This final rule is issued in conformance with Executive Order 12866. It has been determined that this final rule will not have an annual economic effect in excess of $100 million; will not cause a major increase in costs to consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and will not have an adverse effect on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises in domestic or foreign markets.

This final rule has been reviewed in accordance with Executive Order 12988, Civil Justice Reform. The rule would have preemptive effect with respect to any State or local laws, regulations or policies which conflict with such provisions or which otherwise impede their full implementation; does not have retroactive effect; and does require administrative proceedings before suit may be filed.

This program is not subject to the provisions of Executive Order 12372 which requires intergovernmental consultation with State and local officials (see the Notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115).

It has been determined that the Regulatory Flexibility Act is not applicable to this final rule because the CCC is not required by any provision of law to publish a notice of rulemaking with respect to the subject matter of this rule.

The information collection requirements for participating in the Cooperator program have been submitted for reinstatement to the Office of Management and Budget (OMB). OMB has previously assigned control number 0551-0026 to the information collection and recordkeeping requirements. This final rule does not impose new information collection requirements.

The Cooperator program is designed to encourage the creation, expansion, and maintenance of foreign markets for agricultural commodities. Most recently, the Cooperator program has been operated under Title VII of the Agricultural Trade Act of 1978 and funded by annual appropriations to the Foreign Agricultural Service, USDA. Beginning with fiscal year 2000, the Cooperator program will be funded by the CCC and operated under the authority of the CCC Charter Act. This rule reflects that change by codifying the change in authority, redesignating the regulations currently in 7 CFR part 1550 as 7 CFR part 1484, and by making minor conforming changes to the regulations.

This rule is published as a final rule and is effective on the date of publication because the decision to utilize CCC authority to implement the Cooperator program to the CCC is a matter of agency management.

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

Interested persons are invited to submit such written data, views, or arguments, as they may desire. Communications should identify the regulatory docket and special conditions number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. These special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Persons wishing the FAA to acknowledge receipt of their comments submitted in response to this request must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. NM168.” The postcard will be date stamped and returned to the commenter.

On February 14, 1997, McDonnell Douglas Corporation (MDC) submitted an application to amend the DC-10/MD-11 Type Certificate No. A22WE to include four new models, MD-10-10/-10F and MD-10-30/-30F. The MD-10 series aircraft are modified DC-10 aircraft with an Advanced Common Flightdeck (ACF), similar to that on the Model MD-11, that will allow operation with a two person flight crew. No changes to primary structures, engines, primary flight control systems, or aircraft performance are being made.

The ACF on the MD-10 series aircraft will utilize electrical and electronic systems that perform critical functions; examples of which include the electronic displays and flight control computers. These systems can be susceptible to disruption to both command/response signals as a result of electrical and magnetic interference. This disruption of signals could result in loss of all critical functions that would prevent the continued safe flight and landing of the airplane.

Under the provisions of § 21.101, The Boeing Company must show that the Model MD-10 series airplanes continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A22WE, or the applicable regulations in effect on the date of application for the change to the Model MD-10 series aircraft. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” Based on the application date, February 14, 1997, the applicable regulations are 14 CFR part 25, effective February 1, 1965, including amendments 25-1 through 25-89, for all areas affected by the change.

If the Administrator finds that the applicable airworthiness regulations (i.e., part 25 as amended) do not contain adequate or appropriate safety standards for the Model MD-10 series aircraft because of novel or unusual design features, special conditions are prescribed under the provisions of § 21.16.

Special conditions, as appropriate, are issued in accordance with § 11.49, as required by §§ 11.28 and 11.29(b), and become part of the type certification basis in accordance with § 21.101(b)(2).

Special conditions are initially applicable to the model for which they are issued. Should McDonnell Douglas Corporation, now a wholly owned subsidiary of The Boeing Company, apply at a later date for a change to the type certificate to include another model incorporating the same type certificate to incorporate the same novel or unusual design feature, these special conditions would apply to the other model as well under the provisions of § 21.101(a)(1).

The ACF on the MD-10 series aircraft will utilize electrical and electronic systems that perform critical functions; examples of which include the electronic displays and flight control computers. These systems may be vulnerable to HIRF external to the airplane.

There is no specific regulation that addresses protection requirements for electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive electrical and electronic systems to command and control airplanes have made it necessary to provide adequate protection.

To ensure that a level of safety is achieved equivalent to that intended by the applicable regulations incorporated by reference, special conditions are needed for the Model MD-10 series aircraft, which require that new or significantly modified electrical and electronic systems, such as the electronic displays and flight control computers, that perform critical functions be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.

With the trend toward increased power levels from ground-based transmitters, plus the advent of space and satellite communications coupled with electronic command and control of the airplane, the immunity of critical digital avionics systems to HIRF must be established.

It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance with the HIRF protection special conditions is shown with either paragraph 1 OR 2 below:

1. A minimum threat of 100 volts rms per meter electric field strength from 10 KHz to 18 GHz.

a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.

b. Demonstration of this level of protection is established through system tests and analysis.

2. A threat external to the airframe of the following field strengths for the frequency ranges indicated.

The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.

As discussed above, these special conditions are applicable to Model MD-10 series airplanes. Should McDonnell Douglas apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101(a)(1).

This action affects only certain design features on Model MD-10 series airplanes. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

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

The FAA has developed an NDB-A SIAP to serve the Cuba Municipal Airport, MO. The amendment to Class E airspace at Cuba, MO, will provide additional controlled airspace at and above 700 feet AGL in order to contain the new SIAP within controlled airspace, and thereby facilitate separation of aircraft operating under Instrument Flight Rules. The amendment at Cuba Municipal Airport, MO, will provide additional controlled airspace for aircraft operating under IFR. The area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9G, dated September 10, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. The amendment will enhance safety for all flight operations by designating an area where VFR pilots may anticipate the presence of IFR aircraft at lower altitudes, especially during inclement weather conditions. A greater degree of safety is achieved by depicting the area on aeronautical charts. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

Although this action is in the form of a final rule and was not preceded by a notice of proposed rulemaking, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended or withdrawn in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of this action and determination whether additional rulemaking action would be needed.

Comments are specifically invited on the overall regulatory, economic environmental, and energy-related aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this action will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. 00-ACE-3.” The postcard will be date stamped and returned to the commenter.

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

The FAA has determined that this regulation is noncontroversial and unlikly to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12877; (2) is not a “significant rule” Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Due to the realignment of airspace in the vicinity of R-6901A and R-6901-B, Chicago ARTCC has assumed responsibility for performing the function of controlling agency for these areas.

This action amends 14 CFR part 73 by changing the designated controlling agency for R-6901A and R-6901B from “FAA, Minneapolis ARTCC,” to “FAA, Chicago ARTCC.” There are no changes to the boundaries, altitudes, time of designation, or activities conducted within the restricted areas.

Since this action simply changes the controlling agency for the existing restricted areas, and does not involve a change in the dimensions or operating requirements of that airspace, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

Section 73.69 of part 73 was republished in FAA Order 7400.8G, dated September 1, 1999.

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. Therefore this regulation: (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, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This action is a minor administrative change amending the published designation of the controlling agency for existing R-6901A and R-901B. There are no changes to air traffic control procedures or routes as a result of this action. Therefore, this action is not subject to environmental assessments and procedures under FAA Order 1050.1D, “Policies and Procedures for Considering Environmental Impacts,” and the National Environmental Policy Act of 1969.

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes SIAP's. 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 § 14 CFR 97.20 of the Federal Aviation Regulations (FAR). The applicable FAA Forms are identified as FAA Form 8260-5. Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAP's, 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 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. The SIAP's contained in this amendment are based on the criteria contained in the United States 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.

The FAA has determined through testing that current nonlocalizer type, non-precision instrument approaches developed using the TERPS criteria can be flown by aircraft equipped with a Global Positioning System (GPS) and or Flight Management System (FMS) equipment. In consideration of the above, the applicable SIAP's will be altered to include “or GPS or FMS” in the title without otherwise reviewing or modifying the procedure. (Once a stand alone GPS or FMS procedure is developed, the procedure title will be altered to remove “or GPS or FMS” from these non-localizer, non-precision instrument approach procedure titles.)

The FAA has determined through extensive analysis that current SIAP's intended for use by Area Navigation (RNAV) equipped aircraft can be flown by aircraft utilizing various other types of navigational equipment. In consideration of the above, those SIAP's currently designated as “RNAV” will be redesignated as “VOR/DME RNAV” without otherwise reviewing or modifying the SIAP's.

Because of the close and immediate relationship between these SIAP's and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are, impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

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

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

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

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

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

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

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

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

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

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

Further, the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs, the TERPS criteria were applied to the conditions existing 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.

On September 7, 1999, Customs published in the Federal Register (64 FR 48528) T.D. 99-67 which adopted as a final rule, with some changes, proposed amendments to the Customs Regulations relating to the commercial testing and gauging of imported merchandise. The regulations revised the general procedures for: Customs accreditation of commercial laboratories; the revocation or suspension of Customs-accredited laboratories; Customs approval of commercial gaugers; and the revocation or suspension of Customs-approved gaugers.

The final rule document provides laboratories which apply for Customs accreditation, but are not selected, and gaugers which apply for Customs approval, but are not selected, with two-levels of administrative review before allowing reapplication for accreditation or approval or further appeal to the Court of International Trade. This same reapplication-appeal procedure is also provided for Customs-accredited laboratories and Customs-approved gauger facilities whose status is subsequently suspended or revoked or whose operations are subject to monetary penalties. The first-level of administrative review of such Customs decision is to the Executive Director, Laboratories & Scientific Services, and the second-level of administrative review is to the Assistant Commissioner, Office of Field Operations.

After the administrative review process is completed, the regulations provide that a laboratory or gauger receiving an adverse agency decision may either submit a new application for accreditation or approval after waiting a set time frame (90 days) from the date of the Executive Director's last decision, or file an action with the Court of International Trade within a certain time frame (60 days) after the issuance of the Executive Director's final decision.

It has come to Customs attention that the Customs Regulations are unclear pertaining to:

(1) The starting point and the length of the waiting period before a laboratory or gauger may file a new application after it has received final notice that it has not been selected for accreditation or approval based on a prior application, or after its accreditation or approval has been revoked or suspended; and

(2) The starting point of the time frame within which a laboratory or gauger must file an action with the Court of International Trade if the laboratory or gauger chooses to challenge in the Court the decision made by the Assistant Commissioner, Office of Field Operations, regarding not being selected for accreditation or approval or having its accreditation or approval revoked or suspended.

In addition, the regulations are unworkable regarding the time frame within which the Executive Director will issue a decision if a laboratory or gauger does not file a response to a preliminary notice of nonselection or to a proposed revocation or suspension of accreditation or approval.

It has come to Customs attention that the regulations are not clear regarding the starting point and the length of the waiting period before a laboratory or gauger may file a new application after it has received a final notice that it has not been selected for accreditation or approval based on a prior application, or after its accreditation or approval has been revoked or suspended. This is because the regulations do not clearly set forth the procedures Customs contemplated.

One interpretation of the regulations as they appear in the Federal Register dated September 7, 1999, could be that a laboratory or gauger who is not selected or whose accreditation or approval is revoked or suspended is required to receive the adverse determination from the Assistant Commissioner, Office of Field Operations, before being given the option of submitting a new application for accreditation or approval. Customs did not intend this to be the case.

Customs contemplated that a laboratory or gauger who is not selected or whose accreditation or approval is being revoked or suspended may choose to accept the final notice of nonselection or notice of adverse determination issued by the Executive Director, not appeal to the Assistant Commissioner, and wait a set time frame from the Executive Director's decision to reapply for accreditation and approval.

Customs also contemplated that a laboratory or gauger that does appeal the nonselection, suspension, or revocation decision of the Executive Director to the Assistant Commissioner may accept an adverse decision issued by the Assistant Commissioner, wait a set time frame from that decision and then reapply for accreditation and approval rather than challenge the Assistant Commissioner's decision in the Court of International Trade. Unfortunately, while the language in the regulations clearly states that a laboratory or gauger that has received such an adverse determination by the Assistant Commissioner may reapply rather than challenge the decision in the Court of International Trade, the regulation states that the starting point of the waiting period for reapplying in this instance is the decision of the Executive Director, not the decision of the Assistant Commissioner. In this instance, the obvious starting point of the waiting period should be the Assistant Commissioner's decision.

In this document, Customs is clarifying that a laboratory or gauger receiving a final adverse determination from the Executive Director or an adverse determination from the Assistant Commissioner regarding accreditation or approval may choose to not further appeal the decision and then reapply. The laboratory or gauger may accept the Executive Director's final decision, not appeal the decision to the Assistant Commissioner, and reapply for accreditation or approval after a set time frame, with the date of the Executive Director's final decision being the starting point of that time frame. If the laboratory or gauger chooses to appeal the Executive Director's final decision to the Assistant Commissioner, the laboratory or gauger may choose to accept the Assistant Commissioner's decision in the matter, not file an action with the Court of International Trade, and reapply for accreditation or approval after a set time frame, with the date of the Assistant Commissioner's decision being the starting point of that time frame.

Once the clarification is made regarding the option (of a non-selected laboratory or gauger or a Customs-accredited laboratory or Customs-approved gauger which is suspended or revoked) to submit a new application rather than appeal the Customs decision at either the Executive Director or Assistant Commissioner level, and the clarification is made regarding the starting point of the waiting periods before a new application can be submitted, it becomes obvious that the time frames set forth in the regulations for submitting a new application also need to be revised; it was not Customs intention to allow the time frame for submitting a new application to be shorter than the time frame for following the appeal process.

Accordingly, Customs is changing the time frames for submitting a new application to be as follows:

(1) If the laboratory or gauger accepts the final adverse decision of the Executive Director, the laboratory or gauger may submit a new application to the Executive Director 180 days after the date of the Executive Director's decision; and

(2) If the laboratory or gauger appeals the final adverse decision of the Executive Director to the Assistant Commissioner, but accepts an adverse appeal decision issued by the Assistant Commissioner, the laboratory or gauger may submit a new application to the Executive Director 120 days after the date of the Assistant Commissioner's decision.

It has also come to Customs attention that the regulations are not clear that Customs contemplated that a laboratory or gauger must exhaust its administrative remedies before it may file an action with the Court of International Trade regarding an adverse accreditation or approval determination. In other words, a laboratory or gauger may not file an action with the Court of International Trade until it has received an adverse determination issued by the Assistant Commissioner, Office of Field Operations. This correction seeks to clarify that point.

In addition, this correction also changes the starting point of the time frame within which a laboratory or gauger must file an action with the Court of International Trade if the laboratory or gauger chooses to challenge in the Court a decision made by the Assistant Commissioner regarding not being selected for accreditation or approval or regarding having its accreditation or approval revoked or suspended. As published, the regulations state that the starting point of the 60-day time frame begins with the issuance of the Executive Director's notice of final action or decision. This procedure is not workable since the laboratory or gauger must receive the adverse decision issued by the Assistant Commissioner before it can file an action with the court. The Executive Director's decision is made prior to the Assistant Commissioner's. Accordingly, the starting point of the time frame within which a laboratory or gauger must file an action with the Court of International Trade is corrected to be the adverse decision issued by the Assistant Commissioner.

The regulations provide that laboratories not expected to be selected for accreditation, gaugers not expected to be selected for approval, laboratories whose accreditation may be revoked or suspended, and gaugers whose approval may be revoked or suspended will be notified in writing by a preliminary notice of Customs proposed action in the matter and that the notice will state that the laboratory and gauger has the option of filing a response with the Executive Director within 30 calendar days.

The regulations further provide that if the laboratory or gauger does not respond to the preliminary notice, the Executive Director will issue after 30 calendar days of the laboratory or gauger's receipt of the preliminary notice a final notice of adverse determination in the case of a proposed suspension or revocation, or a final notice of nonselection in the case of a nonselection.

Clearly, this is administratively infeasible. If Customs must wait 30 days to receive a response, Customs cannot within the same time frame send out a notice based on a nonresponse informing the laboratory or gauger of its decision. Customs must provide the full 30 days for a laboratory or gauger to send in a response, and then if no response is received, have time to prepare the final notice of adverse determination or final notice of nonselection.

Customs believes that it should have 30 additional days to send a final notice of adverse determination or final notice of nonselection to a laboratory or gauger after the laboratory or gauger's 30-day response period has expired. This 60-day time frame for Customs to send out a final notice of adverse determination or final notice of nonselection is consistent with the 60-day time frame that Customs has to issue these notices if a laboratory or gauger does respond to the preliminary notice.

The regulations are changed accordingly to reflect that the Executive Director has 60 days from the date the preliminary notice was received by the laboratory or gauger to issue a final notice of nonselection or final notice of adverse determination if the laboratory or gauger does not respond to a preliminary notice.

The corrections made to the laboratory regulations are in paragraphs (g) and (k) of § 151.12. The corrections made to the gauger regulations are in paragraphs (e) and (i) of § 151.13. Because of the breadth of these corrections and to make their application clear, the affected sections identified above are republished below.

In the document published in the Federal Register as T.D. 99-67 on September 7, 1999 (64 FR 48528):

1. On pages 48536 and 48537, in § 151.12, paragraphs (g)(1) and (g)(3) are corrected to read as follows:

In the Federal Register of November 3, 1999 (64 FR 59618), FDA solicited comments concerning the direct final rule for a 75-day period ending January 17, 2000. FDA stated that the effective date of the direct final rule would be on March 17, 2000, 60 days after the end of the comment period, unless any significant adverse comment was submitted to FDA during the comment period. FDA did not receive any significant adverse comments.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, notice is given that no objections or requests for a hearing were filed in response to the November 3, 1999, direct final rule. Accordingly, the amendments issued thereby are effective.

On January 26, 1999, Commission order no. 1226 in docket no. IM99-1 was published in the Federal Register (64 FR 3991). On November 26, 1999, the Commission issued order no. 1270 in docket no. RM2000-1(64 FR 66436). On February 15, the Commission issued this order [no. 1285] in docket no. RM200-1 and directed that it be published in the Federal Register .

On October 21, 1998, Public Law 105-277 was signed into law, adding section 3663 to the Postal Reorganization Act (PRA) (39 U.S.C. 3663). It requires that by July 1 of each year, the Commission “transmit to each House of Congress a comprehensive report of the costs, revenues, and volumes” accrued by the Postal Service “in connection with mail matter conveyed between the United States and other countries” for the prior fiscal year. To enable the Commission to carry out that directive, section 3663 requires the Postal Service to provide, by March 15, “such data as the Commission may require” to prepare that report. It states that the data provided

On June 30, 1999, the Commission transmitted its first annual report on international mail to Congress. On November 18, 1999, the Commission issued a notice of proposed rulemaking (NPRM) inviting interested persons to comment on the Commission's initial effort to satisfy the requirements of 39 U.S.C. 3663. The NPRM invited comments on what data the Postal Service should provide to the Commission each year to enable the Commission to prepare its report. In particular, the Commission invited comment on its proposed rule 103, which appeared as appendix A to the NPRM. Proposed rule 103 would add to the Commission's periodic reporting rules, a list of items to be included in the Postal Service's data submission that must be filed by March 15 of each year under section 3663(b). The NPRM also invited comments on the appropriate scope and detail of the Commission's annual international mail report, including the analytical methods that should be applied to calculate the costs, revenues, and volumes of international mail services.

The NPRM described the efforts of several of the Postal Service's competitors to obtain the information that the Postal Service provided to the Commission to enable it to prepare its initial report on international mail. The NPRM invited comments on the procedures that should be employed to determine which portions of the report or supporting documents should not be publicly disclosed, what criteria or standards should govern that determination, what categories of commercial information meet those standards, and the basis for any such comments. The NPRM also invited comments on any other issues that interested persons considered relevant to the Commission's duty to analyze and report on international mail costs, revenues, and volumes under section 3663.

Section 3663(b) of title 39 requires the Postal Service to provide by March 15 of each year the information necessary to enable the Commission to prepare its international mail report, which is due on July 1 of each year. In its NPRM the Commission proposed to regularize the set of international mail information items that the Postal Service is to provide annually by March 15 by including them in the set of periodic reports that the Postal Service is required to file. In appendix A to the NPRM, the Commission presented proposed rule 103 [proposed 39 C.F.R. 3001.103] which included a list of specific information items that the Postal Service would be required to provide by March 15 of each year. Several sets of comments were received on the adequacy of that list.

The International Cost and Revenue Analysis (ICRA) report summarizes how the costs of collecting, handling, transporting, and delivering international mail are attributed to specific international services. Some of those costs are incurred by international mail while it is in the domestic mail network. There are some differences in the methods by which the Postal Service attributes the costs of the domestic network and the methods by which the Commission attributes these costs. The Commission needs a version of the ICRA that follows Commission-approved attribution methods in order to prepare its international mail report. It also needs a version of the ICRA that follows the attribution methods that the Postal Service prefers in order to isolate the effect of methodological changes that the Postal Service introduces from year to year from the effect of applying Commission approved methods.

Proposed rule 103 would require the Postal Service to provide both a PRC and a USPS version of the ICRA on March 15 of each year. The Postal Service states that in order to comply with the Commission's request to produce a PRC version of the fiscal year (FY) 1998 ICRA by the March 15, 1999 deadline, it had to defer the production of its own internal version of the ICRA, due to resource constraints. It asserts that resource constraints preventing the simultaneous production of PRC and USPS versions of the ICRA will persist in the future, and argues that no deadline be imposed on its production of the USPS version of the ICRA. It says that it should be able to provide the USPS version of the ICRA shortly after the PRC version is provided. It argues that this should not disadvantage the Commission. It explains that if it plans to make changes in the methods that it uses to attribute international mail costs to the various international services, and it would like the Commission to affirm them, it expects to incorporate them in the PRC version of the ICRA. Initial Comments of United States Postal Service, filed December 27, 1999, at 5 (Postal Service Comments).

The Commission believes that a specific deadline for providing the USPS version remains necessary in order to avoid the situation that the Commission faced in preparing its initial international mail report. The Postal Service made changes to the methods that it used to estimate attributable international air transportation costs and to estimate the settlement difference that had major impacts on the cost coverages that it calculated for several international mail services and for international mail as a whole. These changes first appeared in the USPS version of the ICRA which the Postal Service provided to the Commission on June 7, 1999. Because there was not enough time to carefully evaluate these proposed changes, cost coverages for each international mail service based on Commission-approved methods and the new methods introduced by the Postal Service were calculated. The Commission's international mail report included appendices illustrating the impact that the Postal Service's new, but unevaluated, methods would have had on international mail cost coverages. The Commission would prefer to receive notice of such methodological changes in time to thoroughly evaluate their rationale and verify that they have been accurately applied.

Final rule 103 retains the requirement that the Postal Service provide an audited PRC version of the ICRA by March 15 of each year. In light of the resource constraints cited by the Postal Service, and its expectation that significant methodological innovations by the Postal Service will already be apparent in the PRC version, final rule 103 will allow the Postal Service until May 15 of each year to provide a USPS version of the ICRA. Allowing the Postal Service two extra months should substantially ease the Postal Service's burden in providing the USPS version of the ICRA.

The list of items that proposed rule 103 would require the Postal Service to provide includes the PRC version of the domestic Cost and Revenue Analysis (CRA) and the companion Cost Segments and Components (CSC) report. Proposed rule 103 would require the Postal Service to provide at least an unaudited PRC version by March 15 of each year. If an unaudited version were provided, proposed rule 103 would require the Postal Service to provide an audited or finalized PRC version by May 15 of each year. This would allow the Commission enough time to identify and reconcile any discrepancies that there might be between the PRC version of the ICRA and the finalized PRC version of the domestic CRA and CSC.

These companion reports estimate what portion of the Postal Service's accrued costs in its various cost components can be attributed to specific subclasses of domestic mail. The domestic CRA shows how total attributable costs are distributed to the various subclasses of domestic mail and to international mail as a whole. The CSC report displays these costs by cost component. Throughout both reports, costs attributed to international services are presented only in aggregate. To determine the accuracy of the distribution of attributable costs between domestic and international services requires an examination of CRA and CSC reports and their underlying workpapers. The underlying workpapers show the method and procedures by which the Postal Service determines the attributable costs for domestic and international services.

Commission authority to require production of the domestic CRA and CSC reports. In its comments, the Postal Service suggests that the Commission does not have the statutory authority to require the production of the domestic CRA, the CSC, or the supporting documentation for these reports, on a specific schedule or in a preliminary form. Its principal argument is that section 401(4) of the PRA gives the Postal Service the power to keep its own system of accounts, and that section 3663 doesn't explicitly override that power. Postal Service Comments at 3-4.

The Postal Service also questions whether the Commission needs a comprehensive domestic CRA to prepare its report on international mail. At page 8 of its comments, it says that “it is open to question whether 39 U.S.C. 3663 was ever intended by Congress to authorize the Commission, in effect, to serve as a second auditor of the Postal Service's financial data.” It states that it expects to provide the Commission with those parts of the domestic CRA and documentation that directly support the development of the ICRA. It also states that it would be willing to supplement such documentation if critical gaps were identified that seriously interfered with the Commission's ability to produce its report by July 1. In any event, the Postal Service asserts, the audited domestic CRA will be completed and available in time to enable the Commission to use it to complete its report on schedule. Accordingly, the Postal Service argues, the rule need not be written to require the production of the domestic CRA at all; rather it need only specify the production of information needed to review the parts of the domestic CRA used to create the ICRA. Id. at 7-8.

Several of the commenters disagreed with the Postal Service's narrow view of the Commission's authority under section 3663. United Parcel Service (UPS) argues that the following language of section 3663(b) gives the Commission the authority to determine what information it needs to prepare its report, and to require it by March 15 of each year.

Section 3603 of the PRA provides:

The Postal Service expresses skepticism that Congress intended the Commission to inquire into the accuracy of its financial data on international mail. The Commission concludes that such intent is strongly implied by the language of section 3663. Section 3663(b) requires the Postal Service to provide data in sufficient detail to enable the Commission to analyze, not just to passively report, the costs, revenues, and volumes of each international mail service. [Emphasis on the word analysis omitted here.] It is reasonable to infer that verifying the accuracy of data is a basic part of the analysis contemplated by Congress. FedEx concurs. FedEx Reply Comments at 2-3, n. 2. Indeed, it is hard to imagine what purpose it would serve for Congress to assign the task of preparing the report on international mail to the Commission rather than the Postal Service, if Congress intended that the Commission simply take the Postal Service's international mail data on faith.

As noted, the Postal Service emphasizes that it has the power under 39 U.S.C. 401(4) to keep its own system of accounts and to determine the forms and contents of its business documents. Rule 103 as proposed would not conflict with this power. Providing these documents to the Commission early enough, and in an edited form that is reliable enough to enable the Commission to perform its chapter 36 duty to analyze and report on international mail, still leaves postal management free to review and refine these documents for its own internal use in whatever form, and to whatever degree, best suits its own internal management objectives. It should be borne in mind that section 401(4) gives the Postal Service the power to keep its own system of accounts and determine what form its business documents will take “except as otherwise provided in this title.” Therefore, if an exception to the Postal Service's general section 401(4) powers were thought to be necessary to enable the Commission to obtain the detailed and reliable financial data from the Postal Service that are necessary to prepare its section 3663 report, section 401(4) provides for it.

The Commission's need for the domestic CRA and CSC reports. It seems clear that section 3663 intends that the Commission verify the accuracy of the Postal Service's financial data on international mail as part of its reporting responsibility. It is also clear that section 3663(b), together with section 3603, gives the Commission authority to require the documentation necessary to do so. The question remains whether the Commission needs comprehensive domestic CRA and CSC reports to carry out the Commission's duty to analyze and report on the costs, revenues, and volumes of international mail.

The international CRA shows subtotal attributable costs for processing, delivery, domestic transportation, international transportation, settlement, and all other. The subtotal for processing costs reflects the sum of cost segments 2, 3, and 4. Delivery costs reflect the sum of cost segments 6, 7, 8, 9, 10, and 12. Transportation and settlement costs reflect cost segment 14. All other costs reflect the sum of cost segments 1, 11, 13, 15, 16, 17, 18, 19, and 20. The first examination the Commission performs is to compare the sum of the applicable cost segment amounts in the international C report to the subtotal amounts in the ICRA. The Commission can also compare amounts in the C report for mail processing and city carrier costs to the underlying workpapers that the Postal Service provides in the initial submission and evaluate the accuracy of the attributable cost methods used.

As noted, section 3663(b) requires the Commission to analyze the costs, revenues, and volumes for each international mail product or service, under the methods determined appropriate by the Commission for the analysis of rates for domestic mail. (Emphasis in original omitted here.) The attribution methods that the Commission applies to domestic subclasses differ from those the Postal Service currently prefers most significantly in cost segments 3 and 7. The Commission needs to verify that its attribution methods have been accurately applied by the Postal Service in determining the portion of these segment costs that the Postal Service attributes to specific international services. To do this, the Commission needs to be able to review the workpapers that underlie cost segments 3 and 7 of the domestic CSC. Only they show in detail how the Postal Service has applied the Commission's attribution methods. To analyze the accuracy of the distribution of other segment costs between all domestic services and all international services the Commission requires not only the domestic CRA and CSC reports, but also the underlying workpapers.

The Commission needs complete domestic CRA and CSC reports because they provide control totals for the total of the costs, revenues, and volumes estimated for the various international services in the ICRA. The domestic CSC report presents attributable costs by component for each domestic subclass and for international mail in aggregate. The international CSC equivalent attributes segment costs to specific international mail services. The sum of the costs attributed to specific international services in the international CSC should equal the sum of costs attributed to international mail in the domestic CSC. Similarly, the sum of the revenues and volumes for specific international services presented in the ICRA should equal the aggregate international volumes and revenues presented in the domestic CRA.

There should be little reason to doubt the value of the control totals provided in the domestic CRA and CSC. Unlike the ICRA, the estimation methods and procedures used in the domestic CRA and CSC have been regularly refined under the intense scrutiny of publicly litigated rate cases. Consequently, the domestic CRA and CSC reports provide the most reliable control totals available for the product-specific financial data in the ICRA. If the ICRA totals match the control total, then the Commission is assured that no domestic costs, revenues, and volumes have found their way into the ICRA and that no international costs, revenues, and volumes have been left out of the ICRA. This is the most fundamental check that the Commission can provide in its report to Congress. Without comprehensive CRA and CSC reports, the Commission cannot provide this assurance.

The Commission also needs a complete domestic CRA to ensure that the treatment of attributable and institutional costs in the ICRA is consistent with their treatment in the domestic CRA. For example, in its FY 1998 ICRA, the Postal Service eliminated costs associated with the “settlement difference” (the difference between accrued settlement costs and imputed settlement costs). For the ICRA to be consistent with the domestic CRA, it would appear that the Postal Service should remove these costs from the total accrued costs in the domestic CRA. The Commission could not assure Congress that the treatment of these costs in the ICRA is consistent with their treatment in the domestic CRA unless the Commission has a comprehensive domestic CRA.

Requiring an audited domestic CRA and CSC by May 15. These reports provide detailed statistical estimates of the costs incurred annually by the mail in aggregate and by individual subclasses in particular. They are primarily used to provide the cost basis for pricing and ratemaking. Proposed rule 103 would require the Postal Service to provide PRC versions of the domestic CRA and CSC reports by March 15 of each year, in unaudited form, if necessary. It would require the Postal Service to provide these reports in audited form no later than May 15 of each year. Final rule 103 retains this requirement.

The Postal Service objects to requiring these reports either by a specific date, or in a preliminary form. It argues that because of the complexity of these reports, and the multiple layers of review they undergo, it is unrealistic to require that annual production of these reports could be accelerated to March 15. It warns that requiring its production “at an early stage” risks publication of unreliable numbers. The Postal Service asserts that because the CRA and CSC reports are official documents, postal management's policy prerogatives are infringed if the timing of the reviews and policy clearances required to issue the domestic CRA are modified to meet the needs of the Commission.

The Postal Service observes that the PRC version of the domestic CRA is not an official document of the Postal Service, and therefore is not audited and not endorsed by the Postal Service. Nevertheless, it argues the PRC version is a “variant” of the official CRA. Therefore, it maintains, requiring production of the PRC version of the domestic CRA by a specific date, or in preliminary form, raises the same objections as if it were the official version. For these reasons, the Postal Service asserts, the Commission should only require that the domestic CRA be provided “within two weeks” of internal presentation to Postal Service management, as the Commission's existing periodic reporting rules require. Postal Service Comments at 6-8.

UPS argues that audited versions of the domestic CRA and CSC reports should be required by March 15. It contends that it should not be difficult to produce audited financial data by March 15—more than five months after the close of the fiscal year. It notes that in the private sector, audited financial data are required within 90 days of the end of the fiscal year. UPS Comments at 11-12. It reminds the Postal Service that the March 15 deadline set in section 3663(b) for providing information necessary to prepare the international mail report was not selected at the Commission's discretion, but is mandated by Congress. UPS Reply Comments at 4.

The Postal Service states that it

In section 3663, Congress assigned the Commission the task of analyzing the costs, revenues, and volumes of individual international services, and assuring that they have been estimated by methods that are consistent with the methods that the Commission applies to domestic mail when recommending domestic rates. In fulfilling this mandate, the most fundamental check that the Commission can make is to match control totals from the domestic CRA and CSC with corresponding amounts in the ICRA, to see if any costs, revenues, or volumes have been misallocated between international and domestic mail. To do this, the Commission requires that complete domestic CRA and CSC reports be provided in time to analyze them.

Congress selected the annual July 1 due date for the Commission's reports, and made the judgment that the Postal Service must provide the data necessary to prepare the report by March 15 of each year, to give the Commission adequate time to analyze the data. The Commission is aware that the CRA is a complex statistical document that requires careful editing of data from a wide variety of databases before it can be relied on. The Commission is also aware that historically the Postal Service has usually not released its audited version of the domestic CRA until a few weeks before, or a few weeks after, May 15. For this reason, rule 103 defers the due date for an audited domestic CRA from March 15 to May 15. Rule 103 allows the Postal Service two additional months to provide a CRA-PRC version beyond the time that section 3663(b) would otherwise require it. This liberal provision should go most of the way toward satisfying the Postal Service's concern that the section 3663 reporting process impinge as little as possible on its internal timetable for generating its official reports.

In its comments, the Postal Service asks the Commission not to specify the time that it is to provide the domestic CRA. Postal Service Comments at 7-8. The Commission followed this approach in 1999 in preparing its first international mail report. On May 5 the Commission requested the domestic CRA and CSC reports without specifying a due date. The Postal Service provided these reports on June 7. There were apparent discrepancies between totals in the CRA provided on June 7 and the ICRA that it had provided earlier. In the brief time remaining to provide a draft report to the Commission, Commission staff determined that these discrepancies apparently were matters of form rather than substance.

If, at that late date, substantive discrepancies had been found in the domestic CRA, the Commission could have faced the same dilemma that it faced with respect to the ICRA, where substantive changes in cost accounting methods were included in a version provided to the Commission on June 7, 1999. As previously described, the Commission staff was unable to evaluate these changes in the remaining available time. Rather than pass judgment on them, it prepared an alternative ICRA-PRC version that incorporated these new costing methods and presented the resulting cost coverages in an appendix to its report, with a disclaimer as to the soundness of the results. Rule 103 is designed to prevent similar problems arising with respect to the finalized domestic CRA. Because it requires that a finalized domestic CRA be provided by May 15, it should provide the Commission with a reasonable opportunity to resolve substantive discrepancies if they appear, and make any necessary revisions to its report.

Requiring an unaudited domestic CRA and CSC by March 15. Proposed rule 103 would require the Postal Service to provide the Commission an unaudited or preliminary version of the domestic CRA by March 15. The Commission retains this provision in its final rule 103.

The Postal Service objects to this aspect of rule 103, characterizing it as an “unrealistic” acceleration of the typical production schedule for the CRA. Postal Service Reply Comments at 14. It also considers it unwise, since preliminary data might be unreliable. Postal Service Comments at 7. Yet, it also asserts that

In its comments, the Office of the Consumer Advocate (OCA) asks that the Commission include in proposed rule 103 a 30-day period for public comment on the adequacy of the information that the Postal Service provides on March 15. The OCA is mindful that the Postal Service considers much of the product-specific cost, revenue, and volume information contained in the ICRA to be commercially sensitive. It argues, however, that descriptions of the processes and methods by which the Postal Service puts together the ICRA and the databases underlying it should not be considered commercially sensitive. Accordingly, it proposes to add a long list of explanations and documentation to the information items listed in proposed rule 103, and to provide a 30-day period for public comment on the adequacy of this documentation. OCA Comments at 7-8.

The OCA proposes that the list of items that rule 103 would require the Postal Service to provide by March 15 include descriptions of how the Postal Service allocates costs that are shared by domestic and international services to those respective services, and descriptions of how costs that are shared by international services are allocated between specific international services. In addition, the OCA proposes that the Postal Service provide descriptions of the product-specific methods that it uses to estimate the costs of, respectively, Global Package Link, Global Priority Mail, Global Direct Services, Global Parcel Services, and International Customized Mail. Id. at 4-5. It proposes that the Postal Service provide full documentation of the data collection and sampling systems, both domestic and international, that contribute to the ICRA, including training manuals and instructions to data collectors. It asks that the Postal Service be required to describe in detail how reports are generated by these systems, and how these reports are used to estimate the costs, revenues, and volumes of individual international services. The specific information items that are covered by its proposal are listed at pages 4-7 of its comments.

Both UPS and FedEx endorse the OCA's proposal to add detailed descriptions of methods and procedures to the items required by rule 103, and its proposal that there be a 30-day period for public comment. FedEx Reply Comments at 3, UPS Reply Comments at 13-14.

The Postal Service disagrees. It argues that section 3663 does not call for a public documentation exercise, just a cooperative effort between the Postal Service and the Commission. It argues that supervising a public debate over documentation requirements would needlessly tie up the Commission at a time when it is trying to produce the required report. The Postal Service asserts that the OCA's proposal is focused less on the information that the Commission needs to prepare its report than on the information that the lay public might need to accomplish the same task. Postal Service Reply Comments at 2-3.

The OCA's carefully crafted proposal has laudable objectives, but for practical reasons, the Commission has decided against expanding the list of items that the Postal Service must provide by March 15 contained in proposed rule 103. Under rule 103, as proposed and as adopted, the Commission would already receive the documentation of the international mail reports and data collection systems called for by the OCA. In that documentation, the Postal Service historically has included descriptions of any changes that it has made to estimation methods that affect international mail. We trust that this practice will continue.

Documentation of system-wide data sampling systems, such as the In-Office Cost System, the Revenue, Pieces, and Weight system, the Carrier Cost System, and TRACS, is a significant undertaking that up to now has been required only in omnibus rate cases. The Commission considers it unnecessary to require that the Postal Service prepare in-depth documentation of its system-wide financial reports and data systems every year by March 15. Due to the Postal Service's complaints about resource constraints, the Commission has scaled back somewhat its list of information items required by March 15 in order to make the Service's section 3663(b) obligations somewhat less onerous. Requiring in-depth documentation of its domestic data systems by that date is likely to compound the difficulties that the Postal Service describes in providing the ICRA and a preliminary version of the CRA by that date. If, in the brief time that the Commission has after March 15 to prepare its report, the Commission perceives a specific need for fresh documentation of domestic data systems, it will ask the Postal Service for selective supplements of the documentation that it customarily provides in omnibus rate cases.

FedEx argues that in terms of cost coverages, the compensation that the Postal Service receives for handling and delivering categories of inbound international mail is substantially less than the compensation that it receives for handling and delivering corresponding categories of domestic mail. It argues that these disparities in cost coverage are, in effect, discounts that the Postal Service offers to foreign postal administrations on inbound mail service. It argues that the Postal Service receives reciprocal discounts from foreign postal administrations for delivering mail that they receive from the Postal Service. FedEx argues that these reciprocal discounts are hidden costs of offering outbound service, and serve to reduce the real cost coverage on those services. FedEx notes that this issue was raised in the questions concerning the Commission's first international mail report that were posed to the Commission by the House Postal Service Subcommittee. See the NPRM in this docket (order no. 1270) at 7.

According to FedEx, accounting for this discount is “the central analytical issue” that the Commission's international mail report should address. FedEx Comments at 5. FedEx argues that the Commission's report should estimate the extent of the implied discount offered on each inbound service and add it to its corresponding outbound service, as though it were an attributable cost of the outbound service. This, FedEx contends, would yield a true picture of the effective cost coverages being earned by the Postal Service's various outbound international services. FedEx Comments at 15-16.

To accurately calculate the implied discount, the Commission would have to have information on inbound mail comparable to the billing determinant information that the Postal Service collects on domestic mail, as well as additional information on the content of inbound mail. For example, if it were assumed that inbound single-piece letters would be charged First-Class single-piece rates if they were domestic mail, it would be necessary to know the volume of those letters by ounce increment, in order to infer a domestic price.

FedEx appears to recognize that such information would be needed to perform the analysis that it advocates. To obtain that information, it proposes to add the following to the information that rule 103 would require by March 15 of each year.

FedEx Comments at 6. FedEx also recognizes that associating specific inbound services with specific domestic counterparts will be a difficult undertaking. To help the Commission accomplish this task, FedEx proposes adding the following provision to rule 103.

UPS agrees with FedEx that the delivery of inbound mail is inextricably tied to the Postal Service's use of foreign postal administrations to deliver its outbound mail. It argues that any losses incurred on inbound mail should be borne by the corresponding category of outbound mail. UPS Comments at 12-13.

The Postal Service replies that there is no indication in section 3663 or its legislative history to indicate that the purpose of the Commission's international mail report was to account for any alleged discount offered to foreign postal administrations. Postal Service Reply Comments at 4. The Postal Service says that it is a misconception to view the terminal dues rates that it charges for delivering the mail of foreign posts as discounts from the rates charged domestic mail. It emphasizes that delivering the mail of foreign posts is an obligation of membership in the Universal Postal Union (UPU). It argues that in establishing uniform UPU terminal dues rates, the members do not view inbound international mail as analogous to domestic mail, whose rates are typically set by each member post to recover a specific share of the costs of its domestic network. Instead, it argues, inbound international mail has its own unique costs, product features, and service times, which the uniform terminal dues rates reflect.

The Postal Service insists that it could not sell domestic delivery to the various categories of mail from foreign posts as though it were discounted domestic service. It contends the various categories of inbound mail cannot be mapped to particular categories of domestic mail in terms of content, size and weight profiles, mail preparation, or service characteristics. It questions whether such mapping could be done in the future. It comments that it is naive to assume that existing data systems can be modified to provide data that is sufficiently detailed to allow inbound services to be mapped to domestic subclasses. It notes that demand elasticities for international mail are generally much higher than for domestic mail, implying that if the various categories of inbound mail were to be priced as domestic mail, they would generally receive lower markups. Id. at 6-7, 9.

The Postal Service insists that rates for outbound international mail are based entirely on the costs of outbound mail, and are not influenced in any way by the costs or revenues of inbound mail. Id. at 8. The Postal Service asserts that a causal connection between outbound rates and inbound costs and revenues would be difficult to demonstrate because many outbound services do not have a corresponding inbound category of mail. It cites International Priority Airmail and International Surface Airlift as examples of outbound mail services that have no inbound counterpart.

Historically, UPU terminal dues for Letters and Cards, and “Autres Objets” (LC/AO) mail have been based on an estimate of the average cost of domestic delivery of foreign-origin mail by the posts of a broad cross-section of members of the UPU, rather than the domestic rates of specific member countries. Although there is little empirical evidence that current terminal dues for LC/AO mail now are based primarily on the rates and net revenues charged for domestic mail of like kind, this situation soon will change. By the year 2001, UPU rates for LC/AO mail between industrialized countries are scheduled to be set as a percentage of the rates charged for corresponding domestic categories. In order to determine what terminal dues to charge in 2001, the Postal Service will soon have to gather data that is sufficiently detailed to map inbound LC/AO mail to corresponding domestic categories. While it appears to be premature to incorporate data requirements in rule 103 designed to make such judgments, meeting such requirements should be more feasible in the future.

The Postal Service changed its method of accounting for international air transportation costs and for settlement expenses between the ICRA-PRC version which it provided to the Commission on March 15, 1999, and the ICRA-USPS version that it provided on June 7, 1999. As explained in appendix F of the Commission's FY 1998 international mail report, accrued international air transportation costs are projections based on the historical level of payments to air carriers. Imputed air transportation costs are calculated by multiplying outbound volumes by unit air transportation charges, based on initial actual air bills.

Sometime after the close of the fiscal year, the Postal Service revises the initial air bills to reflect subsequent corrections. In the ICRA report that the Postal Service provided to the Commission in March 1999, it developed imputed international air transportation costs without the benefit of knowing all the corrections made to the initial air bills. However, at some point in the process of producing the ICRA, the revised actual costs become available. By aggregating the revised actual costs and the imputed costs, and calculating the ratio of revised cost to imputed costs, the Postal Service created an adjustment factor to apply to the international air transportation costs in the ICRA, by service and country grouping.

In the version of the ICRA that the Postal Service provided on March 15, it adjusted imputed attributable international air transportation cost by service to the accrued level. In the June version, it revised international air transportation costs by service to reflect only the actual payment to airlines in FY 1998. Accrued settlement charges are book costs. They are projections based on historical levels of settlement charges. Imputed settlement charges are calculated by multiplying volumes recorded by the Military and International Accounting and Dispatch System (MIDAS) by known settlement charges. Imputed amounts are relied on in the ICRA because there can be a lag of several years before corrections to the imputed amounts are completed. In the ICRA that the Postal Service provided on March 15, the Postal Service treated the difference between actual and accrued settlement expenses as a cost that is incremental to international mail as a whole. In the June 7 version of the ICRA, the Postal Service eliminated the settlement difference cost.

Because there was not enough time for the Commission to adequately evaluate these changes in accounting treatments in its report, the Commission presented alternative financial results under both the old and the new methods. See appendix F to the Commission's FY 1998 international mail report. The NPRM invited public comment on the merits of these changes in accounting methods used by the Postal Service. Order no. 1270 at 13-14.

UPS comments that the explanations of these changes in accounting methods have not been sufficiently clear for it to evaluate their merits. It observes that in principle, the accrual method matches costs with the production of services more accurately than the cash method, citing Financial Accounting Standards Board Statement of Financial Accounting Concepts No. 1. It argues that without more detailed explanations, there should be a presumption that the accrual method is superior. UPS Comments at 12-13.

The Postal Service replies that the accrual method is less accurate than the cash method with respect to both air transportation and settlement costs, particularly in FY 1998. The Postal Service states that it conducted an analysis in FY 1999 that caused it to adjust accrued air transportation costs. It then says

With respect to the settlement difference, the Postal Service states that imputed costs will be consistently more accurate than accrued costs. It explains that the long lags before actual charges can be compiled lead to relatively large adjustments in such things as the actual Special Drawing Right conversion rate to be applied. Id.

Both the air transportation charge and the settlement charge adjustments appear to represent judgments by the Postal Service that, at least for FY 1999, it should not try to tie actual amounts back to book costs because the book costs are likely to prove to be substantially different from the actual charges when they become available. The Postal Service will be asked to explain whether it will attempt to revise its total accrued costs to conform to the imputed or actual costs for air transportation and settlement charges that it apparently intends to use in its FY 1999 ICRA.

With respect to inbound international Express Mail Service (EMS), the Commission's FY 1998 international mail report, at 38, comments that “[a]chieving a positive outcome for EMS should not pose a problem as the Postal Service is free to enter bilateral agreements * * * in which rates can be cost based.” Referencing this passage, UPS says that it is not clear whether EMS covers its costs. It observes that the charges for domestic delivery of foreign-origin EMS take the form of “imbalance charges” negotiated between country pairs. It says that its understanding is that imbalance charges are assessed only on the net amount that one country imports from the other, and for that reason, a complete financial picture for EMS requires that outbound and inbound EMS data be combined. UPS Comments at 13-14.

The Postal Service replies that none of its various compensation arrangements for exchanging EMS are accounted for by focusing on net flows between country pairs. Postal Service Reply Comments at 13.

The Commission's interpretation of the Postal Service's response is that even if the Postal Service's payments for domestic delivery of EMS are based on net amounts, it carries gross outbound and inbound numbers on its books, as it does for other international mail classes. The Commission will verify with the Postal Service whether this understanding is correct.

The Commission's initial report on international mail under section 3663 was issued on July 1, 1999. The Commission's NPRM did not propose any rules that would apply to the content of its report. But, recognizing that the content of the report has a bearing on the data that is considered necessary to prepare it, the Commission invited comments on the contents of its report as well.

UPS argues that the report should include volumes, revenues, costs, and cost coverages for each individual international service, including the so-called “initiatives” that the Postal Service considers especially sensitive, and that these estimates should be disclosed to the public. Otherwise, it argues, there is no way for the public to judge the fairness of the rates for individual international services. UPS Reply Comments at 9-12.

The international “initiatives” are Global Priority Mail, Global Package Link, Direct Entry, and International Customized Mail. UPS states that the Commission's report “aggregates” volume, cost, and revenue information for these services, citing page 34 of the report, and urges that the report display data on these services individually. UPS Reply Comments at 9. The Commission's report to Congress, at page 34, and at page 9, displays data for these services individually. UPS' comments may have been based on the redacted version of the report that it received in response to the request that it filed under the Freedom of Information Act (FOIA).

FedEx proposes that the Commission's international mail report be extended to include unit measures of the financial aspects of international mail that can be compared to known, standard unit measures from other fields. For example, it proposes that the report compare the unit cost of air transportation for LC and AO mail (other than International Surface Airlift) to the air transportation rates established by the Department of Transportation. It offers, as another example, comparing the “unit cost of foreign post delivery, by terminal dues regime, with the terminal dues set by the UPU.” FedEx Comments at 18-19. The Commission agrees that standard unit measures of financial performance drawn from other sectors might usefully be compared to those of international mail. It will consider presenting such comparisons in future reports.

As previously noted, FedEx argues that the Commission's report should combine costs, revenues, and volumes for inbound services with those of their associated outbound services to display joint cost coverages. It also argues that the Commission's report should treat the discount offered on each individual inbound service as a cost of the associated outbound service. FedEx Comments at 8. UPS generally agrees. UPS Reply Comments at 12-13. The Postal Service replies that terminal dues rates cannot be viewed as discounts from the rates that inbound mail would be charged if it were domestic mail. Postal Service Reply Comments at 4-11.

In its initial international mail report, the Commission presented estimates of the costs, revenues, and volumes of inbound and outbound international services combined, where it had a reasonable basis for mapping a given inbound service to an analogous outbound service. It intends to make a similar presentation in future reports.

The Commission's NPRM did not focus on the issue of public disclosure. The Commission, nevertheless, thought that it would be useful to invite comments on the procedures that the Commission should employ to determine what portions of its international mail report or supporting documents should not be publicly disclosed, what criteria or standards should govern that determination, what categories of commercial information meet those standards, and the basis for that belief. Order No. 1270 at 14. A number of proposals were received in response.

UPS proposed that the Postal Service accompany the information that it provides on March 15 of each year with an indication of the portions that it believes are too commercially sensitive to be publicly disclosed. The public would be given 30 days to respond to the Postal Service claims, and the Postal Service would have 30 days to reply. The Commission would then resolve any public disclosure issues in its international mail report, and disclose the information that it concludes should be made public. UPS Comments at 10. Similarly, FedEx proposes that rule 103 require the Postal Service to accompany the information that it submits on March 15 of each year with an indication of the information that, in its judgment, would qualify for non-disclosure under alternative legal standards. FedEx proposes that the Commission accompany its section 3663 report with appendices showing what information the Commission concludes is exempt from public disclosure under those same standards. It implies that these appendices would provide Congress with detailed guidance to aid it in resolving the disclosure issue. FedEx Comments at 17-18.

The Postal Service emphasizes that in docket no. IM99-1, the Commission declined requests to create a special procedure for obtaining public access to information provided under the section 3663 reporting process. In that docket, the Postal Service notes, the Commission concluded that Congress intended public disclosure of materials provided under section 3663 to be governed by existing public disclosure laws and policies. Postal Service Comments at 18.

The Commission continues to believe that Congress did not intend that section 3663 override existing information disclosure laws and policies, or the procedures that they provide. Accordingly, existing disclosure procedures should govern disclosure issues arising under section 3663. These are essentially the procedures that the FOIA provides. See docket no. IM99-1, Order Denying UPS Motion to Provide Public Access to International Mail Data, issued May 21, 1999, at 4. Consistent with these conclusions, the Commission has not incorporated special public disclosure procedures in final rule 103.

The feasibility of these proposals warrant comment as well. The Commission recognizes that requiring annual, comprehensive disclosure evaluations could accelerate resolution of disclosure issues, especially if it is expected that blanket disclosure requests will be routinely lodged for these data. But these proposals would require that disclosure evaluations be performed during the same limited periods that are available to the Postal Service to compile and edit these data, and to the Commission to substantively evaluate them. It is a formidable task to apply subjective legal disclosure standards in a consistent manner, cell by cell, to thousands of pages of hardcopy spreadsheets and thousands more of electronic spreadsheets, as disclosure law arguably requires. Substantial time and resource constraints make it difficult to undertake both very different kinds of evaluations simultaneously.

Proposed rule 103 refers to a list of reports relevant to international mail that the Postal Service is required to provide by March 15 of each year. It then states that

The NPRM invited comments on the legal standard that should govern the determination of what information should be considered commercially sensitive. Order no. 1270 at 14.

Section 410(c)(2) of title 39 authorizes the Postal Service to withhold commercial information that would not be disclosed “under good business practice.” In the NPRM, the Commission summarized earlier orders in which the Commission concludes, based on several Federal court precedents, that section 410(c)(2) is a statutory withholding provision that is exempt from the disclosure requirements of the FOIA under exemption 3 of that Act. Order no. 1270 at 10. Consequently, the Commission concluded, the stricter standard that courts have applied to determine whether commercial information is exempt under exemption 4 of the FOIA does not apply to the commercial records of the Postal Service, at least in the section 3663 context. Federal courts generally require a showing that disclosure is likely to cause substantial competitive harm before they will authorize withholding of agency records under exemption 4.

UPS proposes that rule 103 incorporate the following standard

UPS argues that in order to accomplish what it perceives to be the Congressional purpose underlying section 3663, the burden required to justify withholding information under FOIA exemption 4, and in civil litigation concerning trade secrets, is a more appropriate withholding criterion to apply to information provided under section 3663. UPS further argues that the public interest is especially strong in obtaining information about the commercial activities of the Federal government, making the appropriate burden even greater. UPS contends that the language that it proposes to add to rule 103 reflects the appropriate burden that should be required to justify withholding information provided to the Commission under section 3663. UPS appears to argue that the applicability of this balancing analysis is supported, at least indirectly, by the opinion in National Western Life Insurance Co. v. United States, 512 F. Supp. 454 (N.D. Tex. 1980). UPS Comments at 2-9.

FedEx proposes that rule 103 incorporate the following language

FedEx urges that in its international mail report, the Commission identify information that it considers commercially sensitive under alternative withholding standards. One would be the “good business practice” standard applicable to disclosure requests made by the public. The other would be the stricter standard applicable in the Commission's formal rate hearings (essentially the “substantial competitive harm” standard applied in FOIA cases interpreting exemption 4). This, FedEx suggests, would give Congress guidance as to what information to disclose if it concludes that the latter withholding standard is more appropriate for information provided under section 3663. Id. at 17-18.

In its comments, at 1-2, the Reporters Committee on Freedom of the Press (Reporters Committee), proposes that the following sentence be eliminated from proposed rule 103.

The Reporters Committee contends that the section 410(c)(2) standard should not apply to section 3663 information because it is not a statutory withholding provision that is exempt from the FOIA disclosure requirements under exemption 3. To bring a statutory withholding provision under exemption 3, the provision must require that matter be withheld in a manner that leaves the agency “no discretion on the issue” [5 U.S.C. 552(b)(3)(A)] or “establishes particular criteria for withholding or refers to particular types of matters to be withheld” [5 U.S.C. 552(b)(3)(B)]. The Reporters Committee argues that section 410(c)(2) would not qualify under either part A or part B, under the holding in Church of Scientology of California v. United States Postal Service, 633 F.2d 1327 (9th Cir. 1980).

Section 410(c)(6) allows the Postal Service to withhold “investigatory files compiled for law enforcement purposes.” The court in Church of Scientology rejected the Postal Service's argument that section 410(c)(6) qualifies as exempt from FOIA under part B. It held that section 410(c)(6) did not display a clear Congressional intent that all of the Postal Service's investigatory files be exempt from FOIA. The court further held that section 410(c)(6) impermissibly allows the Postal Service, rather than Congress, to decide what kind of investigatory files would be hazardous to disclose.

The Reporters Committee contends that by authorizing the Postal Service to withhold commercial information that would not be disclosed under “good business practice,” section 410(c)(2) exhibits the same infirmities that the Church of Scientology court identified in section 410(c)(6). Because section 410(c)(2) should not qualify as an exemption 3 statute, it argues, the withholding criteria of exemption 4 should apply to section 3663 information.

In its reply comments, the Postal Service argues that the Commission has correctly concluded that FOIA procedures should govern requests for section 3663 information, and that under those procedures, section 410(c)(2) becomes the operable disclosure standard. It points out that those who object to applying the “good business practice” standard of section 410(c)(2) to section 3663 information do not attempt to distinguish the two Federal court precedents that expressly hold that section 410(c)(2) qualifies as an exemption 3 statute, or acknowledge that the Commission has followed these precedents in denying access to the same type of information and records covered by rule 103. See Order no. 1261 at 3-7, citing Weres Corporation v. United States Postal Service, C.A. No. 95-1984, at 3-5 (D.D.C. 1996) (unpublished memorandum opinion); and National Western Life, 512 F.Supp. 454 at 458-59. The Postal Service argues that the holding in Church of Scientology is of little relevance because it interprets section 410(c)(6) rather than section 410(c)(2). It argues that the result turns on the fact that after section 410(c)(6) was adopted, Congress revealed its hostility to broad exemptions for investigatory files by amending and narrowing an almost identical provision authorizing agencies in general to withhold investigatory files (the original version of FOIA exemption 7).

When it sought comments on the disclosure standards that should apply to section 3663 information, the Commission anticipated that comments would focus primarily on interpretations of the “good business practice” standard of section 410(c)(2). The comments appear to assume that the withholding standard to be applied is a matter of Commission discretion. Consequently, the comments focus on alternative withholding standards that commenters propose.

The Commission acknowledges that in Church of Scientology, the general criteria that the Court articulated for determining whether a statute qualifies as exempt from the FOIA under 5 U.S.C. 552(b)(3)(B) differ somewhat from the criteria applied in Weres and Western Life, which makes the weight of their authority somewhat less clear. Nonetheless, the Commission concurs in the observations of the Postal Service that existing Federal court precedents holding that section 410(c)(2) qualifies as an exemption 3 withholding statute are controlling, and that the “good business practice” standard applies to section 3663 information. Accordingly, the Commission will continue to apply that standard in determining whether specific section 3663 information should be disclosed.

For the reasons discussed above, the Commission hereby adopts new 39 CFR 3001.103, as set forth in the attachment to this order. [The material in the attachment appears in the Federal Register following the preamble.]

Ordering paragraphs. Ordering paragraph no. 1 states that the Commission adopts the provision set out in the attachment as final rule 39 CFR 3001.103. Ordering paragraph no. 2 states that this rule is effective upon publication in the Federal Register . Ordering paragraph no. 3 states that the Secretary shall cause this order to be published in the Federal Register . [Order 1285 (signed by Commission Secretary Margaret P. Crenshaw) was issued by the Commission on February 15, 2000.]

Each report listed in this section shall be filed with the Secretary of the Commission on or before March 15th of each year unless a later date is specified, and shall cover the most recent full fiscal year. Information contained in these reports that is considered to be commercially sensitive should be identified as such, and will not be publicly disclosed except as required by applicable law. Specific sources cited in this section should be understood to include any successor or substituted source.

(a) The International Cost and Revenue Analysis—PRC Version.

(b) The International Cost and Revenue Analysis—USPS Version, by May 15.

(c) The Cost and Revenue Analysis Report—PRC Version. If an unaudited version is provided on March 15, provide an audited version no later than May 15. The audited version shall include a statement describing all adjustments that affect international mail.

(d) The Cost Segments and Components Report—PRC Version. If an unaudited version is provided on March 15, provide an audited version no later than May 15. The audited version shall include a statement describing all adjustments that affect international mail.

(e) Documentation and workpapers for the ICRA, including those related to:

(1) Terminal dues.

(2) Air conveyance dues.

(3) Transit charges.

(4) Imbalance charges.

(5) Inward land charges.

(6) Description of cost allocation procedures.

(7) Identification of costs that are exclusive to international mail.

(8) The cost of joint ventures with other postal administrations.

(9) International billing determinants.

(10) The data for Direct Entry separated between inbound and outbound as in the Postal Service's response to Item 1 of order no. 1246.

(11) The attributable costs for ValuePost/Canada developed in accordance with the procedure described in the Postal Service's response to Item 2 of order no. 1251, or any alternative procedure deemed appropriate as a basis for setting the rates for ValuePost/Canada. Costs for ValuePost/Canada should be separated between publications and all other printed matter.

(12) Revenues and volumes for Value Post/Canada separated between publications and all other printed matter.

(f) Handbooks pertaining to the collection of volume and revenue data (MIDAS, SIRVO, SIRVI, Other) if they were revised or replaced since they were last submitted.

(g) International CRA manual input, A, B, C, and factor reports on a CD-ROM.

(h) A hard copy of the International CRA manual input and the C report International CRA manual input, A, B, C, and factor reports on a CD-ROM.

(i) Cost Segment 3 CRA Worksheets and all supporting files, including the MODS-Based Costing Studies—PRC Version. Include all databases, SAS and other programs, and output worksheets.

(j) Cost Segment 7 CRA Worksheets and all supporting files.

(k) The number of weighted tallies by international service separately for clerks and mailhandlers, and for city delivery carriers in-office; clerk and mailhandler tallies should be further separated for mail processing, window service, and all other.

(l) Coefficients of variation for:

(1) IOCS clerk and mailhandler tallies by mail processing, window service, and all other.

(2) IOCS city delivery carriers in-office.

(3) TRACS for purchased transportation by international, air, railroad, and other.

(4) Outbound volume by international service.

(5) Inbound volume by international service.

(m) The percentage of household and the percentage of non-household mail for each outbound mail service.

(n) The percentage of single-piece mail and bulk mail for each outbound service.

We are approving the Georgia State Plan, as submitted on September 15, 1998, for the control of air emissions from HMIWIs, except for those HMIWIs located in Indian Country. When EPA developed our New Source Performance Standard (NSPS) for HMIWIs, we also developed EG to control air emissions from older HMIWIs. (See 62 FR 48348-48391, September 15, 1997, 40 CFR part 60, subpart Ce (Emission Guidelines and Compliance Times for HMIWIs) and subpart Ec (Standards of Performance for HMIWIs for Which Construction is Commenced After June 20, 1996)). The Georgia DNR developed a State Plan, as required by sections 111(d) and 129 of the Clean Air Act as amended in 1990 (the Act), to adopt the EG into their body of regulations, and we are acting today to approve it.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in a separate document in this Federal Register publication, we are proposing to approve the revision should significant, material, and adverse comments be filed. This action is effective April 25, 2000, unless by March 27, 2000, adverse or critical comments are received. If we receive such comments, this rule will be withdrawn before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will be addressed in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. If no such comments are received, this action is effective April 25, 2000.

A HMIWI State Plan is a plan to control air pollutant emissions from existing incinerators which burn hospital waste or medical/infectious waste. The plan also includes source and emission inventories of these incinerators in the State.

States are required under sections 111(d) and 129 of the Act to submit State Plans to control emissions from existing HMIWIs in the State. The State Plan requirement was triggered when EPA published the EG for HMIWIs under 40 CFR part 60, subpart Ce (see 62 FR 48348, September 15, 1997).

Under section 129, EPA is required to promulgate EG for several types of existing solid waste incinerators. These EG establish the Maximum Achievable Control Technology (MACT) standards that States must adopt to comply with the Act. The HMIWI EG also establishes requirements for monitoring, operator training, permits, and a waste management plan that must be included in State Plans.

The intent of the State Plan requirement is to reduce several types of air pollutants associated with waste incineration.

The State Plan establishes control requirements which reduce the following emissions from HMIWIs: particulate matter; sulfur dioxide; hydrogen chloride; nitrogen oxides; carbon monoxide; lead; cadmium; mercury; and dioxin/furans. These pollutants can cause adverse effects to the public health and the environment. Dioxin, lead, and mercury bioaccumulate through the food web. Serious developmental and adult effects in humans, primarily damage to the nervous system, have been associated with exposures to mercury. Exposure to dioxin and furans can cause skin disorders, cancer, and reproductive effects such as endometriosis. Dioxin and furans can also affect the immune system. Acid gases affect the respiratory tract, as well as contribute to the acid rain that damages lakes and harms forests and buildings. Exposure to particulate matter has been linked with adverse health effects, including aggravation of existing respiratory and cardiovascular disease and increased risk of premature death. Nitrogen oxide emissions contribute to the formation of ground level ozone, which is associated with a number of adverse health and environmental effects.

The criteria for approving a HMIWI State Plan include requirements from sections 111(d) and 129 of the Act and 40 CFR part 60, subpart B. Under the requirements of sections 111(d) and 129 of the Act, a State Plan must be at least as protective as the EG regarding applicability, emission limits, compliance schedules, performance testing, monitoring and inspections, operator training and certification, waste management plans, and recordkeeping and reporting. Under section 129(e), State Plans must ensure that affected HMIWI facilities submit Title V permit applications to the State by September 15, 2000. Under the requirements of 40 CFR part 60, subpart B, the criteria for an approvable section 111(d) plan include demonstration of legal authority, enforceable mechanisms, public participation documentation, source and emission inventories, and a State progress report commitment.

The Georgia DNR adopted the Federal NSPS and EG for HMIWIs by reference into the Georgia Rule for Air Quality Control, Chapter 391-3-1-.02(2)(iii), and sections 2.117.2, 2.117.3, and 2.117.4 of the Georgia DNR Procedures for Testing and Monitoring Sources of Air Pollutants. The State rules were effective on June 15, 1998. The Georgia State Plan contains:

1. A demonstration of the State's legal authority to implement the section 111(d) State Plan;

2. State rules, Chapter 391-3-1-.02(2)(iii) and sections 2.117.2, 2.117.3, and 2.117.4, as the enforceable mechanism;

3. An inventory of approximately 138 known designated facilities, along with estimates of their potential air emissions;

4. Emission limits that are as protective as the EG;

5. A compliance date of March 15, 2000;

6. Testing, monitoring, reporting and recordkeeping requirements for the designated facilities;

7. Records from the public hearing on the State Plan; and

8. Provisions for progress reports to EPA.

The EG for existing HMIWIs affect any HMIWI built on or before June 20, 1996. If your facility meets this criterion, you are subject to these regulations.

You must meet the requirements listed in the Georgia Rule for Air Quality Control, Chapter 391-3-1-.02(2)(iii), and sections 2.117.2, 2.117.3, and 2.117.4 of the Georgia DNR Procedures for Testing and Monitoring Sources of Air Pollutants, summarized as follows:

1. Determine the size of your incinerator by establishing its maximum design capacity.

2. Each size category of HMIWI has certain emission limits established which your incinerator must meet. See Table 1 of 40 CFR part 60, subpart Ce, to determine the specific emission limits which apply to you. The emission limits apply at all times, except during startup, shutdown, or malfunctions, provided that no waste has been charged during these events. (40 CFR 60.33e, as listed at 62 FR 48382, September 15, 1997).

3. There are provisions to address small rural incinerators (40 CFR 60.33e(b), 60.36e, 60.37e(c)(d), and 60.38e(b), as listed at 62 FR 48380, September 15, 1997).

4. You must meet a 10% opacity limit on your discharge, averaged over a six-minute block of time (40 CFR 60.33e(c), as listed at 62 FR 48380, September 15, 1997).

5. You must have a qualified HMIWI operator available to supervise the operation of your incinerator. This operator must be trained and qualified through a State-approved program, or a training program that meets the requirements listed under 40 CFR 60.53c(c) (40 CFR 60.34e, as listed at 62 FR 48380).

6. Your operator must be certified, as discussed in 5 above, no later than one year after EPA approval of this Georgia State Plan (40 CFR 60.39e(e), as listed at 62 FR 48382).

7. You must develop and submit to Georgia DNR a waste management plan. This plan must be developed under guidance provided by the American Hospital Association publication, An Ounce of Prevention: Waste Reduction Strategies for Health Care Facilities, 1993, and must be submitted to Georgia DNR no later than one year after EPA approval of this State Plan (40 CFR 60.35e, as listed at 62 FR 48380).

8. You must conduct an initial performance test to determine your incinerator's compliance with these emission limits. This performance test must be completed by March 15, 2000.

9. You must install and maintain devices to monitor the parameters listed under Table 3 to subpart Ec (40 CFR 60.37e(c), as listed at 62 FR 48381).

10. You must document and maintain information concerning pollutant concentrations, opacity measurements, charge rates, and other operational data. This information must be maintained for a period of five years (40 CFR 60.38e, as listed at 62 FR 48381).

11. You must submit an annual report to Georgia DNR containing records of annual equipment inspections, any required maintenance, and unscheduled repairs. This annual report must be signed by the facilities manager (40 CFR 60.38e, as listed at 62 FR 48381).

EPA compared the Georgia rules (Georgia Rule for Air Quality Control, Chapter 391-3-1-.02(2)(iii), and sections 2.117.2, 2.117.3, and 2.117.4 of the Georgia DNR Procedures for Testing and Monitoring Sources of Air Pollutants), against our HMIWI EG. EPA finds the Georgia rules to be at least as protective as the EG. The Georgia State Plan was reviewed for approval against the following criteria: 40 CFR 60.23 through 60.26, Subpart B—Adoption and Submittal of State Plans for Designated Facilities; and, 40 CFR 60, 60.30e through 60.39e, Subpart Ce—Emission Guidelines and Compliance Times for Hospital/Medical/Infectious Waste Incinerators. The Georgia State Plan satisfies the requirements for an approvable section 111(d) plan under subparts B and Ce of 40 CFR part 60. For these reasons, we are approving the Georgia HMIWI State Plan.

EPA is approving the aformentioned changes to the SIP because they meet EPA requirements. The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective April 25, 2000 without further notice unless the Agency receives adverse comments by March 27, 2000.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on April 25, 2000 and no further action will be taken on the proposed rule.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 25, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

The Agency included in the final rule a list of those who may be potentially affected by this action. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

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

2. In person. The Agency has established an official record for this action under docket control number OPP-300958A. The official record consists of the documents specifically referenced in this action, any public comments received during an applicable comment period, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period, is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

A final rule to establish time-limited tolerances for emamectin benzoate on various commodities was published in the Federal Register on January 12, 2000 (65 FR 1796) (FRL-6398-5). This correction is being published to establish a tolerance for “milk” at 0.002 ppm, which was inadvertently omitted from the table in § 180.505(b).

EPA is publishing this action as a final rule without prior notice and opportunity to comment because the Agency believes that providing notice and an opportunity to comment is unnecessary and would be contrary to the public interest. As explained above, the correction contained in this action will simply correct § 180.505(b) by adding a commodity that was inadvertently omitted. EPA therefore finds that there is “good cause” under section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 553) to make this amendment without prior notice and comment. For the same reasons, EPA also finds that there is “good cause” under FFDCA section 408(b)(2) to make this minor modification to the establishment of a tolerance without notice and comment.

No. This final rule implements a technical correction to the Code of Federal Regulations (CFR), and does not impose any new requirements.

Under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993), the Office of Management and Budget (OMB) has determined that a technical correction is not a “significant regulatory action” subject to review by OMB.

Because this action is not economically significant as defined by section 3(f) of Executive Order 12866, this action is not subject to Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997).

This action will not result in environmental justice related issues and does not, therefore, require special consideration under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

Since the Agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the APA or any other statute (see Unit IV.), this action is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. Nor does this action significantly or uniquely affect the communities of tribal governments as specified by Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999).

This action does not involve any technical standards that require the Agency's consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).

This rule does not contain any information collection requirements that require review and approval by OMB pursuant to the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq. ).

In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988, entitled Civil Justice Reform (61 FR 4729, February 7, 1996).

EPA has complied with Executive Order 12630, entitled Governmental Actions and Interference with Constitutionally Protected Property Rights (53 FR 8859, March 15, 1988), by examining the takings implications of this rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order.

EPA's compliance with these statutes and Executive Orders for the underlying rule is discussed in Unit VIII. of the final rule (65 FR 1796, January 12, 2000).

Yes. The Congressional Review Act (CRA) (5 U.S.C. 801 et seq .), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of February 25, 2000. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR part 180 is corrected as follows:

These rules implement section 407(b)(2) of the Community Opportunities, Accountability, and Training and Educational Services Act of 1998 (Pub. L. 105-285). Under this provision, the Secretary of Health and Human Services is to prescribe by regulation the rules grantees must follow in accounting for monies in reserve funds, established under the Act, which are used for depositing grant funds, the non-Federal matching funds required for establishing individual development accounts, and the proceeds from any investment of such funds.

The Assets for Independence Act, or title IV of Pub. L. 105-285, provides for the establishment of Individual Development Account (IDA) demonstration projects to determine how effective IDAs and “asset-building” strategies are in helping low-income people save, acquire productive assets, and achieve economic self-sufficiency. The Act authorizes the Department of Health and Human Services to conduct a five-year Individual Development Account demonstration, through which grants are made to non-profit organizations on a competitive basis.

The statute provides specific and detailed requirements for establishing such programs and authorizes grants for projects to be awarded within 10 months of enactment of the Act (August 27, 1999). For these reasons, coupled with the Department's commitment to reduce regulatory burden, we have decided to limit regulating to the one area where the statute indicates regulations are required. Specifically, section 407(b)(2) of Pub. L. 105-285 requires grantees to maintain a reserve fund in accordance with accounting regulations prescribed by the Secretary. Responding to this legislative provision, these rules stipulate which Departmental uniform administrative requirements must be met in maintaining IDA reserve funds.

The statute requires that amounts in the reserve funds be used as matching contributions to individual development accounts for project participants; for expenses related to collecting and reporting project data and information required for the evaluation; for administration of the project including skill training necessary to achieve economic self-sufficiency; and for other project related expenses. Federal funds can only be drawn down after the match funds have been deposited.

With respect to provisions of the Act other than accounting for the amounts in the reserve fund, on January 27, 1999, the Department issued a Program Announcement in the Federal Register , “Program Announcement No. OCS-99-04” (64 FR 4258), announcing the availability of funds and requesting competitive applications. On March 29, 1999, the Department published guidance, “Clarification of Program Announcement No. OCS 99-04” (64 FR 14923), in the Federal Register to assist interested applicants in understanding the law and the requirements for eligibility. Also, on July 2, 1999, a Second Round of Applications was published, “Program Announcement No. OCS-99-04” (64 FR 36184). Further information will be made available to the grantees as part of Terms and Conditions at the time of the grant award.

We are adding a new part 1000 in title 45 of the Code of Federal Regulations.

We are establishing requirements under new 45 CFR part 1000 regarding reserve funds established pursuant to the Assets for Independence Program. We are confirming that Departmental administrative requirements found in part 74 are applicable to reserve funds established by grantees that are not-for-profit organizations as defined by section 501(c)(3) of the Internal Revenue Code of 1986. We are also confirming that the Departmental administrative requirements found in Part 92 are applicable to reserve funds established by State or local government agencies or tribal governments.

New § 1000.1 provides that this part applies to the Community Services Assets for Independence Program.

We are adding a definition of Individual Development Account at § 1000.2(a) to read:

Individual Development Account means a trust or custodial account created or organized in the United States exclusively for the purpose of paying the qualified expenses of an eligible individual, as defined in section 404(2) of Pub. L. 105-285, or enabling the eligible individual to make an emergency withdrawal, as prescribed in section 404(3) of Pub. L. 105-285. The written governing instrument creating the trust or custodial account must meet the requirements of section 404(5) of Pub. L. 105-285, (section 404(5)(A)) and of the Project Eligibility Requirements set forth in the Program Announcement No. OCS-99-04 and any future announcements that may be issued.

We are adding a definition of qualified entity at § 1000.2(b) to read:

Qualified Entity means one or more not-for-profit organizations described in section 501(c)(3) of the Internal Revenue Code of 1986 and exempt from taxation under section 501(a) of such Code; or a State or local government agency, or a tribal government, submitting an application under section 405 of Pub. L. 105-285 jointly with a 501(c)(3) organization that is exempt from taxation under 501(a) of the Internal Revenue Code of 1986.

We are adding a definition of reserve fund at § 1000.2(c) to read

(c) Reserve Fund means a fund, established by a qualified entity, that shall include all funds provided to the qualified entity from any public or private source in connection with the demonstration project and the proceeds from any investment made with such funds. The fund shall be maintained in accordance with Section 407 of Pub. L. 105-285. At least 90.5% of the funds must be used as matching contributions for Individual Development Accounts.

Under § 1000.3(a), we are confirming that Reserve Funds under the Assets for Independence Program established by qualified entities, other than State or local government agencies or tribal governments, are subject to the Department of Health and Human Services' uniform administrative requirements under 45 CFR part 74.

Under § 1000.3(b), we are confirming which requirements are applicable to Reserve Funds by a qualified entity that is a State or local government agency or tribal government. While these entities are not required to establish reserve funds, reserve funds that are established by these entities are subject to the Department of Health and Human Services' uniform administrative requirements under 45 CFR part 92.

These regulations are being published in final form with a comment period. The Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B), provides that, if the Department for good cause finds that a notice of proposed rulemaking is unnecessary, impracticable or contrary to public interest, it may dispense with the notice if it incorporates a brief statement in the final regulations of the reasons for doing so.

The Department finds that there is good cause to dispense with proposed rulemaking procedures for the following reasons. First, the new part 1000 of the CFR does not establish original accounting requirements, but provides that existing regulations found in 45 CFR parts 74 and 92 apply to Reserve Funds established under the Assets for Independence Act. Therefore, this Interim Final Rule is a matter in which public comment would not significantly aid. Second, the Assets for Independence Act, as part of the Human Services Reauthorization Act of 1998, established stringent timelines which mandate that grant awards are to be determined by August 27, 1999. To ensure that grantees will have guiding principles by which they may operate the program, it is necessary to provide adequate administrative regulations in a timely manner. Therefore, we are eliminating a proposed rule for the sake of expediency.

For these reasons, OCS believes that there is sufficient cause to dispense with proposed rulemaking. Nonetheless, we wish to have the advantage of the information and opinions we may receive through public comments. We will consider any comments received and revise the regulations if necessary. We will issue a final document confirming that this interim final rule is final and will add any revisions, as needed, from the comments.

The Assets for Independence Act, as part of the Human Services Reauthorization Act of 1998, established stringent timelines which mandate that grant awards are to be determined by August 27, 1999. To ensure that grantees will have guiding principles by which they may operate the program, it is necessary to provide adequate administrative regulations in a timely manner. Therefore, we are eliminating the 30-day delay period for the effective date of publication for this rule.

The Secretary certifies, under 5 U.S.C. 605(b), the Regulatory Flexibility Act (Pub. L. 96-354), that these proposed regulations will not result in a significant impact on a substantial number of small entities. The primary impact is on a limited number of grantees and the impact is not significant.

Executive Order 12866 requires that regulations be reviewed to ensure that they are consistent with the priorities and principles set forth in the Executive Order. The Department has determined that this proposal is consistent with these priorities and principles. The rule implements the statutory provisions by specifying applicable rules grantees are subject to in meeting accounting requirements for reserve funds established for purposes of carrying out demonstration projects under the Assets for Independence Act.

Section 202 of the Unfunded Mandates Reform Act of 1995 (Unfunded Mandates Act) requires that a covered agency prepare a budgetary impact statement before promulgating a rule that includes any Federal mandate that may result in the expenditure by State, local and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year.

If a covered agency must prepare a budgetary impact statement, section 205 further requires that it select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with the statutory requirements. In addition, section 203 requires a plan for informing and advising any small government that may be significantly or uniquely impacted by the proposed rule.

We have determined that this rule will not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year. Accordingly, we have not prepared a budgetary impact statement, specifically addressed the regulatory alternatives considered, or prepared a plan for informing and advising any significantly or uniquely impacted small government.

Under the Paperwork Reduction Act of 1995, Pub. L. 104-13, all Departments are required to submit to the Office of Management and Budget (OMB) for review and approval any reporting or record keeping requirements inherent in a rule. This rule contains information collection requirements in § 1000.3 (requiring the establishment of a reserve fund) which have been submitted to OMB for review and approval.

The respondents to the information collection requirements in the rule are IDA grantees, which may be not-for-profit organizations, State or local agencies or tribal governments.

The Department is requiring the collection of information in conjunction with section 407 of Pub. L. 105-285 which requires a qualified entity, other than a State or local government agency or a tribal government, to establish a Reserve Fund for depositing all funds provided to the qualified entity from any public or private source in connection with the demonstration project and the proceeds from any investments.

We estimate a burden of 40 hours for each new grantee. On average we anticipate 76 new grantees each year resulting in a total annual burden for this rule of 3,040 hours.

The Administration for Children and Families will consider comments by the public on this proposed collection of information in: evaluating whether the proposed collection is necessary for the proper performance of the functions of ACF, including whether the information will have practical utility; evaluating the accuracy of ACF's estimate of the burden of the proposed collections of information, including the validity of the methodology and assumptions used; enhancing the quality, usefulness, and clarity of the information to be collected; and minimizing the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technology.

OMB is required to make a decision concerning the collection of information contained in this interim final rule between 30 and 60 days after publication of this document in the Federal Register . Therefore, a comment is best assured of having its full effect if OMB received it within 30 days of publication. Written comments to OMB for the proposed information collection should be sent directly to the following: Office of Management and Budget, Paperwork Reduction Project, 725 17th Street, NW, Washington, DC 20503, Attn: Wendy Taylor.

This rule is not a major rule as defined in 5 U.S.C., Chapter 8.

Section 654 of the Treasury and General Government Appropriations Act of 1999 requires Federal agencies to determine whether a policy or regulation may affect family well being. If the agency's conclusion is affirmative, then the agency must prepare an impact assessment addressing seven criteria specified in the law. These regulations will not have an impact on family well being as defined in the legislation.

Executive Order 13132 on Federalism applies to policies that have federalism implications, defined as “regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government.” This rule does not have federalism implications as defined in the Executive Order.

This is a summary of the Commission's Report and Order, adopted February 2, 2000, and released February 11, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Service, Inc., 1231 20th Street, NW., Washington, DC. 20036, (202) 857-3800, facsimile (202) 857-3805.

This final rule conforms the NASA FAR Supplement to Item No. II of FAC 97-15, which became final on December 27, 1999, and enters into effect on February 25, 2000. Internal coordination procedures have been clarified, but no substantive changes have been made to NASA policy.

NASA certifies that this final rule will not have a significant economic impact on a substantial number of small business entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) because it does not impose any new requirements.

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

Thompson (1977) described the armored snail ( Marstonia pachyta ), and Hershler and Thompson (1987) later reassigned it to the genus Pyrgulopsis. The armored snail is a small, presumably annual, species (usually less than 4 millimeters (mm) (0.16 inch (in)) in length) (Thompson 1984). It is distinguished from other closely related species by the characteristics of both its verge (male reproductive organ) and shell. The armored snail has a small raised gland on the ventral surface of the verge (a trait common only with the beaverpond snail ( P. castor ) of this genus) and two small glands along the left margin of the apical (tip) lobe. The apical lobe is smaller than in most species of Pyrgulopsis (Thompson 1977). Garner (1993) noted some variation in verge characteristics (more developed apical lobes), but attributed the differences to temporal changes in verge morphology throughout the annual life cycle. The shell is easily identified by its ovate-conical shape, its pronounced thickness, and its complete peristome (edge of the opening). Other Pyrgulopsis species with ovate-conical shells have much thinner, almost transparent shells, and the peristome is seldom complete across the parietal margin (area along the opening abutting the main body of the shell) of the aperture (opening) (Thompson 1977).

The armored snail occurs only in Piney and Limestone Creeks, Limestone County, Alabama (Garner 1993, Hershler 1994, ARC 1997), and has never been noted outside this area. Piney Creek was a tributary to Limestone Creek prior to the construction of Wheeler Lake on the Tennessee River. Thus, the two populations of the armored snail are likely remnants of a once larger population. No entire population of the armored snail is known to have been lost. Armored snails are generally found among submerged tree roots and bryophytes (nonflowering plants comprising mosses and liverworts) along stream margins in areas of slow to moderate flow. Occasionally they are found in the submerged detritus (organic matter and rock fragments) along pool edges.

The armored snail is in a particularly precarious position because it is restricted to a few isolated sites along two short river reaches. Inhabited sites appear to be rather small, covering only a few square meters.

The slender campeloma belongs to the ovoviviparous family Viviparidae. All species in this family give birth to young crawling snails rather than laying eggs that hatch in an external environment. The sexes are separate in the Viviparidae, with males being distinguishable by their modified right tentacle that serves as a copulatory organ. This modified tentacle in males is shorter and thicker than the left tentacle or either of the bilaterally symmetrical tentacles of the females (Burch and Vail 1982).

Burch and Vail (1982) describe the slender campeloma ( Campeloma decampi ) (“Currier” Binney 1865) as follows: Shell medium to large but generally less than 35 mm (1.40 in) in length; shell without spiral nodules; outer margin of shell aperture not concave and its oblique angle to the shell axis not exaggerated; columellar margin of operculum (plate that closes the shell when the snail is retracted) not reflected inward; operculum entirely concentric, including its nucleus; whorls without spiral angles, ridges, or sulci (grooves); shells without spiral color bands; length of aperture noticeably greater than width; lateral and marginal teeth simple with very fine, difficult-to-distinguish cusps (points); shell narrow, relatively thin, generally with prominent raised spiral lines.

The slender campeloma is easily distinguished from the sympatric (two or more closely related species occupying identical or overlapping territories) Campeloma decisum (a widespread and common species in northern Alabama) by the presence of fine sculpture in the form of faint striations and a relatively higher spire on the shell of C. decampi. Many C. decampi specimens have strongly developed ridges, referred to as axial growth ridges by Clench and Turner (1955). All whorls in juveniles and early whorls in adults are carinate (keel-shaped). The shell of C. decisum is smooth, without carination.

Campeloma decampi is typically found burrowing in soft sediment (sand and/or mud) or detritus. It does not appear abundant at any site, and the spotty distribution appears consistent with other Campeloma species (Bovbjerg 1952; Medcof 1940; van der Schalie 1965). Several size classes were found in 1996, ranging from 5 to 31 mm (0.2 to 1.24 in) in shell height, indicating reproducing populations (ARC 1997). Biologists have not studied the life history of C. decampi. Based on other studies of species in the genus Campeloma, a genus exclusive to North America, we can infer a few generalities. Van Cleave and Altringer (1937), in their study of C. rufum in Illinois, found gravid females year-round, peaking in May, and with the most barren females in June. Parturition (giving birth) was also most active in May but extended until September first. Chamberlain (1958) found similar results with C. decisum in North Carolina (parturition extending from mid-March until the end of June), as did Medcof (1940) in his study of C. decisum in Ontario (parturition extending from March to September). Van Cleave and Altringer (1937) and van der Schalie (1965), in their work with C. ponderosum coarctatum, both found females carrying young in the uterus over winter. Given the wide range of sizes found by ARC (1997), the timing of parturition and the ability of females to overwinter young in the uterus are likely similar for C. decampi. However, it should be noted that C. rufum and C. decisum are parthenogenic (production of young by females without fertilization by males), as several of the northern Campeloma species appear to be. The food habits of the slender campeloma are not known, but they likely feed on detritus.

Burch (1989) described the range for Campeloma decampi as Jackson, Limestone, and Madison Counties, Alabama. These counties all lie along the north side of the Tennessee River. However, the type locality of C. decampi is Decatur, Alabama, in Morgan County, across the river from Limestone County (Clench 1962).

Clench and Turner (1955) identified museum specimens of several Campeloma decampi from several localities in northern Alabama. These sites were located primarily on stream impoundments and included Swan and Bass Lakes, Limestone County, Brim (=Braham) and Byrd Lakes, Madison County, and an unspecified locality in Jackson County. Surveys conducted in 1996 (ARC 1997) found no Swan Lake in North Alabama. A lake by that name was apparently located in Limestone County, across the river from Decatur, but was inundated by Wheeler Reservoir. This was likely the “Decatur” locality (type) mentioned in Clench (1962). Brim (=Braham) Lake was surveyed, but no C. decampi were found, though another viviparid ( Viviparus georgianus ) was abundant at the site. Byrd Spring, on Redstone Arsenal, was not accessible.

Based on the 1996 surveys (ARC 1997), the range of Campeloma decampi has been reduced by at least three-quarters from its historical distribution, and existing populations are now isolated by Wheeler Reservoir. The species is now in a particularly precarious position, being restricted to a few isolated sites along three short stream reaches—Limestone, Piney, and Round Island Creeks.

In notices of review published in the Federal Register on January 6, 1989 (54 FR 554), November 21, 1991 (56 FR 58804), and November 15, 1994 (59 FR 58982), we identified the armored snail as a category 2 candidate species. We identified the slender campeloma as a category 2 species in the notice of review published in the Federal Register on November 15, 1994 (59 FR 58982). At that time a category 2 species was one that was being considered for possible addition to the Federal List of Endangered and Threatened Wildlife and Plants, but for which conclusive data on biological vulnerability and threats were not available to support a proposed rule. We discontinued designation of category 2 status in our February 28, 1996, notice of review (61 FR 7956). We approved the two snails in this final rule as candidate species on August 29, 1997. A candidate species is defined as a species for which we have on file sufficient information on biological vulnerability and threats to support the issuance of a proposed rule.

On October 20, 1993, we notified potentially affected Federal and State agencies, local governments, and interested individuals within the species' present range that a status review was being conducted for the armored snail. We did not receive any objections to the potential listing of the armored snail. We did not send notification letters regarding the slender campeloma because the species' distribution is so similar to that of the armored snail.

On October 28, 1998, we published a proposed rule (63 FR 57642) to list Campeloma decampi and Pyrgulopsis pachyta as 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 the Listing Priority Guidance. The processing of this final rule is a Priority 2. 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 October 28, 1998, proposed rule (63 FR 57642) and associated notifications, we requested that all interested parties submit information that might assist us in determining whether these taxa warranted listing. We placed a legal notice in the Decatur Daily announcing the proposal and inviting public comment. The comment period closed on December 28, 1998.

During the comment period, we received one letter of support, three letters informing us of a proposed rock quarry on a tributary to Limestone Creek in Limestone County, Alabama, and one phone call questioning two of the threats (toxic chemical spills and chip mills) identified for the two snails but not opposing the listing. We received one letter in opposition to the listing stating that listing the two snails is unconstitutional because “Limitations imposed by the Commerce clause require the Fish and Wildlife Service to demonstrate that species regulation has a substantial effect on interstate commerce,” and because “Protection of the species in the proposed rule bears no relation to interstate commerce.” Below, we discuss these issues and our response to each.

Issue 1: Toxic chemicals spills due to the numerous road crossings are not a significant threat to the snails.

Response: We do not consider toxic chemical spills to be imminent threats to these two species; however, the impacts of such an event on any of the three creeks involved could eliminate one-third to one-half of the populations of one or both of these species. Therefore, toxic spills are considered a potential threat.

Issue 2: Chip mills were specifically pointed out as a threat because they act as a “lightning rod to incite environmental organization.”

Response: We specifically pointed out chip mills as a threat because they have the potential to harvest a larger area of land as compared to typical logging operations. However, if areas harvested for chip mills observe best management practices, it is unlikely they will have any more effect than other land-clearing activities.

Issue 3: “Piney and Limestone Creeks are in the path of a proposed rock quarry. * * * If these species are endangered, the quarry could only help to speed along the extinction of the snails.”

Response: We agree that a rock quarry could pose a threat to the species, and we will consult with the appropriate agencies or individuals when the action is under our purview. For more details on the section 7 consultation process see the “Available Conservation Measures” section of this final rule.

Issue 4: “Limitations imposed by the Commerce clause require the Fish and Wildlife Service to demonstrate that species regulation has a substantial effect on interstate commerce,” and “Protection of the species in the proposed rule bears no relation to interstate commerce.”

Response: The Federal government has the authority under the commerce clause of the U.S. Constitution to protect these species, for the reasons given in Judge Wald's opinion and Judge Henderson's concurring opinion in National Association of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 1185 S. Ct. 2340 (1998). That case involved a challenge to application of the Act's prohibitions to protect the listed Delhi Sands flower-loving fly ( Rhaphiomidas terminatus abdominalis ). As with these species, the Delhi Sands flower-loving fly is endemic to only one state. Judge Wald held that application of the Act's prohibition against taking of endangered species to this fly was a proper exercise of Commerce Clause power to regulate—(1) use of channels of interstate commerce; and (2) activities substantially affecting interstate commerce, because it prevented loss of biodiversity and destructive interstate competition. Judge Henderson upheld protection of the fly because doing so prevents harm to the ecosystem upon which interstate commerce depends, and regulates commercial development that is part of interstate commerce.

In conformance with our policy on peer review, published on July 1, 1994 (59 FR 34270), we solicited the expert opinions of independent specialists regarding pertinent scientific or commercial data and assumptions relating to the supportive biological and ecological information for the armored snail and slender campeloma. The purpose of such review is to ensure that the listing decision is based on the best scientific and commercial information available, as well as to ensure that reviews by appropriate experts and specialists are included into the review process of rulemakings.

We solicited information and opinions from State and Federal resource agencies, as well as academic institutions. We asked them to provide any relevant scientific data relating to taxonomy, distribution, or supporting biological and ecological data used in the analysis of the factors for listing. None of the reviewers objected to the proposed rule or to the biological information supporting the rule.

After a thorough review and consideration of all information available, we have determined that we should classify the armored snail ( Pyrgulopsis (= Marstonia ) pachyta ) and slender campeloma ( Campeloma decampi ) as endangered species. We followed procedures found at section 4(a)(1) of the Act and regulations implementing the listing provisions of the Act (50 CFR part 424). We may determine a species 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 the armored snail and slender campeloma are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range. The armored snail occurs only in Limestone and Piney Creeks, Limestone County, Alabama, and has never been noted outside this area. The slender campeloma is currently known from Round Island, Piney, and Limestone Creeks, Limestone County, Alabama, a reduction of about three-quarters from its historical range. Both of these species are extremely vulnerable to extirpation because of their very limited distribution, limited occupied habitat, and annual life cycle (in the case of the armored snail). Threats to these species include siltation, direct loss of habitat, altered water chemistry, and chemical pollution.

Piney Creek was a tributary to Limestone Creek prior to the construction of Wheeler Lake on the Tennessee River. Thus, populations of both the armored snail and slender campeloma inhabiting these two creeks are likely remnants of once larger populations. In addition to directly altering snail habitat, dams and their impounded waters form barriers to the movement of snails. Sediment accumulation and changes in flow and water chemistry in impounded stream and river reaches reduce food and oxygen availability and eliminate essential breeding habitat for riverine snails. It is suspected that isolated colonies gradually disappear as a result of local water and habitat quality changes. Unable to emigrate (move out of the area), isolated snail populations are vulnerable to local discharges and any surface run-off within their watersheds. Although many watershed impacts have been temporary, eventually improving or even disappearing with the advent of new technology, practices, or laws, dams and their impoundments prevent natural recolonization by surviving snail populations.

Sedimentation of rivers and streams may affect the reproductive success of aquatic snails by eliminating breeding habitat and interfering with their feeding activity by reducing or eliminating periphyton (plankton which live attached to rooted aquatic plants) food sources. Sources of sediments likely affecting these species include channel modification, agriculture, cattle grazing, unpaved road drainage, and industrial and residential development.

Other types of water quality degradation from both point and nonpoint sources currently affect these species. Stream discharges from these sources may result in eutrophication (nutrient enrichment), decreased dissolved oxygen concentration, increased acidity and conductivity, and other changes in water chemistry. Nutrients, usually phosphorus and nitrogen, may emanate from agricultural fields, residential lawns, livestock operations, and leaking septic tanks at levels that result in eutrophication and reduced oxygen levels in small streams. The Round Island, Limestone, and Piney Creek drainages are dominated by agricultural use, primarily cotton (a high pesticide use crop), which makes these creeks susceptible to pesticide contamination. Pesticide containers were found in Limestone and Piney Creeks during site visits in 1997 (J. Allen Ratzlaff, personal observation). Timber harvesting could also impact these species if riparian vegetation is removed or siltation from run-off increases.

Many bridge crossings occur within these species' range. Highway and bridge construction and widening could impact these species through sedimentation or the physical destruction of their habitat unless appropriate precautions are implemented.

Limestone Creek currently supports one endangered snail species, Athearnia anthonyi (Anthony's riversnail), and most of its mussel fauna has been extirpated (17 species), including five species currently listed as endangered. We do not know the specific reasons for the loss of these species, but they are likely a combination of the above-listed impacts.

The two snail species addressed in this final rule are currently not of commercial value, and overutilization has not been a problem. However, as their rarity becomes known, they may become more attractive to collectors. Although scientific collecting is not presently identified as a threat, unregulated collecting by private and institutional collectors could pose a threat to these locally restricted populations.

Diseases of aquatic snails are unknown. Although various vertebrate predators, including fishes, mammals, and possibly birds, undoubtedly consume both the armored snail and slender campeloma, predation by naturally occurring predators is a normal aspect of the population dynamics of a species and we do not consider it a threat to these species at this time.

Chamberlain (1958) found the uterus of some specimens of Campeloma decisum infected by the trematode Leucochloridomorpha constantiae, a black duck ( Anas rubripes ) parasite, with the snail evidently being an intermediate host. We do not know whether the slender campeloma is parasitized or to what degree any parasitism inhibits its life cycle.

The State of Alabama's prohibitions against taking fish and wildlife for scientific purposes without State collecting permits provide some protection for these snails. However, these species are generally not protected from other threats. These snails do not receive any special consideration under other environmental laws when project impacts are reviewed. Existing authorities available to protect aquatic systems, such as the Clean Water Act (CWA), administered by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps), have not been adequate to prevent the degradation of these species' aquatic habitat. Federal listing will provide increased protection through existing authorities such as the CWA by requiring Federal agencies to consult with us when projects they fund, authorize, or carry out may adversely affect these species. Federal listing also will provide additional protection under the Act by requiring Federal permits to take these species.

Both species inhabit short creek reaches; thus, they are vulnerable to extirpation from random, catastrophic events, such as toxic chemical spills. All three creeks are crossed by a number of roads, railroads, and power lines that pose direct threats ( e.g., loss of riparian vegetation) and indirect threats from potential toxic run-off. Additionally, because these populations are isolated, their long-term genetic viability is questionable. Because all three creeks are isolated by an impoundment, recolonization of an extirpated population is not likely without human intervention.

Further, the loss of 17 species of mussels from Limestone Creek, including 5 species now listed as endangered, indicates a severely impacted ecosystem that has undergone significant degradation. Because the life history and biology of these species are virtually unknown, it is likely they may continue to decline due to currently unrecognizable impacts and stresses to their populations.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by these species in determining to make this rule final. Based on this evaluation, the preferred action is to list the armored snail and slender campeloma as endangered species. The Act defines an endangered species as one that is in danger of extinction throughout all or a significant portion of its range. A threatened species is one that is likely to become an endangered species in the foreseeable future throughout all or a significant portion of its range. The armored snail is currently known only from Piney and Limestone Creeks, Limestone County, Alabama, and the slender campeloma is known only from Piney, Limestone, and Round Island Creeks, Limestone County, Alabama. These snails and their habitat have been and continue to be threatened. Their limited distribution also makes them vulnerable to toxic chemical spills. Because of their restricted distribution and vulnerability to extinction, endangered status is the most appropriate classification for these species.

Section 3 of the Act defines critical habitat as: (i) The specific areas within the geographical area occupied by a 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.

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, we designate critical habitat at the time the species is determined to be endangered or threatened. Our 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—(i) the species is threatened by taking or other activity and the identification of critical habitat can be expected to increase the degree of threat to the species or (ii) such designation of critical habitat would not be beneficial to the species. We find that designation of critical habitat is prudent for the armored snail and slender campeloma.

In the proposed rule, we indicated that designation of critical habitat was not prudent because of a concern that publication of precise maps and descriptions of critical habitat in the Federal Register could increase the vulnerability of these 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 the armored snail and slender campeloma would be prudent.

Due to the small number of populations, the armored snail and slender campeloma are 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 the armored snail and slender campeloma and have not found specific evidence of taking, vandalism, collection, or trade of these 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 there are any benefits to critical habitat designation, then a prudent finding is warranted. In the case of this species, there may be some benefits to designation of critical habitat. 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. 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. There may also be some educational or informational benefits to designating critical habitat. Therefore, we find that critical habitat is prudent for the armored snail and slender campeloma.

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 the armored snail and slender campeloma will allow us to concentrate our limited resources on higher priority critical habitat (including court order designations) and other listing actions, while allowing us to put in place protections needed for the conservation of armored snail and slender campeloma 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 the armored snail and slender campeloma as soon as feasible, considering our workload priorities.

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 practices. Recognition through listing encourages and results in conservation actions by Federal, State, and private agencies, groups, 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 taking and harm are discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to evaluate their actions with respect to any species that is listed as endangered or threatened and with respect to its critical habitat, if any is being designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. 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.

We notified Federal agencies that may have programs or projects affecting the armored snail and requested information on Federal activities that might adversely affect the species. We did not give notification about the slender campeloma because its range is so similar and because no controversy arose from the notification of the potential listing of the armored snail. No Federal agencies identified specific proposed actions that would likely affect the species. Federal activities that could occur and impact the species include, but are not limited to, reservoir construction or issuance of permits for reservoir construction, stream alterations, wastewater facility development, pesticide registration, and road and bridge construction. Activities affecting water quality may also impact these species and are subject to the Corps' and EPA's regulations and permit requirements under authority of the CWA and the National Pollutant Discharge Elimination System (NPDES). It has been our experience, however, that nearly all section 7 consultations can be resolved so that the species is protected and the project objectives are met.

The Act and implementing regulations found at 50 CFR 17.21 set forth a series of general prohibitions and exceptions that apply to all endangered wildlife. These prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, or collect or to attempt any of these), import or export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any endangered wildlife. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to our agents and agents of State conservation agencies.

Under certain circumstances, we may issue permits to carry out otherwise prohibited activities involving endangered wildlife species. Regulations governing permits are at 50 CFR 17.22 for endangered wildlife. Such permits are available for scientific purposes, to enhance the propagation or survival of the species, and/or for incidental take in connection with otherwise lawful activities.

It is our policy, published in the Federal Register on July 1, 1994 (59 FR 34272), to identify, to the maximum extent practicable, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness as to the effects of this listing on future and ongoing activities within the species' range.

Activities that we believe are not likely to result in a violation of section 9 for these two snails include:

(1) Existing discharges into waters supporting these species, provided these activities are carried out in accordance with existing regulations and permit requirements ( e.g., activities subject to sections 404 and 405 of the CWA including discharges regulated under the NPDES);

(2) Actions that may affect these two snail species and are authorized, funded, or carried out by a Federal agency when the action is conducted in accordance with any reasonable and prudent measures given by us in accordance with section 7 of the Act;

(3) Typical agricultural and silvicultural practices carried out in compliance with existing State and Federal regulations and best management practices;

(4) Development and construction activities designed and implemented according to State and local water quality regulations;

(5) Existing recreational activities, such as swimming, wading, canoeing, and fishing; and

(6) Use of pesticides and herbicides in accordance with the label restrictions within the species' watersheds.

Activities that we believe could result in “take” of these snails include:

(1) Unauthorized collection or capture of these species;

(2) Unauthorized destruction or alteration of the species' habitat (e.g., in-stream dredging, channelization, water withdrawal, and discharge of fill material);

(3) Violation of any discharge or water withdrawal permit; and

(4) Illegal discharge or dumping of toxic chemicals or other pollutants into waters supporting these two species.

We will review other activities not identified above on a case-by-case basis to determine if a violation of section 9 of the Act may be likely to result from such activity. We do not consider these lists to be exhaustive and provide them simply as information to the public.

You should direct questions regarding whether specific activities may constitute a future violation of section 9 to our Asheville or Daphne Field Offices (see ADDRESSES and FOR FURTHER INFORMATION CONTACT sections). You may request copies of regulations regarding listed species and address questions about prohibitions and permits to the U.S. Fish and Wildlife Service, Ecological Services Division, 1875 Century Boulevard, Suite 200, Atlanta, Georgia 30345 (Phone 404/679-7313; Fax 404/679-7081).

We have determined that we do not need to prepare an Environmental Assessment, as defined under the authority of the National Environmental Policy Act of 1969, in connection with regulations adopted pursuant to section 4(a) of the Act. A notice outlining our reasons for this determination was published in the Federal Register on October 25, 1983 (48 FR 49244).

This rule does not contain any new collections of information other than those already approved under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , and assigned Office of Management and Budget clearance 1018-0094. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a current valid control number. For additional information concerning permit and associated requirements for endangered wildlife species, see 50 CFR 17.22.

You may request a complete list of all references cited herein, as well as others, from the Asheville Field Office (see ADDRESSES section).

The primary author of this final rule is Mr. J. Allen Ratzlaff (see ADDRESSES section) (828/258-3939, Ext. 229).

The snapper-grouper fishery off the southern Atlantic states is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council (Council) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

In response to a request from the Council, NMFS published an emergency interim rule (64 FR 48324, September 3, 1999), under section 305(c)(1) of the Magnuson-Stevens Act, that prohibited the harvest and possession of red porgy in or from the EEZ off the southern Atlantic states. This action was required because of the overfished status of red porgy. Red porgy remains overfished.

Under section 305(c)(3)(B) of the Magnuson-Stevens Act, NMFS may extend the effectiveness of an emergency interim rule for one additional period of 180 days, provided the public has had an opportunity to comment on the emergency interim rule and the Council is actively preparing an amendment to the FMP to address the overfishing on a permanent basis. NMFS solicited comments on the initial emergency interim rule and received four comments. The responses are provided in this emergency interim rule. The Council is preparing Amendment 12 to the FMP, which will address the overfished status of red porgy. The effectiveness of the initial emergency interim rule is being extended because red porgy remain overfished and action to address the overfished status under Amendment 12 cannot be implemented by March 1, 2000.

Additional details concerning the basis for the closure of the red porgy fishery are contained in the preamble to the initial emergency interim rule and are not repeated here.

NMFS received four comments on the emergency interim rule (64 FR 48324, September 3, 1999). A summary of those comments and NMFS' responses follow.

Comment 1 : Three commenters supported the closure of the red porgy fishery and requested that NMFS obtain bycatch data on red porgy taken incidentally by other snapper-grouper fishermen. In addition, they supported the use of marine reserves as a tool to rebuild the overfished red porgy resource.

Response : NMFS agrees, and efforts will be made to collect bycatch data from both commercial and recreational fishermen. Also, NMFS supports the concept of marine reserves and believes that they are a valid management tool.

Comment 2 : Three commenters stated that NMFS should have taken action earlier to prevent overfishing of the red porgy resource.

Response : NMFS does not disagree with the comment; however, the full extent of the overfished condition of the red porgy resource was not known until March 1999. The Council and NMFS took action as soon as they received this information.

Comment 3 : One commenter stated that the overfished condition of the red porgy resource was caused solely by commercial fishermen and that recreational fishermen and charter boat operators should not be restricted to address that overfishing.

Response : Both the recreational and commercial sectors contributed to the overfishing of the red porgy resource. Both sectors should practice conservation measures to rebuild the resource because both sectors will benefit from this effort in the future.

Comment 4 : One commenter opposed the closure of the fishery and recommended that NMFS implement no additional red porgy measures other than those implemented in Amendment 9 to the FMP. The commenter claimed that the red porgy resource was not overfished.

Response : NMFS disagrees with the claim that the red porgy resource is not overfished. The 1999 stock assessment clearly shows that the resource is severely overfished and that there is an urgent need to rebuild this resource. Commercial and recreational landings have declined substantially, and the resource has experienced recruitment failure. A failure to act at this time would exacerbate the decline in this resource. An analysis of the red porgy management measures implemented in Amendment 9 indicated that the measures would have prevented a further decline in abundance. However, the resource would not have recovered if only those measures were applied. Since the Magnuson-Stevens Act requires that managers rebuild overfished resources, additional measures were required. The Council is developing Amendment 12 to the Snapper-Grouper FMP not only to rebuild the resource, but also to minimize the short-term economic impacts of the rebuilding program. The extension of this emergency rule will provide the Council sufficient time to accomplish this task.

The Assistant Administrator for Fisheries, NOAA (AA), has determined that the extension of the emergency interim rule is necessary to minimize significant long-term adverse biological, social, and economic impacts that would occur with the resumption of fishing for red porgy. The AA has also determined that this extension is consistent with the Magnuson-Stevens Act and other applicable laws.

This extension of the emergency interim rule is not subject to review under Executive Order 12866.

NMFS prepared an economic evaluation of the regulatory impacts associated with the emergency interim rule, which is summarized as follows.

During the period 1993 through 1997, annual commercial landings of red porgy averaged 326,800 lb (148,236 kg) with revenues averaging approximately $397,300. Such landings and revenues were approximately 8.2 and 6.3 percent, respectively, of the total landings and revenues of all species landed on trips on which red porgy were landed. An average of 331 vessels per year reported landings of red porgy during this period. The predicted total losses to commercial fishermen would have averaged approximately $365,300 per year between 1993 and 1997 had the red porgy fishery been closed. This prediction is a modeled result based on average vessel harvesting costs per trip. The actual short-term economic effect of a moratorium will depend on individual vessel's trip costs.

As the resource has declined, red porgy have not been an important species for charter vessels, headboats, and other recreational fishing vessels. The headboat sector is the most dominant sector in the fishery, yet red porgy still comprise less than 10 percent of total headboat harvests for all South Atlantic states combined. Data do not exist to estimate the impact of the moratorium on these vessels, but it appears to be minor.

The long-term economic effects of the moratorium cannot be estimated without additional information about the rate at which the red porgy population would recover. Although the economic analysis does not estimate the long-term economic effects of the moratorium, NMFS data indicate that the maximum sustainable yield of red porgy, which is the ultimate goal of the moratorium and future actions to rebuild the resource, is in excess of 1,500,000 lb (680,400 kg), with potential revenues then exceeding $1,800,000 (assuming a price of $1.20 per lb ($2.64 per kg), though it is unlikely that current prices could be maintained while more than tripling the market supply). Copies of the economic evaluation are available (see ADDRESSES ).

The red porgy resource is severely overfished and stock recruitment (i.e., addition of fish to the red porgy population) is at a dangerously low level. A resumption of fishing will worsen the stock condition, fail to reverse the overfished status, and increase the probability of recruitment and stock collapse, with severe economic impacts on those dependent on the fishery. Thus, continued closure of the fishery has potential significant benefits that outweigh the value of prior notice, opportunity for public comment, and deliberative consideration under the normal rulemaking process. Accordingly, under authority set forth at 5 U.S.C. 553(b)(B), the AA finds that these reasons constitute good cause to waive the requirement to provide prior notice and the opportunity for prior public comment because the delay associated with such procedures would be contrary to the public interest. For these same reasons, under 5 U.S.C. 553(d)(3), the AA finds for good cause that a 30-day delay in the effective date of this emergency interim rule would be contrary to the public interest.

Because prior notice and an opportunity for public comment are not required to be provided for this rule by 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq ., are inapplicable.