecessary. Designations for class D, Class E2 and Class E5 airspace areas extending upward from 700 feet or more above the surface are published in FAA Order 7400.9G, dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR part 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) changes the name of Tupelo Municipal—C.D. Lemons Municipal Airport and changes the title of the airspace designation for the Tupelo Regional Airport located at Tupelo, MS, from Tupelo Municipal—C.D. Lemons Municipal Airport, MS, to Tupelo Regional Airport. MS.

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

Airspace, Incorporation by reference, Navigation (air).

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

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

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

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

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

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

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

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

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

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

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

The bridge owner, the City of Boston, requested a temporary deviation from the operating regulations to facilitate vehicular and pedestrian traffic during electrical repairs at the P. J. McArdle Bridge, mile 0.3, across the Chelsea River between East Boston and Chelsea, Massachusetts. The submarine electrical cable for the bridge was damaged during harbor dredging operations requiring emergency repairs to be implemented in order to restore bridge operation and facilitate marine traffic.

The Coast Guard issued a temporary deviation from the operating regulations published in the Federal Register (65 FR 2541; January 18, 2000) effective January 6, 2000 through March 5, 2000. The purpose of the deviation was to help facilitate vehicular traffic during the weekday rush hours.

A temporary auxiliary operating system has been installed to open the bridge and the bridge is now operating under its normal operating regulations.

The temporary deviation from the operating regulations is no longer necessary as a result of the bridge being returned to a fully operable status. The bridge owner was advised on January 18, 2000, that the deviation has been withdrawn.

Notice is given that the P.J. McArdle Bridge, mile 0.3, across the Chelsea River shall open on signal at all times for vessel traffic.

The Summer (L) Street Bridge has been removed and replaced with a fixed bridge that does not open for navigation. The operating regulations are now unnecessary and will be removed by this final rule.

The Coast Guard has determined that good cause exists under the Administrative Procedure Act (5 U.S.C. 553) to forego notice and comment for this rulemaking because notice and comment are unnecessary. Notice and comment are unnecessary because the bridge the regulations governed no longer exists.

The Coast Guard, for the reasons stated above, has determined that good cause exists for this rule to be effective upon publication in the Federal Register .

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). This conclusion is based on the fact that the bridge the regulations governed no longer exists.

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

For reasons discussed in the Regulatory Evaluation section above, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

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

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

On September 5, 1997, we amended Federal Motor Vehicle Safety Standards (FMVSS) Nos. 105, Hydraulic Brake Systems, and 135, Passenger Car Brake Systems to accommodate EV brake systems. See 62 FR 46907 for full background information on this rule.

Electrically-powered vehicles have unique performance characteristics that do not permit them to be tested for braking performance in the same way that other light-duty vehicles are tested. For example, because of the limited range of EVs and the extensive travel distance specified in several Federal brake test series, we established procedures for re-charging or replacing the propulsion batteries during testing. Most EVs have a feature called a “regenerative braking system” (RBS) designed to extend the range of the vehicle by as much as 10 to 20 percent through conversion of vehicle kinetic energy into electrical energy when the vehicle is being decelerated. When operating, the RBS provides a vehicle deceleration, or braking force. The September 1997 amendments also established procedures for testing EV braking systems and EVs equipped with RBS.

We received two petitions for reconsideration of the final rule, from Hydro-Quebec of Canada (HQ), and from Toyota Motor Sales Corporation USA Inc. (Toyota).

1. The petition. HQ commented that S7.7.3(h) of FMVSS No. 135, which specifies that an EV with an RBS be tested with the RBS inoperative during the S7.7 Stops with Engine Off tests, is inconsistent with other parts of FMVSS No. 135. Specifically, the stopping distance performance requirements of S7.5, Cold Effectiveness and S7.7, Stops with Engine Off, are identical; each test requires that the vehicle be stopped from 100 km/h (62 mph) within a distance of 70 m (230 ft.). However, the RBS must be inoperative for S7.7 testing but operative for S7.5 testing. According to HQ, its EV brake system cannot meet the requirements of S7.7 without use of the RBS.

HQ recommends amendments to S7.7.3(h) that it believes are consistent with the intent of S7.7, and allow RBS use during the test. Amending FMVSS No. 135 as petitioned for by HQ would allow that company to meet the brake performance requirements in FMVSS No. 135 without altering its present EV brake system design. We anticipate that most EV manufacturers will certify their vehicles to FMVSS No. 135 rather than to FMVSS No. 105, because the latter will not apply to passenger cars built on and after September 1, 2000. What's more, FMVSS No. 105 will not apply to any vehicles with a GVWR less than 3,500 kg. (7,716 lb.) produced on and after September 1, 2002. HQ's petition refers specifically to FMVSS No. 135. We shall also, below, examine its relevance to compliance with brake performance requirements of FMVSS No. 105.

2. Design of HQ's EV brake system. According to its petition, HQ is developing a four-wheel drive power-train technology which features four in-wheel electric motors. The technology is aimed at producing sport utility vehicles and passenger cars with improved energy consumption, safety, and emissions. The RBS and the hydraulic brake system have approximately the same braking force capability. According to HQ, the braking force developed by the RBS is not dependent on the state of charge of the propulsion system batteries, unlike most production RBS. In the HQ system, when the electrical energy produced by the RBS is greater than the recharging rate of the batteries, the excess electrical energy is dissipated. As described in the petition, the HQ EV RBS will function if the propulsion batteries are disabled or if the motors are not supplied with electrical energy. According to HQ, the hydraulic braking system has a lower priority than the RBS in a series compound braking system and does not have the braking capacity to meet the S7.7 requirements of FMVSS No. 135, independent of the RBS.

3. Amendments recommended by HQ. HQ cannot comply with S7.7.3(h) of FMVSS No. 135, which specifies that EVs must be tested for compliance with S7.7, Stops with Engine Off, without RBS. HQ offered two versions of amendments for S7.7 that would allow RBS to be operative during this test. HQ believes that allowing the use of RBS during the test specified in S7.7.3(h) would not violate the intent of the test. According to HQ, switching off the power supply to the electric motors of its EV does not disable the RBS.

HQ had previously commented on this issue in responding to the Notice of Proposed Rulemaking (NPRM), 60 FR 49544. HQ requested in its comments on the NPRM that a definition or interpretation be provided for the term “no electromotive force” in S7.7.3(h). HQ also indicated in its comments that the HQ EV design had no failure mode that would be directly analogous to an engine stalling in an internal combustion engine (ICE) vehicle.

Engine stalling of a vehicle with an internal combustion engine (ICE) results in loss of power to vacuum or hydraulically operated brake power units, brake power assist units, and components of some antilock brake systems (ABS). The purpose of the S7.7 test in FMVSS No. 135 is to ensure that these components have sufficient reserve capacity to bring the vehicle to a complete stop, with acceptable effectiveness, in the event of engine stalling. We want to offer similar assurances for the braking performance of EVs.

In Section 7.C of the preamble for the September 5, 1997 final rule, we agreed with the comments on the NPRM from other EV manufacturers stating that the RBS is designed to convert some of the kinetic energy dissipated during braking into electrical energy to charge the propulsion batteries, thus extending the vehicle's travel range. At that time, the information available to us indicated that the RBS system would not be a major contributor to the braking capacity of EVs. We decided, in the September 1997 final rule, to require EVs to meet the stopping performance requirements of S7.7 without RBS.

According to HQ's petition, the front-wheel hydraulic brakes would need to be re-designed with increased braking capacity for its EV to meet the requirements of S7.7 without use of the RBS. According to HQ, this would limit HQ EV braking technology to small vehicles and would not be feasible for some intended applications such as installation on compact sport utility vehicles.

To deny HQ's petition would require it to conform with the apparent design practices of the rest of the industry and to redesign its brake system to meet the final rule. However, we do not believe it is in the public interest to restrict alternative technology this early in the development of RBS.

To resolve this issue, we have decided to allow use of RBS during the S7.7.3(h) test, if the RBS remains functional after the supply of electric power to the propulsion motor(s) has been switched off (EV equivalent to engine stalling in an ICE vehicle). If switching off the electric power supply to the propulsion motor(s) disables the RBS, then S7.7.3(h) must be conducted without use of the RBS.

We have decided to remove the term “electromotive force” from S7.7.3(h) since the term may cause confusion, and to replace it with the term “electrical power.” Accordingly, we are amending S7.7.3(h) of FMVSS No. 135 to read: For an EV, this test is conducted with no electrical power supplied to the vehicle's propulsion motor(s), but with the RBS and brake power or power assist still operating, unless cutting off the supply of electrical power to the propulsion motor(s) also disables those systems.

We believe that this approach to a resolution of the RBS use issues raised by HQ will allow adequate flexibility in EV braking system technology. According to HQ, the technology is available to produce in-wheel motor regenerative braking with deceleration rates only slightly lower than the average deceleration rate required by FMVSS No. 135 (0.56 g) for a fully operational, cold brake system.

HQ also commented that there is an inconsistency in the final rule between S7.7, Stops with Engine Off, S7.10, Hydraulic circuit failure, and S7.11, Brake power unit or brake power assist unit inoperative (System depleted). HQ correctly noted that the maximum stopping distance specified in S7.10 and S7.11, which is 168 m, is more than twice the stopping distance specified in S7.7, whereas under the final rule, all the EV tests, S7.7, S7.10, and S7.11 were to be conducted without use of the RBS.

The procedure in S7.7 is a test of the fully functional brake system rather than a partially failed brake system, as is the case with S7.10 and S7.11. The inconsistency between the requirements of these tests has been eliminated with our decision to allow RBS use for testing under S7.7.3(h) as long as switching off the supply of electrical power to the propulsion motor(s) does not disable the RBS. The intent of the S7.7 test is to ensure that brake system will stop the vehicle with normal effectiveness when the vehicle's engine is not operating. For ICE vehicles, the test is conducted by switching off the engine ignition prior to brake application. We are amending the standard to require the analogous test procedure for EVs.

We have also decided to retain the requirement that an EV manufacturer must certify that the vehicle meets S7.10 of FMVSS No. 135, test procedures conducted to evaluate brake system performance under partial brake failure conditions. The test conditions and procedures in S7.10.3(f) require that an EV be tested for stopping performance with the RBS disabled and all other braking systems intact. Since the S7.10 test procedures apply to vehicles with a partially disabled brake system, a longer stopping distance is specified.

In addition to the amendments noted above, we have decided that the specification in S7.11(n) that EVs be tested without RBS should be removed because the RBS test requirements for EVs in S7.10 and S7.11 are identical.

4. Conclusions. We believe that HQ has identified some key issues with regard to the test conditions and requirements for EVs in the final rule amending FMVSS No. 135. The HQ petition has made us more aware that the EV braking amendments adopted in 1997 need further revisions to accommodate alternative EV braking systems. According to HQ, its EV braking system prioritizes RBS over the hydraulic brake system. The two systems are essentially connected in a series arrangement in which the hydraulic braking system is activated when braking force requirements approach the maximum capacity of the RBS. The HQ EV braking system design is based on in-wheel motor technology, which may be used in the future by other EV manufacturers.

We believe that these amendments will maintain the safety benefits of FMVSS No. 135 while improving the ability of the standards to accommodate unique EV brake system design features. Vehicles in which RBS is functional when the propulsion motor(s) are not being supplied with electrical power will be able to use the RBS for testing designed to simulate loss of power to the propulsion motor(s).

No further amendments to FMVSS No. 105 appear necessary. The standard does not contain a test for the fully functional brake system with the engine off in contrast to S7.7 of FMVSS No. 135. As a result, FMVSS No. 105 does not include a test for the fully functional brake system of an EV without use of the RBS.

1. The petition. Toyota stated it is “disappointed” that the September 1997 final rule amendments did not achieve more harmonization with the European light duty vehicle braking regulation, ECE R13-H. Its petition did not make specific recommendations for amendments to FMVSS No. 135, but asked us to harmonize the thermal test procedures with those of ECE R13-H.

2. Comparison of the thermal tests in FMVSS No. 135 and ECE R13-H.

a. Overall test specifications. FMVSS No. 135 and ECE R13-H are essentially the same with respect to the thermal test procedures, conditions, and requirements (Heating snubs, Hot performance, Cooling stops, and Recovery performance) for ICE vehicles, but not for Evs. ECE R13-H allows use of the RBS, whether or not the RBS is part of the service brake system, for the entire thermal test. FMVSS No. 135 allows an RBS that is not part of the service brake system to be used only in the burnish procedures, and not during any other phases of brake system performance testing, including the thermal tests.

b. Comparison of four phases in the thermal tests. The first phase of the thermal test in ECE R13-H and S7.13 of FMVSS No. 135, Heating procedure and Heating Snubs, respectively, have identical test procedures and conditions for ICE vehicles. ECE R13-H (Annex 3 Paragraph 1.5.1, Heating procedure) provides a specific procedure for testing EVs, which is designed to accommodate vehicles with insufficient power and energy to complete the brake heating procedure (in FMVSS No. 135, S7.13, Heating Snubs) on a single charge. The ECE procedure requires that the EV be accelerated to the test speed (120 km/h or 80 percent of maximum vehicle velocity) for the first of 15 decelerations (snubs) that reduce the vehicle speed to one-half the initial speed. For each subsequent deceleration in the procedure, the speed for initiation of braking is the speed reached after 45 seconds of maximum acceleration, which may be lower than the speed specified for the first test. By contrast, FMVSS No. 135 does not provide specific EV procedures or conditions for the thermal tests.

In the second phase of the thermal test series, ECE R-13H allows for the initial speed for the Hot performance tests to be the vehicle speed for the last test run of the Heating Procedure. The Hot performance test consists of two braking tests with a 100 km/h test speed immediately following the Heating Procedure. The Hot Performance test conditions and performance requirements in ECE R13-H and No. 135 (S7.14) are nearly identical for ICE vehicles and EVs. Each vehicle must meet a performance criterion that is based on a comparison of Hot performance (No. 135, S7.14) test results with the vehicle's Cold effectiveness test results (No. 135, S7.5).

The third phase of the thermal test is referred to as the Recovery procedure in ECE R13-H (Annex 3; 1.5.3) and Brake cooling stops in FMVSS No. 135 (S7.15). These procedures, which are identical in the two regulations for all vehicles, specify four stops from 50 km/h (31.1 mph) beginning immediately after the Hot performance tests. These stops are conducted at a constant deceleration rate and are designed to simulate normal braking.

The final phase of the thermal test procedure is called Recovery performance in both ECE R13-H and FMVSS No. 135 (S7.16). This phase of the thermal tests is designed to test the performance of the brakes after heating followed by normal brake use. The performance requirements for this phase of the thermal test are based on the cold effectiveness test results for the vehicle. Two recovery tests are required beginning immediately after completion of the fourth cooling stop (in FMVSS No. 135, S7.16.3(f) and (i)). In this phase, neither ECE R13-H nor FMVSS No. 135 include specific procedures for testing EVs.

3. Amendments recommended by Toyota. Toyota stated that harmonization between ECE R13-H and FMVSS No. 135 had not been achieved with the September 1997 amendments to FMVSS No. 135 and also indicated that the fade test (thermal test) should be further harmonized. Specifically, ECE R13-H allows use of RBS by EVs, whether or not the RBS is part of the service brake system, during all phases of the thermal test. Toyota's petition requests that we allow RBS use during the thermal tests for vehicles in which RBS is not part of the service brake system.

The ECE R13-H Heating procedure for EVs allows a reduction of the test speed during the acceleration and braking cycles if a vehicle cannot maintain the specified test speed for the entire procedure. The regulation does not specify, however, a minimum test speed below which the EV Heating procedure tests should not be conducted. Test speeds below 40 km/h (25 mph) are typically too low to allow proper evaluation of a vehicle's brake system. Further, ECE R13-H does not provide procedures or requirements for charging or replacing the propulsion batteries for an EV that is unable to accelerate to test speed during the test procedure. Also, ECE R13-H does not provide EV test procedures for the Recovery procedure portion of the thermal tests. These tests are to be conducted immediately after the Hot performance stops. Therefore, an EV that completed the Hot performance tests at a reduced speed due to depleted batteries may not be able to accelerate to the Recovery procedure test speed of 50 km/h.

For those reasons, the thermal test procedures for EVs in ECE R13-H are not sufficiently clear or objective to be adopted in FMVSS No. 135.

Toyota indicated that EVs in which RBS is not part of the service brake system may not be able to complete the thermal tests on a single battery charge. Toyota further implied that ECE R13H's allowance of RBS use may increase the range of all EVs, including EVs in which RBS is not part of the service brake system, and enhance their ability complete the thermal tests.

We do not believe the power and energy requirements of the heating cycle, or the entire thermal test, are beyond the capability of the propulsion systems of marketable EVs. We estimate that the entire thermal tests (S7.13 Heating Snubs, S7.14 Hot performance, S7.15 Brake cooling stops, and S7.16 Recovery performance) specified in FMVSS No. 135 and ECE R13-H can be completed with a total vehicle travel distance of 30 kilometers (19 miles) or less. However, the heating procedure/snubs phase of the thermal test series is essentially a series of 15 maximum accelerations with short intervals between to allow for braking. The heating procedure/snubs phase is a severe test of the power capacity of the batteries although the energy requirements are modest. However, if a vehicle cannot complete the test protocol on a single charge, the system can be recharged pursuant to S6.11.3.

An RBS that is not part of the service brake system may be deactivated by the vehicle driver at any given time, thus eliminating the braking force provided by the RBS. NHTSA usually specifies tests in our brake performance standards that represent the most stringent conditions that would be faced by drivers on the road. Following this practice, the final rule of September 7, 1997 did not allow use of RBS that is not part of the service brake system (driver-controlled), during brake performance testing in FMVSS Nos. 135 and 105. It is also possible that the stringency of the Hot performance test and the Recovery performance test would be reduced if these EVs with driver-controlled RBS were allowed to use RBS. The service brakes would reach a lower temperature during the S7.13 Heating snubs with RBS operational than they would with the RBS disabled. The magnitude of this temperature reduction has not been quantified, but any service brake temperature reduction for the Hot performance and Recovery performance tests would tend to reduce the stringency of the tests. The improvement in brake performance resulting from RBS use is a safety benefit for EVs in which RBS is part of the service brake system, but would not necessarily be realized with RBS controlled by the driver. Toyota did not provide test data or other information with which to evaluate the effect of RBS use on the safety benefits of the thermal tests. For these reasons, we do not believe FMVSS No. 135 should be amended to allow use of RBS that is not part of the service brake system during any phase of the thermal tests.

We did not specify unique conditions, procedures, or requirements in 1997 for conducting the thermal test on EVs. However, we did provide procedures to be used if a vehicle could not complete a given test on a single propulsion system charge (FMVSS No. 135, S6.11.3.) Since FMVSS No. 135 has provisions for testing EVs with depleted propulsion battery(s), we do not believe it is necessary to allow RBS use if RBS is not part of the service brake system, during any portion of the thermal test.

4. Conclusions. We believe the ECE R13-H Heating procedure and the Recovery procedure tests for EVs are not sufficiently demanding or objective when compared with the corresponding FMVSS No. 135 portions of the thermal test. Some of the test speeds reached during the R13-H Heating procedure may be too low for meaningful brake performance evaluation. The entire thermal test is required to be conducted without interruption and ECE R13-H does not provide procedures for conducting the Hot performance or the Recovery procedure tests if the vehicle is not capable of accelerating to test speed. We do not want to facilitate the introduction of EVs in the United States that are not tested in accordance with a sufficiently demanding and objective thermal test for brakes.

S6.3.11 State of charge of batteries of FMVSS No. 135 allows EVs to achieve the brake test speeds required in the thermal test series (S7.13-S7.16) under any battery state-of-charge condition. No such provisions are included in ECE R13-H. Allowing RBS to be operative during the Heating procedure may not be sufficient for some vehicles to complete the thermal test series on a single charge. As we have previously stated, FMVSS No. 135 includes procedures for EVs to assure that brake test speeds can be reached if a vehicle's batteries are depleted and need to be recharged or replaced to accelerate the vehicle to test speeds under its own power.

After our review of the Toyota petition for reconsideration, ECE R13-H, and FMVSS No. 135, we have concluded that the ECE R13-H EV thermal test conditions and procedures should not be included in FMVSS Nos. 135 and 105. We have also concluded that the use of an RBS that is not part of the service brake system during the thermal test would have a negative impact on the safety benefits of these tests, since the stringency of the tests would not be representative of encountered driving conditions.

For these reasons, we are denying Toyota's petition for reconsideration. We will continue to allow RBS use, for vehicles in which an RBS is part of the service brake system, in all testing except when the use of RBS is explicitly prohibited.

The September 1997 final rule required that a RBS malfunction indicator lamp be mounted in front of and in clear view of the driver, FMVSS No. 105, S5.3 Brake system indicator lamp. S5.3 is organized with a description of the activation protocol in S5.3.1 and a description of the lamp word, symbol, and color of the lamp in S5.3.5. Inadvertently, we placed the activation protocol, the word or symbol to be used for RBS, and the color of the symbol in S5.3.1. For consistency and to eliminate confusion, we are taking this opportunity to place the various aspects of the malfunction lamp description in the proper section of FMVSS No. 105. We are making a similar amendment to FMVSS No. 135 for the same reason. Also, for the reason stated previously, the references to the color “amber” in the description of the RBS malfunction indicator lamp are removed and the color “yellow” is substituted. This change will make the color of the RBS malfunction warning indicator consistent with other malfunction indicator lamps.

Because FMVSS No. 105 and FMVSS No. 135 are in effect, because EVs are being manufactured to comply with these standards, because the amendments serve to clarify existing requirements, and because the amendments do not affect existing requirements for vehicles with hydraulic brake systems, it is hereby found, for good cause shown, that an effective date earlier than 180 days after issuance of the amendments is in the public interest. Accordingly, the amendments are effective March 27, 2000.

This rulemaking has not been reviewed under Executive Order 12866. NHTSA has considered the economic implications of this regulation and determined that it is not significant within the meaning of the DOT Regulatory Policies and Procedure. The rule does not affect a substantial regulatory program or involve a change in policy.

The agency has also considered the effects of this rulemaking action in relation to the Regulatory Flexibility Act. I certify that this rulemaking action will not have a significant economic effect upon a substantial number of small entities. Accordingly, no Regulatory Flexibility Analysis has been prepared.

The following is NHTSA's statement providing the factual basis for the certification (5 U.S.C. Sec. 605(b)). The amendment primarily affects manufacturers of motor vehicles. Manufacturers of motor vehicles are generally not small businesses within the meaning of the Regulatory Flexibility Act.

The Small Business Administration's regulations define a small business in part as a business entity “which operates primarily within the United States.” (13 CFR 121.105(a)) SBA's size standards are organized according to Standard Industrial Classification Codes (SIC), SIC Code 3711 “Motor Vehicles and Passenger Car Bodies” has a small business size standard of 1,000 employees or fewer.

For manufacturers of passenger cars and light trucks, NHTSA estimates there are at most five small manufacturers of passenger cars in the U.S. Since each manufacturer serves a niche market, often specializing in replicas of “classic” cars, production for each manufacturer is fewer than 100 cars per year. Thus, there are at most 500 passenger cars manufactured per year by U.S. small businesses.

In contrast, in 1999, there are approximately nine large manufacturers producing passenger cars, and light trucks in the U.S. Total U.S. manufacturing production per year is approximately 15 to 15 and a half million passenger cars and light trucks per year. NHTSA does not believe small businesses manufacture even 0.1 percent of total U.S. passenger car and light truck production per year.

Further, small organizations and governmental jurisdictions are not be significantly affected as the price of motor vehicles ought not to change as the result of this final rule.

Executive Order 13132 on “Federalism” requires us to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of “regulatory policies that have federalism implications.” The E.O. defines this phrase to include regulations “that have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule, which regulates the manufacture of certain motor vehicles, will not have 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, as specified in E.O. 13132.

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the cost, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. Because this final rule does not have a $100 million effect, no Unfunded Mandates assessment has been prepared.

NHTSA has analyzed this rulemaking action for purposes of the National Environmental Policy Act. The rulemaking action will not have a significant effect upon the environment. There is no environmental impact associated with adaptation of test procedures to make them more appropriate for vehicles already required to comply with the Federal motor vehicle safety standards. However, to the extent that this rulemaking might facilitate the introduction of EVs which are powered by an electric motor drawing current from rechargeable storage batteries, fuel cells, or other portable sources of electric current, and which may include a nonelectrical source of power designed to charge batteries and components thereof, the rulemaking would have a beneficial effect upon the environment and reduce fuel consumption because EVs emit no hydrocarbon emissions and do not depend directly upon fossil fuels to propel them.

This rule will not have any retroactive effect. Under 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a state may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard. Section 30161 of Title 49 sets forth a procedure for judicial review of final rules establishing, amending or revoking Federal motor vehicle safety standards.

That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.

The single known population of Thlaspi californicum (Kneeland Prairie penny-cress) is found on serpentine soils at a coastal prairie in Humboldt County, California. Serpentine soils are derived from ultramafic rocks (rocks with unusually large amounts of magnesium and iron) such as serpentinite, dunite, and peridotite, which are found in discontinuous outcrops in the Sierra Nevada and Coast Ranges of California from Santa Barbara County to Humboldt County. The chief constituent of the parent rock is a variant of iron-magnesium silicate. Most serpentine soils are formed in place over the parent rock and are, therefore, shallow, rocky, and highly erodible. Serpentine soils, because of the parent material, tend to have high concentrations of magnesium, chromium, and nickel and low concentrations of calcium, nitrogen, potassium, and phosphorus (Kruckeberg 1984). Serpentine soils alter the pattern of vegetation and plant species composition nearly everywhere they occur. While serpentine soils are inhospitable for the growth of most plants, some plants are wholly or largely restricted to serpentine substrates (Kruckeberg 1984).

Sereno Watson (1882) described Thlaspi californicum based on a collection made by Volney Rattan from Kneeland Prairie at 760 meters (m) (2,500 feet (ft)) elevation in Humboldt County, California. Payson (1926) maintained it as a full species in his monograph of the genus, whereas it was referred to as T. alpestre var. californicum in Jepson's (1925) manual and T. glaucum ssp. californicum by Munz (1959). Holmgren (1971) assigned the name Thlaspi montanum var. californicum and gave its range as Kneeland Prairie (including a 1952 specimen from a serpentine rockpile toward Ashfield Butte). She noted that the plant had last been collected in 1962. Rollins (1993a, 1993b) has elevated it to a full species— Thlaspi californicum.

Thlaspi californicum is a perennial herb in the mustard family (Brassicaceae) that grows from 9.5 to 12.5 centimeters (cm) (3 to 6 inches (in)) tall, with a basal cluster of leaves that develops at the base of the plant prior to the flowering stage. The margins of the basal leaves range from entire to toothed. The white flowers have strongly ascending pedicels (flower stalks). The fruit is a sharply pointed silicle (a short fruit typically no more than 2 to 3 times longer than wide). Thlaspi californicum flowers from May to June. Characteristics that separate T. californicum from T. montanum include the orientation of the pedicel, shape and notching of the fruit, and length/width ratio of the fruit. Thlaspi montanum has pedicels perpendicular to the stem, not strongly ascending, and the silicles are either truncate or shallowly notched, but not as acute at the apex as they are in T. californicum (Meyers 1991).

Rollins (1993a, 1993b) and Holmgren (1971) considered Thlaspi californicum to occur only at Kneeland Prairie. Smith and Wheeler (1991), in their “Flora of Mendocino County,” reported two additional occurrences of T. californicum located on Mendocino National Forest in Mendocino County. These sites have been examined by David Isle, Mendocino National Forest botanist; Dave Imper, Environmental Specialist with SHN Consulting Engineers and Geologists; and Service staff. In addition, all of the herbarium specimens for T. californicum and T. montanum at Humboldt State University, including those collected in Mendocino County, have been examined by Imper and Service staff. The only collections considered by Imper and the Service to be T. californicum are from Kneeland Prairie in Humboldt County (Imper 1997; Larry Host and Kirsten Tarp, U.S. Fish and Wildlife Service (USFWS), pers. comms., 1997). Plants from Blue Banks and near the Spruce Grove campground on the Mendocino National Forest have pedicels that are perpendicular to the stem and silicles that are truncate and notched, characteristic of T. montanum. Additionally, the habitat and elevation are different from Kneeland Prairie. Other herbarium specimens, housed at the Humboldt State University herbarium and collected from Blue Banks and from Spruce Grove campground, are identified as T. montanum. McCarten and Rogers (1991) did not find any T. californicum in their habitat management study of rare plants and communities associated with serpentine soils on the Mendocino National Forest. The Mendocino National Forest botanist and the botanical consultant for Humboldt County concurred with this conclusion (Imper 1997; David Isle, botanist, Mendocino National Forest, pers. comm., 1997; L. Host and K. Tarp, pers. comms., 1997).

The California Natural Diversity Database (CNDDB) includes one occurrence for Thlaspi californicum based on Constance & Rollins' collection #2877 from 1942 (5 mi S of Hoopa Valley), housed at the Humboldt State University herbarium. The specimen had been annotated as T. californicum in 1976 by T. Nelson, then the herbarium's curator. A duplicate of this specimen, housed at another herbarium, had been assigned to T. montanum var. montanum by Patricia Holmgren in her 1971 biosystematic study of North American T. montanum and its allies. The specimen has since been examined by Imper and Service staff, who concur that it is T. montanum (Meyers 1991, Imper 1997).

The only known population of Thlaspi californicum is scattered within an area of 0.25 hectare (ha) (0.6 acre (ac)), with a total of about 11,000 individuals at Kneeland Prairie in Humboldt County (Dave Imper, Environmental Specialist, SHN Consulting Engineers and Geologists, pers. comm., 1997). The Kneeland Prairie population is bisected into two colonies by the Kneeland Prairie Airport. Both colonies occur on private land immediately adjacent to the Kneeland Prairie Airport. At Kneeland Prairie, the habitat for T. californicum has been reduced by approximately 60 to 70 percent within the past 33 years through development of the site for the Kneeland Prairie Airport, a county road realignment, and a helitack base (CNDDB 1997, Meyer 1991, Imper 1997). This population is currently threatened by the proposed expansion of the County airport and potential additional realignment of the adjacent road. Because of its extremely restricted range, the plant is also vulnerable to extinction from naturally occurring events such as fire (CNDDB 1997).

To assess the significance of the Kneeland Prairie population to the species, Imper (1997) inspected potentially suitable habitat for Thlaspi californicum in other areas near Kneeland Prairie and to the south. He found no other occurrences. Additionally, T. californicum has been targeted for surveys by the Bureau of Land Management (BLM) and U.S. Forest Service staff. The Six Rivers National Forest has no documented occurrences (Lisa Hoover, botanist, Six Rivers National Forest, pers. comm., 1997). A search for the species has not revealed any T. californicum on the serpentine at Iaqua Buttes on BLM lands (Jennifer Wheeler, botanist, BLM, Arcata Resource Area, pers. comm., 1997).

Federal Government action on Thlaspi californicum began when we published an updated Notice of Review (NOR) for plants on December 15, 1980 (45 FR 82480), that identified those plants currently being considered for listing as endangered or threatened. We included T. californicum (then known as T. californicum var. montanum ) as a category 2 candidate for Federal listing in this document. Category 2 candidates were those taxa for which data on biological vulnerability and threats in our possession indicated that listing was possibly appropriate but was not sufficient to support proposed rules. Our November 28, 1983, supplement to the NOR (48 FR 53640) as well as the subsequent revision on September 27, 1985 (50 FR 39526), included T. californicum as a category 2 candidate.

We revised the plant NOR again on February 21, 1990 (55 FR 6184), and September 30, 1993 (58 FR 51144). In both notices, we included Thlaspi californicum as a category 1 candidate. Category 1 candidates were those taxa for which we had on file sufficient information on biological vulnerability and threats to support preparation of listing proposals, but issuance of the proposed rule was precluded by other pending listing proposals of higher priority. In our February 28, 1996, Federal Register Notice of Review of Plant and Animal Taxa that are Candidates for Listing as Endangered or Threatened Species (61 FR 7596), we discontinued designation of multiple categories of candidates, and only those taxa meeting the definition of former category 1 are now considered candidates for listing. Thlaspi californicum was included as a candidate species in the February 28, 1996, notice. We published a proposed rule on February 11, 1998, to list this species as endangered. We based the proposal on information supplied by reports to the CNDDB and observations and reports by numerous botanists.

Based on all available information including comments received in response to the proposal (see the Summary of Comments and Recommendations section of this final rule), we have now determined Thlaspi californicum to be endangered. The processing of this final rule conforms with our Listing Priority Guidance published in the Federal Register on October 22, 1999 (64 FR 57114). The guidance clarifies the order in which we will process rulemakings. Highest priority is processing emergency listing rules for any species determined to face a significant and imminent risk to its well-being (Priority 1). Second priority (Priority 2) is processing final determinations on proposed additions to the lists of endangered and threatened wildlife and plants. Third priority is processing new proposals to add species to the lists. The processing of administrative petition findings (petitions filed under section 4 of the Act) is the fourth priority. The processing of critical habitat determinations (prudency and determinability decisions) and proposed or final designations of critical habitat will no longer be subject to prioritization under Listing Priority Guidance. This final rule is a Priority 2 action. We have updated this rule to reflect any changes in information concerning distribution, status, and threats since the publication of the proposed rule.

In the proposed rule published February 11, 1998, in the Federal Register (63 FR 7112) and associated notifications, we requested all interested parties to submit factual reports or information that might contribute to development of a final rule. The public comment period closed on April 13, 1998. We contacted appropriate Federal agencies, State agencies, county and city governments, scientific organizations, and other interested parties and requested comments. We also sent copies of the proposed rule and the letter for request of comment to three local libraries for public display. We published a newspaper notice in the Eureka Times-Standard on February 25, 1998, which invited general public comment. We received no requests for a public hearing.

Six individuals or agencies submitted comments. Two commenters supported the listing, three commenters opposed the listing, and one commenter was neutral. We received supporting comments from the California Native Plant Society and BLM. We received opposing comments from the Washington Legal Foundation, Pacific Legal Foundation, and a private citizen. We organized opposing comments and other comments questioning the proposed rule into specific issues, grouped comments of a similar nature by issue, and summarized them as follows:

Issue 1: One respondent asserted that listing this species would exceed the scope of the Federal commerce power under the Commerce Clause of Article I, section 8 of the U.S. Constitution.

Response: We maintain that we do have the authority to list plants such as the one in this final rule pursuant to the Act. A recent decision in the United States Court of Appeals for the District of Columbia Circuit ( National Association of Home Builders of the U.S. v. Babbitt , 130 F.3d 1041, D.C. Cir. 1997) makes it clear in its application of the test used in the United States Supreme Court case, United States v. Lopez , 514 U.S. 549 (1995), that regulation of species limited to one State under the Act is within Congress' commerce clause power. On June 22, 1998, the Supreme Court declined to accept an appeal of this case (118 S. Ct. 2340 1998). Therefore, our application of the Act to Thlaspi californicum is constitutional.

Issue 2: One respondent wanted to know the full economic impact of the listing of this plant.

Response: Under section 4(b)(1)(A) of the Act, a listing determination must be based solely on the best scientific and commercial data available. The legislative history of this provision clearly states the intent of Congress to “ensure” that listing decisions are “based solely on biological criteria and to prevent non-biological considerations from affecting such decisions,” H.R. Rep. No. 97-835, 97th Cong. 2d Sess. 19 (1982). As further stated in the legislative history, “Applying economic criteria * * * to any phase of the species listing process is applying economics to the determinations made under section 4 of the Act and is specifically rejected by the inclusion of the word “solely” in this legislation,” H.R. Rep. No. 97-835, 97th Cong. 2d Sess. 19 (1982). Because we are specifically precluded from considering economic impacts in a final decision on a proposed listing, we have not examined such impacts and cannot respond to comments and requests concerning possible economic consequences of listing this plant.

Issue 3. One respondent stated that the Service does not have sufficient scientific data to support a determination of endangered and that the Service did not cite any studies that might question the validity of the proposal.

Response: The Act requires us to reach a decision based on the best scientific and commercial information available. We believe that botanical study of the appropriate habitats on public lands in Humboldt and nearby counties has been adequate to show that this plant is indeed extremely rare. The threats to this species discussed under the Summary of Factors Affecting the Species section of this rule are also based on the best information available and are well documented or reasonably foreseeable. By their nature, threats are descriptions of events that have not yet taken place but are likely to occur in the foreseeable future. All information received from all sources was carefully evaluated.

Criteria for what information may be considered are discussed in the Summary of Factors Affecting the Species section. We have attempted to check all substantive information for accuracy and believe that the information included in this rule is reliable.

Issue 4: One respondent asked a series of questions about the CNDDB including its function, sources of information and funding, and review process.

Response: The CNDDB is a computerized inventory with information on the location and condition of special status plants, animals, and natural communities. The CNDDB receives funding through the State of California and receives its information from a variety of sources including consultants, academia, State and Federal agency biologists, and knowledgeable lay people. The information submitted to CNDDB is reviewed by CNDDB staff for general accuracy before it is entered into the database.

We have routinely solicited comments from parties interested in, and knowledgeable of, species that have been proposed for listing as threatened or endangered. The July 1, 1994, Peer Review Policy (59 CFR 34270) established the formal requirement that a minimum of three independent peer reviewers be solicited to review our listing decisions. We received no responses to our requests for peer review of this listing action.

After a thorough review and consideration of all information available, we have determined that Thlaspi californicum should be classified as an endangered species. We followed procedures found at section 4(a)(1) of the Act and regulations (50 CFR part 424) implementing the listing provisions of the Act. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1). These factors and their application to Thlaspi californicum are as follows:

A. The present or threatened destruction, modification, or curtailment of its habitat or range. The habitat of Thlaspi californicum has been significantly reduced within the past 33 years. Just before 1964, an estimated 2.0 to 2.25 ha (5 to 6 ac) of habitat existed at Kneeland Prairie (Meyers 1991). Approximately 60 to 70 percent of the habitat at Kneeland Prairie has been lost since 1964, due to construction of the Kneeland Prairie Airport, realignment of the county road that runs through Kneeland Prairie, and construction of the California Department of Forestry (CDFFP) helitack base (Meyers 1991; Imper 1990; Imper, pers. comm., 1997). Additional habitat and plants are currently threatened by the proposed expansion of the Kneeland Prairie Airport and potential road realignment.

The Kneeland Prairie Airport serves principally as the backup airport for Rohnerville, Murray, Eureka Municipal, and Arcata-Eureka airports. Small single-engine and occasionally twin-engine planes use Kneeland Prairie Airport. This airfield is especially important when airports at lower elevations are fogged in, a frequent occurrence in the region (Hodges & Shutt 1993). Kneeland Prairie Airport is the only airport in the Humboldt Bay area that can be used when the bay is fogged in (Don Tuttle, Resource Specialist, Humboldt County Public Works, pers. comm., 1997). The airport is particularly important for commercial express mail and air freight carriers, as well as other couriers (Ray Beeninga, Airports Manager, Humboldt County, pers. comm., 1997).

Humboldt County contracted a study to evaluate its airports and prepare appropriate planning documents (Hodges & Shutt 1993). The study provided an assessment of Kneeland Airport's role and associated airfield requirements. The report also discussed land use compatibility issues and descriptions of capital projects and provided documentation required to upgrade Kneeland Prairie Airport from temporary to permanent inclusion in the National Plan for Integrated Airport Systems. That designation allows the county to receive Federal funding for airport modifications through the Federal Aviation Administration (FAA). Recommendations in the report included development of a complete geotechnical study of specific engineering designs to stabilize the airport and construction of a new parking area meeting FAA setback standards. The report discussed design constraints for placement of the new parking area. The location of the CDFFP helitack base limits the ability of the airport to expand the existing parking area to the northwest (Hodges & Shutt 1993). The recommended location for the new parking area is on the eastern side of the airport (Hodges & Shutt 1993), adjacent to the eastern colony of Thlaspi californicum . Construction of the parking facility at Kneeland Prairie Airport could adversely affect the habitat and individuals of the eastern colony due to the proximity of the plants to the potential site.

Humboldt County is also contracting an initial study to evaluate the geotechnical feasibility and cost of modifying Kneeland Prairie Airport. The study, currently in progress (D. Tuttle and D. Imper, pers. comms., 1997), is evaluating ways to solve problems involving subsidence of the runway, slope stabilization, and the safety issue that the runway is too short (Dave Dietz, Project Manager, Shutt-Moen Associates, pers. comm., 1997). Possible options include leaving the airport configuration as is (i.e., repairing current subsidence, but not extending the runway), finding a different site for a new airport, or modifying the existing airport (D. Dietz, pers. comm., 1997). Financial constraints could influence the choice among the alternatives (R. Beeninga, pers. comm., 1997). In addition, exploratory soil boring is needed to determine how to stabilize the airport and to determine the cost of extending the runway (D. Dietz, pers. comm., 1997). Thlaspi californicum occurs on the slopes immediately adjacent to the airfield. Exploratory boring may affect individuals located immediately adjacent to airport lands (L. Host and K. Tarp, pers. obs. 1997). Modification of the existing airport is anticipated to occur in the year 2000 (R. Beeninga, pers. comm., 1997).

The realignment of the county road adjacent to the airport could affect the western occurrence of Thlaspi californicum at Kneeland Prairie (D. Imper, pers. comm., 1997). The road currently runs along the southwest edge of the runway and serves areas beyond the airport. The aviation manager would not be authorized to modify the road except as necessary for slope stabilization or as the result of possible runway extension at the south end of the airport. The extension of the runway to the south is not expected to directly impact T. californicum . However, if the runway is extended 30 to 65 m (90 to 200 ft) (R. Beeninga, pers. comm., 1997), the runway will run through the current road. The road would then either need to go under the runway via a tunnel or be realigned. The western colony of T. californicum occurs just downslope of the current road. Road realignment could result in impacts to habitat and individual plants.

For safety reasons, it is likely that Humboldt County will undertake straightening and/or widening the road, either independent of or concurrent with runway expansion (L. Host, in litt. , 1997). The road adjacent to the airport is narrow; a blind, 90-degree curve in the road around the end of the runway limits safe speeds to only 10 to 15 miles per hour. These conditions could warrant a county decision to realign the road to achieve a safer curve radius at the end of the runway. Unless the approach to that portion of the road is moved outward beyond the plants (which would require extra length and expense), the realignment would cross the remaining serpentine habitat and eliminate about half of the remaining plants in the western colony. We anticipate that such roadwork would occur during airport construction to avoid the expense of bringing necessary machinery to the site twice.

B. Overutilization for commercial, recreational, scientific, or educational purposes. Overutilization is not known to be a threat for this plant.

C. Disease or predation. We know of no threats to Thlaspi californicum from disease. Cattle grazing occurs throughout the prairie and the area surrounding the airport (Imper 1997). Cattle trails run through T. californicum habitat (Meyers 1991), but current levels of grazing do not appear to threaten the species.

D. The inadequacy of existing regulatory mechanisms. The California Environmental Quality Act (CEQA) (chapter 2, section 21050 et seq. of the California Public Resources Code) requires full disclosure of the potential environmental impacts of proposed projects. The public agency with primary authority or jurisdiction over the project is designated as the lead agency and is responsible for conducting a review of the project and consulting with the other agencies concerned with the resources affected by the project. Section 15065 of the CEQA guidelines requires a finding of significance if a project has the potential to reduce the number or restrict the range of a rare or endangered plant or animal. Species that are eligible for listing as rare, threatened, or endangered but are not so listed are given the same protection as those species that are officially listed with the State or Federal governments. Once significant effects are identified, the lead agency has the option of requiring mitigation for effects through changes in the project or to decide that overriding considerations make mitigation infeasible. In the latter case, projects may be approved that cause significant environmental damage, such as destruction of endangered species. Protection of listed species through CEQA is therefore dependent upon the discretion of the agency involved.

When the CDFFP constructed the Kneeland Helitack Base in 1980, a botanical assessment was required by the Humboldt County Planning Department for issuance of a conditional use permit. However, CDFFP did not include any analysis of potential impacts to Thlaspi californicum , although records of its California Native Plant Society 1B status and CNDDB documentation of the species' presence were available at that time (Imper 1990, Meyers 1991).

E. Other natural or manmade factors affecting its continued existence. Thlaspi californicum has never been found anywhere other than at Kneeland Prairie, where the single population occupies 0.25 ha (0.6 ac), bisected by the Kneeland Airport. This plant occupies serpentine prairie habitat that is quite restricted in extent. The combination of a single population and restricted habitat makes T. californicum susceptible to destruction of all or a significant portion of its range from naturally occurring events such as fire, drought, or severe erosion (Shaffer 1981, Primack 1993). Chance events causing population fluctuations or even population extirpations are not usually a concern until the number of individuals or geographic distribution becomes as limited as with T. californicum (Primack 1993). The single known locality of the species also makes the population at Kneeland Prairie particularly susceptible to extinction due to fire or an erosional event causing slope failure. Even one such event has the potential to seriously impact the sole population of the species.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by this species in determining to propose this rule. Airport expansion activities, potential road realignment, inadequate regulatory mechanisms, and naturally occurring events such as fire imperil the continued existence of this plant. The one known population of Thlaspi californicum includes approximately 11,000 individual plants scattered within a 0.25 ha (0.6 ac) area. The species is in danger of extinction throughout all of its known range. Based on this evaluation, the preferred action is to list T. californicum as endangered. Other alternatives to this action were considered but not preferred. A conservation agreement could not be negotiated with the private land owners (D. Imper, in litt. , 1994), and listing T. californicum as threatened would not provide adequate protection and would not be consistent with the Act. Listing T. californicum as endangered would provide additional protection and is consistent with the Act's definition of endangered.

Critical habitat is defined in section 3 of the Act as: (i) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection and; (ii) specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the Act is no longer necessary. The regulations (50 CFR 424.12(a)(1)) state that designation of critical habitat is not prudent when one or both of the following situations exist—(1) the species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species.

In the proposed rule, we indicated that designation of critical habitat was not prudent for Thlaspi californicum because of a concern that publication of precise maps and descriptions of critical habitat in the Federal Register could increase the vulnerability of this species to incidents of collection and vandalism. We also indicated that designation of critical habitat was not prudent because we believed it would not provide any additional benefit beyond that provided through listing as endangered.

In the last few years, a series of court decisions have overturned Service determinations regarding a variety of species that designation of critical habitat would not be prudent ( e.g., Natural Resources Defense Council v. U.S. Department of the Interior 113 F. 3d 1121 (9th Cir. 1997); Conservation Council for Hawaii v. Babbitt , 2 F. Supp. 2d 1280 (D. Hawaii 1998)). Based on the standards applied in those judicial opinions, we have reexamined the question of whether critical habitat for Thlaspi californicum would be prudent.

Due to the small number of populations, Thlaspi californicum is vulnerable to unrestricted collection, vandalism, or other disturbance. We remain concerned that these threats might be exacerbated by the publication of critical habitat maps and further dissemination of locational information. However, we have examined the evidence available for Thlaspi californicum and have not found specific evidence of taking, vandalism, collection, or trade of this species or any similarly situated species. Consequently, consistent with applicable regulations (50 CFR 424.12(a)(1)(i)) and recent case law, we do not expect that the identification of critical habitat will increase the degree of threat to this species of taking or other human activity.

In the absence of a finding that critical habitat would increase threats to a species, if a critical habitat designation would provide any benefits, then a prudent finding is warranted. In the case of this species, designating critical habitat may provide some benefits. The primary regulatory effect of critical habitat is the section 7 requirement that Federal agencies refrain from taking any action that destroys or adversely modifies critical habitat (see Available Conservation Measures section). While a critical habitat designation for habitat currently occupied by this species would not be likely to change the section 7 consultation outcome because an action that destroys or adversely modifies such critical habitat would also be likely to result in jeopardy to the species, there may be instances where section 7 consultation would be triggered only if critical habitat is designated. Examples could include unoccupied habitat or occupied habitat that may become unoccupied in the future. Designating critical habitat may also provide some educational or informational benefits. Therefore, we find that critical habitat is prudent for Thlaspi californicum .

The Final Listing Priority Guidance for FY 2000 (64 FR 57114) states, the processing of critical habitat determinations (prudency and determinability decisions) and proposed or final designations of critical habitat will no longer be subject to prioritization under the Listing Priority Guidance. Critical habitat determinations, which were previously included in final listing rules published in the Federal Register , may now be processed separately, in which case stand-alone critical habitat determinations will be published as notices in the Federal Register . We will undertake critical habitat determinations and designations during FY 2000 as allowed by our funding allocation for that year. As explained in detail in the Listing Priority Guidance, our listing budget is currently insufficient to allow us to immediately complete all of the listing actions required by the Act. Deferral of the critical habitat designation for Thlaspi californicum has allowed us to concentrate our limited resources on higher priority critical habitat (including court ordered designations) and other listing actions, while allowing us to put in place protections needed for the conservation of Thlaspi californicum without further delay. However, because we have successfully reduced, although not eliminated, the backlog of other listing actions, we anticipate in FY 2000 and beyond giving higher priority to critical habitat designation, including designations deferred pursuant to the Listing Priority Guidance, such as the designation for this species, than we have in recent fiscal years.

We plan to employ a priority system for deciding which outstanding critical habitat designations should be addressed first. We will focus our efforts on those designations that will provide the most conservation benefit, taking into consideration the efficacy of critical habitat designation in addressing the threats to the species, and the magnitude and immediacy of those threats. We will develop a proposal to designate critical habitat for Thlaspi californicum as soon as feasible, considering our workload priorities. Unfortunately, for the immediate future, most of Region 1's listing budget must be directed to complying with numerous court orders and settlement agreements, as well as due and overdue final listing determinations (like the one at issue in this case).

Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain activities. Recognition through listing results in public awareness and conservation actions by Federal, State, and local agencies, private organizations, and individuals. The Act provides for possible land acquisition and cooperation with the States and requires that recovery actions be carried out for all listed species. The protection required of Federal agencies and the prohibitions against certain activities involving listed plants are discussed, in part, below.

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with us.

All of the occurrences of Thlaspi californicum are on privately owned land. However, impacts of modifying the adjacent airport have the potential to adversely affect T. californicum , due to the proximity of the plants to the proposed parking apron. Funds from the FAA have been used to partially finance a planning document for the Kneeland Prairie Airport and are proposed to be used for airport modifications. Private sector funding is not anticipated to be available for Kneeland Prairie Airport (Hodges & Shutt 1993). Realignment of a county road adjacent to the airport may be required if the runway is extended. This work could be partially funded by Federal Highway Administration grants, thereby providing another avenue for section 7 consultation.

Listing Thlaspi californicum would provide for development of a recovery plan for this plant. Such a plan would bring together both State and Federal efforts for conservation of the plant species. The plan would establish a framework for agencies to coordinate activities and cooperate with each other in conservation efforts. The plan would set recovery priorities and estimate costs of various tasks necessary to accomplish recovery. It also would describe site-specific management actions necessary to achieve conservation and survival of the plant. Additionally, under section 6 of the Act, we would be able to grant funds to the State for management actions promoting the protection and recovery of this species.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered plants. All prohibitions of section 9(a)(2) of the Act, implemented by 50 CFR 17.61 for endangered plants, apply. These prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to import or export an endangered plant, transport such a plant in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale an endangered plant in interstate or foreign commerce, or remove and reduce an endangered plant to possession from areas under Federal jurisdiction. In addition, for plants listed as endangered, the Act prohibits malicious damage or destruction on areas under Federal jurisdiction, and the removal, cutting, digging up, or damaging or destroying of such plants in knowing violation of any State law or regulation or in the course of any violation of a State criminal trespass law. Certain exceptions to the prohibitions apply to agents of the Service and State conservation agencies.

The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of permits to carry out otherwise prohibited activities involving endangered plant species under certain circumstances. Such permits are available for scientific purposes and to enhance the propagation or survival of the species. It is anticipated that few trade permits would ever be sought or issued because this species is not common in cultivation or common in the wild. Information collections associated with these permits are approved under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , and assigned Office of Management and Budget clearance number 1018-0094. For additional information concerning these permits and associated requirements, see 50 CFR 17.62. Requests for copies of the regulations concerning listed plants and general inquiries regarding prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Endangered Species Permits, 911 N.E. 11th Avenue, Portland, Oregon 97232-4181 (telephone 503/231-2063; facsimile 503/231-6243).

It is our policy, published in the Federal Register (59 FR 34272) on July 1, 1994, to identify to the maximum extent practicable those activities that would or would not be likely to constitute a violation of section 9 of the Act if a species is listed. The intent of this policy is to increase public awareness of the effect of the species' listing on proposed and ongoing activities within its range. Collection of listed plants or activities that would damage or destroy listed plants on Federal lands are prohibited without a Federal endangered species permit. Such activities on non-Federal lands would constitute a violation of section 9 of the Act if they were conducted in knowing violation of California State law or regulation, or in the course of violation of California State criminal trespass law. Otherwise such activities would not constitute a violation of the Act on non-Federal lands.

Questions on whether specific activities would likely constitute a violation of section 9 should be directed to the Field Supervisor of the Carlsbad Fish and Wildlife Office (see ADDRESSES section).

This rule is not subject to review by the Office of Management and Budget under Executive Order 12866.

We have determined that an environmental assessment and environmental impact statement, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act of 1973, as amended. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

This rule does not contain any information collection requirements for which Office of Management and Budget (OMB) approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. is required. An information collection related to the rule pertaining to permits for endangered and threatened species has OMB approval and is assigned clearance number 1018-0094. For additional information concerning permits and associated requirements for endangered plants, see 50 CFR 17.62 and 17.63.

A complete list of all references cited in this rule is available upon request from the Field Supervisor, Sacramento Fish and Wildlife Office (see ADDRESSES section).

The primary author of this final rule is Kirsten Tarp, Sacramento Fish and Wildlife Office (see ADDRESSES section).