The General Accounting Office Personnel Appeals Board on Tuesday, March 30, 1999, published an interim rule with request for comments by June 1, 1999, amending the PAB regulations. The interim rule conformed the regulations to Board policy recognizing that a quorum of three members of the Board may exercise all the powers of the Board, and that a majority of a quorum may act in any matter requiring consideration by the full Board. No comments on the interim rule were received by the Board.

For the reasons set forth in the preamble, the General Accounting Office Personnel Appeals Board amends 4 CFR Chapter I, Subchapter B as follows:

This rule is issued under Marketing Agreement No. 121 and Marketing Order No. 915, both as amended (7 CFR part 915), regulating the handling of avocados grown in South Florida, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department is issuing this rule in conformance with Executive Order 12866.

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

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

Under the terms of the order, fresh market shipments of Florida avocados are required to be inspected and are subject to grade, size, maturity, and pack and container requirements. Pack and container requirements outline the designated net weight of the containers used to pack avocados and the minimum weight of the avocados packed in the containers.

This rule continues in effect the removal of the requirement that avocados packed in 33-pound containers must weigh at least 16 ounces. This change provides greater flexibility in avocado packing operations. The Committee met on September 8, 1999, and unanimously recommended this change.

Section 915.51 of the order provides authority to issue regulations establishing specific pack and container requirements. Section 915.52 further authorizes the Committee to make recommendations to the Secretary to modify, suspend, or terminate regulations, including pack and container requirements. The pack and container requirements are specified under sections 915.305 and 915.306. These sections specify, in part, container weight and other applicable requirements, including the minimum weight of the avocados packed in the containers. Current regulations authorize the use of 33-pound, 31-pound, 24-pound, and 12-pound containers, and 8.5-pound containers for export shipments only.

Before the interim final rule became effective, the requirements of section 915.305(a)(1) specified that avocados packed in 33-pound containers must weigh at least 16 ounces. Avocados weighing less than 16 ounces were to be packed in smaller containers. The Committee has determined that retailers prefer shipments of avocados packed in larger containers. The size of the fruit is not a concern to retailers. By allowing smaller fruit to be packed in the larger containers, the retailer is able to offer avocados to the consumer in a variety of sizes. The larger containers are ideal for displaying the fruit. Upon receipt of the avocado shipment, the retailer can remove the lid from the larger container. Without removing the fruit from the box, fruit can be offered for consumers to purchase. This is time saving for retailers.

Removing the requirement that avocados packed in 33-pound containers weigh at least 16 ounces gives handlers the flexibility to pack both large and small avocados in one container. California avocado handlers have already adopted the practice of shipping smaller avocados in larger containers with a great deal of success. Florida avocado handlers would like to remain competitive with other avocado growing areas. In order to meet the needs of the customer and remain competitive with other avocado handlers, this rule continues the removal of the requirement that avocados packed in 33-pound containers must weigh at least 16 ounces. The avocados must meet all other requirements of the marketing order, including maturity requirements.

In addition, the flexibility to pack both large and small avocados in one container allows handlers to use the smaller avocados to create a tighter pack with less open space inside the containers. The tighter pack restricts movement of the avocados during shipment which prevents damage to the fruit. This improves the quality of the fruit reaching the consumer, saves handling costs, and provides greater returns to the grower.

Section 8e of the Act provides that when certain domestically produced commodities, including avocados, are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality, and maturity requirements. This rule changes the pack and container requirements currently in effect which do not apply to imports. Therefore, no change is necessary in the avocado import regulations.

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

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

There are approximately 141 avocado producers in the production area and approximately 49 avocado handlers subject to regulation under the marketing order. Small agricultural service firms have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $500,000.

The average price for fresh avocados during the 1998-99 season was $17.90 per 55-pound bushel box equivalent for all domestic shipments and the total shipments were 890,859 bushels. Many avocado handlers ship other tropical fruit and vegetable products which are not included in the Committee's data but would contribute further to handler receipts. Using these prices, about 90 percent of avocado handlers could be considered small businesses under the SBA definition. The majority of Florida avocado producers and handlers may be classified as small entities.

Under sections 915.51 and 915.52 of the marketing order for avocados grown in South Florida, the Committee has the authority to recommend to the Secretary changes to the pack and container requirements for avocados handled under the order. Current pack and container requirements outline the designated net weight of the containers used to pack avocados and the minimum weight of the avocados packed in the containers. Current regulations authorize the use of 33-pound, 31-pound, 24-pound, and 12-pound containers, and 8.5-pound containers for export shipments only.

This rule continues to change section 915.305(a)(1) of the rules and regulations concerning the pack and container requirements for avocados. This rule continues to remove the requirement that avocados packed in 33-pound containers must weigh at least 16 ounces. The avocados must meet all other requirements, including maturity requirements. This change will continue to provide greater flexibility in avocado packing operations.

This rule will have a positive impact on affected entities. The change was recommended to provide additional flexibility in packing avocados. None of the changes are expected to increase costs associated with the pack and container requirements. This rule may, in fact, reduce costs associated with the pack and container requirements.

The Committee believes this change will benefit both large and small packing operations. It is particularly beneficial to small handlers since a single container can be used to ship avocados to retail customers. This reduces the need to maintain a large inventory of smaller containers. Further, the Committee has determined that retailers prefer the larger containers; the size of the fruit in those containers is of lesser concern to the retailer. By allowing smaller fruit to be packed in the larger containers, the retailer is able to offer avocados to the consumer in a variety of sizes. The larger containers are ideal for displaying the fruit. Upon receipt of the avocado shipment, the retailer can remove the lid from the larger container and, without removing the fruit from the box, fruit can be offered for consumers to purchase. This is time saving for retailers.

Removing the requirement that avocados packed in 33-pound containers weigh at least 16 ounces will continue to give handlers the flexibility to pack both large and small avocados in one container. Florida avocado handlers would like to continue to remain competitive with other avocado growing areas. For example, California avocado handlers have already adopted the practice of shipping smaller avocados in larger containers with a great deal of success. In order to meet the needs of the customer and remain competitive with other avocado handlers, this rule continues to remove the requirement that avocados packed in 33-pound containers must weigh at least 16 ounces. The avocados must meet all other requirements of the marketing order, including maturity requirements.

In addition, the flexibility to pack both large and small avocados in one container allows handlers to use the smaller avocados to create a tighter pack with less open space inside the containers. The tighter pack restricts movement of the avocados during shipment which prevents damage to the fruit. This continues to save handling costs and provides greater returns to the grower.

Other alternatives to the action were considered by the Committee prior to making the recommendation. One alternative discussed by the Committee was to continue to require that avocados packed in 33-pound containers weigh at least 16 ounces. The Committee believed that this alternative provided little benefit and would still limit flexibility.

This rule will not impose any additional reporting or recordkeeping requirements on either small or large avocado handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, the Department has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

Further, the Committee's meeting was widely publicized throughout the avocado industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the September 8, 1999, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue. The Committee itself is composed of 10 members, of which 5 are growers, 4 are handlers, and one is a public member. Finally, interested persons were invited to submit information on the regulatory and informational impacts of this action on small business.

An interim final rule concerning this action was published in the Federal Register on December 13, 1999. Copies of the rule were mailed by the Committee's staff to all Committee members and avocado handlers. In addition, the rule was made available through the Internet by the Office of the Federal Register. That rule provided for a 60-day comment period which ended February 11, 2000. No comments were received.

Changes to the interim final rule have been made to correct some typographical errors. Editorial changes have also been made to make the language easier to understand.

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

After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that finalizing the interim final rule, with changes, as published in the Federal Register (64 FR 69380, December 13, 1999) will tend to effectuate the declared policy of the Act.

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

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

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

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

Under the orders, lot stamping, grade, size, maturity, container, and pack requirements are established for fresh shipments of California nectarines and peaches. Such requirements are in effect on a continuing basis. The Nectarine Administrative Committee (NAC) and the Peach Commodity Committee (PCC), which are responsible for local administration of the orders, met on November 30, 1999, and unanimously recommended that these handling requirements be revised for the 2000 season, which begins April 1. The changes: (1) Revise the lot stamping requirements for the 2000 season only; (2) authorize shipments of “CA Utility” quality fruit to continue during the 2000 season; (3) eliminate the minimum letter height of maturity marking requirements for all containers; (4) provide a tolerance for the “Peento” or “donut” types of peaches for healed, non-serious, blossom-end growth cracks; and (5) revise varietal maturity, quality, and size requirements to reflect recent changes in growing conditions.

The committees meet prior to and during each season to review the rules and regulations effective on a continuing basis for California nectarines and peaches under the orders. Committee meetings are open to the public, and interested persons may express their views at these meetings. The Department reviews committee recommendations and information, as well as information from other sources, and determines whether modification, suspension, or termination of the rules and regulations would tend to effectuate the declared policy of the Act.

No official crop estimate was available at the time of the committees' meetings because the nectarine and peach trees were dormant. The committees will recommend a crop estimate at their meetings in early spring. However, preliminary estimates indicate that the 2000 crop will be similar in size and characteristics to the 1999 crop which totaled 20,405,000 boxes of nectarines and 20,460,000 boxes of peaches.

Sections 916.55 and 917.45 of the orders require inspection and certification of nectarines and peaches, respectively, handled by handlers. Sections 916.115 and 917.150 of the nectarine and peach orders' rules and regulations, respectively, require that all exposed or outside containers of nectarines and peaches, and at least 75 percent of the total containers on a pallet, be stamped with the Federal-State Inspection Service (inspection service) lot stamp number after inspection and prior to shipment to show that the fruit has been inspected. These requirements apply except for containers that are loaded directly onto railway cars, or exempted, or mailed directly to consumers in consumer packages.

Lot stamp numbers are assigned to each handler by the inspection service, and are used to identify the handler and the date on which the container was packed. The lot stamp number is also used by the inspection service to identify and locate the corresponding inspector's working papers or notes. Working papers are the documents each inspector completes while performing an inspection on a lot of nectarines or peaches. Information contained in the working papers supports the grade levels certified by the inspector at the time of inspection.

The lot stamp number has value for the industries, as well. The committees utilize the lot stamp numbers and date codes to trace fruit in the container back to the orchard where harvested. This information is essential in providing quick information for a crisis management program instituted by the industries. Without the lot stamp information on each container, the “trace-back” effort, as it is called, would be jeopardized.

Recently, several new containers have been introduced for use by nectarine and peach handlers. The boxes are returnable plastic containers which retailers send back to a central clearinghouse after use. Use of these boxes may represent substantial savings to retailers for storage and disposal, as well as for handlers who do not have to pay for traditional containers. Fruit is packed in the boxes by the handler, delivered to the retailer, emptied, and returned to the clearinghouse for cleaning and redistribution. However, because they were designed to be reused, these boxes do not support markings that are permanently affixed to the container. All markings must be printed on cards which slip into tabs on the front or sides of the containers. The cards are easily inserted and removed, and further contribute to the efficient use of the container.

The cards are a concern for the inspection service and the industries, however. Because of their unique portability, there is some concern that the cards on pallets of inspected containers could easily be moved to pallets of uninspected containers, thus permitting a handler to avoid inspection on a lot or lots of nectarines or peaches. This would also jeopardize the use of the lot stamp numbers for the industries' “trace back” program.

To address this concern, the committees have recommended that pallets of inspected fruit be identified with a USDA-approved pallet tag containing the lot stamp number, in addition to the lot stamp number printed on the card on the container. In this way, an audit trail is created, confirming that the lot stamp number on the containers on each pallet correspond to the lot stamp number on the pallet tag.

The inspection service and the committees have presented their concerns to the manufacturers of these types of boxes. One manufacturer has indicated a willingness to address the problem by offering an area on the principle display panel where the container markings will adhere to the box, which will meet the needs of the industries, the inspection service, and the manufacturer. However, the manufacturer believes that this change may not be available in time for the 2000 season. For that reason, the committees further recommended that the proposed modification of the lot stamping requirements be put into place for the 2000 season only.

Thus, §§ 916.115 and 917.150 will be amended to require the lot stamp number to be adhered to a USDA-approved pallet tag, in addition to the requirement that the number be applied to cards on all exposed or outside containers, and not less than 75 percent of the total containers on a pallet.

A conforming change is made to § 917.150 by changing the word “but” to “and,” making the language in this section similar to that in § 916.115.

Sections 916.52 and 917.41 of the orders authorize the establishment of grade and quality requirements for nectarines and peaches, respectively. Prior to the 1996 season, § 916.356 required nectarines to meet a modified U.S. No. 1 grade. Specifically, nectarines were required to meet U.S. No. 1 grade requirements, except there was a slightly tighter requirement for scarring and a more liberal allowance for misshapen fruit. Prior to the 1996 season, § 917.459 required peaches to meet the requirements of a U.S. No. 1 grade, except for a more liberal allowance for open sutures that were not “serious damage.”

This rule revises § 916.350, § 916.356, § 917.442, and § 917.459 to permit shipments of nectarines and peaches meeting “CA Utility” quality requirements during the 2000 season. (“CA Utility” fruit is lower in quality than that meeting the modified U.S. No. 1 grade requirements.) Shipments of nectarines and peaches meeting “CA Utility” quality requirements were permitted during the 1996 and 1997 seasons, and also during the 1998 and 1999 seasons with slight modifications.

Studies conducted by the NAC and PCC indicate that some consumers, retailers, and foreign importers found the lower quality fruit acceptable in some markets. When shipments of “CA Utility” nectarines were first permitted in 1996, they only represented 1.1 percent of all nectarine shipments, or approximately 210,000 boxes. Shipments of “CA Utility” peaches represented 1.9 percent of all peach shipments, or 366,000 boxes. By 1998 and 1999, shipments of “CA Utility” nectarines represented 4.5 percent and 4.0 percent, respectively, of all nectarine shipments; or approximately 760,000 boxes and 819,600 boxes, respectively. In 1998 and 1999, shipments of “CA Utility” peaches represented 3.3 percent and 3.4 percent, respectively, of all peach shipments; or approximately 602,000 boxes and 689,800 boxes, respectively.

For these reasons, the committees unanimously recommended that shipments of “CA Utility” quality nectarines and peaches be permitted for the 2000 season with a continuing in-house statistical review. Paragraphs (d) of §§ 916.350 and 917.442, and paragraphs (a)(1) of §§ 916.356 and 917.459 are revised to permit shipments of nectarines and peaches meeting “CA Utility” quality requirements during the 2000 season, on the same basis as last season.

In addition, paragraph (a)(1) of § 917.459 is revised to provide a 10 percent tolerance for healed, non-serious, blossom-end growth cracks for the “Peento” or “donut” varieties of peaches, such as the “Saturn” and “Jupiter” varieties.

These varieties of peaches characteristically suffer blossom-end (calyx basin) cracks during development. These cracks heal as the growth continues and as the fruit gains size. Generally, the cracks are completely healed by harvest. Peaches with unhealed or serious blossom-end growth cracks at the time of inspection would not be included in U.S. No. 1 or “CA Utility” packages. Such a relaxation will permit handlers of the Peento type of peaches to utilize more of these fruit in boxes of U.S. No. 1 peaches, benefitting both handlers and growers of these varieties.

The PCC unanimously recommended this additional tolerance of 10 percent for healed, non-serious, blossom-end growth cracks for the Peento type of peaches, beginning in the 2000 season.

Sections 916.52 and 917.41 of the nectarine and peach orders, respectively, authorize container marking requirements. Requirements for container markings are specified in §§ 916.350 and 917.442 of the orders' rules and regulations. Container marking requirements include marking of the commodity and variety ( e.g., Fay Elberta peaches), the size of the fruit in the box ( e.g., 88 size), the net weight, and the maturity (either U.S. Mature (US MAT) or California Well Matured (CA WELL MAT)), on each container of nectarines or peaches.

As innovative containers enter the marketplace, especially those preferred by retailers, the configuration of display panels changes. This is true for both retail and consumer-size containers. As a result, handlers are forced to make adjustments in their container markings to accommodate the differences in display panels. Some containers, such as those intended for purchase by individual consumers, are smaller and have less display-panel surface area, and meeting all the minimum size labeling requirements is difficult. Some handlers requested a relaxation in the container labeling requirements with regard to the fruit maturity marking, and the committees agreed that a modification would be appropriate. This relaxation will eliminate the minimum lettering height in favor of a requirement that fruit maturity markings be clear and legible. Therefore, paragraphs (a)(3) of §§ 916.350 and 917.442 are so modified.

Both orders provide (in §§ 916.52 and 917.41) authority to establish maturity requirements for nectarines and peaches, respectively. The minimum maturity level currently specified for nectarines and peaches is “mature” as defined in the standards. Additionally, both orders’ rules and regulations provide for a higher, “well matured” classification. For most varieties, “well-matured” fruit determinations are made using maturity guides ( e.g., color chips). These maturity guides are reviewed each year by the Shipping Point Inspection Service (SPI) to determine whether they need to be changed based on the most recent information available on the individual characteristics of each variety.

These maturity guides established under the handling regulations of the California tree fruit marketing orders have been codified in the Code of Federal Regulations as TABLE 1 in §§ 916.356 and 917.459, for nectarines and peaches, respectively.

The requirements in the 2000 handling regulation are the same as those that appeared in the 1999 handling regulation with a few exceptions. Those exceptions are explained in this rule.

Nectarines: Requirements for “well-matured” nectarines are specified in § 916.356 of the order's rules and regulations. While SPI made no recommendation with regard to changes to the NAC regarding maturity guides, the committee recommended removal of several varieties of nectarines from the maturity guides.

This rule revises TABLE 1 of paragraph (a)(1)(iv) of § 916.356 to remove 12 nectarine varieties which are no longer in production. The NAC routinely reviews the status of nectarine varieties listed in these maturity guides. The most recent review revealed that 12 of the nectarine varieties currently listed in the maturity guide have not been in production since the 1997 season. Typically, the NAC recommends removing a variety after non-production for three seasons, or if trees of that variety are known to have been pulled out, because a maturity guide for an obsolete variety is no longer needed. The varieties removed include the Apache, Arm King, Bob Grand, Flavor Grand, Flavortop I, Maybelle, Mike Grand, Pacific Star, Son Red, Summer Star, Sunfre, and Tasty Gold nectarine varieties.

Peaches: Section 917.459 of the order's rules and regulations specifies maturity requirements for fresh peaches being inspected and certified as being “well matured.”

This rule revises TABLE 1 of paragraph (a)(1)(iv) of § 917.459 to add maturity guides for 2 peach varieties and revise the maturity guide for 1 variety. Specifically, SPI recommended adding the maturity guides for the Earli Rich peach variety to be regulated at the H maturity guide, and the Late Ito Red peach variety to be regulated at the L maturity guide. SPI also recommended a modification to the current maturity guide for the Autumn Rose peach variety, changing the maturity guide from the I to the H maturity guide.

This rule also corrects the reference to the Ambercrest peach variety listed in TABLE 1 of paragraph (a)(1)(iv). The correct name of the variety is “Amber Crest.”

The PCC recommended these maturity requirements based on SPI's continuing review of individual maturity characteristics and identification of the appropriate maturity guide corresponding to the “well-matured” level of maturity for peach varieties in production.

TABLE 1 of paragraph (a)(1)(iv) of § 917.459 is also revised to remove 15 peach varieties which are no longer in production. The PCC routinely reviews the status of peach varieties listed in these maturity guides. The most-recent review revealed that 15 of the peach varieties currently listed in the maturity guide have not been in production since the 1997 season. Typically, the PCC recommends removing a variety after non-production for three seasons, or if trees of that variety are known to have been pulled out, because a maturity guide for an obsolete variety is no longer needed. The varieties removed include the August Sun, Autumn Crest, Belmont(Fairmont), Berenda Sun, Fayette, Golden Crest, Golden Lady, June Sun, Mary Anne, Parade, Pat's Pride, Prima Lady, Red Cal, Scarlet Lady, and Springold peach varieties.

Both orders provide (in §§ 916.52 and 917.41) authority to establish size requirements. Size regulations cause producers to leave fruit on the tree longer. This increased growing time not only improves the size of the fruit, but also increases its maturity. In addition, increased size results in an increased number of packed boxes of nectarines or peaches per acre. Acceptable size fruit also provides greater consumer satisfaction and more repeat purchases, and, therefore, increases returns to producers and handlers. Varieties recommended for specific size regulation have been reviewed and such recommendations are based on the specific characteristics of each variety. The NAC and PCC conduct studies each season on the range of sizes reached by the regulated varieties and determine whether revisions in the size requirements are appropriate.

Nectarines: Section 916.356 of the order's rules and regulations specifies minimum size requirements for fresh nectarines in paragraphs (a)(2) through (a)(9). This rule revises § 916.356 to establish variety-specific minimum size requirements for 14 nectarine varieties that were produced in commercially-significant quantities of more than 10,000 packages for the first time during the 1999 season. This rule also removes the variety-specific minimum size requirements for 6 varieties of nectarines whose shipments fell below 5,000 packages during the 1999 season.

For example, one of the varieties recommended for addition to the variety-specific minimum size requirements is the Diamond Jewel nectarine variety. Studies of the size ranges attained by the Diamond Jewel variety revealed all but one box of that variety met minimum sizes 50, 60, 70, and 80 during the 1999 season. The one box reportedly met a minimum size 88. While the size distribution peaked on the size 70, 100 percent of the fruit sized at a minimum of size 88.

A review of other varieties with the same harvesting period indicated that Diamond Jewel was also comparable to those varieties in its size ranges for that time period. Discussions with handlers known to handle the variety confirmed this information regarding minimum size and harvesting period, as well. Thus, the recommendation to place the Diamond Jewel nectarine variety in the variety-specific size regulation at a size 88 is appropriate.

Historical variety data such as this provides the NAC with the information necessary to recommend the appropriate sizes at which to regulate various nectarine varieties. In addition, producers and handlers of the varieties affected are personally invited to comment when such size recommendations are deliberated. Producer and handler comments are also considered at both NAC and subcommittee meetings when such comments are received by the staff.

For reasons similar to those discussed in the preceding paragraph, the introductory text of paragraph (a)(4) of § 916.356 is revised to include the Diamond Jewel, Kay Sweet, and White Sun nectarine varieties; and the introductory text of paragraph (a)(6) in § 916.356 is revised to include the Arctic Blaze, Arctic Gold, Arctic Jay, Cole Red, Fire Sweet, Honey Blaze, Kay Bright, Prima Diamond XVIII, Regal Pearl, Ruby Sweet, and White September nectarine varieties.

This rule also revises the introductory text of paragraph (a)(4) of § 916.356 to remove 2 nectarine varieties from the variety-specific minimum size requirements specified in the section because less than 5,000 packages of each of these varieties were produced during the 1999 season. Thus, the introductory text of paragraph (a)(4) is revised to remove the Early May and Prima Diamond VI nectarine varieties.

This rule also revises the introductory text of paragraph (a)(6) of § 916.356 to remove 4 nectarine varieties from the variety-specific minimum size requirements specified in the section because less than 5,000 packages of each of these varieties were produced during the 1999 season. Thus, the introductory text of paragraph (a)(6) is revised to remove the Flavortop, Flavortop I, How Red (Sunectnineteen) and the 491-48 nectarine varieties.

The Gran Sun nectarine variety had 1999 shipments of 2,939 packages, but was not recommended for removal from variety-specific size requirements because the variety is expected to increase in commercial significance during the 2000 season. Inclement weather, including the cool spring and frost damage, is considered to be a factor in the decreased production during the 1999 season.

Nectarine varieties removed from the nectarine variety-specific list become subject to the non-listed variety size requirements specified in paragraphs (a)(7), (a)(8), and (a)(9) of § 916.356.

The NAC recommended these changes in the minimum size requirements based on a continuing review of the sizing and maturity relationships for these nectarine varieties, and consumer acceptance levels for various sizes of fruit. This rule is designed to establish minimum size requirements for fresh nectarines consistent with expected crop and market conditions.

Peaches: Section 917.459 of the order's rules and regulations specifies minimum size requirements for fresh peaches in paragraphs (a)(2) through (a)(6), and paragraphs (b) and (c). This rule revises § 917.459 to establish variety-specific minimum size requirements for 16 peach varieties that were produced in commercially-significant quantities of more than 10,000 packages for the first time during the 1999 season. This rule also removes the variety-specific minimum size requirements for 4 varieties of peaches whose shipments fell below 5,000 packages during the 1999 season.

One of the varieties recommended for addition to the variety-specific size requirements is the Brittany Lane variety. Studies of the size ranges attained by the Brittany Lane variety revealed that while the size distribution peaked on size 50, all of the boxes of that variety met at least the size 80 requirement.

A review of other varieties of the same harvesting period indicated that Brittany Lane was also comparable to those varieties in its size ranges. Discussions with handlers known to handle the variety confirmed this information regarding minimum size and harvesting period, as well. Thus, the recommendation to place the Brittany Lane variety in the variety-specific size regulation at a size 80 is appropriate.

Historical variety data such as this provides the PCC with the information necessary to recommend the appropriate sizes at which to regulate various peach varieties. In addition, producers of the affected varieties are invited to comment when such size recommendations are deliberated. Producer and handler comments are also considered at both PCC and subcommittee meetings when such comments are received by the staff.

In § 917.459 of the order's rules and regulations, the introductory text of paragraph (a)(5) is revised to include the Brittany Lane, Snow Prince, Zee Diamond, 012-094, and 172LE White Peach (Crimson Snow/Sunny Snow) peach varieties; and the introductory text of paragraph (a)(6) is revised to include the Country Sweet, Earli Rich, Full Moon, Late September Snow, N117, Queen Lady, Red Sun, Sierra Gem, Snow Blaze, Sweet Kay, and Sweet September peach varieties.

This rule also revises § 917.459 to remove 4 peach varieties from the variety-specific size requirements specified in that section, because less than 5,000 packages of this variety were produced during the 1999 season. In § 917.459, the introductory text of paragraph (a)(5) is revised to remove the Golden Crest (Supechthree) peach variety and the introductory text of paragraph (a)(6) of § 917.459 is revised to remove the Snow Diamond, Sparkle, and 1-01-505 peach varieties.

The Super Rich peach variety had 1999 shipments of 3,941 packages, but was not recommended for removal from variety-specific size requirements because the variety is expected to increase in commercial significance during the 2000 season. Inclement weather, including the cool spring and frost damage, is considered to be a factor in the decreased production during the 1999 season.

Peach varieties removed from the variety-specific list become subject to the non-listed variety size requirements specified in paragraphs (b) and (c) of § 917.459.

The PCC recommended these changes in the minimum size requirements based on a continuing review of the sizing and maturity relationships for these peach varieties, and the consumer acceptance levels for various fruit sizes. This rule is designed to establish minimum size requirements for fresh peaches consistent with expected crop and market conditions.

This rule reflects the committees' and the Department's appraisal of the need to revise the handling requirements for California nectarines and peaches, as specified. The Department has determined that this rule will have a beneficial impact on producers, handlers, and consumers of California nectarines and peaches.

This rule establishes handling requirements for fresh California nectarines and peaches consistent with expected crop and market conditions, and will help ensure that all shipments of these fruits made each season will meet acceptable handling requirements established under each of these orders. This rule will also help the California nectarine and peach industries provide fruit desired by consumers. This rule is designed to establish and maintain orderly marketing conditions for these fruits in the interest of producers, handlers, and consumers.

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

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

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

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

Under §§ 916.52 and 917.41 of the orders, lot stamping, grade, size, maturity, and container and pack requirements are established for fresh shipments of California nectarines and peaches, respectively. Such requirements are in effect on a continuing basis. This rule revises current requirements to: (1) Revise the lot stamping requirements for the 2000 season only; (2) authorize shipments of “CA Utility” quality fruit to continue during the 2000 season; (3) eliminate the minimum size of maturity marking requirements for all containers; (4) provide a tolerance for the “Peento” or “donut” types of peaches for healed, non-serious, blossom-end growth cracks; and (5) revise varietal maturity, quality, and size requirements to reflect recent changes in growing conditions.

In §§ 916.115 and 917.150 of the orders' rules and regulations, respectively, handlers are required to stamp containers of nectarines and peaches with the Federal-State Inspection Service lot stamp number after inspection and prior to shipment. New, returnable containers, which do not support permanent markings, utilize printed cards which contain the lot stamp number, date codes, and other container marking requirements. The printed cards are easily inserted into tabs on the front or sides of the containers. The ease of portability of these cards creates problems for both the inspection service and the industries in tracking the containers. Cards on a pallet of inspected fruit could be easily moved to a pallet of uninspected fruit, thus permitting a handler to circumvent inspection requirements. The inspection service and the committees have recommended that each pallet of inspected nectarines and peaches be marked with a pallet tag containing the lot stamp number, in addition to the lot stamp number provided on the card on the containers.

The committees believe that this recommendation should be limited to the 2000 season only, since at least one manufacturer anticipates the availability of an area on the principle display panel where the container markings will adhere to the box, which will meet the needs of the industries, inspection service, and the manufacturer. However, the manufacturer believes that this change may not be available in time for the 2000 season. For that reason, the committees further recommended that the proposed modification of the lot stamping requirements be put into place for the 2000 season only.

In 1996, §§ 916.350 and 917.442 were revised to permit shipments of lower-quality nectarines and peaches, known as “CA Utility,” as an experiment for the 1996 season only. Such authorization was continued during the 1997, 1998, and 1999 seasons. This rule permits the continued use of “CA Utility” quality fruit for the 2000 season with a continued in-house statistical review to be conducted by the NAC and PCC. During the 1996 season, the Department authorized the shipment of nectarines and peaches which were of a lower quality than the minimum permitted for previous seasons. During 1996, there were 210,443 boxes of nectarines and 365,761 boxes of peaches packed as “CA Utility,” or 1.1 percent and 1.9 percent of fresh shipments, respectively. During 1997, there were 230,275 boxes of nectarines and 216,562 boxes of peaches packed as “CA Utility,” or 1.1 percent and 1.0 percent of fresh shipments, respectively. In 1998, there were 760,000 boxes of nectarines and 602,000 boxes of peaches packed as “CA Utility,” or 4.5 percent and 3.3 percent of fresh shipments, respectively. In 1999, there were 819,600 boxes of nectarines and 689,800 boxes of peaches packed as “CA Utility,” or 4.0 percent and 3.4 percent of fresh shipments, respectively.

Continued availability of “CA Utility” quality fruit is expected to have a positive impact on producers, handlers, and consumers by permitting more nectarines and peaches to be shipped into fresh market channels, without adversely impacting the market for higher quality fruit.

Sections 916.356 and 917.442 establish minimum maturity levels. This rule makes annual adjustments to the maturity requirements for several varieties of nectarines and peaches. Maturity requirements are based on maturity measurements generally using maturity guides ( e.g., color chips), as reviewed by SPI. Such maturity guides provide producers, handlers, and SPI with objective tools for measuring the maturity of different varieties of nectarines and peaches. Such maturity guides are reviewed annually by SPI to determine the appropriate guide for each nectarine and peach variety. These annual adjustments reflect changes in the maturity patterns of nectarines and peaches as experienced over the previous seasons' inspections. Adjustments in the guides ensure that fruit has met an acceptable level of maturity, thus ensuring consumer satisfaction while benefitting nectarine and peach producers and handlers.

Currently, in § 916.356 of the order's rules and regulations for nectarines and § 917.459 of the order's rules and regulations for peaches, minimum sizes for various varieties of nectarines and peaches are established. This rule makes adjustments to the minimum sizes authorized for various varieties of nectarines and peaches for the 2000 season. Minimum size regulations are put in place to allow fruit to stay on the tree for a greater length of time. This increased growing time not only improves maturity, but also improves fruit size. Increased fruit size increases the number of packed boxes per acre. Increased fruit size and maturity also provide greater consumer satisfaction and, therefore, more repeat purchases by consumers. Repeat purchases and consumer satisfaction benefit producers and handlers alike. Such adjustments to minimum sizes of nectarines and peaches are recommended each year by the NAC and PCC based upon historical data, and producer and handler information regarding sizes which the different varieties attain.

The recommendations with regard to maturity markings on containers, continuation of authority to ship nectarines and peaches which meet the “CA Utility” quality requirements, and an increased tolerance for Peento type of peaches, are relaxations. These regulations are intended to provide increased flexibility for handlers of nectarines and peaches.

The committees made recommendations regarding these revisions in handling requirements after considering all available information, including comments of persons at three subcommittee meetings. The Grade and Size Subcommittee met on November 9, 1999, the Management Services Committee met on November 17, 1999, and the Returnable Plastic Container Task Force met on November 23, 1999. At the meetings, the impact of and alternatives to these recommendations were discussed.

At the Grade and Size Subcommittee, the members discussed recommendations of SPI with regard to maturity guides, and recommendations of staff with regard varietal sizing and grades. SPI recommended maturity guides for two varieties of peaches and also recommended a change in maturity guides for an established variety. SPI made no recommendations to add or change any maturity guides for nectarines. The staff made recommendations to remove varieties of nectarines and peaches from the maturity listings which are no longer in commercial production.

The staff also made recommendations to add nectarine and peach varieties to the variety specific size requirements, based upon internal studies of the sizing characteristics of those nectarines and peaches. These nectarine and peach varieties were packed in commercially-significant quantities of 10,000 packages or more during the 1999 season. Also, the staff made recommendations to remove nectarine and peach varieties from the variety specific sizing requirements, based upon information indicating that less than 5,000 packages of those varieties were packed in the 1999 season and that the shipments of those varieties are expected to continue to decline in commercial significance. The committees routinely review their regulations and add varieties of which more than 10,000 packages are packed in a season; or remove varieties of which less than 5,000 packages are packed in a season. The alternative to these requirements would be for the more popular varieties to be subject to the less precise general sizing regulations. This alternative was rejected since it would ultimately increase the amount of less acceptable fruit being marketed to consumers. Such a result would be contrary to the long-term interests of producers, handlers, and consumers.

At the Grade and Size Subcommittee meeting, a handler recommended eliminating the required minimum letter height for maturity markings for all types of containers. The handler noted that some boxes preferred by retailers have limited amounts of space on the display panels, especially consumer boxes. He suggested that the lettering height minimum for the maturity markings be eliminated in favor of clear and legible markings. Any alternatives, he noted, would fall short of the need to provide handlers the necessary maturity marking flexibility. He added that with all the required markings for variety, commodity, etc., very little room is left on the display panel and markings may nearly overlap. His recommendation and those of SPI and the staff were approved unanimously.

At the Returnable Plastic Container Task Force meeting, the participants discussed the most expedient method to ensure that lot stamp numbers and date codes could be affixed to containers of nectarines and peaches to allow such containers to be adequately tracked, which would meet the needs of the inspection service and the industries. The members also met with a manufacturer of one of the returnable boxes, who expressed a willingness to cooperate with the industries in finding a solution to the problem of the highly-portable cards on the containers.

Alternatives offered included leaving container marking requirements unchanged, eliminating lot stamp numbers as a required marking, and permitting shipments of nectarines and peaches in these containers without restrictions on the cards. By leaving container marking requirements unchanged, handlers would be precluded from providing nectarines and peaches in containers advocated by receiving retailers. Eliminating lot stamp numbers as a required marking is unacceptable to both the inspection service and the industry. Allowing returnable, plastic containers to be shipped with the highly portable cards is also unacceptable since the portability of the cards could enable a handler to evade inspection on a lot or lots of nectarines or peaches by moving the cards to uninspected containers, and could jeopardize the industries' “trace back” program. All of these alternatives were, therefore, rejected.

At the Management Services Committee meeting, the members reviewed all subcommittee recommendations available to them. The members of the Management Services Committee include the chairpersons and vice-chairpersons of the committees, who generally have many years experience working in the industries. They, too, discussed recommendations of subcommittees and were free to make alternative recommendations or revise recommendations to the committees, as they reviewed such recommendations.

Like committee meetings, subcommittee meetings are open to the public and comments are widely solicited.

This rule does not impose any additional reporting and recordkeeping requirements on either small or large handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

The Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. However, as previously stated, nectarines and peaches under the orders have to meet certain requirements set forth in the standards issued under the Agricultural Marketing Act of 1946 (7 U.S.C. 1621 et seq. ). Standards issued under the Agricultural Marketing Act of 1946 are otherwise voluntary.

In addition, the committees' meetings were widely publicized throughout the nectarine and peach industries and all interested parties were invited to attend the meetings and participate in committee deliberations on all issues. These meetings are held annually during the last week of November or first week of December. Like all committee meetings, the November 30, 1999, meetings were public meetings and all entities, both large and small, were able to express views on these issues. The committees themselves are composed of producers. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

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

After consideration of all relevant matters presented, the information and recommendations submitted by the committees, and other information, it is found that this interim final rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

This rule invites comments on a change to the handling requirements currently prescribed under the marketing orders for California fresh nectarines and peaches. Any comments received will be considered prior to finalization of this rule.

Pursuant to 5 U.S.C. 553, it is also found and determined, upon good cause, that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect, and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) California nectarine and peach producers and handlers should be apprised of this rule as soon as possible, since early shipments of these fruits are expected to begin about April 1; (2) this rule relaxes grade requirements for nectarines and peaches and size requirements for several nectarine and peach varieties; (3) this rule relaxes container marking requirements for all containers; and (4) the committees unanimously recommended these changes at a public meeting and interested persons had an opportunity to provide input; and (5) the rule provides a 60-day comment period, and any written comments received will be considered prior to any finalization of this interim final rule.

This final rule is issued under Marketing Agreement and Order No. 989 (7 CFR part 989), both as amended, regulating the handling of raisins produced from grapes grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

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

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

This final rule changes the reporting requirements specified under the order. This rule makes minor modifications to two reports submitted by handlers regarding the receipt and disposition of non-California raisins. The Committee collects these reports to track non-California raisins and help ensure that only California raisins are used in programs authorized under the order. These changes reduce the reporting burden on handlers and provide the Committee with better information on non-California raisins. This action was unanimously recommended by the Committee at a meeting on November 10, 1999.

Section 989.73(d) of the order provides authority for the Committee, with the approval of the Secretary, to request handlers to furnish to the Committee such other information as may be necessary to enable it to exercise its powers and perform its duties. Handlers are required to submit various reports regarding California raisins, including receipts, disposition, transfers to other handlers, and the like. This information is used by the Committee in making various program decisions such as those regarding volume regulation and the handler assessment rate for funding program activities.

In addition, § 989.173 requires handlers to report to the Committee their receipt and disposition of raisins produced from grapes grown outside the State of California. Authority to collect information on raisins other than those produced in California was added to the regulations in 1990 to help ensure that only California raisins are used in various programs operated under the order.

For example, an export program is authorized under the order to promote the sale of California raisins in export markets. This program is usually in effect when volume regulation is implemented under the order. When volume regulation is in effect, a certain percentage of the crop may be sold by handlers to any market (free tonnage) while the remaining percentage must be held by handlers in a reserve pool (or reserve) for the account of the Committee. Under the export program, handlers may receive raisins, at a reduced price, or cash back from the reserve pool to blend down the cost of the exported raisins, allowing handlers to be price competitive in export markets (prices in export markets are generally lower than the domestic market). The Committee wants to ensure that only California raisins are utilized in this program.

Paragraph (b)(7) of § 989.173 requires handlers to report receipts of non-California raisins. This information is reported on Form No. 500 and is due to the Committee on the eighth day of each month. Currently, handlers must categorize the net weight (pounds) of such raisins received as either natural condition (raw product) or packed (processed raisins) for the current month as well as a cumulative quantity from August 1, the beginning of the crop year.

The Committee recommended that such receipts not be categorized as natural condition or packed. This information is contained within other supporting documentation that handlers must also submit with their receipt report. Thus, the Committee would like to eliminate this duplication.

Paragraph (c)(3) of § 989.173 requires handlers to report the disposition of non-California raisins. This information is reported on Form No. 501 and is also due to the Committee on the eighth day of each month. Currently, handlers must report whether such raisins were disposed of in cartons, bags, or as bulk raisins. However, Committee staff has not found these categories useful in tracking non-California raisins. Thus, the Committee recommended eliminating this requirement.

In addition, the Committee recommended adding the requirement that handlers report the area of origin (country or state) of non-California raisins on the disposition report. Area of origin will help Committee staff match the disposition reports with the receipt reports, which already ask for area of origin. The Committee will thus be better able to track the inventory of non-California raisins.

These minor changes recommended by the Committee will reduce the reporting burden on handlers receiving and disposing of non-California raisins. Requiring handlers to report on their disposition form the origin of non-California raisins will allow the Committee to better track the inventory of such raisins. Accordingly, appropriate changes are made to paragraphs (b)(7) and (c)(3)(iv) of § 989.173.

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

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

There are approximately 20 handlers of California raisins who are subject to regulation under the order and approximately 4,500 raisin producers in the regulated area. Small agricultural service firms have been defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $500,000. Thirteen of the 20 handlers subject to regulation have annual sales estimated to be at least $5,000,000, and the remaining 7 handlers have sales less than $5,000,000, excluding receipts from any other sources. No more than 7 handlers, and a majority of producers, of California raisins may be classified as small entities.

This final rule changes the reporting requirements specified in paragraphs (b) and (c) of § 989.173 regarding the receipt and disposition, respectively, of raisins produced from grapes grown outside the State of California. Handlers will no longer have to report to the Committee whether such raisins were received as natural condition or packed raisins, nor will handlers have to report whether such raisins were disposed of in cartons, bags or as bulk raisins. Handlers will have to report additional information, specifically, the area of origin (country or state) of such raisins on their disposition reports. Authority for these changes is provided in § 989.73(d) of the order.

Regarding the impact of this action on affected entities, this action will reduce, in the aggregate, the reporting and recordkeeping burden on handlers who receive and dispose of non-California raisins. The Committee estimates that 11 handlers receive and dispose of non-California raisins each year. It is estimated that it will take each handler about 4 minutes to complete each revised receipt report (1 minute less than that required for the current receipt report). The total annual burden for such receipt reports will be reduced from 11 hours to about 8.8 hours. Furthermore, it is estimated that it will take each handler about 5 minutes to complete each revised disposition report (the same as required for the current disposition report). The total annual burden for such disposition reports will remain at about 11 hours.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection requirements contained in this final rule have been approved by the Office of Management and Budget. Existing requirements have been assigned OMB No. 0581-0178. As with other similar marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. Finally, the Department has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

An alternative to this action would be to not make the recommended reporting changes. However, the Committee determined that it was best to proceed with its recommendation to reduce the reporting burden on handlers and obtain better information on tracking non-California raisins.

In addition, the Committee held an Administrative Issues Subcommittee meeting on November 9, 1999, where this issue was deliberated. This meeting and the Committee's meeting on November 10, 1999, were public meetings widely publicized throughout the raisin industry. All interested persons were invited to attend the meetings and participate in the industry's deliberations.

A proposed rule concerning this action was published in the Federal Register on December 10, 1999 (64 FR 69204). Copies of the rule were mailed by the Committee staff to all Committee members and alternates, the Raisin Bargaining Association, handlers, and dehydrators. In addition, the rule was made available through the Internet by the Office of the Federal Register. That rule provided for a 60-day comment period which ended February 8, 2000. No comments were received.

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

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

The regulations in 9 CFR part 93 (referred to below as the animal import regulations) prohibit or restrict the importation of certain animals and birds into the United States to prevent the introduction of communicable diseases of livestock and poultry. The regulations in 9 CFR chapter I, subchapter C (referred to below as the interstate movement regulations), prohibit or restrict the interstate movement of certain animals and birds to prevent the spread of communicable diseases of livestock and poultry within the United States.

We are amending the animal import regulations to prohibit, until further notice, the importation of the following tortoises into the United States: All species and subspecies of leopard tortoise ( Geochelone pardalis ), African spurred tortoise ( Geochelone sulcata ), and Bell's hingeback tortoise ( Kinixys belliana ). Tortoises that are en route to the United States at the time of the publication of this interim rule will be allowed to be imported for humanitarian reasons. Refusing entry of tortoises already en route to the United States upon publication of the rule would be detrimental to the health of the tortoises and could be fatal.

In addition, we are amending the interstate movement regulations to prohibit, until further notice, the interstate movement of all species and subspecies of these land tortoises.

These actions are necessary because these tortoises, which are regularly imported into the United States and are common in the U.S. pet trade, have been found to harbor the tropical bont tick ( Amblyomma variegatum ), the African tortoise tick ( Amblyomma marmoreum ), and ticks of the species Amblyomma sparsum. All of these exotic ticks are known to be vectors of heartwater disease. Heartwater disease is an acute infectious disease of ruminants, including cattle, sheep, goats, white-tailed deer, and antelope. This disease has a 60 percent or greater mortality rate in livestock and a 90 percent or greater mortality rate in white-tailed deer.

In December 1999, it was reported that evidence indicating the presence of nucleic acid from the causative agent of heartwater disease or a related agent might have been present in Amblyomma sparsum collected from leopard tortoises imported into Florida. Subsequently, in February 2000, leopard tortoises from premises known to be infested with the African tortoise tick were moved interstate to noninfested premises. Though these incidents involve only leopard tortoises, we are also prohibiting the importation and interstate movement of African spurred tortoise and Bell's hingeback tortoise because interception records from 1995-1999 report that 90 percent of the tropical bont ticks, African tortoise ticks, and ticks of the species Amblyomma sparsum found on reptiles entering the United States occurred on these three species of land tortoise.

We are working to establish effective treatment and biosecurity protocols for tortoises and other reptiles. Effective treatment and biosecurity protocols will allow us to ensure that all tortoises and other reptiles entering the United States, as well as tortoises and other reptiles already in the United States, can be effectively treated for exotic ticks and that all exotic ticks can be eradicated from infested premises. When we have established such protocols, and when tortoises and other reptiles already in the United States have been effectively treated for exotic ticks and all exotic ticks eradicated from infested premises, the ban on importation of these tortoises from Africa, as well as the ban on interstate movement of these tortoises, will be lifted. Until that time, however, these actions will provide protection against an outbreak of heartwater disease in domestic and wild populations of ruminants in the United States.

The Administrator of the Animal and Plant Health Inspection Service has determined that an emergency exists that warrants publication of this interim rule without prior opportunity for public comment. Immediate action is necessary to prevent an outbreak of heartwater disease in the United States.

Because prior notice and other public procedures with respect to this action are impracticable and contrary to the public interest under these conditions, we find good cause under 5 U.S.C. 553 to make this action effective less than 30 days after publication. We will consider comments that are received within 60 days of publication of this rule in the Federal Register . After the comment period closes, we will publish another document in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the rule as a result of the comments.

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

This emergency situation makes timely compliance with section 604 of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) impracticable. We are currently assessing the potential economic effects of this action on small entities. Based on that assessment, we will either certify that the rule will not have a significant economic impact on a substantial number of small entities or publish a final regulatory flexibility analysis.

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform.

This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) Has no retroactive effect; and (3) Does not require administrative proceedings before parties may file suit in court challenging this rule.

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

The Department of Energy (DOE) has adopted procedural rules in 10 CFR part 820 (Part 820) to provide for the enforcement of violations of DOE Nuclear Safety Requirements for which civil and criminal penalties can be imposed under the Price-Anderson Amendments Act of 1988 (Pub. L. 100-408, August 20, 1988) (PAAA). 56 FR 64290 (proposed Dec. 9, 1991), 58 FR 43680 (final Aug. 17, 1993). Appended to the rule is a General Statement of Enforcement Policy (Enforcement Policy). The Enforcement Policy sets forth the general framework through which DOE would seek to enforce compliance with DOE's nuclear safety rules, regulations and orders by a DOE contractor, subcontractor, or a supplier (hereinafter referred to collectively as “contractor”). Following that promulgation, DOE amended the Enforcement Policy with an opportunity for comment. 62 FR 52479 (Oct. 8, 1997). No comments were received and the amendments are made final today.

DOE's whistleblower regulations, 10 CFR part 708 (Department of Energy Contractor Employee Protection Program) (Part 708), establish requirements prohibiting retaliation against DOE contractor employees who have undertaken certain whistleblower actions. DOE's Office of Hearings and Appeals (OHA) has responsibility for resolution of whistleblower complaints under Part 708. The regulations provide criteria and procedures to protect employees of DOE contractors who believe they have suffered retaliation for disclosing information concerning danger to public health or safety, substantial violations of law, fraud or gross mismanagement; for participating in congressional proceedings; or for refusing to participate in dangerous activities. If an act of retaliation has occurred, OHA may order reinstatement, transfer preference, back pay, reimbursements of costs and expenses, or other remedies necessary to abate the violation. 10 CFR part 708, 57 FR 7533 (final March 3,1992), 61 FR 55230 (notice Oct. 25, 1996), 64 FR 12862 (interim final March 15, 1999), 64 FR 37396 (interim final rule and amendment July 12, 1999), 65 FR 6314 (final Feb. 9, 2000), 65 FR 9201 (correction Feb. 24, 2000).

In late 1992, Congress amended the Energy Reorganization Act, 42 U.S.C. 5801, et seq. (ERA), to prohibit any employer, including a DOE contractor indemnified under section 170.d. of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011, et seq. (AEA), from discriminating against any employee with respect to his or her compensation, terms, conditions or privileges of employment because the employee assisted or participated, or is about to assist or participate in any manner, in any action to carry out the purposes of the ERA or the AEA. 42 U.S.C. 5851 (ERA Sec. 211). The Department of Labor (DOL) has the responsibility under Sec. 211 to investigate employee complaints of discrimination and may, after an investigation and opportunity for hearing, order a violator to take affirmative action to abate the violation, reinstate the complainant to his or her former position with back pay, and award compensatory damages, including attorney fees. 29 CFR part 24, 59 FR 12506 (proposed March 16, 1994), 63 FR 6614 (final Feb. 9, 1998).

Before Part 820 was finalized and before § 211 of the ERA was enacted, DOE published a Notice of Clarification (Clarification) of proposed Part 820 to clarify the intended scope of the proposed definition of “DOE Nuclear Safety Requirements” as a basis for civil penalties, and to clarify the relationship between proposed Part 820 and Part 708. 57 FR 20796 (May 15, 1992). This Clarification established that the regulations prohibiting contractor retaliation in Part 708 could constitute DOE Nuclear Safety Requirements if the retaliation resulted from the employee's involvement in matters of nuclear safety in connection with a DOE nuclear activity. Such retaliation against DOE contractor employees would, therefore, be subject to the investigatory and adjudicatory procedures of Part 820, and could lead to the imposition of civil penalties under Part 820.

DOE's 1992 Clarification indicated that the provisions of the DOE whistleblower rule in Part 708 could constitute DOE Nuclear Safety Requirements. DOE imposed an affirmative duty on DOE contractors to protect the public, workers, and the environment in matters of nuclear safety relating to DOE nuclear activities by subjecting the contractors to enforcement for retaliation against contractor employees. In particular, if DOE found that a contractor retaliated in response to a worker raising or disclosing legitimate nuclear safety-related information or concerns, the Clarification stated that a violation of Part 820 could exist. 57 FR at 20797, 58 FR at 43681.

Any deterrent to the flow of that information can potentially constitute a violation of DOE Nuclear Safety Requirements that are imposed through the DOE whistleblower protection provisions. This is consistent with the NRC enforcement policy, which subjects licensees to possible civil penalties if they discriminate against employees raising safety issues or otherwise engaging in protected whistleblower activities under the ERA or the AEA. See, e.g., 10 CFR 50.7, 58 FR 52410 (Oct. 8, 1993), 60 FR 24551 (amended May 9, 1995), 61 FR 6765 (amended Feb. 22, 1996).

When DOE put its contractors on notice in 1992 that a violation of the whistleblower provisions of Part 708 could result in civil penalties, the DOL whistleblower proceedings were not an alternative to Part 708. Accordingly, the Clarification did not indicate that information collected by DOL in a whistleblower proceeding could be used as the basis for issuance of a Preliminary Notice of Violation (PNOV) by DOE. Based on experience with DOL proceedings since the Clarification, DOE believes that DOL proceedings serve the same function as a Part 708 proceeding in determining whether a contractor has retaliated against an employee.

DOE is therefore amending the General Statement of Enforcement Policy appended to Part 820 to provide that the Director of the Office of Investigation and Enforcement (Director) may use information that DOL collects in a § 211 proceeding as a basis for enforcement action under Part 820. Specifically, the Director may use this information as the basis for initiating enforcement action by issuing a PNOV. In determining whether to initiate action under Part 820 with respect to an alleged retaliation, the Director would review the report of the investigation, the adjudicative record, and any other relevant material associated with the proceeding to determine if an adequate basis exists to issue a PNOV.

The Director may also use DOL information to support the determination that a contractor has violated or is continuing to violate the nuclear safety requirements against contractor retaliation and to issue civil penalties or other appropriate remedy in a Final Notice of Violation (FNOV). 10 CFR 820.24-820.25.

The Director will have discretion to give appropriate weight to information collected in DOL and in OHA investigations and proceedings. In deciding whether additional investigation or information is needed, the Director will consider the extent to which the facts in the proceedings have been adjudicated as well as any information presented by the contractor.

DOE has a policy of encouraging its contractors to cooperate in resolving whistleblower complaints raised by contractor employees. Accordingly, in deciding whether to initiate an enforcement action, the Director will take into account the extent to which a contractor cooperated in a Part 708 or § 211 proceeding, and, in particular, whether the contractor resolved the matter promptly without the need for an adjudication proceeding.

In considering whether to initiate an enforcement action and, if so, what remedy is appropriate, the Director will also consider the egregiousness of the particular case including the level of management involved in the alleged retaliation and the specificity of the acts of retaliation.

Normally, the Director will await the completion of the DOL or OHA investigation and related deliberative processes before deciding whether to take any enforcement action in order to avoid duplication of investigative effort. A Part 708 or Sec. 211 proceeding would be considered completed when there is either a final decision or a settlement of the retaliation complaint, or no additional administrative action is available. In egregious cases outlined in the Clarification and included in paragraph 7 of Section XIII, DOE may initiate an investigation and bring an enforcement action before the other proceedings are completed.

It should be noted, however, that any enforcement action in which the Director cites a violation of the whistleblower regulations is separate and distinct from violations arising from the substantive nuclear safety rules in 10 CFR part 830 (nuclear safety management), 10 CFR part 835 (occupational radiation protection), and 10 CFR 820.11 (information accuracy requirements). The Director may begin investigations of noncompliances of these nuclear safety rules at any time based on the underlying nuclear safety concerns raised by the employee regardless of the status of any related whistleblower retaliation proceedings.

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

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule will not have a “significant economic impact on a substantial number of small entities.” DOE is not required by the Administrative Procedures Act (5 U.S.C. 553) or any other law to propose this policy statement for public comment. Accordingly, the Regulatory Flexibility Act requirements do not apply to this rulemaking, and no regulatory flexibility analysis has been prepared.

No additional information or record keeping requirements are imposed by this policy statement. Accordingly, no OMB clearance is required under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

The Department determined that this policy statement is not a major federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq. , and does not require preparation of an environmental impact statement or an environmental assessment. This policy statement amendment clarifies that DOE may use information generated in certain whistleblower proceedings involving DOE contractor employees as the basis for enforcement under procedures applicable to DOE Nuclear Safety Requirements. This action is covered under the Categorical Exclusion found at paragraph A.5. of Appendix A to Subpart D, 10 CFR part 1021, which applies to rulemakings that do not change the environmental effect of the rule being amended.

Executive Order 13132 (64 FR 43255, Aug. 10, 1999) requires agencies to develop an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. “Policies that have federalism implications” is defined in the Executive Order to include regulations that have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. This amendment of DOE's enforcement policy would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132.

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

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each federal agency to prepare a written assessment of the effects of any federal mandate in a proposed or final agency rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million in any one year. The Act also requires a federal agency to develop an effective process to permit timely input by elected officers of State, local, and tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity to timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. DOE's intergovernmental consultation process under the Unfunded Mandates Reform Act of 1995 is described in a statement of policy published by the Office of General Counsel on March 18, 1997 (62 FR 12820). The policy statement amendment published today does not contain any federal mandate, so these requirements do not apply.

As required by 5 U.S.C. 801, DOE will report to Congress promulgation of this policy statement amendment prior to its effective date. The report will state that it has been determined that the amendment is not a “major rule” as defined by 5 U.S.C. 804(2).

The Federal Election Campaign Act (“FECA” or the “Act”), 2 U.S.C. 431 et seq. , at 2 U.S.C. 439(a) requires all persons who file campaign finance reports and statements under the Act to file copies of these documents with the Secretary of State, or the officer charged by state law with maintaining state election campaign reports, in each State where contributions were received or expenditures made on behalf of a Federal candidate or candidates appearing on that State's ballot. Under 2 U.S.C. 439(b), these officers must receive and maintain the documents for two years after their date of receipt, and must make them available for public inspection and copying during regular business hours.

In 1995, Congress enacted 2 U.S.C. 439(c), which exempts from these receipt and maintenance requirements any State that the Commission determines to have in place a system that permits electronic access to and duplication of reports and statements that are filed with the Commission. Pub. L. 104-79, 109 Stat. 791, section 2. If the Commission does not make this determination, the State remains obligated to maintain copies of the statements and disclosure reports that have been filed with it. These new rules revise the Commission's regulations at 11 CFR Part 108 to reflect this statutory change.

In September 1997, the Commission published a Notice of Proposed Rulemaking (“NPRM”) that proposed a number of revisions to the Commission's recordkeeping and reporting requirements, including those addressed in this document, and corresponding changes to the relevant disclosure forms. 62 FR 50708 (Sept. 26, 1997). The Commission received three written comments in response to the NPRM, two of which addressed the state filing issues: one from the Secretary of State of South Dakota, and one from David S. Addington, Esq. In addition, the Internal Revenue Service submitted a comment in which it said that the proposed rules were not inconsistent with their regulations or the Internal Revenue Code. On February 11, 1998, the Commission held a public hearing on the NPRM at which one witness testified but did not discuss waivers of state filing requirements. One further comment was submitted in response to the announcement of the hearing.

The Commission has decided to proceed separately with this portion of the rulemaking, both because these issues are more straightforward than those addressed in other parts of the NPRM, and because the Commission is in the process of granting waivers pursuant to section 439(c) to States that meet certain requirements.

Section 438(d) of Title 2, United States Code, requires that any rules or regulations prescribed by the Commission to carry out the provisions of Title 2 of the United States Code be transmitted to the Speaker of the House of Representatives and the President of the Senate 30 legislative days before they are finally promulgated. These regulations were transmitted to Congress on March 17, 2000.

Section 11 CFR 108.1, which sets out the general filing requirements for statements and reports, is being divided into two paragraphs. Paragraph (a) generally follows the previous rule setting out the requirement for filing with the appropriate State offices, and references the new statutory exception. New paragraph (b) tracks the language of 2 U.S.C. 439(c), stating that the filing requirements and duties of State officers under 11 CFR part 108 shall not apply to a State if the Commission has determined that the State maintains a system that can electronically receive and duplicate reports and statements that are filed with the Commission. In addition, the Commission is exempting from these requirements reports and statements that are not filed with the Commission, but which can nevertheless be accessed electronically from the Commission's site on the World Wide Web, www.fec.gov.

On October 14, 1999, the Commission approved a State filing waiver program to implement this provision of the Act. In order to qualify for the waiver, a State must certify that it has a system in place that ensures public Internet access to the FEC's web site, where visitors can view and copy reports and statements. The system must include at least one computer terminal that can electronically access the Commission's web page, with at least one printer, connected either directly or through a network. The State must also certify that it will, to the greatest extent possible, allow anyone requesting Federal campaign finance data to use the computer terminal at any time during regular business hours.

Each State that wishes to obtain a waiver of the section 439 receipt and maintenance requirements must submit a written certification to the Commission that describes its system for electronically receiving and duplicating reports from the Commission, and the extent to which that system is available to the public. If the system satisfies the above criteria, the Commission will so notify the State. It will also publish this information in the FEC Record, and place it on the Commission's web site. If a State fails to submit a such a certification, the Commission will be unable to make the requisite determination, and the State will remain subject to the section 439(a) and (b) receipt and maintenance requirements. A number of States have already obtained waivers through this process, and further requests are pending.

Both commenters who addressed this issue objected to this portion of the proposed rule. They specifically questioned the NPRM's proposal to continue the obligation of a State to maintain duplicate reports if the Commission does not make the determination described above and, thus, the State does not meet the statutory requirements to be released from these duties. These commenters asserted that the provision is unconstitutional because the Federal Government cannot impose duties on State officers to execute Federal laws. Printz v. United States , 117 S. Ct. 2365, 2384 (1997) (invalidating the Brady Handgun Violence Prevention Act's requirement at 18 U.S.C. 922(s)(2) that the States' chief law enforcement officers conduct background checks on prospective handgun purchasers as an unconstitutional obligation on State officers to execute Federal laws); see also United States v. New York , 505 U.S. 144 (1992) (invalidating provisions of the Low-Level Radioactive Waste Policy Act that required States to accept ownership of waste or to regulate it according to congressional instructions). They suggested that the Commission change the proposed rule to request, but not require, State offices to discharge the filing and maintenance duties set out in the statute and in the NPRM.

While the Supreme Court has invalidated a number of Federal statutes imposing burdens on the States, the Commission believes that 2 U.S.C. 439 would pass constitutional muster under Congress' authority to regulate the time, place and manner of holding Federal elections. U.S. Const., Art. I, sec. 4, cl. 1. See Foster v. Love , 118 S.Ct. 464 (1997) (holding Louisiana's open primary system to violate 2 U.S.C. 1, 7 (which imposes a uniform national election day), which was enacted pursuant to the Elections Clause); Smiley v. Holm , 285 U.S. 335, 366-67 (1932) (Elections Clause encompasses congressional power to prevent “corrupt practices”); Ex Parte Siebold , 100 U.S. 371, 392 (1879) (“(T)he (Elections Clause) contemplates such co-operation (between the States and the Federal government) whenever Congress deems it expedient to alter or add to existing regulations of the State” (emphasis added)); Condon v. Reno , 913 F.Supp. 946 (D. S.C. 1995) (holding as valid under the Elections Clause imposition upon States of National Voter Registration Act).

As explained above, the Commission is not planning to force unwilling States to seek exemptions from the records receipt and maintenance requirements. Rather, the Commission is granting waivers from these requirements only to those States that request them. Moreover, the Commission has actively worked with the States to insure that the procedures to obtain a waiver are reasonable and not unduly burdensome.

The Commission also considered whether the new regulations would trigger the requirements of the Unfunded Mandates Reform Act of 1995, Pub. L. 104-4, 109 Stat. 48. See 2 U.S.C. 658(1). That Act prohibits federal agencies from imposing costly new burdens on State governments unless certain procedures are followed. These include consulting State and local governments that would be affected by the new rules, and checking to determine whether Federal funds might be available to help with the cost of their implementation.

The Commission believes the new rules do not trigger that Act, since the cost of implementation should fall far short of the $100,000,000 figure cited as the threshold for coverage. See 2 U.S.C. 1532(a). Also, as part of the waiver program, the Commission is offering to provide participating offices with free computer equipment and free Internet access for the remainder of the 2000 election cycle, provided that the State agrees to provide the access effective March 1, 2001, at its own expense. The Commission is also providing staff training and assistance with state efforts to publicize this program, to those States that request this.

The final rules at part 108 are also consistent with Executive Order (“E.O.”) 13132, “Federalism,” which was issued on August 4, 1999 and took effect on November 2, 1999. 64 FR 43255 (Aug. 10, 1999). The Commission is not subject to this Executive Order, which at section 1(c) incorporates the definition of agency found in the Paperwork Reduction Act at 44 U.S.C. 3502(1). That definition specifically excludes the Commission, at 44 U.S.C. 3502(1)(B). However, the procedures the Commission has adopted to implement the waiver program are consistent with the Executive Order's emphasis on cooperation between the States and the Federal Government in addressing matters of mutual concern.

Please note that certain candidates and political committees do not file their reports directly with the Commission. Candidates for nomination for election or election to the office of United States Senator; authorized committees supporting such candidates; other political committees that support only Senate candidates; and the National Republican Senatorial Committee (“NRSC”) and the Democratic Senatorial Campaign Committees (“DSCC”) file their reports with the Secretary of the Senate, who in turn provides copies to the Commission. 2 U.S.C. 432(g)(1); 11 CFR 105.2.

At its current level of technology, the Secretary of the Senate is unable to provide to the Commission copies of reports from Senate candidates and most unauthorized committees supporting Senate candidates in a form that can be reproduced on the Internet. Thus, these reports cannot currently be accessed electronically by State offices. Therefore, for the time being, copies of these reports must continue to be filed with the appropriate State office(s), and those offices must continue to maintain them and make them available to the public.

However, the Commission now receives copies of reports filed by the NRSC and the DSCC in a format that can be reproduced over the Internet, so these reports are available on the Commission's web site. The Commission anticipates that, over time, reports filed by Senate candidates and other committees that support them will also become available on the web site. As this occurs, and as more States are certified to be eligible for a waiver, the responsibility of State offices to receive and maintain paper copies of these reports will diminish.

The Commission is adding a cross reference to new 11 CFR 108.1(b), the records receipt and maintenance exception, to the first sentence of this section.

This section has been restructured to reflect the potential exemption. New paragraph (a) addresses Senate candidates, their authorized committees, committees that support only Senate candidates, and the NRSC and the DSCC, who must continue to file duplicate copies of reports with State officers, unless such reports are available on the Commission's web site, and the State has received a waiver pursuant to these rules. Paragraph (b) notes that other candidates and committees need not file duplicate reports in those States that have obtained a waiver pursuant to 2 U.S.C. 439(c). New paragraph (c) retains the language in the current rule stating that, for committees other than authorized committees, where reports cover activity in more than one State, the committees need file, and State offices retain, only those portions of reports that are applicable to candidates seeking election in that State. Please note that this applies only to States that have not obtained a waiver.

The Commission has added a cross reference to new paragraph 11 CFR 108.1(b) to this section, which requires unauthorized committees that file reports and statements in connection with Presidential elections to file copies with the State officer(s) of the State(s) in which both the recipient and the contributing committees have their headquarters. The Commission has also slightly reworded this section for clarity.

The Commission has added a cross reference to new paragraph 11 CFR 108.1(b) to this section, which provides guidance to State officers on how to organize, preserve and make available for public copying and inspection the reports and statements filed with those offices. It is also revising paragraph (b) to provide that paper or microfilm copies of documents that are available electronically from the Commission need not be kept for two years. This is consistent with the language at 2 U.S.C. 439(b)(2), which states that covered documents must be kept for two years “either in original filed form or in facsimile copy by microfilm or otherwise” (emphasis added). The Commission interprets this to cover reports that it makes available through its web site, and its practice is to make electronic copies available for more than two years.

The Commission is also adding a new paragraph (e) to this section, which allows States that obtain waivers to charge reasonable fees to those who access and copy campaign finance documents electronically. The new paragraph is consistent with paragraph (c) of this section, which allows States to charge reasonable fees to those making copies of paper or microfilm documents.

The Commission is also correcting the reference in the introductory material to read “108.6(a) through (e)”.

The attached rules will not have a significant economic impact on a substantial number of small entities. The new rules conform to statutory amendments, and also reduce the reporting burden of affected entities. Therefore, these rules will not have a significant economic effect on a substantial number of small entities.

The Federal Credit Union Act does not specifically address a federal credit union's (FCU's) authority to pay or honor a share draft that will result in an overdrawn account. NCUA's longstanding position has been that an overdraft, as a financial accommodation to a member, constitutes a loan or line of credit to a member.

A number of FCUs and trade associations contended that FCUs are at a competitive disadvantage because they are unable to cover a member's overdraft absent a prearranged, written agreement for the extension of credit. The NCUA Board believed this argument had merit although there might be some safety and soundness concerns with extending credit to a member without a written lending agreement. Therefore, on September 16, 1999, the NCUA Board issued a proposed amendment to its general lending regulation with a sixty-day comment period (64 FR 52694 September 30, 1999).

The proposed amendment to section 701.21(c)(3) provided that a credit union could advance money to a member to cover his or her account deficit without having a credit application on file if the credit union had a written overdraft policy. Specifically, the NCUA Board proposed that a credit union's written overdraft policy must: (1) Address how the credit union will honor overdrafts; (2) set a cap on the total dollar amount of all overdrafts the credit union will honor; (3) establish a time limit, not to exceed ten business days, for a member either to deposit funds or obtain an approved loan from the credit union to cover each overdraft; (4) limit the number and dollar amount of overdrafts the credit union will honor per member; and (5) establish the fee and interest rate, if any, the credit union will charge members for honoring overdrafts.

The comment period ended on November 29, 1999. Twenty-four comments were received. Comments were received from fourteen federal credit unions, eight state leagues, and two national credit union trade associations. The commenters were generally supportive of permitting payment of overdrafts without credit applications on file, but most commenters suggested modifications.

Two commenters completely supported NCUA's proposal. Five commenters generally supported the proposal. Eight commenters supported requiring credit unions to have overdraft policies; however, seven of these eight commenters opposed NCUA mandating what should be included in the overdraft policy. Seven of the twenty-four commenters stated that an overdraft is not a loan and this regulation is unnecessary. These commenters believe that credit unions have the ability to engage in this activity without regulatory authorization. The NCUA Board disagrees. The NCUA Board believes an overdraft is a loan, and, in order for a federal credit union to advance funds to cover an overdraft without first having a written application in place as required by NCUA's lending regulation, a regulatory change is in order. The NCUA Board also continues to believe that a written overdraft policy will offset safety and soundness concerns and prevent insider abuses.

We received comment on the following issues:

One commenter requested clarification on what NCUA is seeking to cover with this requirement. After further review, the NCUA Board believes stating how the overdraft is covered is superfluous because of the other specific items the policy must address. The NCUA Board has deleted this requirement from the final amendment.

Two commenters approved of setting a dollar cap in the policy. Three commenters opposed setting such a limit. Eight commenters stated that the written policy should address this issue, but that NCUA should not establish the limit. The NCUA Board did not suggest a specific dollar cap in the proposal. The NCUA Board has decided that the policy must set a cap and the credit union should establish the dollar amount.

Two commenters supported the ten-day time limit. Eight commenters stated that the credit union, not NCUA, should establish the time limit for the member to either deposit funds or obtain an approved loan from the credit union. Three commenters suggested a 30-day time limit and two commenters suggested a 90-day time limit. Three commenters suggested other time limits. The NCUA Board believes that a time limit is necessary for safety and soundness reasons. A ten-day time limit may not be sufficient for the member in all cases; therefore, the rule provides that a credit union's policy must establish a time limit, not to exceed forty-five days. This should be sufficient time for any prudent individual to cover the overdraft or apply for a loan.

One commenter asked whether the time limit begins to run at the time the credit union advances the overdraft protection to cover the member's account deficit or from the date the member receives notice of the overdraft. The time limit starts to run the day the credit union advances the overdraft protection.

One commenter stated that NCUA should set a time limit after which the credit union must write off the loan. One commenter suggested 30 days. Eight commenters stated that the credit union, not NCUA, should set the time limit to write off the loan. The NCUA Board did not propose to establish when a credit union needs to write off an overdraft for which the member has not either repaid the credit union or obtained an approved loan. In the final rule, to maintain maximum flexibility for credit unions, the NCUA Board is not setting a time limit. Each credit union should establish its own requirement for when it will write off an overdraft consistent with its lending policies.

Four commenters stated that the credit union, not NCUA, should establish this limit in the policy. One commenter stated that a credit union's management, not the board of directors, should set the limit on the dollar amount of overdrafts the credit union will honor per member. Three commenters would eliminate a limit on the number of overdrafts the credit union will honor per member. These commenters believe that the number of overdrafts have no bearing on risk and the reference to the “number of overdrafts” should be removed from the rule. These commenters would also go farther and eliminate the limit on the dollar amount per member from the written overdraft policy.

In the proposal, the NCUA Board did not establish a number and dollar limit but rather proposed that each credit union should establish its own limit. However, the NCUA Board agrees with those commenters who stated that the number of overdrafts a member incurs may have no bearing on risk. The NCUA Board continues to believe that the dollar amount per member does raise significant safety and soundness concerns. Therefore, the final rule simply requires that the credit union's own policy set forth the dollar amount of overdrafts the credit union will honor per member. As in the proposed rule, to provide maximum flexibility to credit unions, it is up to the credit union, not NCUA, to establish this dollar amount. This dollar amount should be consistent with the credit union's ability to absorb losses and manage risk.

One commenter stated the policy itself need not contain the amount of the overdraft fee and interest rate, but simply should require that such fee and interest rate be established and disclosed. The NCUA Board continues to believe that, if a credit union is going to engage in this activity, the fee and interest rate, if any, should be set forth in the policy. The NCUA Board believes this is a matter of prudent internal control and sound judgment.

Eight commenters opposed any additional restrictions. These commenters believe that additional regulatory restrictions are not necessary. Two commenters would impose additional restrictions on overdrafts by credit union employees or officials but provided no persuasive rationale on why the rule should treat them differently than other credit union members. NCUA's regulations on loans to officials and nonpreferential treatment provide sufficient regulatory protection against any impropriety or appearance of impropriety. See 12 CFR 701.21(d).

The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact any final regulation may have on a substantial number of small entities (primarily those under $1 million in assets). For purposes of this analysis, credit unions under $1 million in assets will be considered small entities. As of June 30, 1999, there were 1,690 such entities with a total of $807.3 million in assets, with an average asset size of $0.5 million. These small entities make up 15.6 percent of all credit unions, but only 0.2 percent of all credit union assets.

The final amendment permits federal credit unions to advance money to members to cover account deficits without having a credit application from the member on file if the credit union has a written overdraft policy. The NCUA Board does not believe that the final amendment will impose reporting or recordkeeping burdens that require specialized professional skills not available to them.

The NCUA Board has determined and certifies that this final amendment, if adopted, will not have a significant economic impact on a substantial number of small credit unions.

The reporting requirements in section 701.21(c)(3) have been submitted to and approved by the Office of Management and Budget under OMB control number 3133-0139. Under the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it displays a valid OMB number. The control number is displayed in the table at 12 CFR part 795.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their regulatory action on state and local interests. NCUA, an independent regulatory agency as defined in 44 U.S.C 3502(5), voluntarily adheres to the fundamental federalism principles addressed by the executive order. This final amendment will only apply to federal credit unions. This final rule makes no changes with respect to state credit unions and therefore, will not impact state and local interests.

The Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where NCUA issues a final rule as defined by Section 551 of the Administrative Procedures Act. 5 U.S.C. 551. The Office of Management and Budget has determined that this is not a major rule.

NCUA's goal is clear, understandable regulations that impose a minimal regulatory burden. We requested comments on whether the proposed amendment were understandable and minimally intrusive if implemented as proposed. We received no specific comment on this issue.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding 93-18-04, amendment 39-8689 (58 FR 53853, October 19, 1993), which is applicable to certain Aerospatiale Model ATR42-300 and ATR42-320 series airplanes, was published in the Federal Register on October 25, 1999 (64 FR 57409). The action proposed to increase the compliance time for the existing requirements and expand the applicability of the existing AD to include additional airplanes. The action also proposed to require various inspections of the subject area for discrepancies, and corrective actions, if necessary; and replacement of certain cargo door hinges with new hinges. For certain airplanes, the action also proposed to require replacement of friction plates, stop fittings, and bolts with new parts.

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

One commenter, an operator, expresses concern that paragraphs (c) and (d)(2)(ii) of the proposed AD mandate that any repairs, previously conducted through Aerospatiale, now must be approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the Direction Ge nrale de l'Aviation Civile (DGAC) (or its delegated agent). The commenter is concerned that, if the only resources for repair approvals are those mentioned here, any repair approval process will not be responsive on a timely basis. The commenter states that notification to the Manager, ANM-116, of damage found and the repair method used, following embodiment, would be more appropriate.

The FAA infers that the commenter is requesting that the AD be revised to allow repair approvals through Aerospatiale, with subsequent notification to the Manager, ANM-116. The FAA does not concur. To specify within an AD that repairs are to be accomplished in accordance with the manufacturer would be delegating the FAA's rulemaking authority to the manufacturer. Since the referenced service information does not provide appropriate repair procedures, the FAA must require that operators accomplish necessary repairs in accordance with a method approved by the FAA or the DGAC (or its delegated agent). The FAA notes that, if Aerospatiale has been designated by the DGAC as a delegated agent for repair approvals, such approvals by Aerospatiale would be acceptable for compliance with this AD. No change to the AD is necessary.

The same commenter notes that there should be some consideration for airplanes on which the modification has already been accomplished with some form of repair (prior to the effective date of the AD). As written, the AD would require that any such repair be “reapproved” by the FAA or DGAC.

The FAA does not concur. As noted in the FAA's response to the previous comment, repairs approved by Aerospatiale may be acceptable for compliance with this AD, if Aerospatiale is a delegated agent of the DGAC for such repairs. If this is the case, no “reapproval” is necessary, since such approved repairs would be acceptable for compliance with the requirements of this AD. Further, sufficient time is provided prior to the compliance thresholds of this AD to allow operators to determine if approvals must be obtained for previously accomplished repairs, and to obtain such approvals, if necessary. No change to the AD is necessary.

The same commenter requests that the proposed AD be revised to include later revisions of two service bulletins, and notes that the changes made do not affect the technical content of either bulletin. The commenter states that ATR Service Bulletin ATR42-53-0070, Revision 3, dated February 19, 1999, is the most current version and should be included in paragraph (a) of the AD. The commenter also states that ATR Service Bulletin ATR42-53-0076, Revision 3, dated February 19, 1999, has been released and should be included in paragraph (d) of the AD. Revision 2 of each of these service bulletins was cited as the appropriate source of service information in the referenced paragraph of the proposed AD.

The FAA concurs. The FAA has reviewed the referenced service bulletins and agrees that equivalent technical information is contained in the later revisions of the service bulletins. The FAA has revised paragraphs (a) and (d) of the final rule to include these revisions as appropriate sources of service information.

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

There are approximately 106 airplanes of U.S. registry that will be affected by this AD.

The general visual inspection of fuselage frames 25 and 27 that is required by this AD will take approximately 3 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this inspection required by this AD on U.S. operators is estimated to be $180 per airplane.

The cargo door hinge and skin replacement that is required by this AD will take approximately 250 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts will cost approximately $9,880 per airplane. Based on these figures, the cost impact of the door structure replacement required by this AD on U.S. operators is estimated to be $24,880 per airplane.

The general visual inspection of the key and tooling holes that is required by this AD will take approximately 100 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this inspection required by this AD on U.S. operators is estimated to be $6,000 per airplane.

The eddy current and detailed visual inspections of the forward entry door stop fitting and friction plate that are required by this AD will take approximately 2 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this inspection required by this AD on U.S. operators is estimated to be $120 per airplane.

The replacement of the forward entry door stop fitting, friction plate, and upper door corner that is required in this AD action will take approximately 50 work hours per airplane to accomplish. The manufacturer has committed previously to its customers that it will bear the cost of replacement parts. As a result, the cost of those parts is not attributable to this AD. Based on this figure, the cost impact of the replacement required by this AD on U.S. operators is estimated to be $3,000 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to all British Aerospace Model BAe 146 and Avro 146-RJ series airplanes was published in the Federal Register on December 15, 1999 (64 FR 69967). That action proposed to require a one-time inspection to detect cracking or corrosion of the forward attachment bolts of the engine pylon to wing interface, and corrective action, if necessary. That action also proposed to require re-installation with re-protected and sealed bolts torqued to a lower level.

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

One commenter, an operator, requests that the cost impact information in the proposed AD be increased from “20 work hours (including removal and reinstallation of the engines)” to 112 work hours. The commenter states that, as an experienced operator, it estimates the time necessary to remove and replace just one engine is approximately 8 to 10 work hours. The commenter suggests that an appropriate estimate for all actions required by the AD is approximately 112 work hours, including hours for removal and replacement of four engines and the pylon attachment bolts, as well as inspection of the bolts and removal of corrosion.

The FAA partially concurs. The estimate of 20 work hours provided in the AD was based on the estimate of work hours specified in British Aerospace Service Bulletin SB.54-10, dated September 16, 1999 (which was referenced in the proposed AD and cited in this final rule as the appropriate source of service information). However, the FAA has determined that such an estimate includes only the time required to accomplish the inspections required by this AD, and does not include the time necessary for removal and reinstallation of all four engines or the time for accomplishment of corrective actions if corrosion is found. The FAA has revised the cost impact information, below, by removing the parenthetical statement indicating that the 20 work hours includes engine removal and reinstallation. However, because the economic analysis of the AD is limited to the cost of actions actually required by the rule, it does not typically include the costs of “indirect” or “on-condition” actions, such as hours necessary for access and close, or for repairs. Therefore, no further change to the cost impact information is necessary.

The same commenter requests that the proposed AD include a provision for the replacement of the pylon attachment bolts with new bolts as an alternative to performing the inspection. The commenter notes that such a provision is not specified in the referenced service bulletin or in the proposed AD, but states that this option should be available at the operator's discretion as an alternative method of compliance.

The FAA concurs. The FAA has reviewed the acceptability of the proposed alternative method of compliance with the manufacturer and with the Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom. Based on that input, the FAA has determined that replacement of all pylon attachments bolts with new bolts is an acceptable alternative to performing the inspection required by this AD, provided that the installation methods specified in the service bulletin are followed. Such installation methods include retorquing the new bolts to a lower level, and applying sealant to the bolts. A new paragraph (b) has been added to the final rule to provide this alternative as an acceptable means of complying with the requirements of this AD.

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

The FAA estimates that 35 airplanes of U.S. registry will be affected by this AD, that it will take approximately 20 work hours per airplane to accomplish the required inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $42,000, or $1,200 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to Cessna 150, 152, 172, 177, 180, 182, 185, 188, 206, 207, 210, and 337 series airplanes was published in the Federal Register as a notice of proposed rulemaking (NPRM) on July 22, 1998 (63 FR 39244). The NPRM proposed to require measuring the fuel strainer assembly standpipe, and replacing any fuel strainer assembly that does not have a standpipe of the correct measurement. Accomplishment of the proposed action as specified in the NPRM would be required in accordance with Cessna Service Bulletins SEB97-9, dated November 17, 1997, and MEB97-12, dated November 17, 1997.

The NPRM was the result of reports that the fuel strainer assemblies on the affected airplanes were manufactured with the fuel standpipes incorrectly installed in the assembly housing top.

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

All six commenters request that the FAA include a provision for the owners/operators of the affected airplanes to check the logbook to determine whether one of the affected fuel strainer assemblies is installed. This would reduce the impact of the AD by not requiring operators who do not have the affected fuel strainer assemblies installed to have their airplanes unnecessarily inspected.

The FAA concurs. Cessna part number (P/N) 0756005-2 top assemblies, Cessna P/N 0756005-8 fuel strainer assemblies, or Cessna P/N 0756005-9 fuel strainer assemblies, that were shipped between December 12, 1996, and September 5, 1997, may have been manufactured with an internal tube installed to a depth less than specified. These parts may become loose and dislodge from the strainer top assembly. If the owner/operator can make the determination by checking the logbooks that one of these parts is not installed or was installed prior to December 12, 1996, the measurement and possible replacement requirements of paragraphs (a) and (b) of this AD would not apply and the owner/operator must make an entry into the aircraft records showing compliance with this portion of the AD in accordance with section 43.9 of the Federal Aviation Regulations (14 CFR 43.9). This final rule has been changed to reflect this provision.

After careful review of all available information related to the subject presented above including the comments discussed, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed except for the addition of the provision to check the logbooks and minor editorial corrections. The FAA has determined that this addition and the minor corrections will not change the meaning of the AD and will not add any additional burden upon the public than was already proposed.

The FAA estimates that 50,000 airplanes in the U.S. registry will be affected by this AD.

The measurement required by this AD is estimated to take 1 workhour per airplane with the average labor rate at approximately $60 an hour. The total cost impact to accomplish the inspection will be $3,000,000 for the U.S. fleet, or $60 per airplane.

The replacement of the fuel strainer assembly is estimated to take 2 workhours per airplane with an average labor rate of approximately $60 per hour. Approximately 300 of the affected parts are thought to have been manufactured. The cost of parts is approximately $180 per airplane. Therefore, based on these figures, the total cost impact to accomplish the replacement, if applicable, on U.S. operators is estimated to be $90,000, or $300 per airplane.

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

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

In this order the Federal Energy Regulatory Commission (Commission) is modifying and clarifying certain aspects of the Final Rule issued in Order No. 609.  1 Generally, this order: (1) Requires that the Commission's notice of application and information on how to intervene be included in the notification to affected landowners; (2) Expands the definition of “affected landowner” to include owners of residences within 50 feet of the proposed construction work area; (3) Clarifies the requirements for the newspaper notice; (4) Explains how the notice requirement pertains to storage fields; (5) Denies a request to eliminate the requirement to provide an explanation of state eminent domain laws; (6) Allows a waiver of the 30-day notice requirement for blanket activities when the landowner agrees to the waiver and/or when the landowner requests the service/facility; (7) Requires no notification for non-ground disturbing projects; and (8) Clarifies that new injection/withdrawal wells cannot be constructed under § 2.55 of the Commission's regulations or under a pipeline's blanket certificate authorization.

On October 13, 1999, the Commission issued a Final Rule in Order No. 609. The Final Rule: (1) Provided for earlier and more informed landowner involvement in natural gas projects; (2) Streamlined the regulation process by categorically excluding certain types of activities from the need to have an Environmental Assessment prepared for them; and (3) Updated the environmental requirements for projects under the Natural Gas Act (NGA).

The Commission received rehearing/clarification requests from three parties including Columbia Gas Transmission Corporation (Columbia), Interstate Natural Gas Association of America (INGAA), and Williston Basin Interstate Pipeline Company (Williston Basin). Travis Kenneth Bynum filed a “Motion to Deny Rehearing,” alleging that the motions of the other parties failed to establish error on the part of the Commission. We address each of the requests for rehearing/clarification below, granting or denying them as discussed herein.

In the Final Rule, the Commission required in § 157.6(d) that all applicants seeking authorization under Part 157 of the Commission's regulations notify all affected landowners of record, as indicated in the most recent tax rolls, of their application by certified or first class mail (or by hand) within three (3) business days following the date a docket number is assigned to the filed application.

The intent of the Commission in implementing § 157.6(d) was to ensure that landowners who may be affected by a pipeline's proposal to construct natural gas pipeline facilities have sufficient opportunity to participate in the Commission's certificate process. In the Final Rule, we required that the notice mailed by applicants to affected landowners include, among other information: (1) The docket number of the filing; (2) The most recent edition of the Commission's pamphlet explaining the Commission's certificate process; and (3) A brief summary of what rights the landowner has at FERC. However, we did not require that the notice include the deadline for interested parties to file timely requests to intervene in the Commission's proceedings on the application.

The reason for that omission is that § 157.6(d) requires notice to be sent within three business days of the date a docket number is assigned to the filed application, whereas the Commission's notice establishing the intervention deadline may not be issued for up to ten days after the date the application is filed. Currently, the Commission's notice is published in the Federal Register and is available to the public electronically on the Commission's Internet web site, but is not sent directly to any party. Thus, after receiving notice of an application from the applicant, affected landowners will generally know how to get involved in the proceedings before the Commission, but will not know, without further effort on their part, by when they must act to do so in a timely manner. Further, while the Commission has, and will continue to liberally exercise its discretion in granting late-intervenor status to requesting landowners and other interested parties, many landowners resent having to request what they see as special permission to participate.  2

To rectify this situation, we will modify the requirements of § 157.6(d)(3) to require that the notice mailed to affected landowners include a copy of the Commission's notice of the application, specifically stating the date by which timely motions to intervene are due, together with the Commission's information sheet on how to intervene in Commission proceedings. This sheet is available on the Commission's Internet Website at http://www.ferc.fed.us/public/intervene.htm. To make the inclusion of these documents possible, we will also modify § 157.6(1)(i) to require that the notice be sent within three days of the date the Commission notice is issued, rather than the date a docket number is assigned. Finally, we will require that the notice be mailed not only to affected landowners, but also to all towns, communities, and local, state and federal government agencies involved in the project. This expanded mailing list corresponds to those entities generally receiving the Commission's Notice of Intent to prepare an environmental assessment of a project.

Section 157.6(d)(2)(ii) defines “affected landowner” to include owners whose property “abuts either side of an existing right-of-way or facility site owned in fee by any utility company, or abuts the edge of a proposed right-of-way which runs along a property line in the area in which the facilities would be constructed.” However, there may be instances where there is a residence in close proximity to the proposed right-of-way, but located on a parcel of land which does not abut the proposed right-of-way. Such property owners would clearly be affected by the proposed construction, but would not receive direct notification of the proposal under the requirement as stated above. Therefore, we will modify § 157.6(d)(2)(ii) to include owners of residences within 50 feet of the proposed construction work area.

Section 157.6(d)(1)(iii) requires that the applicant include a notice of the project in a newspaper(s) of general circulation in the project area within a week of the filing. Pursuant to the provisions of § 157.6(d)(3), this notice must include: (1) The docket number of the filing; (2) A description of the applicant and the proposed project, the project's location (including a map), its purpose, and proposed timing; (3) A general description of what the pipeline will need from the landowner if the project is approved; (4) How to contact the applicant for further information; (5) A brief summary of what rights a person has at the Commission and their rights under the eminent domain rules in the relevant state; and (6) Information on how to get a copy of the application from the applicant or where copies of the application may be located for public review.

On rehearing, INGAA states that as the regulation is currently written, the entire list of items that must be included in the landowner notification letter also must be included in the newspaper notification. INGAA asserts that this is a substantial amount of information to be printed in the newspaper. It suggests that the newspaper notice should only include the fact that an application has been filed at the Commission, the docket number, a general description of the route of the project, identification of a company contact person, and where copies of the application may be accessed. It also suggests that the newspaper notice only identify the other items that are listed in § 157.6(d)(3) and allow the reader to contact the applicant if they wish more detailed information. It says this would avoid the lengthier and costlier newspaper notice that is currently required.

Generally, INGAA's suggestion includes most of the items required for the landowner notice. The items INGAA proposes be omitted from the published notice include (1) A description of the company, (2) The project's purpose and timing, (3) A general description of what will be needed from landowners if the project is approved, (4) A general location map, and (5) A summary of the landowner's rights at the Commission and in eminent domain proceedings.

First, we note that items (1), (2), and (3) should not involve a substantial amount of text and are basic to the purpose of the notification. Accordingly, that information should be printed in the newspaper to ensure the public can quickly judge whether or not the project is of interest to them. Similarly, including a general location map complements the project description and has the advantage of reducing inquiries from people who might otherwise be unsure of their physical relationship to the project's location. Therefore, those items should continue to be part of the newspaper notification.

However, we find that at least a portion of (5) may be unnecessary for the published newspaper notice. While affected landowners, as defined by the regulations, have a need for basic information regarding eminent domain, the general public may not, since there is little chance that persons not meeting the regulation's definition of “affected landowner” will be subject to condemnation. In addition, we believe that publishing the Commission's Internet Website address and the telephone number for the Commission's Office of External Affairs will provide sufficient information to enable those members of the general public who desire to become involved in the Commission's proceeding to do so. We will modify § 157.6(d)(3)(v) accordingly. We will also modify § 157.6(d)(3)(ii) to clarify that while pipelines are not required to include the Commission's pamphlet in the published notice, they should provide the title of the pamphlet and indicate its availability at the Commission's Internet address.

Finally, we note that the regulations are silent as to the length of time the notice needs to be published in the newspaper. We will clarify that the newspaper notice must be published twice in a daily or weekly newspaper of general circulation in each county in which the project is located. This is consistent with the Commission's regulations under the Federal Power Act in § 4.32(b)(6) of the Commission's regulations. We will modify § 157.6(d)(1)(iii) accordingly.

As adopted in the Final Rule, § 157.6(d)(2)(iv) defines affected landowners subject to the notice requirement as landowners whose land is “within the area of new storage fields or expansions of storage fields, including any applicable buffer zone.”

INGAA and Williston Basin contend that the discussion of this section in the Final Rule is unclear and may imply a broader notification requirement than is intended in the codified § 157.6(d)(2)(iv). They request that the Commission clarify that pipelines are only required to notify surface and subsurface owners when proposing to develop and operate new storage fields or when expanding the boundaries of existing storage fields. They assert that storage fields encompass thousands of acres and have potentially hundreds of surface and subsurface property owners and that it would be burdensome and costly to notify all property interest owners within the entire certificated storage boundaries when a pipeline is replacing facilities under its blanket authority. Columbia makes a similar argument.

Under § 157.6(d)(2)(iv), if a new storage field is proposed, all owners of surface and subsurface property within the boundaries of the field and its buffer zone need to be notified of the project. If an existing storage field is proposed for expansion, all the surface and subsurface owners of property within the area between the existing certificate boundary and the proposed new certificate boundary of the field and its buffer zone need to be notified. If new facilities are being added within the existing certificate boundaries of an existing storage field and there is no change to the certificated boundaries, then § 157.6(d)(2)(iv) does not apply. However, in the latter case, §§ 157.6(d)(2)(i) through (ii) would apply.

In the Final Rule, § 157.6(d)(3)(v) requires the notice to include a description of the rights a landowner has in proceedings at the Commission and in eminent domain proceedings in state court.

INGAA states that the requirement to summarize state eminent domain laws is unreasonable. Specifically, INGAA contends that this notice requirement could result in landowners claiming that they have been given legal advice. INGAA claims that pipelines should not be required to provide any legal opinion as to what a landowner's rights are under the eminent domain rules of the state because any omissions or mistaken statements could expose the pipeline to unnecessary litigation. INGAA requests that the Commission eliminate this requirement. In the alternative, INGAA requests that the Commission clarify that a pipeline will have sufficiently complied with this section if it cites the state statutes, as of the date of the filing of the application, related to eminent domain.

Further, INGAA requests that the Commission clarify that since the Commission's pamphlet explains a landowner's rights at the Commission, § 157.6(d)(3)(v) is satisfied by the applicant's providing the Commission's pamphlet. It asserts that requiring the pipeline to separately summarize a landowner's rights at the Commission would be duplicative and may cause confusion if the pipeline's phrasing is different from the pamphlet's phrasing.

We believe that the applicant should provide landowners with some basic information concerning what is involved in the eminent domain process. The general public is probably not greatly informed on these matters and may need to invest significant time and money just to get a basic understanding. We do not believe that providing this information would put the applicant at risk for unnecessary litigation, especially if the applicant prefaces its explanation with a disclaimer statement.

Guardian Pipeline's (Guardian) Landowner Rights summary, filed in Docket No. CP00-36-000 and provided to affected landowners in that proceeding (and also posted on its Internet Website at www.guardianpipeline.com), is a good example of what the Commission expects the applicant to provide to the landowners. It starts with a disclaimer statement and recommends that if the individual has any questions about their rights, they should seek the advice of an attorney. Next, it refers to the Commission's pamphlet and gives a short summary of the landowners' rights at the Commission. After this summary, it refers readers to the Commission's Office of External Affairs for further information. It then briefly summarizes the pipeline's general right to eminent domain and summarizes the eminent domain laws in Wisconsin and Illinois. Finally, it refers readers to the Wisconsin Department of Commerce and the Illinois Attorney General, respectively, for further information on the individual state laws. We believe this format meets the requirements of our regulations without subjecting the applicant to any legal liability.

In the Final Rule, § 157.203(d)(1) requires that the pipeline notify any affected landowner of a project which is automatically approved under the blanket certificate program of Subpart F of Part 157 of the Commission's regulations. The notification must be provided at least 30 days prior to the beginning of construction activities or at the time easement negotiations begin, whichever is earlier.

INGAA and Williston Basin request that the Commission allow landowners to waive the 30-day notice period when the landowner is provided notification of a proposed project. They contend that if the landowner agrees to waive the 30-day notice period the pipeline should be able to proceed with construction without the Commission requiring approval of the waiver from the Director of the Office of Energy Projects.

INGAA also requests that the Commission clarify that landowner notice is not required for minor blanket projects that do not impact a landowner's property. This would include projects that are completely within the boundaries of an existing facility site or building, do not result in ground disturbance or, in the case of compression, do not increase air or noise emissions.

Additionally, Williston Basin argues that no notification should be required for blanket activities involving construction within existing rights-of-way pursuant to existing easements. It asserts that the landowner has already given an easement and as long as the pipeline's use is consistent with that easement there is no reason for the landowner to be notified that the pipeline is performing activities allowed by that easement. Further, it claims that it is inconsistent for the Commission to treat identical facilities installed under § 157.211 ( e.g., farm taps) and § 2.55(b) differently. It argues that activities performed under the two provisions have similar effects on landowners.

First, we agree that the landowners should be allowed to specifically waive the 30-day notice period in writing, as long as they are provided the notice. We have modified § 157.203(d)(1) accordingly. We note that on January 5, 2000, Reliant Energy Gas Transmission Company (Reliant) filed an application in Docket No. CP00-66-000 seeking a general waiver of the 30-day notice requirement when the construction has been requested by the landowner, only that landowner's property will be affected by the construction, and the landowner has waived the 30-day period. We believe that there is no need to require any landowner notification in this circumstance. Therefore, we are providing an exception in § 157.6(d)(3)(iii) which makes notification unnecessary under these circumstances. This action will moot Reliant's request and we will issue a separate order dismissing that proceeding.

With respect to minor, non-ground disturbing projects, we agree that no landowner notification is required as long as projects do not materially change the appearance of the site. We have modified § 157.203(d)(3)(iv) accordingly.

Finally, as stated in Order No. 609, the Commission wants the opportunity to hear and act on landowners' concerns when the pipeline conducts an activity subject to the Commission's jurisdiction. Facilities constructed under § 2.55 are exempt from the Commission's jurisdiction, whereas activities performed under the pipelines' blanket certificates are subject to the Commission's jurisdiction. Further, facilities which may be constructed under §§ 157.211 or 157.208 are different from those constructed under § 2.55. In the latter case, an existing facility is being replaced by the same kind of facility, in the same location, entirely within an existing easement. Facilities constructed under blanket authority (either under § 157.211 or § 157.208) are usually at least partially outside of existing easements and are new. It is appropriate for the landowner to receive advance notice of such construction, even when it is anticipated by the existing easement. A signed easement agreement does not limit the right of a landowner to express concerns regarding additional uses of the land to the Commission, or to the company itself. The notice provides the landowner the opportunity to contact the pipeline or the Commission and to express such concerns.

In the Final Rule, § 157.203(d)(2) requires that the pipeline notify any affected landowner within three days of making the prior notice filing or at the time easement negotiations begin, whichever is earlier.

INGAA requests that the Commission revise this section to require notification “within 3 business days following the date that a docket number is assigned to the application or at the time the pipeline initiates easement negotiations, whichever is earlier”, to be consistent with the case-specific requirement.

We agree and have modified § 157.203(d)(2) accordingly.

In the Final Rule, the Commission stated that observation wells can be constructed under § 2.55 of the Commission's regulations. The Final Rule also clarified that replacement wells can be constructed under § 2.55(b) if the wells fit the requirements of that section.

On rehearing, INGAA and Williston Basin request that the Commission clarify that the restrictions in § 2.55 that require that the replacement facilities be “in the same right-of-way or on the same site” do not apply to replacement wells. They contend that replacement wells are usually in close proximity, but are generally not in the same exact location, as the original facility. Accordingly, they request that the Commission either clarify that the site restrictions in § 2.55(b)(1)(ii) are not applicable to replacement wells or that replacements wells that do not qualify under § 2.55(b) because of the site restriction can be drilled under the pipeline's blanket certificate as long as those wells do not alter the certificated deliverability, capacity, or boundary of the field.

It was the Commission's intent that only replacement facilities which are in the same right-of-way or on the same site as the original facilities be constructed under § 2.55(b). Therefore, we cannot clarify the provision as proposed by the commenters. Moreover, as stated in Order Nos. 603-A, 603-B, and 609, the Commission does not believe that blanket certificate authorization provides adequate oversight of the construction of new injection/withdrawal wells, including those intended to replace existing wells, but constructed at a different site. Despite the fact that they are only intended to replace existing facilities, such wells may inherently alter the daily or seasonal deliverability, volumetric capacity, or boundary of a storage reservoir. Accordingly, separate NGA section 7(c) authorization is necessary prior to the drilling of replacement injection/withdrawal wells that are not on the site of the original facilities.

Finally, we have made a few typographical corrections to the minimum filing requirements in Appendix A to Part 380.

In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page ( http://www.ferc.fed.us ) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street, N.E., Room 2A, Washington, DC 20426.

From FERC's Home Page on the Internet, this information is available in both the Commission Issuance Posting System (CIPS) and the Records and Information Management System (RIMS).

User assistance is available for RIMS, CIPS, and the Website during normal business hours from our Help line at (202) 208-2222 (E-Mail to WebMaster@ferc.fed.us ) or the Public Reference at (202) 208-1371 (E-Mail to public.referenceroom@ferc.fed.us ).

During normal business hours, documents can also be viewed and/or printed in FERC's Public Reference Room, where RIMS, CIPS, and the FERC Website are available. User assistance is also available.

The Coast Guard encourages interested persons to participate in this rulemaking by submitting written data, views or arguments for or against this rule. Persons submitting comments should include names and addresses, identify the rulemaking [CGD09-00-001] and the specific section of this rule to which each comment applies, and give the reason(s) for each comment. Please submit all comments and attachments in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. Persons wanting acknowledgement of receipt of comments should enclose a stamped, self-addressed postcard or envelope.

The Coast Guard is publishing a direct final rule, the procedures of which are outlined in 33 CFR 1.05-55, because no adverse comments are anticipated. If no adverse comments or any written notice of intent to submit adverse comment are received within the specified comment period, this rule will become effective as stated in the DATES section. In that case, prior to the effective date, the Coast Guard will public a document in the Federal Register stating that no adverse comment was received and announcing confirmation that this rule will become effective as scheduled. However, if the Coast Guard receives written adverse comment, the Coast Guard will publish in the final rule section of the Federal Register a timely withdrawal of this rule. If the Coast Guard decides to proceed with a rulemaking, a separate Notice of Proposed Rulemaking (NPRM) will be published and a new opportunity for comment provided.

A comment is considered “adverse” if the comment explains why this rule would be inappropriate, including a challenge to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change.

The owner of the bridge, Michigan Department of Transportation (M-DOT), requested the Coast Guard approve a modified schedule for the bridge to reduce vehicular traffic delays in Charlevoix, MI, during the peak tourist season and to establish a permanent winter operating schedule. The bridge is currently required to open on signal for recreational vessels from three minutes before to three minutes after the hour and half-hour between the hours of 6 a.m. and 6 p.m. throughout the year. M-DOT has secured voluntary participation from local boaters since 1991 to extend the scheduled twice-an-hour openings between 6 p.m. and 10 p.m. on an annual basis. Additionally, the City of Charlevoix receives a large influx of tourist traffic between April and November, and has endorsed this schedule as a means to reduce vehicular traffic back-ups during their peak tourist season. Under the provisions of 33 CFR 117.45, M-DOT has requested, and received, permission from Commander, Ninth Coast Guard District, to operate the bridge with 12-hour advance notice from vessels between January 1 and March 31 since 1991. The Coast Guard has not received any user complaints concerning the voluntary schedule or winter operating schedule since it's inception in 1991.

Under this rule, the bridge will be required to open on signal for recreational vessels only from three minutes before to three minutes after the hour and half-hour between the hours of 6 a.m. and 10 p.m., 7 days a week, from April 1 until October 31. The bridge will open on signal for all vessels between 10 p.m. and 6 a.m. during this period, and at all times between November 1 and December 31. The bridge will open at all times for public vessels of the United States, state and local vessels used in public safety, commercial vessels, vessels seeking shelter from severe weather, and vessels in distress where a delay would endanger life or property. Between January 1 and March 31, the bridge will open on signal if at least 12 hours advance notice is provided by vessels prior to their intended time of passage.

The vehicular traffic count and bridge opening data provided by M-DOT indicated (during a 2-week sample period between August 16 and August 29, 1998) that requests for bridge openings averaged 1.4 times per day between the hours of 10 p.m. and 6 a.m., with 30.6 openings per day between the hours of 6 a.m. and 10 p.m. During this same sample period, 230.5 vehicles per hour crossed the bridge between the hours of 10 p.m. and 6 a.m., and 1186 vehicles per hour crossed between 6 a.m. and 10 p.m. Between 10 p.m. and 6 a.m., the fewest number of vehicles recorded (60) crossed between the 3 a.m. to 4 a.m. hour, while the largest number of vehicles (660) crossed between the 11 p.m. to 12 a.m. hour. Between 6 a.m. and 10 p.m., the fewest number of vehicles recorded (333) crossed during the 6 .a.m. to 7 a.m. hour, while the largest number of vehicles (1572) crossed during the 2 p.m. to 3 p.m. hour. The bridge opening logs showed 221 opening in the month of October 1998 with a mixture of recreational and commercial (or public) vessels. In November 1998, 81 openings were recorded, with only 8 of the 81 specifically for recreational vessels. Only 32 openings were recorded in December 1998 (none for recreational vessels), with 2 openings logged in both January and February, 1999. There were 8 openings logged for March 1999, and 105 openings for April 1999, including a large number of recreational vessels.

The Coast Guard concludes that the dates and times requested by M-DOT for this rule will adequately provide for the reasonable needs of navigation and help reduce vehicular traffic congestion during the peak tourist season in Charlevoix.

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

This determination is based on the fact that this rule only modestly changes the existing regulation, and passage through the bridge is available year-round, with few requested openings recorded during the winter months.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), the Coast Guard must consider whether this rule will have a significant impact on a substantial number of small entities. “Small entities” may include small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000 people.

This rule simply extends the hours (6 p.m. to 10 p.m.) that the bridge owner may limit openings for recreational vessels. Passage through the bridge is not restricted for commercial or public vessels. The 12-hour advance notice requirement during winter months is an accepted practice and only affects one known entity operating during those months.

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

This rule does not provide for a collection-of-information requirement under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

The Coast Guard has analyzed this rule under the principles and criteria contained in Executive order 13132, and determined that this rule does not have federalism implications under that Order.

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

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

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

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

The Coast Guard considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph 34(g) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation. This rule changes a drawbridge regulation which has been found not to have a significant effect on the environment. A “Categorical Exclusion Determination” is not required.

The rules being approved into the California SIP include: Monterey Bay Unified Air Pollution Control District (MBUAPCD) Rule 429—Applications of Nonarchitectural Coatings; San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) Rule 4606—Wood Products Coating Operations; Santa Barbara County Air Pollution Control District (SBCAPCD) Rule 351—Surface Coating of Wood Products; South Coast Air Quality Management District(SCAQMD) Rule 1104—Wood Flat Stock Coating Operations. These rules were submitted by the California Air Resources Board (CARB) to EPA on these respective dates: March 23, 1988; February 16, 1999; May 13, 1999; and, October 29, 1999.

On March 3, 1978, EPA promulgated a list of ozone nonattainment areas under the provisions of the Clean Air Act, as amended in 1977 (1977 Act or pre-amended Act), that included the Monterey Bay, San Joaquin Valley, Santa Barbara County, and the South Coast air basin. 43 FR 8964, 40 CFR 81.305. On May 26, 1988, EPA notified the Governor of California, pursuant to section 110(a)(2)(H) of the 1977 Act, that the above districts' portions of the California SIP were inadequate to attain and maintain the ozone standard and requested that deficiencies in the existing SIP be corrected (EPA's SIP-Call). On November 15, 1990, the Clean Air Act Amendments of 1990 were enacted. Public Law 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q. In amended section 182(a)(2)(A) of the CAA, Congress statutorily adopted the requirement that nonattainment areas fix their deficient reasonably available control technology (RACT) rules for ozone and established a deadline of May 15, 1991 for states to submit corrections of those deficiencies.

Section 182(a)(2)(A) applies to areas designated as nonattainment prior to enactment of the amendments and classified as marginal or above as of the date of enactment. It requires such areas to adopt and correct RACT rules pursuant to pre-amended section 172(b) as interpreted in pre-amendment guidance. 1 EPA's SIP-Call used that guidance to indicate the necessary corrections for specific nonattainment areas. The nonattainment areas subject to this rulemaking were classified as follows: Monterey Bay—moderate; San Joaquin Valley and Santa Barbara—serious; and South Coast—extreme. 2 Therefore, these areas are subject to the RACT fix-up requirement and the May 15, 1991 deadline. The Monterey Bay Area was redesignated as an attainment area for the ozone standard on January 17, 1997 (see 62 FR 2597.)

Along with many other revised RACT rules, the State of California submitted the rules being acted on in this document for incorporation into its SIP on the following dates: March 23, 1988 (MBUAPCD Rule 429); February 16, 1999 (SJVUAPCD Rule 4606); May 13, 1999 (SBCAPCD Rule 351); and October 29, 1999 (SCAQMD Rule 1104.) MBUAPCD adopted Rule 429 on September 16, 1987, prior to EPA's promulgation of its completeness criteria for SIP submittals. SJVUAPCD adopted Rule 4606 on December 17, 1998. SBCAPCD adopted Rule 351 on August 20, 1998. SCAQMD adopted Rule 1104 on August 13, 1999. These submitted rules were found to be complete on April 23, 1999 (SJVUAPCD Rule 4606), June 10, 1999 (SBCAPCD Rule 351), and December 16, 1999 (SCAQMD Rule 1104), pursuant to EPA's completeness criteria that are set forth in 40 CFR part 51, appendix V  3 and are being finalized for approval into the SIP. This document addresses EPA's direct-final action for MBUAPCD Rule 429—Applications of Nonarchitectural Coatings; SJVUAPCD Rule 4606—Wood Products Coating Operations; SBCAPCD Rule 351—Surface Coating of Wood Products; SCAQMD Rule 1104—Wood Flat Stock Coating Operations.

SJVUAPCD Rule 4606, SBCAPCD Rule 351, and SCAQMD Rule 1104 regulate the VOC content of various coatings applied to wood products such as furniture, cabinets, and interior and exterior wood paneling. VOCs contribute to the production of ground level ozone and smog. MBUAPCD Rule 429 regulates spray gun work practices. These rules were adopted originally as part of each air district's effort to achieve the National Ambient Air Quality Standard (NAAQS) for ozone and in response to EPA's SIP-Call and the section 182(a)(2)(A) CAA requirement. EPA's evaluation and final action for these four rules follow below.

In determining the approvability of a VOC rule, EPA must evaluate the rule for consistency with the requirements of the CAA and EPA regulations, as found in section 110 and part D of the CAA and 40 CFR part 51 (Requirements for Preparation, Adoption, and Submittal of Implementation Plans). The EPA interpretation of these requirements, which forms the basis for today's action, appears in the various EPA policy guidance documents listed in footnote one. Among those provisions is the requirement that a VOC rule must, at a minimum, provide for the implementation of RACT for stationary sources of VOC emissions. This requirement was carried forth from the pre-amended Act.

For the purpose of assisting state and local agencies in developing RACT rules, EPA prepared a series of Control Technique Guideline (CTG) documents. The CTGs are based on the underlying requirements of the Act and specify the presumptive norms for what is RACT for specific source categories. Under the CAA, Congress ratified EPA's use of these documents, as well as other Agency policy, for requiring States to “fix-up” their RACT rules. See section 182(a)(2)(A). The CTG applicable to SJVUAPCD Rule 4606 and SBCAPCD Rule 351 is the following: “Guideline Series: Control of Volatile Organic Compound Emissions from Wood Furniture Manufacturing Operations,” USEPA, April, 1996. The CTG applicable to SCAQMD Rule 1104 is the following: “Guideline Series: Control of Volatile Organic Compound Emissions from Existing Stationary Sources Volume VII: Factory Surface Coating of Flatwood Panelling;” USEPA, June 1978; EPA-450/2-78-032.

Further interpretations of EPA policy are found in the Blue Book, referred to in footnote one. In general, these guidance documents have been set forth to ensure that VOC rules are fully enforceable and strengthen or maintain the SIP. Each of the subject rules within this action will now be reviewed briefly.

There is no version of MBUAPCD Rule 429—Applications of Nonarchitectural Coatings in the SIP. The submitted rule includes the following provisions:

EPA has evaluated the submitted MBUAPCD Rule 429 and has determined that it is consistent with the CAA, EPA regulations, and EPA policy. Therefore, MBUAPCD Rule 429—Applications of Nonarchitectural Coatings is being approved under section 110(k)(3) of the CAA as meeting the requirements of section 110(a) and part D.

There is no version of SJVUAPCD Rule 4606—Wood Products Coating Operations in the SIP. The submitted rule includes the following provisions:

EPA has evaluated the submitted SJVUAPCD Rule 4606 and has determined that it is consistent with the CAA, EPA regulations, and EPA policy. Therefore, SJVUAPCD Rule 4606—Wood Products Coating Operations is being approved under section 110(k)(3) of the CAA as meeting the requirements of section 110(a) and part D.

There is no version of SBCAPCD Rule 351—Surface Coating of Wood Products in the SIP. The submitted rule includes the following provisions:

EPA has evaluated the submitted rule and has determined that it is consistent with the CAA, EPA regulations, and EPA policy. Therefore, SBCAPCD Rule 351—Surface Coating of Wood Products is being approved under section 110(k)(3) of the CAA as meeting the requirements of section 110(a) and part D.

On June 23, 1994 (see 59 FR 32354), EPA approved into the SIP a version of Rule SCAQMD Rule 1104—Wood Flat Stock Coating Operations adopted by the SCAQMD on March 1, 1991. SCAQMD's submitted Rule 1104 includes the following significant changes from the current SIP-approved rule:

The modified VOC content limits within submitted Rule 1104 do not interfere with reasonable further progress or attainment of the NAAQS, because the VOC content limits have been lowered. The changes to Rule 1104 increase VOC emission reductions compared to the 1991 version of the rule within the SIP. SCAQMD calculated that VOC emissions are reduced by an additional 7.9 pounds per day. For these reasons, the changes within submitted Rule 1104 are consistent with the requirements of section 110(l) of the CAA.

EPA has evaluated the submitted SCAQMD Rule 1104 and has determined that it is consistent with the CAA, EPA regulations, and EPA policy. Therefore, SCAQMD Rule 1104—Wood Flat Stock Coating Operations is being approved under section 110(k)(3) of the CAA as meeting the requirements of section 110(a) and part D.

EPA is publishing this rulemaking without prior proposal because the Agency views this as a noncontroversial amendment 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 May 22, 2000 without further notice unless the Agency receives adverse comments by April 21, 2000.

If the EPA receives such comments, then EPA will publish a timely withdrawal in the Federal Register 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. Any parties interested in commenting on this rule should do so at this time. If no such comments are received, the public is advised that this rule is effective on May 22, 2000 and no further action will be taken on the proposed rule.

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612, Federalism and 12875, Enhancing the Intergovernmental Partnership. Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

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. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

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

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

Under Executive Order 13084, Consultation and Coordination with Indian Tribal Governments, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments. If the mandate is unfunded, EPA must provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation.

In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.” Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated annual costs to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

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 rule is not a “major” rule as defined by 5 U.S.C. 804(2).

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

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 May 22, 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 information in this section is organized as follows:

The following table outlines the submittals EPA received and is approving in this action:

Conformity first appeared in the Act's 1977 amendments (Public Law 95-95). Although the Act did not define conformity, it stated that no Federal department could engage in, support in any way or provide financial assistance for, license or permit, or approve any activity which did not conform to a SIP which has been approved or promulgated. The Act's 1990 Amendments expanded the scope and content of the conformity concept by applying conformity to state implementation plans. Section 176(c) of the Act defines conformity as conformity to the SIP's purpose of eliminating or reducing the severity and number of violations of the NAAQS and achieving expeditious attainment of such standards. Also, the Act states that no Federal activity will: (1) cause or contribute to any new violation of any standard in any area, (2) increase the frequency or severity of any existing violation of any standard in any area, or (3) delay timely attainment of any standard or any required interim emission reductions or other milestones in any area.

The Federal or State Transportation Conformity Rule applies to all nonattainment and maintenance areas in the State. The Metropolitan Planning Organizations (MPO), the State Departments of Transportation (in absence of a MPO), and U.S. Department of Transportation make conformity determinations. These agencies make conformity determinations on programs and plans such as transportation improvement programs, transportation plans, and projects. These agencies calculate the projected emissions for the transportation plans and programs and compare those calculated emissions to the motor vehicle emissions ceiling established in the SIP. The calculated emissions must be smaller than the motor vehicle emissions ceiling for showing a positive conformity with the SIP.

EPA was required to issue criteria and procedures for determining conformity of transportation plans, programs, and projects to a SIP by section 176(c) of the Act. The Act also required the procedure to include a requirement that each State submit a revision to its SIP including conformity criteria and procedures. EPA published the first transportation conformity rule in the November 24, 1993, Federal Register (FR), and it was codified at 40 CFR part 51, subpart T and 40 CFR part 93, subpart A. EPA required the States and local agencies to adopt and submit a transportation conformity SIP revision by November 25, 1994. The State of Oregon sent a transportation conformity SIP on April 17, 1995, and EPA approved this SIP on May 16, 1996 (61 FR 24709). EPA revised the transportation conformity rule on August 7, 1995 (60 FR 40098), November 14, 1995 (60 FR 57179), August 15, 1997 (62 FR 43780), and it was codified under 40 CFR part 51, subpart T and 40 CFR part 93, subpart A—Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 U.S.C. or the Federal Transit Laws (62 FR 43780). EPA's action of August 15, 1997, required the States to change their rules and send a SIP revision by August 15, 1998.

EPA is approving the modified Oregon Transportation Conformity Rules OAR 340-020-710 through 340-020-1080 that the ODEQ submitted on October 8, 1998 except for the sections OAR 340-020-730(3), OAR 340-020-750(4), OAR 340-020-750(4)(b), OAR 340-020-800(3)-(6), OAR 340-020-890(5), OAR 340-020-900(6)(c), OAR 340-020-910(1)(b), OAR 340-020-1000(1)(a) and (2), and OAR 340-020-1030(2). The rationale for exclusion of these sections is discussed in Question G.

The Federal Transportation Conformity Rule required the states to adopt the majority of the Federal rules in verbatim form with a few exceptions. The States cannot make their rules more stringent than the Federal rules unless the State's rules apply equally to non-federal entities as well as Federal entities. The Oregon Transportation Conformity Rule is different from the Federal rule in several areas. These differences were discussed in the May 16, 1996 EPA approval. The State has made no additional changes or modifications, with the exception to the changes required by the revisions to the Federal Transportation Conformity Rule, August 15, 1997 (62 FR 43780). EPA has evaluated this SIP revision and has determined that the State has fully adopted the Federal Transportation Conformity rules as described in 40 CFR part 51, subpart T and 40 CFR part 93, subpart A. Also, the ODEQ has completed and satisfied the public participation and comprehensive interagency consultations during development and adoption of these rules at the local level. Therefore, EPA is approving this SIP revision.

The State excluded 40 CFR 93.102(d) of the Federal Transportation Conformity Rule from its State rule. Section 93.102(d) allows up to 12 months for newly designated nonattainment areas to complete their conformity determination. The Sierra Club challenged this section of the rule arguing that allowing a 12-month grace period was unlawful under the Act. On November 4, 1997, the United States Court of Appeals for the District of Columbia Circuit held in Sierra Club v. Environmental Protection Agency, No. 96-1007, cited EPA's grace period violates the plain terms of the Act and, therefore, is unlawful. Based on this court action, the State has excluded this section from its rule. We agree with the State's action, and exclusion of 40 CFR 93.102(d) will not prevent us from approving the State transportation conformity SIP.

On March 2, 1999, the United States Court of Appeals for the District of Columbia Circuit issued its opinion in Environmental Defense Fund v. Environmental Protection Agency, No. 97-1637. The Court granted the environmental group's petition for review and ruled that 40 CFR 93.102(c)(1), 93.121(a)(1), and 93.124(b) are unlawful and remanded 40 CFR 93.118(e) and 93.120(a)(2) to EPA for revision to harmonize these provisions with the requirements of the Act for an affirmative determination the Federal actions will not cause or increase violations or delay attainment. The sections that were included in this decision were: (a) 40 CFR 93.102(c)(1) which allowed certain projects for which the National Environmental Policy Act (NEPA) process has been completed by the DOT to proceed toward implementation without further conformity determinations during a conformity lapse, (b) 40 CFR 93.118(e) which allowed use of motor vehicle emissions budgets (MVEB) in the submitted SIPs after 45 days if EPA had not declared them inadequate, (c) 40 CFR 93.120(a)(2) which allowed use of the MVEB in a disapproved SIP for 120 days after disapproval, (d) 40 CFR 93.121(a)(1) which allowed the non-federally funded projects to be approved if included in the first three years of the most recently conforming transportation plan and transportation improvement programs, even if conformity status is currently lapsed, and (e) 40 CFR 93.124(b) which allowed areas to use a submitted SIP that allocated portions of a safety margin to transportation activities for conformity purposes before EPA approval. Since the States were required to submit transportation conformity SIPs not later than August 15, 1998, and include those provisions in verbatim form, the State's SIP revision includes all those sections which the Court ruled unlawful or remanded for consistency with the Act. The EPA can not approve these sections. EPA believes that ODEQ has complied with the SIP requirements and has adopted the Federal rules which were in effect at the time that the transportation conformity SIP was due to EPA. If the court had issued its ruling before adoption and SIP submittal by the ODEQ, we believe the ODEQ would have removed these sections from their rule. The ODEQ has expended its resources and time in preparing this SIP and meeting the Act's statutory deadline, and EPA acknowledges the agency's good faith effort in submitting the transportation conformity SIP on time. ODEQ will be required to submit a SIP revision in the future when EPA revises its rule to comply with the court decision. Because the court decision has invalidated these provisions, EPA believes that it is reasonable to exclude the corresponding sections of the state rules from this SIP approval action. As a result, we are not taking any action on the relevant sections in: OAR 340-020-730(3), OAR 340-020-750(4), OAR 340-020-750(4)(b), OAR 340-020-800(3)-(6), OAR 340-020-890(5), OAR 340-020-900(6)(c), OAR 340-020-910(1)(b), OAR 340-020-1000(1)(a) and (2), and OAR 340-020-1030(2) of the modified Oregon Transportation Conformity Rules. The conformity determinations affected by these sections should comply with the relevant requirements of the statutory provisions of the Act underlying the court's decision on these issues. The EPA will be issuing guidance on how to implement these provisions in the interim prior to EPA amendment of the federal transportation conformity rules. Once these Federal rules have been revised, conformity determinations in Oregon should comply with the requirements of the revised Federal rule until corresponding provisions of the Oregon conformity SIP have been approved by EPA.

General Conformity is similar to Transportation Conformity and also derived from section 176(c) of the CAA. The Act's 1990 Amendments expanded the scope and content of the conformity concept by applying conformity to state implementation plans. Section 176(c) of the Act defines conformity as conformity to the SIP's purpose of eliminating or reducing the severity and number of violations of the NAAQS and achieving expeditious attainment of such standards. Also, the Act states that no Federal activity will: (1) cause or contribute to any new violation of any standard in any area, (2) increase the frequency or severity of any existing violation of any standard in any area, or (3) delay timely attainment of any standard or any required interim emission reductions or other milestones in any area. General Conformity, however applies to federal actions where Transportation Conformity does not apply. Examples are ski resorts on public land, and airport improvements. Also General Conformity is only carried out on project by project basis.

General Conformity requires that activities on federal lands (such as prescribed burning by the Forest Service) align with the air quality goals set in the Oregon SIP. Oregon's current General Conformity rules apply to all areas of the state. Since they were adopted, however, the U.S. Congress clarified that General Conformity pertains only to nonattainment and maintenance areas. The rule is changed to remove the applicability of the rule for federal actions involving prescribed burning in attainment or unclassifiable areas and remove all references to prescribed burning. These revisions will have no effect on existing prescribed burning practices, as implementation of the General Conformity requirements in attainment areas was delayed pending the outcome of a federal determination of applicability. The Oregon Smoke Management Plan will continue to provide statewide guidelines for state and federal land managers to minimize smoke impacts from prescribed burning.

EPA approves and takes no action on certain Oregon Administrative Rules (as noted in section I): “Conformity to State or Federal Implementation Plans to Transportation Plans, Programs, and Projects Developed and Funded Under Title 23 U.S.C. or Federal Transit Laws” found in:

EPA approves the changes made to certain sections of the Oregon Administrative Rules: “Determining Conformity of General Federal Actions to State and Federal Implementation Plans” found in:

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 May 22, 2000 without further notice unless the Agency receives adverse comments by April 21, 2000.

If the EPA receives such comments, then EPA will publish a notice 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 May 22, 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). This rule will be effective May 22, 2000 unless EPA receives adverse written comments by April 21, 2000.

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 May 22, 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).)

You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. 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-300965. The official record consists of the documents specifically referenced in this action, 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.

In the Federal Register of September 1, 1999 (64 FR 47788) (FRL-6098-6), EPA issued a notice pursuant to section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act (FQPA) (Public Law 104-170) announcing the filing of a pesticide tolerance petition by, Agricultural Research Services, United States Department of Agriculture, Agricultural Research Center, Beltsville, MD 20705. This notice included a summary of the petition prepared by the petitioner United States Department of Agriculture. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR 180.1001(d) be amended by establishing an exemption from the requirement of a tolerance for residues of cucurbitacins derived from the Hawkesbury melon Citrullus lanatus . The petitioner noted that the Agency had previously established exemptions from the requirement of a tolerance for the use of buffalo gourd and zucchini juice, as sources of the inert ingredient cucurbitacin (57 FR 40128, September 2, 1992 and 63 FR 43085, August 12, 1998), and is seeking to add the Hawkesbury melon Citrullus lanatus as an additional source of cucurbitacins.

Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue.* * *”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by cucurbitacins are discussed in this unit.

The Agency in a previous Federal Register notice reviewed mammalian toxicity data submitted on zucchini juice and buffalo gourd root powder as part of the establishment of an exemption from the requirement of a tolerance for residues of zucchini juice when used as an alternative source of the inert ingredient gustatory stimulant cucurbitacin (63 FR 43085). A summary of the comparative toxicology data showed a more favorable toxicological profile for the zucchini juice, as compared to the buffalo gourd root powder, as a cucurbit source of cucurbitacins. Zucchini juice was shown to be practically non-toxic to mammals. The acute oral, acute dermal, acute inhalation, primary eye, and skin irritation were all toxicity category IV. No acute systemic toxicity, irritation or dermal sensitization was exhibited in the studies performed with the zucchini juice.

Due to the low levels of cucurbitacins used in the field no acute effects are expected to occur. In addition, due to their rapid degradation, no chronic effects are expected to occur. Neither cucurbitacins nor their metabolites are known or expected to have any effect on the immune or the endocrine systems. These chemicals are not known to be carcinogenic.

According to information supplied by USDA, the Hawkesbury watermelon contains cucurbitacin E-glycoside at levels in the same order of magnitude those found in buffalo gourd root powder, 0.76 milligrams (mg) cucurbitacin E-glycoside/grams (gm) of melon compared to 0.59 mg cucurbitacin E-glycoside/gm of root powder. The Hawkesbury melon does not contain cucurbitacin I. Cucurbitacin I is considered to be more toxic than cucurbitacin E-glycoside (LD 50 of 40 milligrams/kilograms (mg/kg) to 5 mg/kg). Thus, Hawkesbury melon is also likely to exhibit lower toxicity than buffalo gourd root powder, providing an additional margin of safety.

In examining aggregate exposure, FFDCA section 408 directs EPA to consider available information concerning exposures from the pesticide residue in food and all other nonoccupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).

Species of the family Cucurbitaceae , such as melons, pumpkins and squash, are commonly used as fruits and vegetables throughout the world, they are naturally occurring and widely available. Seeds of several species are used as sources of flavorings in bakery goods or for oils and proteins. All of these species contain some assortment of naturally occurring cucurbitacins in varying concentrations.

1. Food. In the Federal Register notice published on August 12, 1998 (63 FR 43085), the Agency reviewed available data on the dietary exposure to cucurbitacins. The use to control corn rootworm is given as an example. Assuming that the maximum permitted level of 3.4 gm/acre/season is applied, with no loss either in the field or during processing, and that all the material is concentrated in the grain, the following exposure would result. The average yield of corn in the United States is 120-130 bushels per acre. At 56 pounds of corn per bushel, the minimum yield is 6,720 pounds per acre and the level of cucurbitacin would be 0.000506 grams of cucurbitacin per pound of corn. A gram of “straightneck” squash contains 0.00139 grams of cucurbitacin. Thus, even under these worst case assumptions, consumption of a pound of treated corn would add less cucurbitacin to the diet than a gram serving of squash. At the allowable rate of application the proposed use of these compounds as inert ingredients would result in a negligible increase in exposure to cucurbitacins over those levels which would occur naturally as the result of ingestion of various cucurbit commodities.

2. Drinking water exposure. The Agency review cited in the August 12, 1998, Federal Register notice established that most cucurbitacins are insoluble in water and transfer of these cucurbitacins to ground water is unlikely. The more water soluble glycosylated forms of cucurbitacins are less toxic to humans. No uses are registered for application to bodies of water.

There are no cucurbitacin-containing products with residential uses as all uses are for agricultural crop production only.

Section 408 (b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify or revoke a tolerance or tolerance exemption, the Agency consider “available information” concerning the cumulative effects of a particular chemical's residues and “other substances that have a common mechanism of toxicity.” The Agency has not made any conclusions as to whether or not cucurbitacins share a common mechanism of toxicity with other chemicals. However, the Hawkesbury melon juice is expected to be practically non toxic to mammals. Due to the expected lack of toxicity, a cumulative risk assessment is not necessary.

Cucurbitacins are present in varying amounts in many plants regularly consumed by the general public, such as squash, gourds and watermelon. Information available to the Agency indicates that the maximum projected additional exposure to these compounds is significantly less than that from a normal serving of these plants, as previously discussed in section IV(A)(1). The residual amount of cucurbitacins in a pound of corn, for example, is an order of magnitude less than the naturally occurring levels of these substances in a single serving of squash. Dietary exposure to cucurbitacins through food is not likely to significantly increase due to their use as inert ingredients applied to agricultural commodities. These chemicals are not likely to be found in water. In addition, the use sites of the cucurbitacins are all agricultural for the control of Diabriticine beetles (corn rootworm and cucumber beetles). Therefore, non-dietary exposure to infants and children is not expected.

The Agency had previously established in the Federal Register notice published on August 12, 1998 (63 FR 43085) that cucurbitacins contained in zucchini juice were practically non toxic to mammals. Cucurbitacins in Hawkesbury melon are expected to be of similar toxicity. Because of this, the Agency did not use the safety factor analysis in evaluating the risk posed by the compound. This lack of toxicity also supported not applying an additional tenfold safety factor to protect infants and children. In conclusion, the Agency is reasonaly certain that no harm will result to infants and children, or to the general population from a minimally increased exposure to residues of cucurbitacins. Based on the information in this preamble, EPA concludes that there is a reasonable certainty of no harm from aggregate exposure to residues. Accordingly, EPA finds that exempting cucurbitacin residues from the requirement of a tolerance will be safe.

FQPA requires EPA to develop a screening program to determine whether certain substances, including pesticides and inert ingredients, “may have an effect in humans that is similar to an effect produced by a naturally occurring estrogen, or such other endocrine effect....” The Agency has been working with interested stakeholders to develop a screening and testing program as well as a priority setting scheme. As the Agency proceeds with implementation of this program, further testing of products containing the inert ingredient cucurbitacin for endocrine effects may be required. At this moment, there is no evidence that cucurbitacins are endocrine disruptors.

The Agency is establishing an exemption from the requirement of a tolerance without any change in the previously established limits of no more than 2.5 pounds/acre/season (3.4 grams cucurbitacin/acre/season). Therefore, the Agency has concluded that an analytical method is not required for enforcement purposes of cucurbitacins from the Hawkesbury melon.

Prior EPA findings include a temporary exemption for the requirements of a tolerance for residues of the buffalo gourd, Cucurbita foetidissima , root powder as a source of cucurbitacins in or on the raw agricultural commodity fields corn for the control of adult corn rootworms (55 FR 49700, November 30, 1990). In addition, the Agency established a permanent exemption from the requirement of a tolerance for the residues of buffalo gourd root powder when used as an inert ingredient (gustatory stimulant) in pesticide formulations applied to growing crops only (57 FR 40128, September 2, 1992). In 1998, the Agency amended the permanent exemption from the requirement of a tolerance to add the residues of zucchini juice, Cucurbita pepo, to the list of inert ingredients (63 FR 43085, August 12, 1998).

There are no international tolerances or tolerance exemptions for cucurbitacins.

Therefore, based on the information and the data considered, as well as previous tolerance exemptions granted to cucurbitacins from buffalo gourd root powder and zucchini juice, EPA is establishing an exemption from the requirement of a tolerance for residues of cucurbitacins from the Hawkesbury melon.

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCA sections 408 and 409. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-300965 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before May 22, 2000.

1. Filing the request . Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, 401 M St., SW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. C400, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.

2. Tolerance fee payment. If you file an objection or request a hearing, you must also pay the fee prescribed by 40 CFR 180.33(i) or request a waiver of that fee pursuant to 40 CFR 180.33(m). You must mail the fee to: EPA Headquarters Accounting Operations Branch, Office of Pesticide Programs, P.O. Box 360277M, Pittsburgh, PA 15251. Please identify the fee submission by labeling it “Tolerance Petition Fees.”

EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305- 5697, by e-mail at tompkins.jim@epa.gov, or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 401 M St., SW., Washington, DC 20460.

If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 401 M St., SW., Washington, DC 20460.

3. Copies for the Docket. In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VIII.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-300965, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

This final rule establishes an exemption from the tolerance requirement under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any prior consultation as specified by Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 19,1998); special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations (59 FR 7629, February 16, 1994); or require OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency 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). Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on 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). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4).

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 this final rule in the Federal Register. This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

In response to the Federal Register notice of December 21, 1999 (64 FR 71626), the Department received 2,561 public comments. Of these, 2,205 were form letters. All of the form letters and a majority of the individual comments opposed some provisions of the Final Rule. However, after reviewing these comments, the Department has concluded that the comments raised no significant issues not addressed previously in the history of this rulemaking. Indeed, the comments raised issues which were addressed in the amendments published on October 20, 1999 (64 FR 56650), and in explanatory language in the preamble to those amendments.

For these reasons, the Department has determined that no further amendments to the Final Rule are warranted by the most recent public comments at this time.

On February 14, 2000, the Federal Maritime Commission (“FMC” or “Commission”) published a proposed rule to amend 46 CFR 515.11(c) to allow affiliated companies to have the same qualifying individual to obtain a license under this part. 65 FR 7335. The proceeding was initiated in response to a petition filed with the Commission by the National Customs Brokers & Forwarders Association of America (“NCBFAA”) which sought the issuance of a declaratory order confirming, pursuant to 46 CFR 515.11(c) (1999), that a single individual can act contemporaneously as the qualifying individual for both an ocean freight forwarder and a non-vessel-operating common carrier (“NVOCC”), as long as they are affiliated entities. In the alternative, NCBFAA sought a rulemaking to amend § 515.11(c) to achieve the same result. As discussed in the notice of proposed rulemaking, the Commission denied NCBFAA's petition for a declaratory order, and opted to address its concerns through a rulemaking.

Although not addressed in NCBFAA's petition, the Commission also proposed to amend the definition of “branch office” at 46 CFR 515.2(c), by removing the last sentence of the definition, which states that the term does not include a separately incorporated branch office. We explained that the Commission has recognized separately incorporated branch offices elsewhere in part 515, particularly with respect to the licensing and financial responsibility requirements, and that the proposed modification should remove any potential confusion.

Finally, we noted that in promulgating the rules to implement the Ocean Shipping Reform Act of 1998, Pub. L. 105-258, 112 Stat. 1902, in Docket No. 98-28, Licensing, Financial Responsibility Requirements and General Duties for Ocean Transportation Intermediaries, we inadvertently failed to carry over § 510.12(a)(2) into part 515. That section was a certification process to effect the requirements of 21 U.S.C. 862, which provides that Federal benefits shall be withheld in certain circumstances from individuals who have been convicted of drug distribution or possession in Federal or state courts.

For the reasons set forth below, the Commission adopts the rules as proposed.

First, the Commission received one comment in response to the notice of proposed rulemaking from NCBFAA, who finds the Commission's proposal to amend § 515.11(c) sufficiently broad to remedy and eliminate the problems identified by NCBFAA in its petition. In addition, NCBFAA notes that it agrees with the Commission that the proposal will reduce unnecessary regulatory burdens and provide savings to those companies that would have been otherwise forced to modify their business structures. NCBFAA asserts that the proposal will not serve to diminish the professionalism and responsibility of ocean transportation intermediaries (“OTIs”), because the entities will be supervised by a person possessing the requisite expertise in accordance with the Commission's licensing requirements. Finally, NCBFAA declares that it fully supports the proposal, believing it to be in the public interest, and requests that the Commission issue a final rule in the proposed form at the earliest date.

We appreciate NCBFAA's comments and accordingly adopt as final the amendment to § 515.11(c).

In addition, no comments were submitted with respect to either the proposed modification to the definition of branch office or the republication of the certification required by 21 U.S.C. 862. Therefore, the proposed modifications are carried forward in the final rule.

In response to a petition filed by the NCBFAA, the FMC is amending 46 CFR 515.11(c) to allow affiliated ocean freight forwarder and NVOCC entities to have the same qualifying individual in order to obtain a license under this part.

No public comments were received in response to the initial regulatory flexibility analysis.

The Commission believes that the final rule will benefit OTIs by allowing affiliated ocean freight forwarders and NVOCCs to have the same qualifying individual in order to obtain a license under this part. At present, there are approximately 600 OTIs with affiliated ocean freight forwarder and NVOCC operations affected by the proposed rulemaking, including approximately 20 sole proprietorships.

Entities affected by the current rule, particularly sole proprietorships, could have been required to modify their existing business structures, either by: (1) Merging their affiliated ocean freight forwarder and NVOCC operations; (2) creating a branch office; or (3) hiring another qualifying individual to oversee their operations. However, the Commission's Bureau of Consumer Complaints and Licensing (formerly the Bureau of Tariffs, Certification and Licensing) has refrained from denying licenses on this basis pending the conclusion of this proceeding.

The Commission is not aware of any additional reporting, recordkeeping or other compliance requirements as a result of the proposed rulemaking. Rather, the Commission believes that the impact of the new rule will be primarily to benefit sole proprietorship OTIs by permitting affiliated entities to have the same qualifying individual to satisfy the licensing requirements of this part.

The benefit of the final rulemaking can be measured primarily as the savings to sole proprietorships of not having to modify their business structures as described above. Moreover, it will benefit corporations and partnerships with affiliated freight forwarder and NVOCC operations by giving them greater flexibility in selecting a single qualifying individual for both organizations. However, it is not feasible to specifically quantify these benefits because individual OTI operations vary dramatically in scope and overhead.

The Chairman cannot certify that the final rulemaking will not have a significant economic impact on a substantial number of small entities. However, the Commission believes that the new rule will have no adverse impact on small entities, and further, that the impact will be to benefit OTIs by allowing affiliated entities to have the same qualifying individual to obtain an OTI license.

The Commission invited comments to the initial regulatory flexibility analysis from all interested parties. However, as stated above, no public comments were received in response to the initial regulatory flexibility analysis. The Commission believes that the only significant impact of the rulemaking will be to benefit OTIs by allowing affiliated ocean freight forwarders and NVOCCs to have the same qualifying individual.

The modifications to the proposed rule, the reasons for selecting alternative approaches, and the reasons for rejecting initial proposals, if any, are each thoroughly described in the Supplementary Information to the final rule.

The Commission is not aware of any other federal rules that duplicate, overlap, or conflict with the final rulemaking.

This document amends our regulation for Anthropomorphic Test Devices (49 CFR part 572) by adding a new, more advanced 3-year-old child dummy. The new dummy, part of the family of Hybrid III test dummies, is more representative of humans than the existing 3-year-old child test dummy in part 572, and allows the assessment of the potential for more types of injuries in automotive crashes. The new dummy can be used to evaluate the effects of air bag deployment on out-of-position children, and can provide a fuller evaluation of the performance of child restraint systems in protecting young children.

NHTSA has already specified a number of child test dummies in part 572, including a 3-year-old child dummy (the specifications for which are set forth in subpart C of part 572). That dummy, along with dummies representing a newborn infant, a 9-month-old and a 6-year-old child, are used to test child restraint systems to the requirements of Federal Motor Vehicle Safety Standard No. 213 (49 CFR 571.213). These test devices enable NHTSA to evaluate motor vehicle safety systems dynamically, in a manner that is both measurable and repeatable.

Today's final rule is part of NHTSA's effort to add improved child test dummies in part 572. We recently amended part 572 to add a new, more advanced, Hybrid III type 6-year-old child test dummy. We will soon issue a final rule adding a 12-month-old (CRABI 12) child test dummy. Together with the dummy adopted today, the new child test dummies would be used in tests we have proposed in our occupant crash protection standard (49 CFR 571.208) to assess the risks of air bag deployment for children, particularly unrestrained or improperly restrained children. The new child test dummies could also be incorporated into Standard No. 213 for use in compliance testing of child restraint systems. (Today's final rule only concerns adding the new 3-year-old test dummy to part 572. Issues relating to whether this or the other new dummies should be incorporated into the compliance tests for Standards Nos. 208 or 213, or into other standards, will be decided in separate rulemaking actions.)

The specifications for the Hybrid III type 3-year-old test dummy (hereinafter referred to as the H-III3C dummy) consist of a drawing package that shows the component parts, the subassemblies, and the assembly of the complete dummy. The drawing package also defines materials and material treatment processes for all the dummy's component parts, and specifies the dummy's instrumentation and instrument installation methods. In addition, there is a manual containing disassembly, inspection, and assembly procedures, and a dummy parts list. These drawings and specifications ensure that the dummies will vary little from each other in their construction and are capable of consistent and repeatable response in the impact environment. The parts list and drawings are available for inspection in NHTSA's docket (room 5220, 400 Seventh St., SW., Washington, DC 20590, telephone (202) 366-4949). (We are using NHTSA's docket because the drawings cannot be electronically scanned into the DOT Docket Management System.) Copies may also be obtained from Reprographic Technologies, 9000 Virginia Manor Road, Beltsville, MD 20705; Telephone: (301) 210-5600.

NHTSA is specifying impact performance criteria to serve as calibration checks and to further assure the kinematic uniformity of the dummy and the absence of structural damage and functional deficiency from previous use. The tests address head, neck, and thorax impact responses and assess the resistance of the lumbar spine-abdomen region to upper torso flexion motion.

The agency has adopted generic specifications for all of the dummy-based sensors. For most earlier dummies, the agency specified sensors by make and model. However, we believe that approach is unnecessarily restrictive and limits innovation and competition. Accordingly, the specifications adopted today reflect performance characteristics of the sensors used in our evaluation tests of the dummy, that are identified by make and model in a NHTSA technical report “Development and Evaluation of the Hybrid III 3-year-old Child Dummy” (December 1998). A copy of this report is in the docket for the notice of proposed rulemaking that we published for this final rule (Docket No. 99-5032). Those sensor characteristics were also the basis for our discussions with a special task force of the Society of Automotive Engineers (SAE) J-211 Instrumentation Committee concerning our work on the dummy.

The need for the H-III3C dummy arose as it became evident that air bags posed risks for out-of-position children. Experience in using the existing 3-year-old dummy in part 572 (Subpart C) showed it to be adequate for the purpose of evaluating the ability of child restraints to protect against the risk of injury under the test conditions specified by Standard No. 213. However, that dummy's injury assessment is limited to head and chest measurements; it is not adequate for evaluating the safety of an air bag environment.

For example, neck injury is one of the primary causes of air bag-related fatalities to out-of-position children. Thus, to evaluate the effects of air bag deployment, a dummy must have a high degree of biofidelity in kinematics and impact responses during neck flexion and extension. However, because the neck of the existing dummy does not have a multi-segment design, it has limited biofidelity in these areas.

By contrast, the more advanced H-III3C dummy provides a more human-like impact response than the existing 3-year-old child dummy, as well as a broader selection of instruments to assess the injury potential to child occupants. Of particular significance are the multi-segmented neck, multi-rib thorax, and the ability to monitor submarining tendencies that could be related to abdominal loading. Because of the greater biofidelity and extended measurement capability of the H-III3C dummy, it can be used to evaluate the safety of children in a much wider array of environments than the existing dummy, including assessing the effects of air bag deployment on out-of-position children.

The H-III3C dummy is part of a family of Hybrid III-type dummies. The first Hybrid III dummy was a 50th percentile male dummy. NHTSA has specified use of this dummy for compliance testing under Standard No. 208, Occupant Crash Protection, since 1986, initially for optional use, and more recently on a mandatory basis. The need for a family of Hybrid III-type dummies, having considerably improved biofidelity and anthropometry, was recognized by the Centers for Disease Control and Prevention (CDC) in 1987 when it awarded a contract to Ohio State University under the title “Development for Multi-sized Hybrid III Based Dummy Family.” At that time, the funding covered only the development of dummies representing a small female adult and a large male adult. Development of a Hybrid III 3-year-old dummy began in 1992 when the SAE Small Female, Large Male and Six-Year-Old Child Dummies Task Group  1 identified a need for a new dummy equipped with sufficient instrumentation capable of assessing a child's interaction with both air bags and child restraints. The task group noted that the dummy should be suitable for use in sitting, kneeling and standing postures. After a preliminary design was conceived and reviewed, a prototype dummy was developed and evaluated by the task group from 1995 to 1997.

In May 1997, NHTSA initiated a thorough test and evaluation program of the dummy. On completion of our evaluation in the fall of 1998, we tentatively concluded that it was ready for incorporation into part 572. On January 28, 1999, we published an NPRM proposing to incorporate the H-III3C dummy into part 572 as subpart P, and invited comments (64 FR 4385).

We received comments from eight organizations: Robert A. Denton, Inc. (Denton), General Motors North America (GM), Advocates for Highway and Auto Safety (Advocates), Toyota Motor Corporation (Toyota), National Transportation Safety Board (NTSB), Mitsubishi Motors R & D of America, Inc. (Mitsubishi), the Alliance of Automobile Manufacturers (Alliance), and the SAE Dummy Testing Equipment Subcommittee (SAE).

No commenter opposed adding the H-III3C dummy to part 572. Advocates, Toyota and NTSB expressly supported the incorporation of the H-III3C test dummy. GM, based on its experience with the H-III3C dummy, believes the test dummy is generally suitable for use in crash testing. GM supported the proposal with suggested changes to correct or clarify various specifications in the NPRM for the dummy. 2 Denton (which manufactures load cells used in crash dummies), Mitsubishi and Toyota also had technical comments on various aspects of the proposal. In general, commenters addressed the following issues: calibration procedures and specifications for the head, neck flexion and extension, thorax, and torso flexion; instrumentation specifications; dimensional changes to dummy drawings; and the dummy's user's manual.

For calibration, the agency proposed a head drop test in which the head response must not be less than 250 g or more than 280 g. The only comment we received on the proposed corridor was from GM, which agrees with it. The commenter states that the corridor is consistent with available data reviewed by the SAE. In view of the comment received, we have adopted the corridor as proposed in the NPRM.

In the proposed head drop test, the head assembly is suspended for forehead impact from a specified height at an angle of 62 ± 1 degrees between plane D ( i.e., the reference surface plane of the head) and the plane of the impact surface. Mitsubishi said that the H-III3C dummy's head is smaller than that of the 50th percentile dummy and thus the surface defining plane D on the neck load mass simulator is too small to correctly insert an angle meter. The commenter states that this makes it very difficult to set up the angle between the lower surface plane of the neck load mass simulator and the plane of impact surface to the required 62 ± 1 degrees. Mitsubishi feels that the angle for the head drop test can be more easily determined and set if an angle of 28 degrees is taken from the transverse plane of the skull cap to skull interface with the skull cap removed. Mitsubishi also recommends using a concave shaped setting jig to hold the dummy head when the angle is measured.

We agree with Mitsubishi's observation that in the head test procedure, it would be easier to set the head orientation relative to the skull/skull cap interface. However, we believe it would be more convenient for test purposes to establish a reference “D plane” perpendicular to the skull/skull cap interface. This is because we could use the same “D plane” definition for head drop tests and neck pendulum tests in which a headform is used. Further, it is the same D plane definition as used for Hybrid III 6-year-old child and 5th percentile female adult test dummies. As the “D plane” is defined to be perpendicular to the skull/skull cap interface, there would not be a need to remove the skull cap or to use a setting jig. With respect to Mitsubishi's suggestion to use a concave-shaped setting jig to hold the head while the angle is set, we do not see a need for requiring such a tool. However, we would not object to its use as long as the final setup of the head orientation does not change once the jig is removed and the skull cap is reattached.

For calibration, the agency proposed a pendulum-mounted headform-neck assembly impact test and corresponding neck flexion and extension performance requirements.

For flexion:

(1) Plane D of the headform must rotate in the direction of preimpact flight with respect to the pendulum's longitudinal centerline not less than 70 degrees and not more than 82 degrees occurring between 45 milliseconds (ms) and 60 ms from time zero, and (2) the peak moment about the occipital condyles must not be less than 44 Newton meters (N-m) and not more than 56 N-m occurring within the minimum and maximum rotation interval and (3) the positive moment shall decay for the first time to 10 N-m in the time frame between 60 ms and 80 ms.

For extension:

(1) Plane D of the headform must rotate in the direction of preimpact flight with respect to the pendulum's longitudinal centerline not less than 80 degrees and not more than 90 degrees occurring between 50 ms and 65 ms from time zero, and (2) the peak negative moment about the occipital condyles must have a value not less than −42 N-m and not more than −53 N-m occurring within the minimum and maximum rotation interval and the negative moment shall decay for the first time to −10 N-m in the time frame between 60 and 80 ms.

The regulatory text proposed for the H-III3C dummy states in § 572.143(c)(3)(i), “The moment and rotation data channels are defined to be zero when the longitudinal centerline of the neck and pendulum are parallel.” Section 572.143(c)(4)(i) states that time-zero is defined as the time of initial contact between the pendulum striker plate and the honeycomb material. The pendulum accelerometer data channel shall be at the zero level at this time.

Toyota suggests that all data channels for the neck extension and flexion tests be at the zero level at time zero, rather than only the pendulum accelerometer data channel. We disagree. Our tests indicate that the H-III3C dummy neck is much more flexible than those of the Hybrid III 6-year-old and 5th percentile female adult dummies. As a result, the head-neck complex of the H-III3C dummy experiences some pre-impact kinematic lag as the inclined pendulum accelerates downward towards the vertical. If all data channels, including rotation and moment channels, were made zero at impact, as Toyota suggests, the pre-impact neck rotation lag would not be accounted for in the total rotation of the neck, which would not be in line with the method by which biomechanical corridors were established.

The neck biomechanical response corridors were based on “flexion” and “extension,” or forward and backward bending of the neck, respectively, due to inertial forces of the head from its neutral position. In order to measure true flexion and extension during calibration tests, the zero level of the data channels must be established prior to initiation of the drop test, when the longitudinal centerline of the neck and pendulum are parallel with respect to each other, i.e., when the pendulum hangs down in a vertical position. With regard to the pendulum accelerometer data channel, that channel must be zeroed at time zero in order to get the correct integrated velocity curve from which the velocity pulse readings are taken at specific time intervals. Accordingly, as proposed in the NPRM, the final rule will retain the time zero setting procedure for the pendulum data channel, but not for the neck channels.

GM states that according to SAE-compiled data from necks produced by First Technology Safety Systems (FTSS), a dummy manufacturer, we should adjust the peak moment corridor from the proposed 44-56 N-m range to 40-53 N-m. The proposed range was based on an average of 50 N-m, while the suggested adjusted corridor is based on an average of 46.5 N-m. GM agrees with the rest of the neck flexion performance requirements and the pendulum pulse specifications in NPRM.

We agree that the corridor should be adjusted, but not to the extent suggested by GM. Our analysis of the recommended corridor for the neck flexion moment, based on a complete database consisting of all data submitted by the SAE and additional test data from NHTSA's Vehicle Research and Test Center, indicates that the average peak moment is at 46.6 N-m with a standard deviation (s.d.) of 3.3. Two standard deviations about the mean yield a corridor width of ±14.2%. While GM is correct that narrowed calibration corridors reduce the probability that a complying test dummy can be produced, a wide corridor of this magnitude could permit the manufacture of necks with a degree of variability that could complicate enforcement efforts. It is accepted practice in the biomechanics community to judge the adequacy of a component's variability in subsystems tests as 0-5% being in the excellent range, 5-8% good, 8-10 % marginally acceptable and above 10% not acceptable. The values proposed by GM would lie outside the acceptable range of variability. Using the 10% value as the maximum allowable variability, we are revising the corridor for neck flexion to a value of 42 N-m minimum and 53 N-m maximum. The above specification will have minimal effects on dummy users, but dummy manufacturers will have to produce necks to lower levels of variability than is indicated in test data generated by dummy manufacturer FTSS. Because FTSS has produced necks with a lower variability, achieving the range is practicable.

GM notes that SAE compiled data suggest a need to shift the peak rotation corridor in extension from 80-90 degrees to 83-93 degrees. This suggested revision does not increase the width of the corridor proposed in the NPRM, but raises the mean value from 85 degrees to 88 degrees. Also, GM believes that the data indicate a need to widen the peak negative extension moment corridor from the range of −42 N-m to −53 N-m to a range of −41

We have examined all of the available extension calibration data. The data indicate that the mean peak rotation is 88 degrees with a s.d. at ±2.2. degrees. Accordingly, we agree with GM that the peak rotation corridor should be adjusted to the recommended 83-93 degrees range. As for peak negative moment, we agree with GM's recommended mean value of −48.5 N-m but do not agree with the recommended corridor range of ±15.5%. The available data yields a s.d. of 3.7 which corresponds to the ±15% response corridor at 2 s.d. As explained above in the discussion of neck flexion requirements, the desirable dispersion range for consistency in repeatability should be below 8%, but should not exceed 10%. Applying the 10% limit value yields a peak force response corridor between −43.7 N-m and −53.3 N-m. The revised range is particularly important to assure that the variability of the critical extension moment is not the cause of contention in vehicle compliance tests. As noted in the above discussion, improvements in quality control of necks in production would achieve the desired repeatability in response.

The NPRM proposed headform rotation versus time requirements in flexion and extension, in 572.143(b)(1)(i) and 572.143(b)(2)(i), that were identical to the requirements for the existing 3-year-old child dummy specified in subpart C. When the Subpart C dummy was adopted into part 572 in 1979, a means of measuring the peak moment of the neck was not available, so the rotation-displacement specifications were needed. Since 1979, however, the moment-measuring load cell became available for this purpose. With the use of a six-axis load cell on the H-III3C dummy, the timing of the peak moment can be measured and more precisely expressed than when using a headform rotation plot. We believe that specifying a minimum-maximum peak moment within a maximum headform rotation window is sufficient to control the dynamic properties of the neck (to control head kinematics) without having also headform rotation in time requirements. A six-axis load cell simplifies the procedure and removes the need for a redundant requirement for measuring head translation/rotation versus time characteristics.

Accordingly, this final rule does not adopt proposed sections 572.143(b)(1)(i) and 572.143(b)(2)(i) of the NPRM.

For calibration, the agency proposed the following impactor probe test and performance requirements: (1) The maximum sternum displacement relative to the spine must be not less than 32 mm and not more than 38 mm, and (2) during this displacement interval, the peak force measured by the probe must be not less than 600 N and not more than 800 N.

Mitsubishi is concerned about the NPRM's lack of dimensional tolerance for the 50.8 mm diameter of the thorax impact test probe. The commenter recommends the probe diameter at 50.8±0.25 mm. We have added the suggested dimensional tolerance along with other modifications involving the development of generic specifications for all impactors.

GM indicates agreement with most of the thorax performance requirements and probe specifications in the NPRM, with the exception of the peak force corridor. GM suggests, based on SAE data, that the corridor should be shifted upward from the proposed range of 600-800 N to 650-850 N. GM's suggested corridor is based on an average of 750 N, and therefore its percentage is slightly lower in width (by approximately 1% (13 % vs. 14%)).

We examined all of the thorax impact data available to us, which includes the SAE data supplied in docket comments and our data generated at VRTC. The combined data sets yield an average impact response of 746 N with s.d. of 32 N, indicating that the NPRM corridor needs adjustment in both the mean response value and the corridor's width. The data suggest that the response corridor's width can be set at ±2 s.d. while remaining just above the 8% good to marginal acceptability norm. Accordingly, this final rule adjusts the thorax response corridor to a new range between 680 N minimum and 810 N maximum, which is within but slightly narrower than the response range recommended by GM.

This final rule also adjusts the limit in § 572.144(b)(1) of the NPRM that the peak force measured during the sternum-to-spine displacement interval must not be more than 800 N at any time. In its comment on the NPRM for the Hybrid III 5th percentile female dummy, TRC suggested that an inertial data spike at the beginning of the test should not be subject to this limit. The agency determined that the initial force spike is an artifact of the inertial mass interaction between the impactor and the dummy, has no biomechanical significance, and is not an indicator of a bad rib set. The final rule for the 5th percentile female adult dummy accommodated the existence of the initial data spike by limiting peak force measurements only to a specified sternum displacement after the initial force spike has occurred. Today's final rule for the Hybrid III 3-year-old child dummy uses the same approach in accommodating the initial data spike, and accordingly excludes force data from the first 12.5 mm of sternum compression.

Thus, this final rule limits peak forces that occur in what we term a “transition compression zone” prior to reaching the specified sternum compression corridor limit. The transition compression zone starts at 12.5 mm and ends at 32 mm. We selected 12.5 mm as the beginning of the zone based on available force-compression data which indicate that the initial inertial force spikes occur between 6 to 8 mm of compression. Thereafter, the force diminishes and does not begin to rise again well after the sternum reaches 12.5 mm of compression.

Unlike the initial force spikes, forces within the transition compression zone should be limited because excessively large force spikes are indicative of deficiencies in the chest structure. Biomechanical response corridors indicate that high peaks in the transition compression zone would not be humanlike and not likely to occur in a well functioning physical spring-mass system, which is representative of the dummy's rib cage. An excessively high peak force occurring in the transition compression zone would indicate a mechanical deficiency within the rib cage structure, even though the peak force requirement within the specified compression corridor is met. Accordingly, an additional upper force peak limit prior to the specified displacement corridor would provide significant assurance that the dummy's rib cage has human-like response and adequate structural integrity. Limiting force peaks in the transition zone is consistent with the specifications for the Hybrid III 6-year-old child and 5th percentile female adult dummies.

We have analyzed the H-III3C dummy's thorax response and found that statistically the peak force of a well-functioning dummy in the transition compression zone could be as high as 860 N. Accordingly, we are including in § 572.144 (b)(1) a 860 N peak force limit for a compression zone bounded between 12.5 mm and 32 mm.

We have also expanded § 572.144(b)(2) to include an explanation of how internal hysteresis of the rib cage is to be measured and included in subsection (c) a more precise description of the clothing that is used on this dummy during the thorax impact test.

For calibration, the agency proposed the following torso flexion test and performance requirements: (1) When the torso is flexed 45 degrees from vertical by an applied force vector at 62 degrees to 65 degrees from horizontal, the resistance force must not be less than 130 N and not more than 180 N, and (2) upon removal of the force, the upper torso assembly returns to within 10 degrees of its initial position.

Mitsubishi believes the 0.75 kg mass for the loading adapter bracket that holds the torso is proportionally too large considering the dummy's relatively small mass and its soft spine with respect to the larger size Hybrid III dummies. The commenter also believes that a better definition of the loading adapter bracket is needed to avoid possible interference with the dummy during this test. Mitsubishi recommends specifying a ±0.02 kg tolerance to the 0.75 kg weight of the loading adapter bracket.

We agree with Mitsubishi that the mass of the loading bracket should be reduced. In light of the comment, we have reviewed the masses involved in the system that flexes the dummy. As a result of this review, we are revising the specification of mass associated with the pull test to a maximum of 0.70 kg. This mass includes all of the dummy-based attachments and hardware, 1/3 of the pulling wire, and the load cell that is used to measure the pull load. Inasmuch as the same load cell is being used for tests of other size dummies, there is little flexibility to reduce its weight short of designing a new one, which would unnecessarily delay this rulemaking. Because we are specifying a maximum weight for the entire system, test facilities will have some flexibility in selecting the weight of individual components of the system, such as the loading adaptor bracket. Thus, a weight tolerance for the loading adaptor bracket is not needed.

We have clarified section S572.145(c), which specifies the installation of the loading bracket, its design, the attachment of the pulling mechanism and the sequence of applying and releasing of the pull forces. Figure P5 contains considerable additional detail regarding the loading bracket, its installation on the dummy, and alignment of the point of load application with respect to the occipital condyle.

Toyota suggests removal of the upper and lower arms for the calibration test, which is consistent with the procedure for the 50th percentile male dummy in subpart B of part 572. Toyota believes that the applied load will vary due to interference between the lower arm and femur and a flat rigid seating surface. As the mass-moment of the upper body of the dummy will be reduced by the removal of the upper and lower arms, Toyota requests the agency to review the test condition for the load application.

We have reviewed data from our tests and found that the procedure specified in our calibration tests has not generated any interference problems by the arms as Toyota suggests. We do not believe our test procedure will cause the problem described by the commenter. Accordingly, this aspect of the proposed test procedure is unchanged.

Toyota requests that the pull force angle be applied perpendicular to the posterior surface of the spine box, i.e., 45 degrees from the horizontal, rather than at an angle of 62-65 degrees from horizontal. Toyota believes that the applied pull force at the 62-65 degree angle produces not only a flexion moment, but also a compression force on the lumbar spine. Toyota states that applying the force perpendicular to the posterior surface of the spine box is a more reasonable method to evaluate flexion characteristics of the lumbar spine, since it will minimize compression. Toyota notes that the lumbar flexion procedure for the Hybrid III 6-year-old dummy specifies the applied force angle perpendicular to the thoracic spine box instrumentation cavity mating surface.

We do not share Toyota's concern about compression forces on the lumbar spine during the flexion test. The compressive force on the lumbar spine is of little consequence since it is always of the same magnitude from test to test if the dummy conforms to specified pull force requirements. We also note that in any flexion test, compression forces within the lumbar spine are unavoidable. However, in line with Toyota's suggestion, the H-III3C torso flexion calibration procedure has been revised to be consistent with the new Hybrid III 6-year-old child dummy and 5th percentile adult female adult dummy, in that the pulling force is applied perpendicularly to the thoracic spine box instrumentation cavities' rearmost surface. This location does not remove the vertical forces on the lumbar spine as Toyota has suggested, but it does clarify the orientation of the pull force relative to the torso.

Toyota recommends specification of recovery time between repeated tests to enable the dummy skin to recover and thereby increase the likelihood of repeatable calibration tests. The commenter suggests a thirty-minute waiting (recovery) period, to be consistent with specifications in part 572 for the Hybrid III 50th percentile male dummy. We had included a thirty-minute period in the NPRM, see proposed § 572.146(p), and have adopted it in this final rule.

GM objects to the proposed requirement of the torso flexion test as a calibration test. The commenter believes that the dummy's torso flexion performance can be adequately controlled by specifying lumbar spine and abdominal insert designs, and that periodic inspections would be adequate to assure dummy performance rather than a calibration test. GM also states that the proposed injury measurements from out-of-position (OOP) tests with air bags are not expected to be affected by the lumbar spine-abdomen region of the dummy, because typically in OOP tests maximum loading of the dummy occurs well before gross motion of the upper torso. The commenter also believes that with regard to the use of the dummy in testing child restraint systems, the dummy would be expected to be reasonably well restrained, which would limit the flexion of the upper torso. For these reasons, GM believes the calibration test is not critical for incorporation of the dummy into part 572 and should not be required. Alternatively, GM suggests, if we were to mandate this test, the 10-degree torso return angle requirement should be removed because GM believes it is not needed to evaluate the bending stiffness of the lumbar spine/upper torso assembly.

We disagree with GM that the torso flexion calibration tests should not be required. During a crash test, the dummy's parts interact with each other as a system. This type of interaction can be best controlled or verified by a test that exercises all of the interacting parts. Further, we believe that the dummy's torso flexion stiffness also affects the kinematics of the head, neck, and upper torso with respect to the lower torso. The torso stiffness will thus influence, for example, how far and at what velocity the dummy's head or other parts will move, and will partly determine the orientation of the dummy's upper body half when encountering a deploying air bag. Accordingly, it is important that the torso flexion calibration test for this dummy be included to validate the dummy prior to a dynamic test.

Inasmuch as there were no comments opposing the proposed requirement that the torso's resistance force must be from 130 N to 180 N force when flexed 45 degrees from vertical, we are adopting the proposed specification. We are also adopting the 10-degree torso return angle requirement, as proposed in the NPRM. GM suggests in its comment that “* * * the proposed torso return angle requirement (§ 572.145(b)(2)) (should) be removed, because it is not needed to evaluate the bending stiffness of the lumbar spine/upper torso assembly.” We believe there will be a substantial difference in overall torso kinematics between a seated dummy that can and a seated dummy that cannot return its upper torso half from a flexed position to an upright posture, particularly after full flexion has occurred. Without return, the flexion is substantially plastic, while evidence of a specific return would be indicative of the torso mid-section having certain elastic, more human-like properties. Evidence of consistent return would indicate that the forces of restitution are intact, while no or indefinite return would indicate a substantial change within the internal mechanisms of the mid-torso structure, such as failure of the lumbar spine, abdomen, or a substantial shift between interfacing body segments within the abdominal cavity.

GM suggests that the specifications for the H-III3C dummy should include a requirement that the dummy must meet calibration specifications following a NHTSA compliance test. The commenter states that part 572 has such a requirement for dummies adopted previously, while the rulemaking proposals on the new Hybrid III 6-year-old, 5th percentile female adult, and on the CRABI 12-month-old infant have not included such a requirement. GM believes that the post-test dummy state of compliance is very important because non-complying compliance test results may be dummy-related. Without post-test dummy verification (calibration), GM claims, no one can determine with reasonable certainty whether a non-compliance is due to a test dummy anomaly or to a real vehicle issue.

We disagree. The pre-test calibration should adequately address the suitability of the dummy for testing. We are concerned that the post-test calibration requirement could handicap and delay our ability to resolve a potential vehicle or motor vehicle equipment test failure solely because the post-test dummy might have experienced a component failure and might no longer conform to all of the specifications. On several occasions during the past few years, a dummy has been damaged during a compliance test such that it could not satisfy all of the post-test calibration requirements. Yet the damage to the dummy at the time it occurred did not affect the dummy's ability to accurately measure the performance requirements of the standard. We are also concerned that the interaction between the vehicle or equipment and the dummy could be directly responsible for the dummy's inability to meet calibration requirements. In such an instance, the failure of the test dummy should not preclude the agency from seeking compliance action. Thus, we conclude that a post-calibration requirement would not be in the public interest, since it could impede our proceeding with a compliance investigation in those cases where the test data indicate that the dummy measurements were not markedly affected by the dummy damage or that some aspect of vehicle or equipment design was responsible for the dummy failure. 3

The agency proposed generic specifications for all of the dummy-based sensors, which included—

Denton notes that the load cell sensitivity specification was unnecessarily restrictive without notable benefit. Denton argues that input/output specifications were not needed because future technology may produce systems that could change their definition. Accordingly, Denton requests that all references to the type of output be removed from drawings SA572-S17, -S18, -S19, -S20, -S21, and -S22.

We do not agree with Denton that output specifications are not needed. A sensor is only good if it is capable of generating some kind of a controlled output for a given input. Accordingly, we are retaining input/output requirements for all of the specified generic sensors.

Denton suggests that bridge resistance specifications, shown in drawings SA572-S18, -S19 and -S21, are not needed and should be removed. The commenter believes that some test facilities may prefer using other bridge resistances than those shown on the draft drawings due to their particular data acquisition systems. However, their ability to use those transducers would be necessarily curtailed because of the restrictive specification in the drawings, even though different bridge resistances may give identical performance. We agree with this suggestion and have removed the bridge resistance specifications from the revised generic sensor drawings.

Denton suggests that the assignment of free air resonant frequencies (the first order ringing frequency of a freely suspended load cell) should be consistent with those for the new 6-year-old dummy and a new 5th percentile female adult dummy. Denton also believes that several drawings should indicate a maximum weight, and not a nominal weight. We concur with these suggestions. While we would prefer to establish nominal weights for the load cells, 4 there is no acceptable method of weighing the load cells, particularly those containing integral cables. Because of this, weight tolerances for the load cells could not be established. Until an acceptable weighing procedure is developed, dummy manufacturers must take into account the variabilities of load cell weights to assure that each subsystem weight specification, as shown in sheet 6 of drawing 210-0000, is met. Accordingly, we have specified in the sensor drawings only maximum weights and minimum free air resonant frequencies. They are as follows:

Denton also suggests that the load cell weight specifications should clarify that the specified weight does not include any cable or mounting hardware, except as noted. The commenter states that drawing S19 should indicate that the weight includes the head washer and four 10-24 × 3/4 ″ flat head cap screws. All of the agency specifications for accelerometers and load cells indicate what is considered as part of the load cell. We have modified drawing S19 to include the head washer and four 10-24 × 3/4 ″ head cap screws.

GM supports generic specification for sensors to reduce the restrictive nature of instrumentation specifications seen in the past. However, GM believes that the sensor specifications included in the NPRM are not sufficiently generic. GM notes that the accelerometer specified in drawing SA572-S4 limits the users to only two models, based on ability to meet the seismic mass and hole pattern requirements. The commenter states that other accelerometers might be acceptable but can not be used under the proposed specification. GM feels a more functional description is needed that would define, by dimensions and tolerances, an intersection location of the triaxial accelerometer sensing masses.

We are aware of at least two manufacturers that have in the past or are now marketing accelerometers that match the specifications listed in drawing SA572-S4. As to the specific hole patterns and associated mounting platforms, they are needed for mounting the accelerometers. Since the same accelerometer specifications apply to all other dummies, the accelerometer must be attachable to the new Hybrid III 6-year-old and the 5th percentile female adult as well as to the CRABI 12-month-old dummies, all of which use the common hole pattern for attachment. Although the sensing mass of each accelerometer is defined relative to reference surfaces of the accelerometer structure, hole patterns and mounting platforms need also to be known to assure existence and compatibility of space and mating surfaces and methods of attachment in the areas that they are to be mounted. In addition, the mounting surfaces and attachments must have appropriate structural integrity for vibration control purposes. The defined structure and methods of attachment assure that this is met. The concept, as GM suggests, of defining a location in space for the intersection center of seismic masses of several accelerometers rather than specifying it in design parameters is an attractive concept and warrants further consideration, as this approach could allow greater use of equivalent alternatives. However, none of the commenters offered a model to further this concept and not enough is known at this time on the consequences of the suggested approach were it to be adopted in this final rule.

GM requested clarification as to what it means for a piece of instrumentation to meet SAE J211 CFC 1000 specifications. GM stated that most accelerometers do not fully meet the roll-off specification and no damped accelerometers can meet any of the roll-off requirements. Denton, in its comments on frequency response for the 5th percentile dummy (Docket No NHTSA-1998-4283-10), suggested adding a note on each of the sensor drawings indicating “* * * what CFC channel class should be used for recording data with that type of transducer.” This is a reasonable suggestion, since the SAE J211 clearly deals with the entire data channel and not with a particular sensor within the data channel. Accordingly, a note has been added to the SA572-S4 drawing saying that “Signal output must be compatible with and recordable in the data channel defined by SAE J211.”

GM believes pelvis accelerometers should be optional as they are not required for any proposed injury measurement requirement. GM suggests changing the NPRM language from “(these accelerometers) are to be mounted” to “(these accelerometers) are allowed to be mounted * * *” We agree with the GM comment and have revised § 572.146(k) to indicate optional use of pelvis accelerometers and § 572.146(c) to indicate optional use of the neck load cell at the lower neck transducer location.

Denton requests that drawing 210-4512 be revised to correct the location of the 1.880 inch dimension. Denton also noted that additional specifications are needed in drawing 210-4510 to assure a fit of the load cell on the mounting surfaces. Denton suggests adding further dimensions on drawing 210-4512 to allow for machining after welding, and a specification to drawing 210-4510 to require that a region at least 1.300 inch from center on each side of the part (total width 2.600 inch) must be flat within 0.005 in. We agree with the recommended changes and have revised the drawings as suggested.

The NPRM noted in §§ 572.140(a)(2) and 572.141(a)(2) that the final rule package will contain a “User's Manual” for the H-III3C dummy. The manual would contain identified procedures on how to inspect, assemble and disassemble the dummy, similar to procedures published for other part 572 dummies. Responding to the NPRM, the SAE notes that it has developed a User's Manual for this dummy and suggests its incorporation by reference into part 572. We have reviewed its content, but decline to reference it for several reasons.

Our review found the SAE's manual containing, besides inspection and assembly procedures, several calibration procedures and response requirements. Calibration procedures and response requirements are set forth by this final rule in part 572. It is not advisable to establish requirements in a separate document, which could contain calibration procedures and response requirements that are inconsistent or in conflict with the part 572 requirements. Further, while the SAE manual appears to be reasonably well developed and well suited for research use, it has a number of redundancies and ambiguities which render it less suited for regulation and compliance testing purposes. Further, the SAE User's Manual is copyrighted by both the SAE and FTSS, which restrict its use and distribution as a public document.

Because we concluded that the SAE manual should not be incorporated into part 572, we generated and incorporated into part 572 our own document addressing procedures for inspection, assembly and disassembly of the H-III3C dummy. We have titled the document Procedures for Assembly, Disassembly and Inspection (PADI), subpart P, Hybrid III 3-year-old Child Crash Test Dummy (H-III3C, Alpha version), February 2000. Our incorporation of the PADI does not in itself prohibit anyone from using the procedures contained in the SAE User's Manual. However, persons using the SAE document in tests assuring compliance with our safety standards are responsible for ensuring that the test dummies they use meet the specifications adopted today and are suitable for compliance testing.

The H-III3C dummy is incorporated into part 572 as subpart P. Today's final rule designates the dummy adopted today as alpha version. Further notable changes to the dummy will be designated as beta, gamma, etc., to assure that modifications can be easily tracked and identified.

This rulemaking document was not reviewed by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review.” The rulemaking action is also not considered to be significant under the Department's Regulatory Policies and Procedures (44 FR 11034, February 26, 1979).

This document amends 49 CFR part 572 by adding design and performance specifications for a new 3-year-old child dummy that the agency may later incorporate into Federal motor vehicle safety standards. This rule indirectly imposes requirements on only those businesses which choose to manufacture or test with the dummy, in that the agency will only use dummies for compliance testing that meet all of the criteria specified in this rule. It may affect vehicle and air bag manufacturers if it is incorporated by reference into the advanced air bag rulemaking, and may affect child restraint manufacturers if it is incorporated into the child restraint system standard.

The cost of an uninstrumented 3-year-old dummy is approximately $30,000. Instrumentation would add $15,000 to $50,000 to the cost, depending on the amount of instrumentation the user chooses to add.

Because the economic impacts of this final rule are minimal, no further regulatory evaluation is necessary.

We have analyzed this rule in accordance with Executive Order 13132 (“Federalism”). We have determined that this rule does not have sufficient Federalism impacts to warrant the preparation of a federalism assessment.

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

This rule is not subject to the Executive Order because it is not economically significant as defined in E.O. 12866. It also does not involve decisions based on health risks that disproportionately affect children.

Pursuant to Executive Order 12778, “Civil Justice Reform,” we have considered whether this rule will have any retroactive effect. This rule does not have any retroactive effect. A petition for reconsideration or other administrative proceeding will not be a prerequisite to an action seeking judicial review of this rule. This rule does not preempt the states from adopting laws or regulations on the same subject, except that it does preempt a state regulation that is in actual conflict with the federal regulation or makes compliance with the Federal regulation impossible or interferes with the implementation of the federal statute.

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

I have considered the effects of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) and certify that this rule will not have a significant economic impact on a substantial number of small entities. The rule does not impose or rescind any requirements for anyone. The Regulatory Flexibility Act does not, therefore, require a regulatory flexibility analysis.

We have analyzed this amendment for the purposes of the National Environmental Policy Act and determined that it will not have any significant impact on the quality of the human environment.

Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This rule does not have any new information collection requirements.

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) directs us to use voluntary consensus standards in regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers (SAE). The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards.

The H-III3C dummy that is the subject of this document was developed under the auspices of the SAE. All relevant SAE standards were reviewed as part of the development process. The following voluntary consensus standards have been used in developing the dummy: SAE Recommended Practice J211, Rev. Mar95 “Instrumentation for Impact Tests”; and SAE J1733 of 1994-12 “Sign Convention for Vehicle Crash Testing.”

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year (adjusted for inflation with base year of 1995). Before promulgating a NHTSA rule for which a written statement is needed, section 205 of the UMRA generally requires us to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule.

This rule does not impose any unfunded mandates under the Unfunded Mandates Reform Act of 1995. This rule does not meet the definition of a Federal mandate because it does not impose requirements on anyone. Further, it will not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

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

In accordance with § 679.20(c)(3)(ii), the B season allowance of the pollock TAC in Statistical Area 630 outside the Shelikof Strait conservation area is 2,662 metric tons (mt) as established by the Final 2000 Harvest Specifications for Groundfish (65 FR 8298, February 18, 2000) and subsequent correction (65 FR 11909, March 7, 2000).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the B season allowance of the pollock TAC in Statistical Area 630 outside the Shelikof Strait conservation area will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,162 mt, and is setting aside the remaining 500 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 630 outside the Shelikof Strait conservation area in the GOA.

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

This action responds to the best available information recently obtained from the fishery. It must be implemented immediately to prevent overharvesting the seasonal allocation of pollock in Statistical Area 630 outside the Shelikof Strait conservation area. Providing prior notice and an opportunity for public comment is impracticable and contrary to the public interest. Further delay would only result in overharvest. NMFS finds for good cause that the implementation of this action should not be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

This action is required by § 679.20 and is exempt from review under E.O. 12866.

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

In accordance with § 679.20(c)(3)(ii), the B season allowance of the pollock TAC in Statistical Area 610 is 3,749 metric tons (mt) established by the Final 2000 Harvest Specification for Groundfish (65 FR 8298, February 18, 2000) and subsequent correction (65 FR 11909, March 7, 2000).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the B season allowance of the pollock TAC in Statistical Area 610 will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 3,549 mt, and is setting aside the remaining 200 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 610 of the GOA.

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

This action responds to the best available information recently obtained from the fishery. It must be implemented immediately to prevent overharvesting the seasonal allocation of pollock in Statistical Area 610. Providing prior notice and an opportunity for public comment is impracticable and contrary to the public interest. Further delay would only result in overharvest. NMFS finds for good cause that the implementation of this action should not be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

This action is required by § 679.20 and is exempt from review under E.O. 12866.