Background

Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended (NWPA), requires that “[t]he Secretary (of Energy) shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear reactor power sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 218(a) for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the NRC approved dry storage of spent nuclear fuel in NRC-approved casks under a general license, publishing a final rule in 10 CFR part 72 entitled “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new subpart L within 10 CFR part 72 entitled “Approval of Spent Fuel Storage Casks,” containing procedures and criteria for obtaining NRC approval of dry storage cask designs.

The NRC is revising information contained in § 72.214 under CoC No. 1004 to reflect Amendment No. 1 to CoC No. 1004 and to address four administrative issues in the current language in § 72.214. These four administrative issues include (1) correcting the expiration date of CoC No. 1004 from the present “(20 years after the final rule effective date)” to “January 23, 2015;” (2) correcting the title and revision number of the standardized NUHOMS SAR to be consistent with the approach the NRC adopted for CoC SARs in a new § 72.248 (see final rule in 64 FR 53582; October 4, 1999); (3) revising the CoC to reflect the transfer of the CoC from VECTRA Technologies, Inc. to Transnuclear West, Inc., (TN West); and (4) specifying the applicability of Amendment No. 0 and Amendment No. 1 to this CoC.

Change 1 keeps the certificate expiration date consistent with the NRC's policy for part 72 CoCs, which is to use 20 years from the date the final rule is effective. The final rule adding CoC No. 1004 to § 72.214 was effective on January 23, 1995; consequently, the expiration date for this CoC is January 23, 2015.

Change 2 keeps CoC No. 1004 consistent with other recent changes to 10 CFR 72.248. The SAR title will be changed from “Safety Analysis Report for the Standardized NUHOMS Horizontal Modular Storage System for Irradiated Nuclear Fuel, Revision 2” to “Final Safety Analysis Report for the Standardized NUHOMS Horizontal Modular Storage System for Irradiated Nuclear Fuel.” In the new § 72.248, a final SAR is to be submitted to the Commission within 90 days after approval of the cask design and then will be updated periodically. Replacement pages will be provided to the Commission in accordance with § 72.248.

Change 3 recognizes the transfer of the CoC from VECTRA to TN West. NRC received letters dated December 18, 1997, from both VECTRA and TN West describing the purchase of VECTRA's intellectual properties and assets associated with NUHOMS technology by TN West. In its December 18, 1997, letter, TN West described that it planned to conduct fabrication activities in accordance with the quality assurance program described in Section 11 of the NUHOMS SAR. TN West further described that it had acquired the composite records of casks manufactured under CoC No. 1004 and that it had records associated with changes to the NUHOMS design implemented after issuance of the CoC.

Change 4 describes how general licensees would continue to use spent fuel storage casks manufactured under the original CoC No. 1004, if the cask being used was fabricated before April 27, 2000. After April 27, 2000, casks must be manufactured in accordance with CoC No. 1004, Amendment No. 1. This final rule issues Amendment No. 1 to CoC No. 1004. Amendment No. 1 revises and reformats the CoC to be consistent with the NRC's current format and layout for part 72 certificates. Proposed condition No. 4 in CoC No. 1004 is removed in response to comments as discussed below. Conditions No. 1 through 8 are renumbered.

Based on the October 1995 and January 1999 safety evaluations, the newly established fabrication inspection procedures, and the Amendment No. 1 to CoC No. 1004, the NRC staff has concluded that the NUHOMS-24P and -52B cask design, when used in accordance with the conditions specified in the CoC as amended, and NRC regulations, will meet the part 72 requirements and thus ensure adequate protection of the public health and safety.

The Amendment No. 1 to CoC No. 1004, the VECTRA safety analyses, and the NRC staff safety evaluations are available for inspection at the NRC Public Document Room, 2120 L Street, NW (Lower Level), Washington, DC 20003-1527. Documents created or received at the NRC after November 1, 1999 are also available electronically at the NRC's Public Electronic Reading Room on the Internet at http://www.nrc.gov/NRC/ADAMS/index.html. From this site, the public can gain entry into the NRC's Agencywide Document Access and Management System (ADAMS), which provides text and image files of NRC's public documents. For more information, contact the NRC Public Document Room (PDR) Reference staff at 1-800-397-4209, 202-634-3273 or by email to pdr@nrc.gov. Single copies of the Amendment No. 1 to CoC No. 1004 may be obtained from Stan Turel, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-6234, email spt@nrc.gov.

The NRC received two comment letters on the proposed rule. One comment was from a user of the NUHOMS spent fuel storage system and the other was from the vendor of the NUHOMS spent fuel storage system. Both commenters supported the overall approach taken in the proposed amendment. However, both commenters also disagreed with the proposed change to Condition No. 4 in the CoC and proposed alternate wording. Condition No. 4 was added, in part, in response to a February 5, 1997, NMSS Director's Decision, to ensure future compliance with § 72.150, with respect to dry shielded canister (DSC) shell-weld thickness, by requiring inspection of DSC shell welds. Both commenters believe that the concerns identified in the Director's Decision have been overtaken by other events, specifically the numerous corrective actions taken by Vectra and later by TN West—Vectra was subsequently acquired by TN West. These actions corrected the petitioner's and NRC's concerns regarding this issue.

At the time of the Director's Decision, Vectra had already begun an exhaustive review of its design, licensing, fabrication, and quality assurance program and implemented numerous improvements to its fabrication specifications, drawings, and procedures. The remaining concerns were addressed by TN West and resulted in NRC authorizing resumption of fabrication of NUHOMS components in 1998. Both commenters indicated that TN West has translated and implemented the proposed Condition No. 4 into the fabrication drawings and specifications. Furthermore, these corrective actions provide adequate assurance that the NUHOMS storage system will perform its intended safety function. Therefore, including such detailed fabrication and inspection requirements in the CoC is redundant, inconsistent with the NRC's initiative in this rule to be uniform in the format and layout for part 72 CoCs, and is unnecessary.

Response: The NRC agrees with the comments, in part. The 1997 Director's Decision established a process to provide other interested members of the public an opportunity to comment on any aspect of the NRC safety evaluation associated with this issue. One purpose of the rulemaking was to consider whether the wall thinning issue justified a unique fabrication inspection requirement in the CoC No. 1004. The Director's Decision was based, in part, on Vectra's performance history with this issue and concluded that changes to the CoC merited consideration. After the 1997 Director's Decision, requirements for wall thickness have been included and implemented in the NUHOMS storage system fabrication specifications, procedures, and inspection requirements. In the revised CoC, Condition No. 3 specifies that the system drawings for the NUHOMS are contained in Appendix E of the Safety Analysis Report. The NRC also notes that Vectra's performance history with this issue is no longer a relevant factor in establishing the CoC conditions, because VECTRA is no longer involved in the fabrication of the NUHOMS storage system.

Additionally, the NRC has recently published a separate final rule to expand the applicability of the quality assurance provisions of part 72, subpart G, to certificate holders and applicants for a CoC (64 FR 56114; October 15, 1999). Three of the sections in the revised subpart G are relevant to this response (see §§ 72.146, “Design Control'; 72.150, “Instructions, Procedures, and Drawings”; and 72.160, “Licensee and Certificate Holder Inspection”). The revised § 72.146(a) states, in part:

TN West's [VECTRA's] revision of the design drawings, instructions, and procedures to specify a weld thickness of greater than 0.500 inch and a weld inspection requirement and its responsibility as the certificate holder to comply with the new quality assurance requirements contained in §§ 72.146, 72.150, and 72.164, taken together, provide reasonable assurance that public health and safety will not be adversely affected by the continued manufacture and use of the NUHOMS storage system. Consequently, the NRC agrees with the commenters that the proposed Condition No. 4 is unnecessary and would be inconsistent with a purpose of the proposed rule related to the NRC's initiative to establish a standard format and content for all Part 72 CoCs. However, the NRC disagrees with the alternative solution proposed by the commenters to retain a modified version of Condition No. 4, because this action would not be fully consistent with the intent of the commenter's standardization issue; nor would it be fully consistent with the NRC's initiative in the proposed rule to establish a standard format and content for Part 72 CoCs.

Therefore, inclusion of the proposed detailed fabrication requirements (i.e., proposed Condition No. 4) in CoC No. 1004 is unnecessary and is removed in this final rule. All other changes to the CoC stand as proposed. The NRC considers that this action is consistent with the actions delineated in the February 5, 1997, Director's Decision and the subsequent rulemaking to expand the applicability of the Part 72 quality assurance regulations in Subpart G to certificate holders.

The NRC staff modified the listing for the Transnuclear West, Inc. NUHOMS 24-P and NUHOMS 52-B cask system within 10 CFR 72.214, “List of approved spent fuel storage casks,” with respect to the expiration date of CoC, the title and revision number of the standardized NUHOMS SAR, and the applicability of Amendment No. 0 and Amendment No. 1 to the CoC. The NRC staff also revised the CoC.

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the Federal Register on September 3, 1997 (62 FR 46517), this rule is classified as compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended (AEA), or the provisions of Title 10 of the Code of Federal Regulations. Although an Agreement State may not adopt program elements reserved to NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws, but does not confer regulatory authority on the State.

Under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in subpart A of 10 CFR part 51, the NRC has determined that this rule is not a major Federal action significantly affecting the quality of the human environment and therefore, an environmental impact statement is not required. This final rule adds an amended version of Certificate of Compliance Number (CoC No.) 1004 to the list of approved spent fuel storage casks that power-reactor licensees can use to store spent fuel at reactor sites without additional site-specific approvals from the Commission. The environmental assessment and finding of no significant impact on which this determination is based are available for inspection at the NRC Public Document Room, 2120 L Street NW. (Lower Level), Washington, DC. Single copies of the environmental assessment and finding of no significant impact are available from Stan Turel, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 415-6234, e-mail spt@nrc.gov.

This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing requirements were approved by the Office of Management and Budget, approval number 3150-0132.

If a means used to impose an information collection does not display a currently valid OMB control number, the NRC may not conduct or sponsor, and a person is not required to respond to, the information collection.

The National Technology Transfer Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this final rule, the NRC is adding an amended version of CoC No. 1004 to the list of approved spent fuel storage casks that power-reactor licensees can use to store spent fuel at reactor sites without additional site-specific approvals from the Commission. This action does not constitute the establishment of a standard that establishes generally-applicable requirements.

On July 18, 1990 (55 FR 29181), the Commission issued an amendment to 10 CFR part 72. The amendment provided for the storage of spent nuclear fuel in cask systems with designs approved by the NRC under a general license. Any nuclear power reactor licensee can use cask systems with designs approved by the NRC to store spent nuclear fuel if it notifies the NRC in advance, the spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. In that rule, four spent fuel storage casks were approved for use at reactor sites and were listed in 10 CFR 72.214. That rule envisioned that storage casks certified in the future could be routinely added to the listing in 10 CFR 72.214 through the rulemaking process. Procedures and criteria for obtaining NRC approval of new spent fuel storage cask designs were provided in 10 CFR part 72, subpart L.

The alternative to this action is to withhold approval of this new design and issue a site-specific license to each utility that proposes to use the casks. This alternative would cost both the NRC and utilities more time and money for each site-specific license. Conducting site-specific reviews would ignore the procedures and criteria currently in place for the addition of new cask designs that can be used under a general license, and would be in conflict with NWPA direction to the Commission to approve technologies for the use of spent fuel storage at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site reviews. This alternative also would tend to exclude new vendors from the business market without cause and would arbitrarily limit the choice of cask designs available to power reactor licensees. This final rule will eliminate the above problems and is consistent with previous Commission actions. Further, the rule will have no adverse effect on public health and safety.

The benefit of this rule to nuclear power reactor licensees is to make available a greater choice of spent fuel storage cask designs that can be used under a general license. The new cask vendors with casks to be listed in 10 CFR 72.214 benefit by having to obtain NRC certificates only once for a design that can then be used by more than one power reactor licensee. The NRC also benefits because it will need to certify a cask design only once for use by multiple licensees. Casks approved through rulemaking are to be suitable for use under a range of environmental conditions sufficiently broad to encompass multiple nuclear power plants in the United States without the need for further site-specific approval by NRC. Vendors with cask designs already listed may be adversely impacted because power reactor licensees may choose a newly listed design over an existing one. However, the NRC is required by its regulations and NWPA direction to certify and list approved casks. This rule has no significant identifiable impact or benefit on other Government agencies.

Based on the above discussion of the benefits and impacts of the alternatives, the NRC concludes that the requirements of the final rule are commensurate with the Commission's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and thus, this action is recommended.

In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs, Office of Management and Budget.

In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the Commission certifies that this rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. This rule affects only the licensing and operation of nuclear power plants, independent spent fuel storage facilities, and Transnuclear West, Inc. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR part 121.

The NRC has determined that the backfit rule (10 CFR 50.109 or 10 CFR 72.62) does not apply to this rule because this amendment does not involve any provisions that would impose backfits as defined in the backfit rule. Therefore, a backfit analysis is not required.

Background

OTS regulations at 12 CFR 563.84 govern the transfer and repurchase of government securities under certain circumstances where the savings association is obligated to repurchase. 1 This rule applies to repurchase obligations evidencing an indebtedness arising from a transfer of direct obligations of, or obligations which are fully guaranteed as to principal and interest by, the United States or any agency of the United States.

The rule prohibits savings associations from issuing repurchase agreement obligations in denominations under $100,000 and a maturity of 90 days or more, unless the savings association issues the obligation to an institution whose accounts or deposits are insured by the Federal Deposit Insurance Corporation (“FDIC”) or to a broker or dealer registered with the Securities and Exchange Commission. Repurchase agreement obligations under $100,000 with a maturity of less than 90 days are subject to various consumer protection and other requirements. Specifically, the rule: (1) Mandates that all such agreements, related advertisements and offering statements must include a legend indicating that the obligation is not a savings account or deposit and is not insured by the FDIC; (2) prohibits savings associations from making specified representations regarding deposit insurance, guarantees, etc.; (3) requires the purchaser under the repurchase agreement to obtain a perfected security interest in the securities under applicable state law; (4) requires that the value of the security underlying the repurchase agreement be maintained at a level at least equal to the principal amount of the repayment obligation; (5) requires that savings associations issuing repurchase agreements to the public make full and accurate disclosures of all material information regarding the repurchase agreement; (6) imposes additional requirements on certain renewals beyond 89 days; and (7) requires a savings association to provide additional safeguards and financial disclosures if it does not meet specified requirements regarding total capital. 2

OTS is removing § 563.84 because it is unnecessary and imposes overly burdensome requirements on savings associations. One of the original purposes of the predecessor of § 563.84 was to ensure that savings associations would not use repurchase agreements as a method of offering small denomination accounts to avoid existing interest rate ceiling restrictions on deposit accounts. 3 In 1979, the Federal Home Loan Bank Board (FHLBB) issued a policy statement prohibiting savings associations from entering into any government securities repurchase agreements in amounts under $100,000, except with federally insured depository institutions or with broker dealers. Because the potential for circumvention of the maximum interest rate ceiling was reduced if the maturity of the agreement was less than 90 days, the FHLBB revised the policy statement to permit short term agreements in amounts under $100,000, subject to certain consumer protections. 4 The FHLBB codified the policy statement in its regulations in 1982 and expanded consumer protection requirements. 5

It is no longer necessary to retain § 563.84 to prevent evasions of maximum interest rate ceilings on deposit accounts. Interest rate ceilings have not been in effect since March of 1986 when the FHLBB's authority to set these ceilings expired. 6 Savings associations, of course, still may not pay interest on commercial checking accounts. 7 However, OTS has concluded that federal savings associations may offer various sweep accounts to transfer idle, non-interest bearing demand deposit account (DDA) checking funds to investment vehicles to generate earnings. 8 OTS has specifically stated that these sweep accounts, including sweep arrangements that use government security repurchase agreements, are permissible notwithstanding the prohibition on the payment of interest on DDAs.

To the extent that § 563.84 was designed to protect consumers who buy United States government securities under repurchase agreements, OTS believes that existing statutes, regulations and guidance already adequately serve this function. The commercial repurchase market is much more developed than when the regulation was adopted and is regulated now in other ways. The Government Securities Act of 1986 (the GSA), 9 for example, protects investors in government securities by establishing appropriate financial responsibility and custodial standards. Under the Department of Treasury's implementing regulations, 10 a thrift that holds government securities for another party to a hold-in-custody repurchase agreement must comply with requirements for safeguarding and custody of the securities. The savings association is also subject to other provisions requiring written agreements, confirmations and disclosures, including disclosures that the obligation is not a deposit and is not insured by the FDIC. 11 Moreover, Thrift Bulletin 23-2, Interagency Statement on Retail Sales of Non-deposit Investment Products (February 22, 1994) provides for certain customer protections, including disclosures, for retail sales of non-deposit investment products, including government securities repurchase agreements. In addition, OTS notes that state and federal anti-fraud provisions, which generally require the disclosure of facts that would be material to a decision to invest in a security, also apply to repurchase transactions. 12

OTS also believes that § 563.84 may unduly restrict savings associations' ability to engage in certain types of transactions. Since none of the other federal banking agencies currently have similar provisions, OTS believes that the retention of this rule may have a negative impact on the ability of OTS-regulated institutions to compete on an equal footing.

For example, in a recent opinion letter, OTS clarified the authority of savings associations to offer various types of sweep accounts, including the use of repurchase agreements in sweep accounts. 13 Section 563.84, however, requires that the interest of a repurchase agreement purchaser in the security or securities underlying the repurchase agreement constitute a perfected security interest under applicable state law. Various state laws  14 no longer allow for the perfection of a security interest in a security through placement with a trustee, such as a Federal Home Loan Bank. Other perfection methods may be operationally impractical in the context of repurchase agreement sweep accounts that typically involve repeated collateralizations of varying dollar amounts. 15 As a result, this regulation may effectively bar savings associations' use of repurchase agreement sweep accounts to accommodate the cash management needs of their commercial customers. As noted above, other financial institutions are not subject to similar restrictions.

For these reasons, OTS is deleting § 563.84. In the absence of this provision, federal savings associations would continue to be authorized to engage in repurchase agreements. This authority would be subject to applicable statutes and regulations, including the GSA, Treasury's implementing regulations, Thrift Bulletin 23-2, and state and federal securities laws. In addition, the Federal Financial Institutions Examination Council's Policy Statement on Repurchase Agreements of Depository Institutions with Securities Dealers and Others  16 provides safety and soundness guidance to depository institutions entering into repurchase agreements. The FFIEC Policy Statement cautions that institutions should have adequate policies and controls for their particular circumstances, provides explicit guidance for controlling collateral for securities sold under an agreement to repurchase, and contains other pertinent guidance.

Direct final rulemaking is a technique for expediting the issuance of non-controversial rules. Under this procedure, an agency may publish a rule in the Federal Register with a statement that, unless a significant adverse comment is received within a specified time period, the rule will become effective as a final rule on a particular date. If a significant adverse comment is filed, however, the agency must withdraw the direct final rule and complete standard notice and comment procedures. This procedure permits an agency to issue final rules expeditiously, while at the same time offering the public the opportunity to challenge the agency's view that the rule is non-controversial. 17

Several other federal agencies, including the Environmental Protection Agency, the Department of Agriculture, and the Department of Transportation, have used this procedure to expedite non-controversial rules. The primary advantage of the procedure is that it permits an agency to issue rules without having to go through internal and external review processes twice ( i.e., at the proposed and final rule stage).

The Administrative Conference of the United States adopted Recommendation 95-4 encouraging the use of direct final rulemaking, 18 and recommending that agencies develop a direct final rulemaking process for issuing rules that are unlikely to result in significant adverse comments.

OTS has concluded that this rule is non-controversial and should elicit no significant adverse comment. 19 Accordingly, the agency has determined that it is appropriate to apply direct final rulemaking procedures. This preamble explains the procedures OTS intends to use for direct final rules. The agency welcomes any comments on how to make this process more useful.

Consistent with the Administrative Conference's recommendations, OTS is applying the following procedures in this rulemaking:

OTS is publishing this notice of direct final rule in the final rule section of the Federal Register and is including an opportunity for public comment on the substance of the change ( i.e., a 30-day public comment period). Consistent with the Administrative Conference recommendation, OTS has included a statement of basis and purpose for the rule and has discussed relevant substantive issues in the discussion above.

The direct final rule will automatically become effective in 60 days, unless OTS receives a significant adverse comment within the 30-day comment period. If a timely, significant adverse comment is received, OTS will withdraw the direct final rule before the stated effective date. To be a significant adverse comment, the comment must explain why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or why the rule would be ineffective or unacceptable without a change.

To ensure that the promulgation of a final rule will not be delayed if significant adverse comments are submitted, OTS has published a related notice of proposed rulemaking (NPRM) elsewhere in today's Federal Register . This related notice cross-references the direct final rule. The related notice indicates that if a timely, significant adverse comment on the matter is received, OTS will address all public comments in subsequent final rule based on the NPRM. If no significant adverse comments are timely received, OTS will take no further action on the NPRM.

This direct final rule imposes no additional requirements on insured depository institutions. This rule is therefore exempt from the requirement found in section 302 of the Riegle Community Development and Regulatory Improvement Act of 1994  20 that regulations must not take effect before the first day of the quarter following publication.

Pursuant to section 605(b) of the Regulatory Flexibility Act, 21 the Director certifies that this direct final rule will not have a significant economic impact on a substantial number of small entities. The rule merely removes an unnecessary regulation that imposes overly burdensome requirements on all savings associations, including small savings associations.

OTS has determined that this direct final rule is not a “significant regulatory action” for purposes of Executive Order 12866.

OTS has determined that the requirements of this direct final rule will not result in expenditures by State, local, and tribal governments or by the private sector of $100 million or more in any one year. Accordingly, a budgetary impact statement is not required under section 202 of the Unfunded Mandates Reform Act of 1995.

Executive Order 13132 imposes certain requirements on an agency when formulating and implementing policies that have federalism implications or taking actions that preempt state law. OTS has determined that this direct final 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, and will not preempt State law.

Background

On March 31, 1999, BF Goodrich Aerospace, 3420 South 7th Street, Suite 1, Phoenix, Arizona 85040, applied for a supplemental type certificate to install inflatable lapbelts for head injury protection on certain seats in Boeing Model 777 series airplanes. The Model 777 series airplane is a swept-wing, conventional-tail, twin-engine, turbofan-powered transport. The inflatable lapbelt is designed to limit occupant forward excursion in the event of an accident. This will reduce the potential for head injury, thereby reducing the Head Injury Criteria (HIC) measurement. The inflatable lapbelt behaves similarly to an automotive airbag, but in this case the airbag is integrated into the lapbelt, and inflates away from the seated occupant. While airbags are now standard in the automotive industry, the use of an inflatable lapbelt is novel for commercial aviation.

Title 14 Code of Federal Regulations (14 CFR) § 25.785 requires that occupants be protected from head injury by either the elimination of any injurious object within the striking radius of the head, or by padding. Traditionally, this has required a set back of 35 inches from any bulkhead or other rigid interior feature or, where not practical, specified types of padding. The relative effectiveness of these means of injury protection was not quantified. With the adoption of Amendment 25-64 to 14 CFR part 25, specifically § 25.562, a new standard that quantifies required head injury protection was created.

Title 14 CFR 25.562 specifies that dynamic tests must be conducted for each seat type installed in the airplane. In particular, the regulations require that persons not suffer serious head injury under the conditions specified in the tests, and that a HIC measurement of not more than 1000 units be recorded, should contact with the cabin interior occur. While the test conditions described in this section are specific, it is the intent of the requirement that an adequate level of head injury protection be provided for crash severity up to and including that specified.

Amendment 25-64 is part of the Model 777 certification basis. Therefore, the seat installation with inflatable lapbelts must meet the requirement that a HIC of less than 1000 be demonstrated for occupants of seats incorporating the inflatable lapbelt.

Because §§ 25.562 and 25.785 and associated guidance do not adequately address seats with inflatable lapbelts, the FAA recognizes that appropriate pass/fail criteria need to be developed that do fully address the safety concerns specific to occupants of these seats.

The inflatable lapbelt has two potential advantages over other means of head impact protection. First, it can provide significantly greater protection than would be expected with energy-absorbing pads, for example, and second, it can provide essentially equivalent protection for occupants of all stature. These are significant advantages from a safety standpoint, since such devices will likely provide a level of safety that exceeds the minimum standards of the Federal Aviation Regulations (FAR). Conversely, airbags in general are active systems and must be relied upon to activate properly when needed, as opposed to an energy-absorbing pad or upper torso restraint that is passive, and always available. These potential advantages must be balanced against the potential disadvantages in order to develop standards that will provide an equivalent level of safety to that intended by the regulations.

The FAA has considered the installation of inflatable lapbelts to have two primary safety concerns: first, that they perform properly under foreseeable operating conditions, and second, that they do not perform in a manner or at such times as would constitute a hazard to the airplane or occupants. This latter point has the potential to be the more rigorous of the requirements, owing to the active nature of the system. With this philosophy in mind, the FAA has considered the following as a basis for the special conditions.

The inflatable lapbelt will rely on electronic sensors for signaling and pyrotechnic charges for activation so that it is available when needed. These same devices could be susceptible to inadvertent activation, causing deployment in a potentially unsafe manner. The consequences of such deployment must be considered in establishing the reliability of the system. BF Goodrich Aerospace must substantiate that the effects of an inadvertent deployment in flight are either not a hazard to the airplane, or that such deployment is an extremely improbable occurrence (less than 10 −9 per flight hour). The effect of an inadvertent deployment on a passenger or crewmember that might be positioned close to the airbag should also be considered. The person could be either standing or sitting. A minimum reliability level will have to be established for this case, depending upon the consequences, even if the effect on the airplane is negligible.

The potential for an inadvertent deployment could be increased as a result of conditions in service. The installation must take into account wear and tear so that the likelihood of an inadvertent deployment is not increased to an unacceptable level. In this context, an appropriate inspection interval and self-test capability are considered necessary. Other outside influences are lightning and high intensity electromagnetic fields (HIRF). Since the sensors that trigger deployment are electronic, they must be protected from the effects of these threats. Existing Special Conditions No. 25-ANM-78 regarding lightning and HIRF are therefore applicable. For the purposes of compliance with those special conditions, if inadvertent deployment could cause a hazard to the airplane, the airbag is considered a critical system; if inadvertent deployment could cause injuries to persons, the airbag should be considered an essential system. Finally, the airbag installation should be protected from the effects of fire, so that an additional hazard is not created by, for example, a rupture of the pyrotechnic squib.

In order to be an effective safety system, the airbag must function properly and must not introduce any additional hazards to occupants as a result of its functioning. There are several areas where the airbag differs from traditional occupant protection systems, and requires special conditions to ensure adequate performance.

Because the airbag is essentially a single use device, there is the potential that it could deploy under crash conditions that are not sufficiently severe as to require head injury protection from the airbag. Since an actual crash is frequently composed of a series of impacts before the airplane comes to rest, this could render the airbag useless if a larger impact follows the initial impact. This situation does not exist with energy absorbing pads or upper torso restraints, which tend to provide protection according to the severity of the impact. Therefore, the airbag installation should be such that the airbag will provide protection when it is required, and will not expend its protection when it is not needed. There is no requirement for the airbag to provide protection for multiple impacts, where more than one impact would require protection.

Since each occupant's restraint system provides protection for that occupant only, the installation must address seats that are unoccupied. It will be necessary to show that the required protection is provided for each occupant regardless of the number of occupied seats, and considering that unoccupied seats may have lapbelts that are active.

Since a wide range of occupants could occupy a seat, the inflatable lapbelt should be effective for a wide range of occupants. The FAA has historically considered the range from the fifth percentile female to the ninety-fifth percentile male as the range of occupants that must be taken into account. In this case, the FAA is proposing consideration of a broader range of occupants, due to the nature of the lapbelt installation and its close proximity to the occupant. In a similar vein, these persons could have assumed the brace position, for those accidents where an impact is anticipated. Test data indicate that occupants in the brace position do not require supplemental protection, and so it would not be necessary to show that the inflatable lapbelt will enhance the brace position. However, the inflatable lapbelt must not introduce a hazard in that case by deploying into the seated, braced occupant.

Another area of concern is the use of seats so equipped by children whether lap-held, in approved child safety seats, or occupying the seat directly. Similarly, if the seat is occupied by a pregnant woman, the installation needs to address such usage, either by demonstrating that it will function properly, or by adding appropriate limitation on usage.

Since the inflatable lapbelt will be electrically powered, there is the possibility that the system could fail due to a separation in the fuselage. Since this system is intended as crash/post-crash protection means, failure due to fuselage separation is not acceptable. As with emergency lighting, the system should function properly if such a separation occurs at any point in the fuselage. A separation that occurs at the location of the inflatable lapbelt would not have to be considered.

Since the inflatable lapbelt is likely to have a large volume displacement, the inflated bag could potentially impede egress of passengers. Since the bag deflates to absorb energy, it is likely that an inflatable lapbelt would be deflated at the time that persons would be trying to leave their seats. Nonetheless, it is considered appropriate to specify a time interval after which the inflatable lapbelt may not impede rapid egress. Ten seconds has been chosen as a reasonable time since this corresponds to the maximum time allowed for an exit to be openable. In actuality, it is unlikely that an exit would be prepared this quickly in an accident severe enough to warrant deployment of the inflatable lapbelt, and the inflatable lapbelt will likely deflate much quicker than ten seconds.

Finally, it should be noted that the special conditions are certification applied to the inflatable lapbelt system as installed. The special conditions are not an installation approval. Therefore, while the special conditions relate to each such system installed, the overall installation approval is a separate finding, and must consider the combined effects of all such systems installed.

Under the provisions of 14 CFR 21.101, BF Goodrich Aerospace must show that the Model 777 series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. T00001SE or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. T00001SE are as follows: Amendments 25-1 through 25-82 for the Model 777-200 and Amendments 25-1 through 25-86 with exceptions for the Model 777-300. The U.S. type certification basis for the Model 777 is established in accordance with 14 CFR 21.29 and 21.17 and the type certification application date. The U.S. type certification basis is listed in Type Certificate Data Sheet No. T00001SE.

If the Administrator finds that the applicable airworthiness regulations ( i.e., 14 CFR part 25 as amended) do not contain adequate or appropriate safety standards for Boeing Model 777 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 777 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

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

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

The Model 777 series airplanes will incorporate the following novel or unusual design features: BF Goodrich is proposing to install an inflatable lapbelt on certain seats of Boeing Model 777 series airplanes, in order to reduce the potential for head injury in the event of an accident. The inflatable lapbelt works similar to an automotive airbag, except that the airbag is integrated with the lap belt of the restraint system.

The CFR states the performance criteria for head injury protection in objective terms. However, none of these criteria are adequate to address the specific issues raised concerning seats with inflatable lapbelts. The FAA has therefore determined that, in addition to the requirements of 14 CFR part 25, special conditions are needed to address requirements particular to installation of seats with inflatable lapbelts.

Accordingly, in addition to the passenger injury criteria specified in § 25.785, these special conditions are adopted for the Boeing Model 777 series airplanes equipped with inflatable lapbelts. Other conditions may be developed, as needed, based on further FAA review and discussions with the manufacturer and civil aviation authorities.

From the standpoint of a passenger safety system, the airbag is unique in that it is both an active and entirely autonomous device. While the automotive industry has good experience with airbags, the conditions of use and reliance on the airbag as the sole means of injury protection are quite different. In automobile installations, the airbag is a supplemental system and works in conjunction with an upper torso restraint. In addition, the crash event is more definable and of typically shorter duration, which can simplify the activation logic. The airplane-operating environment is also quite different from automobiles and includes the potential for greater wear and tear, and unanticipated abuse conditions (due to galley loading, passenger baggage, etc.); airplanes also operate where exposure to high intensity electromagnetic fields could affect the activation system.

The following special conditions can be characterized as addressing either the safety performance of the system, or the system's integrity against inadvertent activation. Because a crash requiring use of the airbags is a relatively rare event, and because the consequences of an inadvertent activation are potentially quite severe, these latter requirements are probably the more rigorous from a design standpoint.

Notice of proposed special conditions No. 25-99-10-SC for the Boeing Model 777 series airplanes was published in the Federal Register on December 13, 1999 (64 FR 69425). Three comments were received. One commenter concurred with the special conditions as proposed.

One commenter states that the requirement of condition #4 was vague, and that “wear and tear” needed further definition. The commenter suggests that the special condition be specific as to the level of wear and tear that must be addressed. The commenter indicates that operational inspections would be difficult and require changes to manufacturers' manuals. The commenter notes that the special condition seems to be focused on pyrotechnically operated designs, and that this might not always be the case.

The FAA agrees that the term “wear and tear” is not particularly specific, and this was intentional. Depending on where certain components of the system are installed, their susceptibility to in-service wear and tear will vary. It is the intent of this requirement that the inflatable lapbelt will not deploy as a result of foreseeable in-service conditions, including interaction with passengers, if applicable, use of service carts, if applicable, and so on. There are regulatory requirements for instructions for continued airworthiness that continue to apply and are not a substitute for these special conditions. The device in question is pyrotechnically activated and, therefore, this condition was written with that in mind. Other designs that might require a different condition, or might not require a similar consideration, are not the subject of this special condition. No change is made to the special condition.

One commenter felt that special conditions #4 and #7 should also address the storage and transportation of the unit or its components, relative to inadvertent deployment. While this is a legitimate concern, it is not relevant to these special conditions, since it is not an issue for approval of the inflatable lapbelt on an airplane. Existing regulations in Title 49 of CFR address storage and transportation of hazardous materials.

One commenter states that the requirement of condition #5 was impractical as stated, since no injury severity level was specified. One commenter points out that a bruise or rash could be considered an injury under the current wording, and would therefore make the inflatable lapbelt unacceptable. The commenter suggests that the requirement should be stated as a performance criterion. For example, a requirement that deployment of the inflatable lapbelt should not cause an injury that would adversely affect the ability to egress the airplane.

Another commenter notes that in promotional literature the inflatable lapbelt appears to deploy from between the occupant and the seatbelt, and is characterized as a pre-tensioning device. The commenter considers that this could introduce new injury mechanisms that should be considered. In addition, the commenter questions whether this type of deployment could alter the position of the seatbelt itself, so that it bears on soft tissue, rather than the hips.

The intent of the requirement is to prevent the introduction of injury mechanisms that did not exist previously, or would not be present on a seat that complied with the regulations directly. In this regard, injuries that would affect rapid egress are certainly of concern. Bruises or friction injuries would not be considered new injury mechanisms. However, there could be other injury mechanisms that might not have a direct impact on rapid egress, but could still be debilitating. The special condition requires that the inflatable lapbelt not introduce injury mechanisms and that rapid egress not be affected. With regard to the manner in which the airbag deploys, the FAA agrees that this should be considered as part of the special conditions. In fact, the concern expressed by the commenter is precisely the sort of thing the special conditions are intended to address, i.e. , the introduction of injury mechanisms.

One commenter states that consideration should be given to potential injury resulting from an airbag that appears not to provide full coverage to the head. It is not clear what change to the special conditions the commenter intended as a result of this suggestion. The performance of the inflatable lapbelt must be assessed by actual test. Therefore, whether or not the airbag provides full coverage to the head will be evident from tests and, of course, the acceptability of this must be assessed. No change is made to the special conditions.

One commenter questioned the origin of the 10-second standard proposed in condition #8, and whether that standard applied equally to accidents that consisted of single and multiple impacts. The commenter also states that this requirement must be related to other time critical requirements in the regulations, such as those for exit opening, escape slide deployment and overall airplane evacuation time.

The requirement as written was intended to address a representative accident scenario, from initial impact until the airplane comes to rest. The reason that a specific time interval was chosen was in consideration of the fact that an evacuation cannot take place simultaneously with the accident. The 10-second interval was established based on FAA review of both test and accident data considering the time from impact until an airplane comes to rest, coupled with the time needed to prepare exits and escape slides for evacuation. Therefore, whether an accident consists of a single impact or several, 10 seconds after the device deploys, it should not impede rapid egress of occupants. This includes occupants of seats adjacent to deployed devices, as well as occupants of the seat in which the device deploys. No change is made to this provision. There is no need to further correlate this requirement to other evacuation time-related requirements, since there is no conflict or incompatibility.

One commenter notes that promotional literature implies that the inflatable lapbelt will have an end release buckle. The commenter questions whether this is appropriate in an aviation application and whether an injured person would be able to release such a buckle.

The FAA considers the utility and functionality of the buckle itself as not requiring special conditions. Any restraint system buckle must be demonstrated to be in compliance with the applicable requirements, whether it releases from the center or the end. Therefore, the fact that this restraint system is also equipped with an airbag device has no bearing on the buckle position assessment, other than as it relates to egress. Egress issues are already covered in condition #8.

As discussed above, these special conditions are applicable to the Model 777 series airplanes. Should BF Goodrich apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. T00001SE to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well under the provisions of § 21.101(a)(1).

This action affects only certain novel or unusual design features on the Boeing Model 777 series airplanes. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane.

The authority citation for these proposed special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Boeing Model 777 series airplanes modified by BF Goodrich Aerospace by installing inflatable lapbelts.

1. Seats With Inflatable Lapbelts. It must be shown that the inflatable lapbelt will deploy and provide protection under crash conditions where it is necessary to prevent serious head injury. The means of protection must take into consideration a range of stature from a two-year-old child to a ninety-fifth percentile male. The inflatable lapbelt must provide a consistent approach to energy absorption throughout that range. In addition, the following situations must be considered:

a. The seat occupant is holding an infant.

b. The seat occupant is a child in a child restraint device.

c. The seat occupant is a child not using a child restraint device.

d. The seat occupant is a pregnant woman.

2. The inflatable lapbelt must provide adequate protection for each occupant regardless of the number of occupants of the seat assembly, considering that unoccupied seats may have active seatbelts.

3. The design must prevent the inflatable lapbelt from being either incorrectly buckled or incorrectly installed such that the airbag would not properly deploy. Alternatively, it must be shown that such deployment is not hazardous to the occupant, and will provide the required head injury protection.

4. It must be shown that the inflatable lapbelt system is not susceptible to inadvertent deployment as a result of wear and tear, or inertial loads resulting from in-flight or ground maneuvers (including gusts and hard landings), likely to be experienced in service.

5. Deployment of the inflatable lapbelt must not introduce injury mechanisms to the seated occupant, or result in injuries that could impede rapid egress. This assessment should include an occupant who is in the brace position when it deploys and an occupant whose belt is loosely fastened.

6. It must be shown that an inadvertent deployment, that could cause injury to a standing or sitting person, is improbable.

7. It must be shown that inadvertent deployment of the inflatable lapbelt, during the most critical part of the flight, will either not cause a hazard to the airplane or is extremely improbable.

8. It must be shown that the inflatable lapbelt will not impede rapid egress of occupants 10 seconds after its deployment.

9. The system must be protected from lightning and HIRF. The threats specified in Special Condition No. 25-ANM-78 are incorporated by reference for the purpose of measuring lightning and HIRF protection. For the purposes of complying with HIRF requirements, the inflatable lapbelt system is considered a “critical system” if its deployment could have a hazardous effect on the airplane; otherwise it is considered an “essential” system.

10. The inflatable lapbelt must function properly after loss of normal aircraft electrical power, and after a transverse separation of the fuselage at the most critical location. A separation at the location of the lapbelt does not have to be considered.

11. It must be shown that the inflatable lapbelt will not release hazardous quantities of gas or particulate matter into the cabin.

12. The inflatable lapbelt installation must be protected from the effects of fire such that no hazard to occupants will result.

13. There must be a means for a crewmember to verify the integrity of the inflatable lapbelt activation system prior to each flight or it must be demonstrated to reliably operate between inspection intervals.

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 CFM International CFM56-2, -2A, -2B, -3, -3B, and -3C Series Turbofan Engines was published in the Federal Register on December 13, 1999 (64 FR 69248). That action proposed to require a one-time eddy current inspection (ECI) for cracks in the bolt holes of high pressure turbine (HPT) front rotating air seals. That action was prompted by reports of machining anomalies in a bolt hole that led to an HPT front rotating air seal failure. That condition, if not corrected could result in cracks in the bolt holes of HPT front rotating air seals, which can lead to an uncontained engine failure and damage to the aircraft.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received.

After careful review of the available data, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

There are approximately 121 engines of the affected design in the worldwide fleet. The FAA estimates that 13 engines installed on aircraft of US registry will be affected by this AD, that it would take approximately 300 work hours per engine to accomplish the actions, and that the average labor rate is $60 per work hour. Based on these figures, the total cost impact of the AD on US operators is estimated to be $234,000.

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 .

Airworthiness Directive (AD) 2000-04-05, amendment 39-11587, applicable to certain Israel Aircraft Industries, Ltd., Model Astra SPX series airplanes, was published in the Federal Register on February 23, 2000 (65 FR 8848). That AD requires a one-time inspection to measure the countersink angle of the bolt holes in the lower scissors fitting of the horizontal stabilizer, and corrective actions, if necessary.

As published, the applicability of AD 2000-04-05 inadvertently omitted “serial numbers 085 through 112 inclusive” for Israel Aircraft Industries, Ltd., Model Astra SPX series airplanes.

Since no other part of the regulatory information has been changed, the final rule is not being republished.

The effective date of this AD remains March 29, 2000.

In a notice published in the Federal Register of January 6, 2000 (65 FR 782), FDA announced that a food additive petition (FAP 0A4705) had been filed by Alcide Corp., 8561 154th Ave. NE., Redmond, WA 98052. The petition proposed to amend the food additive regulation in § 173.325 (21 CFR 173.325) to provide for the safe use of acidified sodium chlorite solutions as an antimicrobial agent on poultry carcass parts.

FDA has evaluated data in the petition and other relevant material. Based on this information, the agency concludes that: (1) The proposed use of the additive is safe, (2) the additive will achieve its intended technical effect, and, therefore, (3) the regulation in § 173.325 should be amended as set forth below.

In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that FDA considered and relied upon in reaching its decision to approve the petition are available for inspection at the Center for Food Safety and Applied Nutrition by appointment with the information contact person listed above. As provided in § 171.1(h), the agency will delete from the documents any materials that are not available for public disclosure before making the documents available for inspection.

In the notice of filing, FDA gave interested parties an opportunity to submit comments on the petitioner's environmental assessment. FDA received no comments in response to that notice.

The agency has carefully considered the potential environmental effects of this action. FDA has concluded that the action will not have a significant impact on the human environment, and that an environmental impact statement is not required. The agency's finding of no significant impact and the evidence supporting that finding, contained in an environmental assessment, may be seen in the Dockets Management Branch (address above) between 9 a.m. and 4 p.m., Monday through Friday.

This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

Any person who will be adversely affected by this regulation may at any time file with the Dockets Management Branch (address above) written objections by April 27, 2000. Each objection shall be separately numbered, and each numbered objection shall specify with particularity the provisions of the regulation to which objection is made and the grounds for the objection. Each numbered objection on which a hearing is requested shall specifically so state. Failure to request a hearing for any particular objection shall constitute a waiver of the right to a hearing on that objection. Each numbered objection for which a hearing is requested shall include a detailed description and analysis of the specific factual information intended to be presented in support of the objection in the event that a hearing is held. Failure to include such a description and analysis for any particular objection shall constitute a waiver of the right to a hearing on the objection. Three copies of all documents are to be submitted and are to be identified with the docket number found in brackets in the heading of this document. Any objections received in response to the regulation may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Director, Center for Food Safety and Applied Nutrition, 21 CFR part 173 is amended as follows:

In a notice published in the Federal Register of July 28, 1998 (63 FR 40297), FDA announced that a petition (FAP 8B4601) had been filed by The Dow Chemical Co., 2030 Dow Center, Midland, MI 48674. The petition proposed to amend the food additive regulations in § 177.1520 Olefin polymers (21 CFR 177.1520) to expand the safe use of ethylene-octene-1 copolymers as articles or components of articles contacting food by lowering the required level of polymer units derived from ethylene to not less than 50 weight-percent.

FDA has evaluated the data in the petition and other relevant material. Based on this information, the agency concludes that: (1) The proposed use of the additive is safe, (2) the additive will achieve its intended technical effect, and therefore, (3) the regulations should be amended as set forth below.

In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that FDA considered and relied upon in reaching its decision to approve the petition are available for inspection at the Center for Food Safety and Applied Nutrition by appointment with the information contact person listed above. As provided in § 171.1(h), the agency will delete from the documents any materials that are not available for public disclosure before making the documents available for inspection.

The agency has carefully considered the potential environmental effects of this action. FDA has concluded that the action will not have a significant impact on the human environment, and that an environmental impact statement is not required. The agency's finding of no significant impact and the evidence supporting that finding, contained in an environmental assessment, may be seen in the Dockets Management Branch (address above) between 9 a.m. and 4 p.m., Monday through Friday.

This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

Any person who will be adversely affected by this regulation may at any time file with the Dockets Management Branch (address above) written objections by April 27, 2000. Each objection shall be separately numbered, and each numbered objection shall specify with particularity the provisions of the regulation to which objection is made and the grounds for the objection. Each numbered objection on which a hearing is requested shall specifically so state. Failure to request a hearing for any particular objection shall constitute a waiver of the right to a hearing on that objection. Each numbered objection for which a hearing is requested shall include a detailed description and analysis of the specific factual information intended to be presented in support of the objection in the event that a hearing is held. Failure to include such a description and analysis for any particular objection shall constitute a waiver of the right to a hearing on the objection. Three copies of all documents are to be submitted and are to be identified with the docket number found in brackets in the heading of this document. Any objections received in response to the regulation may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.

In a notice published in the Federal Register of February 3, 1999 (64 FR 5299), FDA announced that a food additive petition (FAP 9B4639) had been filed by Ciba Specialty Chemicals Corp., 540 White Plains Rd., Tarrytown, NY 10591-9005. The petition proposed to amend the food additive regulations in § 178.2010 Antioxidants and/or stabilizers for polymers (21 CFR 178.2010) to provide for the safe use of N,N'″-[1,2-ethanediylbis [[[4,6-bis [butyl (1,2,2,6,6-pentamethyl-4-piperidinyl) amino] -1,3,5-triazin-2-yl]imino] -3,1-propanediyl]] bis[N′,N″-dibutyl-N′,N″-bis (1,2,2,6,6-pentamethyl-4-piperidinyl) -1,3,5-triazine-2,4,6-triamine] as a light/thermal stabilizer in olefin polymers intended for use in contact with food. After further evaluation, the agency has determined that the correct name for the subject additive is N,N'″-1,2-ethanediylbis[N-[3-[[4,6-bis[butyl(1,2,2,6,6-pentamethyl-4-piperidinyl)amino]-1,3,5-triazin-2-yl]amino]propyl]-N′,N″-dibutyl-N′,N″-bis(1,2,2,6,6-pentamethyl-4-piperidinyl)-1,3,5-triazine-2,4,6-triamine] (CAS Reg. No. 106990-43-6) in accordance with the Chemical Abstracts Service (CAS) 9th Collective Index. This latest CAS name will be used in the regulation.

FDA has evaluated the data in the petition and other relevant material. Based on this information, the agency concludes that: (1) The proposed use of the additive as a light/thermal stabilizer in olefin polymers intended for use in contact with food is safe, and (2) the additive will have the intended technical effect. Therefore, the regulations in § 178.2010 should be amended as set forth below.

In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that FDA considered and relied upon in reaching its decision to approve the petition are available for inspection at the Center for Food Safety and Applied Nutrition by appointment with the information contact person listed above. As provided in § 171.1(h), the agency will delete from the documents any materials that are not available for public disclosure before making the documents available for inspection.

The agency has previously considered the potential environmental effects of this rule as announced in the notice of filing for FAP 9B4639 (64 FR 5299). No new information or comments have been received that would affect the agency's previous determination that there is no significant impact on the human environment and that an environmental impact statement is not required.

This final rule contains no collections of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

Any person who will be adversely affected by this regulation may at any time file with the Dockets Management Branch (address above) written objections by April 27, 2000. Each objection shall be separately numbered, and each numbered objection shall specify with particularity the provisions of the regulation to which objection is made and the grounds for the objection. Each numbered objection on which a hearing is requested shall specifically so state. Failure to request a hearing for any particular objection shall constitute a waiver of the right to a hearing on that objection. Each numbered objection for which a hearing is requested shall include a detailed description and analysis of the specific factual information intended to be presented in support of the objection in the event that a hearing is held. Failure to include such a description and analysis for any particular objection shall constitute a waiver of the right to a hearing on the objection. Three copies of all documents are to be submitted and are to be identified with the docket number found in brackets in the heading of this document. Any objections received in response to the regulation may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Director, Center for Food Safety and Applied Nutrition, 21 CFR part 178 is amended as follows:

In a notice published in the Federal Register of March 3, 1999 (64 FR 10304), FDA announced that a food additive petition (FAP 9B4638) had been filed by Asahi Denka Kogyo K.K., 2-13, Shirahata 5-chome, Urawa City Saitama 336, Japan. The petition proposed to amend the food additive regulations in § 178.3295 Clarifying agents for polymers (21 CFR 178.3295) to provide for the safe use of aluminum, hydroxybis[2,4,8,10-tetrakis(1,1-dimethylethyl)-6-hydroxy-12H-dibenzo[d,g][1,3,2]dioxaphosphocin 6-oxidato]- as a clarifying agent for polypropylene and polypropylene copolymers intended for use in contact with food.

FDA has evaluated the data in the petition and other relevant material. Based on this information, the agency concludes that the proposed use of the additive is safe, the additive will achieve its intended technical effect, and therefore, that the regulations in § 178.3295 should be amended as set forth below.

In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that FDA considered and relied upon in reaching its decision to approve the petition are available for inspection at the Center for Food Safety and Applied Nutrition by appointment with the information contact person listed above. As provided in § 171.1(h), the agency will delete from the documents any materials that are not available for public disclosure before making the documents available for inspection.

The agency has previously considered the environmental effects of this rule as announced in the notice of filing for FAP 9B4638 (64 FR 10304). No new information or comments have been received that would affect the agency's previous determination that there is no significant impact on the human environment and that an environmental impact statement is not required.

This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

Any person who will be adversely affected by this regulation may at any time on or before April 27, 2000, file with the Dockets Management Branch (address above) written objections thereto. Each objection shall be separately numbered, and each numbered objection shall specify with particularity the provisions of the regulation to which objection is made and the grounds for the objection. Each numbered objection on which a hearing is requested shall specifically so state. Failure to request a hearing for any particular objection shall constitute a waiver of the right to a hearing on that objection. Each numbered objection for which a hearing is requested shall include a detailed description and analysis of the specific factual information intended to be presented in support of the objection in the event that a hearing is held. Failure to include such a description and analysis for any particular objection shall constitute a waiver of the right to a hearing on the objection. Three copies of all documents are to be submitted and are to be identified with the docket number found in brackets in the heading of this document. Any objections received in response to the regulation may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Director, Center for Food Safety and Applied Nutrition, 21 CFR part 178 is amended as follows:

The final regulations that are the subject of this correction are under section 7701(l) of the Internal Revenue Code.

As published, the final regulations (TD 8853) contain an error that may prove to be misleading and is in need of clarification.

Background

The final regulations that are the subject of this correction are under 663(c) of the Internal Revenue Code.

As published, the final regulations (TD 8849) contain errors that may prove to be misleading and are in need of clarification.

Background

The final regulations that are the subject of these corrections relate to owners of low-income housing projects who claim the credit and the Agencies who administer the credit.

As published, the final regulations (TD 8859) contain errors that are in need of clarification.

Background

The final regulations that are subject to these corrections are under sections 1361, 1362, and 1374 of the Internal Revenue Code.

As published, the final regulations (TD 8869) contain errors that may prove to be misleading and are in need of clarification.

Background

The final regulations that are subject to these corrections are under sections 167 and 197 of the Internal Revenue Code.

As published, the final regulations (TD 8865) contain errors that may prove to be misleading and are in need of clarification.

Background

The correction to final regulations that are subject to this correction is under sections 1366, 1367, and 1368 of the Internal Revenue Code.

As published, the correction to final regulations (TD 8852) contains a typographical error that may prove to be misleading and is in need of clarification.

Background

The final regulations that are the subject of these corrections are under sections 1291, 1293, 1295 and 1298 of the Internal Revenue Code.

As published, the final regulations (TD 8870) contain errors that are in need of clarification.

Background

The final regulations that are subject to these corrections provide guidance under sections 1441, 1442, and 1443 of the Internal Revenue Code.

As published, the final regulations (TD 8856) contain errors that may prove to be misleading and are in need of clarification.

ISOO published a final rule document in the Federal Register of September 13, 1999, (64 FR 49388) adding a new § 2001.55 to Subpart E. The term and definition of “Equity” was inadvertently dropped from the text of the rule. This correction provides the definition for “Equity.”

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons, Ozone.

Throughout this document, whenever we, us or our is used, this refers to EPA. Information regarding this action is presented in the following order:

We are approving the State of Idaho's section 111(d) State Plan for controlling emissions from existing Municipal Solid Waste (MSW) Landfills. Idaho submitted its State Plan on December 16, 1999, to fulfill the requirements of section 111(d) of the Clean Air Act (CAA). The State Plan adopts and implements the Emissions Guidelines (EG) applicable to existing MSW Landfills, and establishes emission limits and controls for sources which commenced construction, reconstruction, or modification before May 30, 1991. This approval, once effective, will make the Idaho MSW Landfills rules included in the plan federally enforceable.

We have evaluated Idaho's MSW Landfills State Plan for consistency with the CAA, EPA guidelines and policy. We have determined that Idaho's State Plan meets all requirements, and, therefore, we are approving Idaho's plan to implement and enforce the standards applicable to existing MSW Landfills.

Idaho's State Plan regulates all the sources designated by EPA's EG for existing MSW Landfills which commenced construction, reconstruction, or modification before May 30, 1991. If your facility meets this criteria, then you are subject to these regulations.

Idaho's State Plan does not cover facilities located in Indian Country. Therefore, any sources located in Indian Country are subject to the Federal plan (see below).

On November 8, 1999, we finalized a Federal Plan for MSW Landfills which covers sources located in Indian Country and sources for which there is no approved State Plan. This plan is codified at 40 CFR part 62, subpart GGG, and became effective on January 7, 2000. All existing MSW Landfills in Idaho, including those in Indian Country, are currently subject to the requirements in this Federal Plan (see 64 FR 60689, November 8, 1999). However, as of the effective date of this action approving Idaho's MSW Landfills State Plan, existing MSW Landfills within Idaho's jurisdiction will be subject to Idaho's State Plan, and will no longer be subject to the Federal Plan. Furthermore, MSW Landfills located in Indian Country are currently subject to the Federal Plan and will continue to be subject to the Federal Plan only.

Section 111 of the CAA, “Standards of Performance for New Stationary Sources,” authorizes us to set air emissions standards for certain categories of sources. These standards are called New Source Performance Standards (NSPS). When a NSPS is promulgated for new sources, section 111(d) also requires that we publish an EG applicable to the control of the same pollutant from existing (designated) facilities. States with designated facilities must then develop a State Plan to adopt the EG into the State's body of regulations. States must also include in their State Plan other elements, such as inventories, legal authority, and public participation documentation, to demonstrate their ability to enforce the State Plans.

A MSW Landfills State Plan is a State Plan (as described above) that controls air pollutant emissions from existing Municipal Solid Waste Landfills.

When we developed NSPS for MSW Landfills, we simultaneously developed the EG to control air emissions from existing MSW Landfills (see 61 FR 9919, March 12, 1996). Under section 111(d) of the CAA, the EG are not federally enforceable; therefore, section 111(d) of the CAA also requires states to submit to EPA for approval State Plans that implement and enforce the EG. These State Plans must be at least as protective as the EG, and they become federally enforceable upon approval by EPA. The procedures for adopting and submitting State Plans are located in 40 CFR part 60, subpart B. If a State fails to have an approvable plan in place by December 12, 1996, the EPA is required to promulgate a Federal plan to establish requirements for those sources not under an EPA-approved State Plan. EPA promulgated a Federal Plan for MSW Landfills on November 8, 1999. Existing MSW Landfills are subject to the Federal Plan until the State Plan is approved and in effect.

A section 111(d) State Plan submittal must meet the requirements of 40 CFR part 60, subpart B, §§ 60.23 through 60.26; 40 CFR part 60, subpart Cc, §§ 60.30(c) through 60.36(c); and it must be consistent with the requirements established in the Federal Plan for MSW Landfills. Subpart B contains the procedures for adoption and submittal of State Plans. This subpart addresses public participation, legal authority, emission standards and other emission limitations, compliance schedules, emission inventories, source surveillance, and compliance assurance and enforcement requirements. EPA promulgated the EG as 40 CFR part 60, subpart Cc on March 12, 1996, and amended the EG on June 16, 1998, and February 24, 1999. Subpart Cc contains the technical requirements for existing MSW Landfills and applies to sources which commenced construction, reconstruction, or modification before May 30, 1991. A State will generally address the MSW Landfills technical requirements by adopting by reference subpart Cc. The Federal Plan also contains the technical requirements for existing MSW Landfills with the same applicability. EPA promulgated the MSW Landfills Federal Plan on November 8, 1999. The section 111(d) state plan is required to be submitted within one year of the EG promulgation date, i.e., by December 12, 1996. Prior to submittal to us, the State must make available to the public the State Plan and provide opportunity for public comment. For States that submit their State Plans after December 12, 1996, the requirements within their State Plans (including compliance timelines) must be as protective as the Federal Plan. Idaho has developed and submitted a State Plan, as required by section 111(d) of the CAA, to gain federal approval to implement and enforce the MSW Landfills EG.

The State of Idaho submitted its section 111(d) State Plan on December 16, 1999, for implementing EPA's EG for existing MSW Landfills. Idaho adopted the EG requirements into IDAPA 16.01.01.860 (effective November 19, 1999) entitled, “Emission Guidelines for Municipal Solid Waste Landfills That Commenced Construction, Reconstruction, Or Modification Before May 30, 1991.” Idaho's section 111(d) Plan contains:

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

(2) State Rules adopted into 16.01.01.860 as the mechanism for implementing and enforcing the State Plan;

(3) Emission inventories of all Idaho's applicable sources. There are over 100 existing MSW Landfills in Idaho's inventory, including several closed facilities which are subject to the initial reporting requirements of the EG and the procedures for notification of modification as prescribed under 40 CFR 60.7(a)(4). Many of the listed landfills will not exceed the design capacity threshold for which compliance requirements have been established. These landfillls will only be required to submit their initial design capacity reports and their initial emission rate reports. In these inventories, all designated pollutants have been identified and data have been provided for each;

(4) Emission limits that are as protective as the EG;

(5) Enforceable compliance schedules for all sources which will take more than 12 months from the effective date of the State Plan to comply with all emission standards. The State Plan also indicates within its regulations a final compliance date which is at least as protective as the date required by the Federal Plan;

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

(7) Records for the public notice and hearing; and

(8) Provisions for Idaho's progress reports to EPA.

We reviewed Idaho's MSW Landfills State Plan for approval against the following criteria: 40 CFR part 60, subpart B, §§ 60.23 through 60.26; 40 CFR part 60, subpart Cc, §§ 60.30(c) through 60.36(c); and the Federal Plan for MSW Landfills. A detailed discussion of our evaluation of Idaho's State Plan is included in our technical support document located in the official file for this action and available from the EPA contact listed above. We have determined that Idaho's MSW Landfills State Plan meets all of the applicable approval criteria.

We are approving, through direct final rulemaking action, Idaho's section 111(d) State Plan for MSW Landfills. EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial action 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 Idaho State Plan should relevant adverse comments be filed. This action will be effective on May 30, 2000 without further notice, unless EPA receives relevant adverse comments by April 27, 2000.

If EPA receives such comments, then it will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. 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 30, 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 State Plan 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 State Plan submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a State Plan submission, to use VCS in place of a State Plan 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 . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 30, 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).)

Throughout this document wherever “we,” “us,” or “our” is used we mean EPA.

Under section 111(d) of the Act and 40 CFR part 60, subpart B, EPA has established procedures for States to submit plans to control certain existing sources of “designated pollutants.” Designated pollutants are defined as pollutants for which a standard of performance for new sources applies under section 111, but which are not “criteria pollutants” ( i.e., pollutants for which EPA has established National Ambient Air Quality Standards (NAAQS) under sections 108 and 109 of the Act) or hazardous air pollutants (HAPs) regulated under section 112 of the Act. As required by section 111(d) of the Act, EPA established a process at 40 CFR part 60, subpart B, similar to the process required by section 110 of the Act (regarding State Implementation Plan (SIP) approval) which States must follow in adopting and submitting a section 111(d) plan. Whenever EPA promulgates a new source performance standard (NSPS) that controls a designated pollutant, it simultaneously establishes emissions guidelines in accordance with 40 CFR 60.22. This provision contains information on the control of the designated pollutant from that NSPS source category ( i.e., the “designated facility” as defined at 40 CFR 60.21(b)). Thus, a State's section 111(d) plan for a designated facility must comply with the emission guideline for that source category, as well as with 40 CFR part 60, subpart B.

On March 12, 1996, EPA published EG for existing MSW landfills at 40 CFR part 60, subpart Cc (40 CFR 60.30c through 60.36c), and NSPS for new MSW Landfills at 40 CFR part 60, subpart WWW (40 CFR 60.750 through 60.759) (See 61 FR 9905-9929.). The pollutant regulated by the NSPS and EG is “MSW landfill gas emissions”, which contain a mixture of methane and non-methane organic compounds. Non-methane organic compounds (NMOC) consist of volatile organic compounds (VOC), hazardous air pollutants (HAPs), and odorous compounds. VOC emissions can contribute to ozone formation which can result in adverse effects to human health and vegetation. The health effects of HAPs include cancer, respiratory irritation, and damage to the nervous system. Methane emissions contribute to global climate change and can result in fires or explosions when they accumulate in structures on or off the landfill site. To determine if control is required, NMOCs are measured as a surrogate for MSW landfill gas emissions. Thus, NMOC is considered the designated pollutant. The designated facility which is subject to the EG is each existing MSW landfill (as defined in 40 CFR 60.31c) for which construction, reconstruction or modification was commenced before May 30, 1991.

40 CFR 60.23(a) requires States to submit a plan for the control of the designated pollutant to which the EG applies within nine months after publication of the EG ( i.e., by December 12, 1996). If there were no designated facilities in the State, then the State was required to submit a negative declaration by December 12, 1996.

The EPA has reviewed Indiana's section 111(d) plan for existing MSW landfills against the requirements of 40 CFR part 60, subpart B and subpart Cc, as follows:

The Indiana Air Pollution Control Board adopted amendments to 326 IAC 8-8-2, 8-8-3, 8-8-4 and new rule 8-8.1 on April 10, 1997. Indiana filed these rules with the Secretary of State on September 8, 1997. These rules became effective on October 8, 1997. Indiana published a notice of the adoption of these rules in the Indiana Register (21 IR 30) on October 1, 1997. Indiana also submitted a November 1, 1996 Findings and Determination by the Commissioner of the Indiana Department of Environmental Management (IDEM) related to the adoption of this rule, copies of public hearing notices and hearing transcripts as part of the 111(d) plan.

It should be noted that on November 21, 1995, and February 14, 1996, Indiana submitted 326 IAC 8-8 Municipal Solid Waste Landfills Located in Clark, Floyd, Lake and Porter Counties, sections 1 through 4, as a requested revision to the Indiana SIP. The Indiana Air Pollution Control Board adopted these rules on July 12, 1995, and filed them with the Secretary of State on December 19, 1995. The rules became effective on January 18, 1996. Indiana published these rules on February 1, 1996 at Indiana Register, Volume 19, Number 5, page 1050. On January 17, 1997 (62 FR 2591), EPA approved these rules into the Indiana SIP at 40 CFR 52.770(c)(110). By this action, EPA is also incorporating them into the Indiana Municipal Solid Waste Landfill Plan for Clark, Floyd, Lake, and Porter Counties.

Thus, the State has met the requirement of 40 CFR 60.24(a) to have legally enforceable emission standards.

40 CFR 60.26 requires the section 111(d) plan to demonstrate that the State has legal authority to adopt and implement the emission standards and compliance schedules.

The Indiana Code (IC) divides legal authority for environmental rule adoption and rule development and implementation between the Indiana Air Pollution Control Board (IAPCB) and IDEM. The IAPCB has the legal authority to adopt rules governing landfill gas emissions from existing MSW landfills. The IDEM has authority for rule development and implementation. These responsibilities are spelled out in Titles 4 and 13 of the IC. Under the IC, the APCB and IDEM have sufficient legal authority to carry out the plan.

40 CFR 60.25(a) requires the section 111(d) plan to include a complete source inventory of all existing MSW landfills ( i.e., those MSW landfills that were constructed, reconstructed, or modified prior to May 30, 1991) in the State that are subject to the plan. This includes all existing landfills that have accepted waste since November 8, 1987 or that have additional capacity for future waste deposition.

Indiana submitted a list of the existing MSW landfills in Indiana and an estimate of NMOC emissions from each landfill as part of its landfill plan.

40 CFR 60.25(a) requires that the plan include an emissions inventory that estimates emissions of the pollutant regulated by the EG, which, in the case of MSW landfills, is NMOC. Indiana included an estimation of NMOC emissions for all of the landfills in the State using the Landfill Air Emissions Estimation Model and AP-42 default emission factors in Appendices B and D to its section 111(d) plan.

40 CFR 60.24(c) specifies that the State plan must include emission standards that are no less stringent than those specified in 40 CFR 60.33c for existing MSW landfills. However, 40 CFR 60.24(f) allows for States to implement less stringent emission limits on a case-by-case basis if certain conditions are met.

Indiana's rules require existing MSW landfills to comply with the same level of control as prescribed in the NSPS. The controls and control system design criteria required by the NSPS are the same as those required by the EG. Thus, the emission standards implemented by Indiana are “no less stringent than” subpart Cc, which meets the requirements of 40 CFR 60.24(c).

Section 60.24(f) allows States, in certain case-by-case situations, to provide for a less stringent emission standard. Indiana's rules, 326 IAC 8-8.1-5 allow an owner/operator of a landfill that has been issued a closure certification, has an approved post-closure plan, and can demonstrate unreasonable cost, physical impossibilities, or other significant obstacles in complying with the standard emission limits, to apply for a less stringent standard. An owner/operator of a landfill seeking an alternative emission limit must submit a written request to IDEM and receive approval from IDEM and EPA pursuant to 40 CFR 60.24(f). The criteria in 325 IAC 8-8.1-5 parallel those contained in 40 CFR 60.24(f).

Thus, IDEM's plan meets the emission limitation requirements by requiring emission limitations that are no less stringent than the EG.

40 CFR 60.33c(b) in the EG requires State plans to include a process for State review and approval of site-specific design plans for required gas collection and control systems.

The IAPCB's rules regulating landfill gas emissions from MSW landfills essentially make the federal NSPS applicable to existing MSW landfills. The design criteria and the design specifications for active collection systems specified in the NSPS also apply to existing landfills, unless a request pursuant to 40 CFR 60.24(f) has been approved by the IDEM and by EPA. Once IDEM receives a design plan, it will record the date the plan is received. IDEM will then review the submittal for completeness and request additional information if necessary. Indiana will complete its review of the design plan within 180 days of its receipt.

Thus, Indiana section 111(d) plan adequately addresses this requirement.

The State's section 111(d) plan must include a compliance schedule that owners and operators of affected MSW landfills must meet in complying with the requirements of the plan. 40 CFR 60.36c provides that planning, awarding of contracts, and installation of air emission collection and control equipment capable of meeting the EG must be accomplished within 30 months of the effective date of a State emission standard for MSW landfills. 40 CFR 60.24(e)(1) provides that any compliance schedule extending more than 12 months from the date required for plan submittal shall include legally enforceable increments of progress as specified in 40 CFR 60.21(h), including deadlines for submittal of a final control plan, awarding of contracts for emission control systems, initiation of on-site construction or installation of emission control equipment, completion of on-site construction/installation of emission control equipment, and final compliance.

IAPCB has adopted enforceable compliance schedules in 326 IAC 8-8.1-4. The State's rules require landfills that must install collection and control systems to be in final compliance with the requirements of the State plan no later than 30 months from the effective date of State adoption of the State rule or, for those MSW landfills which are not currently subject to the collection and control system requirements, within 30 months of first becoming subject to such requirements ( i.e., within 30 months of reporting a NMOC emission rate of 50 Mg/yr or greater). Section 8-8-4 which regulates sources located in Clark, Floyd, Lake and Porter Counties requires affected sources to comply with the requirement of the Indiana MSW Landfill rule no later than May 1, 1996. Thus, the State's rule satisfies the requirement of 40 CFR 60.36c.

40 CFR 60.34c specifies the testing and monitoring provisions that State plans must include (60.34c actually refers to the NSPS requirements found in 40 CFR 60.754 to 60.756), and 40 CFR 60.35c specifies the reporting and recordkeeping requirements (§ 60.35c refers to the NSPS requirements found in 40 CFR 60.757 and 60.758). The IAPCB has adopted rules incorporating these pertinent Federal requirements. Consequently, EPA finds that the State's section 111(d) plan for MSW landfills adequately addresses the testing, monitoring, reporting, and recordkeeping requirements of the EG.

40 CFR 60.23 contains the requirements for public hearings that must be met by the State in adopting a section 111(d) plan. EPA's “Summary of the Requirements for Section 111(d) State Plans for Implementing the Municipal Solid Waste Landfill Emission Guidelines (EPA-456R/96-005, October 1996)” contains additional guidance on this requirement. Indiana included documents in its plan submittal demonstrating that it complied with these procedures, as well as the State's administrative procedures, in adopting the State's plan. Therefore, EPA finds that Indiana has adequately met this requirement.

40 CFR 60.25(e) and (f) require States to submit to EPA annual reports on the progress of plan enforcement. Indiana committed in the submittal for its section 111(d) plan to submit annual progress reports to EPA. The first progress report will be submitted by the State one year after EPA approval of the State plan. This commitment is part of section 15 #98-1 of IDEM's policy and procedures notebook. Section 15 #98-1 which was revised on May 20, 1998 details how Indiana intends to implement its MSW Landfill Plan.

Based on the rationale discussed above, EPA is approving Indiana's September 30, 1999, submittal of its section 111(d) plan for the control of landfill gas from existing MSW landfills. EPA is also incorporating the rules for controlling VOC emissions from existing MSW landfills located in Clark, Floyd, Lake and Porter Counties into the State's 111(d) plan. Indiana originally submitted these rules, contained in 326 IAC 8-8, to EPA as part of the Indiana Ozone Plan on November 21, 1995 and February 14, 1996. EPA approved these rules as part of the Ozone SIP on January 17, 1997 (62 FR 2593). EPA codified its approval of these State rules at 40 CFR 52.770(c)(110). As provided by 40 CFR 60.28(c), any revisions to Indiana's section 111(d) plan or associated regulations will not be considered part of the applicable plan until submitted by the State in accordance with 40 CFR 60.28(a) or (b), as applicable, and approved by EPA in accordance with 40 CFR part 60, subpart B.

EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in a separate document in this Federal Register publication, EPA is proposing to approve the State Plan should adverse written comments be filed. This action will be effective May 30, 2000, unless, by April 27, 2000, adverse written comments are received.

If EPA receives such comments, this action will be withdrawn before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on this action serving as a proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. If no such comments are received, the public is advised that this action will be effective on May 30, 2000.

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

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, 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, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials 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. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

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, 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.

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 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 sections 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 costs to State, local, or tribal governments in the aggregate; or to the 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 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 action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective May 30, 2000, unless EPA receives adverse written comments by April 27, 2000.

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 30, 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 FCC published a document in the Federal Register on November 15, 1999 (64 FR 61791) amending 47 CFR 25.137(b). In FR Doc. 99-29538, published in the Federal Register of November 15, 1999 (64 FR 61791), everything in § 25.137(b) after the first sentence was inadvertently removed. This correction adds the part of § 25.137(b) inadvertently removed on November 15, 1999.

This is a summary of the Commission's Report and Order adopted March 2, 2000, and released March 8, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW, Washington, DC 20554. The complete text may also be purchased from the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, Washington, DC 20036, telephone (202) 857-3800.

This Report and Order contains new or modified information collections subject to the Paperwork Reduction Act of 1995 (RA), Public Law 10413. It will be submitted to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collections contained in this proceeding.

This R&O contains either a new or modified information collection(s). The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public to comment on the information collection(s) contained in this R&O as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due May 30, 2000. Comments should address: (a) whether the new or modified collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

Type of Review: Revision of currently approved collections.

Respondents: Business or other for-profit.

Needs and Uses: In the Report and Order, the Commission is completing the first phase of its Comprehensive Accounting and ARMIS review by adopting most of its proposals initiated in its Phase 1 NPRM, 64 FR 44877 (August 18, 1999). In the Report and Order, the Commission eliminates the expense matrix filing requirement; provides large ILECs the option to obtain a biennial attestation engagement to satisfy their CAM audit obligation; establishes a $500,000 de minimis exception to our affiliate transactions fair market value estimate requirement; and eliminates the 15 day pre-filing requirement for cost pool and time reporting procedures changes. The Commission substantially streamlines the ARMIS 43-02 USOA report and significantly reduces the reporting requirements for carriers. The information provides the necessary detail to enable the Commission to fulfill its regulatory responsibilities.

We adopt our proposal to eliminate the expense matrix. We find that, although the expense matrix data have been an important part of our policy and tariff review processes, the changing telecommunications marketplace and regulatory framework have led us to rely on this data less frequently in our deliberations. We recognize that there remains a need for certain information provided by the expense matrix; we find, however, that the information can be provided to the Commission on an as-needed basis. We expect companies to keep such data available and be prepared to provide it to the Commission should the Commission make such a request.

We require ILECs to maintain subsidiary record categories to provide the data necessary for the Commission, carriers, and competitors to calculate pole attachment rates. The Commission reviews complaints about pole attachment rates under sections 224 and 251 of the Communications Act. In the Accounting Reductions Report and Order, 64 FR 50002 (February 15, 1999), we required mid-sized ILECs to maintain subsidiary records to provide the pole attachment data, and we will continue to require the larger carriers to maintain such records as well. Several commenters in this proceeding oppose the subsidiary record requirement. We find that elimination of the expense matrix and future ARMIS changes make it uncertain that ARMIS alone will be sufficient to allow parties to evaluate the pole attachment rates. We conclude that it is necessary to maintain subsidiary records for data needed in pole attachment formulas. This will assure that the data are publicly available, uniformly maintained among the carriers, and maintained in a manner that can be audited. We therefore require ILECs to maintain subsidiary record categories to provide the pole attachment data currently in the expense matrix and ARMIS reports. We note that the Commission is considering issues regarding pole attachment formulas. When we release a Report and Order in that docket, we will specify the subsidiary record categories needed for the finalized pole attachment formulas.

We are adopting the less burdensome attest audit requirement, as an option, because we are convinced that attest audits, with the Commission's input on audit procedures, will adequately protect ratepayers. We are also persuaded to conclude as we do because the accounting profession has improved the standards governing attest audits since we first required them more than ten years ago. For example, in 1993, the AICPA promulgated detailed standards for attestation engagements concerning compliance with specific laws and regulations. We also note that our attest examination will involve much of the same audit testing as previously required, and that attest audit findings can lead to the same type of adjustment to carrier reports as did the previous audit requirement.

We are giving carriers the option of choosing an attest examination every two years, covering the prior two-year period, or a financial audit. Instead of an annual financial audit, the financial audit option will also be biennial, covering the prior two years. We are changing the annual financial audit requirement to a biennial requirement to allow carriers to move from one option to the other. The biennial requirement serves the policy underlying this proceeding appropriately. The requirement provides accounting reform without compromising the Commission's ability to meet its statutory and policymaking responsibilities. We disagree with the large ILECs who claim that the audit should be biennial yet cover only one year. Our experience reviewing CAM audits and performing our own audits leads us to conclude that each year requires audit work. Carrier accounting systems can and do change from year to year. Likewise, one-time material errors do occur. These problems would go undetected if we allowed carriers to skip an audit year. On the other hand, we do not believe we must require an attest audit each year. The auditor's work in the “off year” should provide assurance against cross-subsidization, while allowing large ILECs to realize reduced costs that come with obtaining one attestation instead of two.

We adopt the proposal in our NPRM and establish a de minimis exception to our affiliate transactions rules for services. This de minimis exception is limited to affiliate transactions rules for services. All commenters addressing this issue are in support of the de minimis exception. We find that when the total annual value of transactions for a service is de minimis, the regulatory benefits of requiring carriers to make a good faith determination of the fair market value of a service may be outweighed by the administrative cost and effort of making such a determination. For non- de minimis services, the fully distributed cost/fair market value comparison remains an important safeguard against cross-subsidization. Thus, we do not eliminate the requirement for all services, nor do we extend it to asset transfers between carriers and their affiliates, as requested by several commenters. We note that the fully distributed cost/fair market value comparisons for assets is not as burdensome as those for services because the types of assets transferred are not typically so unique; further, we did not propose an asset exception in the NPRM.

In the NPRM, we proposed a threshold of $250,000. Several commenters suggest a higher threshold of $500,000. Commenters observe that only a limited number of services would fall under the $250,000 threshold for some large LECs and to provide meaningful relief the threshold should be $500,000. One commenter, on the other hand, suggests the threshold should be $1,000,000. We do not believe that the cost of fair market value/fully distributed cost comparisons is so high that a $1,000,000 exception is necessary. On the other hand, we believe that a $100,000 threshold, or a cap of 25 percent of the amount of services subject to the exception, may deprive carriers of many of the benefits of the exception. A cap is unnecessary because the independent auditors and the Commission will continue to monitor how carriers define services, thereby reducing the risk that the exception will be abused. We therefore adopt the $500,000 per service, per year de minimis exception to our § 32.27(c) good faith estimate requirement. Based on our experience enforcing the affiliate transactions rules, we conclude that the $500,000 threshold is reasonable. We find that below this threshold, the administrative cost and effort of making such a determination will outweigh the regulatory benefits of the good faith determination of fair market value of a service. Adopting this $500,000 de minimis exception will reduce the burden to carriers without lessening the effectiveness of our affiliate transactions rules.

Therefore, we eliminate the requirement that carriers make a good faith determination of fair market value for each service in cases where the total annual value of transactions for that service is less than $500,000. In such cases, the service should be recorded at fully distributed cost, and carriers should continue to report such transactions in their CAMs and ARMIS reports.

In the NPRM, we sought comment on whether affiliate transactions services conducted pursuant to sections 260, and 271 through 276 of the Communications Act should be included in the services eligible for the de minimis exception. We agree with the commenters that the de minimis exception should apply to all affiliate transactions when a carrier must compare fully distributed cost and fair market value of services. We note that in our first action on affiliate transactions after the Telecommunications Act of 1996 we applied our valuation rules equally to transactions under these sections. This de minimis exception applies only to affiliate transactions in which a carrier must compare fully distributed cost and fair market value pursuant to § 32.27(c) of our rules, and thus it does not apply to transactions under sections 271 and 272, which do not require such a comparison.

Section 64.903 of the Commission's rules requires carriers to update their CAMs at least annually except that changes to the cost apportionment table and time-reporting procedures must be filed at least 15 days before the carrier plans to implement such changes. Once a CAM change has been filed, the Chief of the Common Carrier Bureau may suspend any such changes for a period not to exceed 180 days, and may thereafter allow the change to become effective. BellSouth claims that the 15-day filing period requires it to disclose sensitive competitive service information. In the NPRM, we proposed eliminating the 15-day pre-filing requirement.

We adopt our proposal, which is supported by most of the commenters, and eliminate the 15-day pre-filing requirement for cost apportionment table and time reporting procedure changes. Carriers will no longer have to disclose competitively sensitive information before the CAM changes are implemented. We disagree with the suggestion that we eliminate the contemporaneous filing requirement and allow changes to be filed annually. It is important to review CAM changes upon receipt and stay them if necessary. That authority and oversight over CAM changes remains a safeguard against modifications such as cost pool changes that may hurt ratepayers. The potential harm to ratepayers is that a LEC could shift costs from nonregulated services to regulated services, resulting in subsidization of nonregulated services with revenues earned from the provision of regulated services. We are not persuaded that the 15-day pre-filing rule must be retained in order to prevent such improper cost shifting. We review proposed CAM changes immediately and that authority and oversight remains an important safeguard against any improper cost shifting.

Section 32.13(a)(3) of the Commission's rules allows carriers to establish temporary or experimental accounts, provided they notify the Commission of the nature and purpose of the accounts within 30 days of their establishment. Carriers use these accounts as clearing accounts that are closed each financial period, and do not alter the part 32 accounting structure. In the NPRM, we proposed eliminating the 30-day notice requirement of § 32.13(a)(3) because other accounting safeguards, such as ARMIS reporting, audit reviews, and our ability to obtain additional information as necessary are sufficient for our regulatory oversight.

We adopt our proposal, supported by most of the commenters, and eliminate the 30-day notification requirement in § 32.13(a)(3). As we noted in the NPRM, sufficient accounting safeguards exist to detect any improper activity resulting from experimental or temporary accounts. Our audits and the CAM engagements of the carriers' independent auditors will protect regulated ratepayers from absorbing costs of the carrier's nonregulated activities. At the same time, this action relieves carriers of a notification requirement.

Section 32.25 of the Commission's rules requires carriers to submit journal entries detailing extraordinary items, contingent liabilities, and material prior period adjustments to the Commission for approval before recording them in their books of account. In the NPRM , we proposed eliminating this requirement due to other safeguards, such as review of ARMIS filings, reviews by independent auditors, our audits, and our ability to obtain additional information on these accounting entries as we need it.

We adopt our proposal, which most of the commenters unconditionally support as well. Therefore, we eliminate the requirement that carriers submit extraordinary items, material prior period adjustments, and contingent liabilities for our review prior to recording them pursuant to § 32.25. Sufficient accounting safeguards exist to detect ratepayer harm resulting from these accounting entries. Our audits, ARMIS filings, and the CAM engagements of the carriers' independent auditors will assure us that carriers will not use these accounts to harm ratepayers. At the same time, this action relieves carriers of a notification requirement.

Section 32.2002 of the Commission's rules requires that carriers record to Account 2002, Property held for future telecommunications use, the original cost of property held for no longer than two years under a definite plan for use in telecommunications service. If the property is not put into service within two years, its cost must be transferred to Account 2006, Nonoperating plant. Carriers may keep the cost in Account 2002 only if they request and receive approval from the Commission based on a public interest showing. BellSouth states that this reclassification is burdensome and that the cost of the property could remain recorded in Account 2002, but be removed from the ratebase in a less burdensome manner. In the NPRM , we proposed that carriers may keep the costs in Account 2002 but they must exclude the costs, and the associated depreciation reserve, from the ratebase. The depreciation reserve associated with these costs should also be excluded from ratemaking considerations. The amounts removed from the ratebase would be reported in the ARMIS 43-01, column (e) All Other Adjustments and ARMIS 43-03, column (1) Other Adjustments.

We adopt the proposal in the NPRM and eliminate the requirement that carriers reclassify property from Account 2002 to Account 2006 if it is not put into service within two years. Under this new method, carriers must exclude the costs and associated accumulated depreciation from the ratebase and ratemaking considerations and report these amounts in ARMIS 43-01, column (e) All Other Adjustments and ARMIS 43-03, column (1) Other Adjustments. Reporting the amounts remaining in Account 2002 in ARMIS 43-03 is essential for accounting safeguards. Carriers' methodologies in producing the ARMIS 43-03 report form the basis of their independent auditors' review and will also be the basis for any dollar adjustments. Additionally, reporting the amounts in ARMIS allows us to review the data. We conclude that reporting the amounts remaining in Account 2002 in ARMIS 43-03 is less burdensome than reclassifying the costs from Account 2002 to Account 2006.

Section 32.2003 of the Commission's rules requires that carriers record in Account 2003, Telecommunications plant under construction, the original cost of construction projects including all related direct and indirect costs as provided under § 32.2000(c). If the construction project is suspended for six months or more, the cost must be reclassified to Account 2006, Nonoperating plant. If the project is abandoned, the cost must be charged to Account 7370, Special charges. BellSouth states that this reclassification is burdensome and that the property could remain recorded in Account 2003 and be excluded from the ratebase in a less burdensome manner. In the NPRM , we proposed that carriers be permitted to keep the costs in Account 2003, but remove the cost of suspended projects from the ratebase after six months. Carriers would be required to discontinue capitalization of allowance for funds used during construction under § 32.2000(c)(2)(x) until construction is resumed. Carriers would report these amounts in ARMIS 43-01, column (e) All Other Adjustments and ARMIS 43-03, column (1) Other Adjustments. Carriers would, however, continue to charge Account 7370 if the project were abandoned.

We adopt our proposal and eliminate the requirement that carriers reclassify property from Account 2003 to Account 2006 if the construction project is suspended for six months or more. Most of the commenters support this proposal. Under this new method, carriers must exclude the costs from the ratebase and ratemaking considerations. Carriers must also report these amounts in ARMIS 43-01, column (e) All Other Adjustments and ARMIS 43-03, column (1) Other Adjustments. We believe that reporting the construction costs in ARMIS are essential for several reasons related to accounting safeguards. Carriers' methodologies in producing the ARMIS 43-03 report form the basis of their independent auditors' attestation and will be the basis for any related dollar adjustments. Additionally, reporting the amounts in ARMIS allows us to review them as necessary.

Most commenters generally agree with the changes we proposed to the ARMIS 43-02 Report. Some commenters, however, advocate changes to ARMIS reporting requirements beyond those set forth in the NPRM . We agree that further review of the ARMIS reporting requirements is warranted and further streamlining measures must be considered. In this Phase, however, we believe the more expeditious action is to eliminate and simplify requirements that can be implemented without delay, thereby minimizing the burdens on the industry immediately. As we stated in the NPRM , in Phase 2 we will examine more structural and long-term changes to our reporting requirements that will be appropriate as local exchange markets become competitive, and will assess what interim measures should be made as various transitional competitive milestones are reached. We note that ARMIS changes proposed by commenters that are not considered in this Phase will be fully considered in Phase 2.

We adopt our proposal in the NPRM to consolidate all of the basic ownership information from Tables C-1, C-2, C-3 and C-4 into one table. In reviewing our experience with the current reporting system, we find that the information collected in these four tables can more efficiently be provided in one table. As designed, the current system requires carriers to maintain four separate tables with a combined total of 8 columns and 27 row sections of information about its ownership and corporate structure, including information about state laws, partnerships, and various degrees of control over the organization. We can substantially simplify the current requirements and eliminate all but the basic kinds of ownership information. We find that an ownership profile consisting of the carrier's name, operating states, directors, and executive officers will be sufficient to meet our oversight responsibilities and permit us to make informed regulatory decisions. To accomplish this, we revise Table C-3 to include the carrier's name and states of operation and eliminate reporting of Tables C-1, C-2, and C-4.

We do not agree with the argument advanced by several commenters that these tables should be eliminated in their entirety because the information is available in SEC Form 10-K filings. Our review shows that in many cases, certain information collected in these tables is not reported in the carrier's SEC Form 10-K. For instance, the SEC Form 10-K provides that information about a carrier's directors and executive officers is optional. Our review found that in virtually every case, carriers choose the option not to report this information in their SEC Form 10-K. Our oversight responsibility requires that, at a minimum, we have access to the most basic information about the carrier. We conclude that our decision to require the carrier's name, operating states, directors, and executive officers is warranted. Collection of this data in the consolidated table will reduce the reporting burden on carriers.

Generally, Table C-5 requires the carrier to report on important changes to 12 activities: (1) Extensions of Systems; (2) Substantial Portions or All Property Sold; (3) Map Defining Territory; (4) Companies Coming Under the Direct Control of the Carrier; (5) Changes in the Direct Control of a Company; (6) Changes Affecting the Direct Control of a Company; (7) Companies Coming Under the Indirect Control of the Carrier; (8) Changes in the Indirect Control of a Company; (9) Changes Affecting the Indirect Control of a Company; (10) Important Contracts or Agreements; (11) Changes in Accounting Standards; and (12) Important Changes in Service and Rate Schedules.

In reviewing our experience with Table C-5, we conclude that the burdens imposed on the carriers are disproportionate to the benefits provided, and that elimination of a substantial portion of information collected in Table C-5 is warranted. We agree with commenters that certain information otherwise available in the carrier's SEC Form 10-K can be eliminated from Table C-5. We find that the reporting requirements concerning direct and indirect control of the carrier (items 4 through 9 in paragraph 39) can be eliminated without adverse consequences because this information is routinely reported in the carriers' SEC Form 10-K. In addition, information concerning changes in accounting standards (item 11 in paragraph 39) can be obtained from the carriers' SEC Form 10-K. Therefore, we will also eliminate this reporting requirement from Table C-5. Eliminating the reporting of these requirements will afford carrier's considerable relief from reiteration of information contained in their SEC filings. We will, however, require that carriers submit a copy of their SEC Form 10-K annual report to the Commission.

We also note that extension of system and map defining territory are not regularly reported by the ILECs due to the infrequent nature of these activities. We find that information related to these two items as reported in Table C-5 has not contributed to the Commission's overall formulation of policy and that further reporting on these matters is unwarranted. We conclude that lack of information on these items in Table C-5 will not have a detrimental effect on our regulatory oversight responsibilities. Thus, we further simplify the reporting requirements of Table C-5 by eliminating these reporting requirements.

We agree with Ad Hoc that certain activities reported in Table C-5 should not be eliminated at this time. Information concerning substantial portions or all property sold, important contracts or agreements entered into, and important changes in service and rate schedules (items 2, 10, and 12 in paragraph 39), is not reported in carrier's SEC Form 10-K or its cost allocation manuals and is not available in other publicly available data. Information concerning these activities provides us with important information about the carriers' operations that is relevant to our deliberations on numerous policy matters. Thus, we will retain the requirement to report these activities in Table C-5.

The NPRM sought comment on whether we should adopt a threshold for reporting items in Table C-5, and if so, what would be an appropriate level. Commenters proposed establishing a threshold level of reporting that included specific dollar amounts ranging from $250,000 to $1 million or using a percentage of total operating revenues ranging from 1 percent to 5 percent. We agree with the parties that a threshold level is appropriate for reporting amounts for substantial portions or all property sold and for reporting important changes in service and rate schedules. Based on our experience, we find that a threshold level of $500,000 is appropriate for both these items. This level will provide relief to carriers in reporting and will continue to provide us with material and sufficient data. We do not agree, however, that a threshold level is appropriate for reporting important contracts or agreements entered into. This item generally encompasses contracts for interconnection and resale agreements that are not typically associated with specific total dollar amounts, but rather have price terms on a per unit or usage basis. We find that our current requirements, which do not require reporting of specific dollar amounts, are not overly burdensome and, in fact, establishing a threshold level may have the result of imposing additional burdens on carriers. Thus, we will not establish a threshold level for important contracts or agreements entered into.

We adopt our proposal, which is supported by most commenters, to eliminate seven tables from the Table B Series. Specifically, we eliminate the requirement to report on a routine basis: Tables B-8, Capital Leases; B-9, Deferred Charges; B-11, Long-Term Debt; B-12, Net Deferred Income Taxes; B-13, Other Deferred Credits; B-14, Capital Stock; and B-15, Capital Stock and Funded Debt Reacquired or Retired During the Year. These seven tables were intended to provide a more detailed explanation of specific accounts reported in Table B-1. A review of our experience reveals that, while the data derived from these seven tables have contributed to our policy analysis and rulemaking function, the level of detail required by these tables is no longer as critical to our deliberations. To the extent we may require such detail in the future, we can obtain such information through specific data requests to the carrier on an as needed basis. Thus, we conclude we can substantially reduce the Table B reporting requirements by eliminating the separate reporting requirements of these seven items.

GSA argues that we should retain our current reporting requirements for these seven items because the information they contain may not readily be available through other sources, such as routine SEC Reports. We recognize that that information and data reported in the carriers' SEC Form 10-K are highly aggregated and include both regulated telephone and nonregulated business information. As SBC points out, however, the footnotes in the SEC Form 10-K will generally provide information on details such as long-term debt and deferred taxes, which correspond to items reported in Tables B-11 and B-12. Further, to the extent that we require information that is not available in the carrier's SEC Form 10-K, or through other reliable public sources, we believe we can maintain our oversight of these activities through specific data requests on an as needed basis. Thus, although we relieve companies from routinely reporting this information in Table B, companies must keep such data available and be prepared to provide it promptly to the Commission should the Commission make such a request. In such cases, we expect carriers to provide requested information to the Commission in a timely manner and on a non-proprietary basis. We do not agree with the argument that data formerly reported in these ARMIS tables and now requested by the Commission on an as-needed basis should be treated as non-public. The purpose of this proceeding is to reduce the ARMIS reporting requirements while retaining sufficient information needed for the Commission and state commissions to meet their responsibilities. Therefore, all information requested by the Commission that would otherwise be reported in the ARMIS tables shall be publicly available unless the carrier makes a sufficient showing as to why the information should be treated as proprietary.

In addition to the seven tables at issue here, some parties further recommend that we eliminate all Table B reporting requirements, arguing that essentially all of the information is publicly available in carriers' SEC Form 10-K or other SEC filings, and is duplicative of other ARMIS Reports. Commenters also contend that information contained in these reports is irrelevant to regulation of price cap carriers. At this time we do not agree that it is appropriate to eliminate all Table B reporting requirements. The Commission continues to require accounting and financial data about these carriers to make informed regulatory judgments on numerous policy and ratemaking issues. Furthermore, under the current regulatory price cap scheme, carriers have the ability to seek full recovery of regulated costs through low-end adjustments, as well as taking claims. Thus, our continued monitoring of the reasonableness of these costs is necessary. The steps we take in this Order substantially streamline the current requirements and will afford carriers immediate regulatory relief of ARMIS reporting requirements. As we stated in the NPRM , we will undertake an exhaustive and thorough review of our ARMIS reporting requirements in Phase 2.

We adopt the proposal in the NPRM , which is supported by most commenters, to eliminate Tables I-3, I-4, and I-5. Our experience in collecting detailed data pertaining to the carrier's pension costs and taxes reveals that routine collection of such a level of detail is no longer necessary for us to make informed regulatory judgments in this area. We can obtain necessary information for our regulatory purposes through specific data requests to the carriers on an as-needed basis. Similar to our determination concerning elimination of the seven B tables above, we expect carriers to keep such data available and be prepared to provide such data to the Commission should the Commission make such a request. In such cases, we expect carriers to provide requested information to the Commission in a timely manner and on a non-proprietary basis.

We affirm our conclusion in the NPRM that information collected in Table I-6 continues to be essential to our oversight responsibilities. This table reports on items that are below-the-line amounts, i.e. , are not allowable expenses to be charged against regulated revenues. Special Charges reported in Table I-6 include lobbying expenses, membership fees and dues, abandoned construction projects amounting to $100,000 or more, telecommunications plant acquisition adjustments, penalties and fines amounting to $100,000 or more, and charitable, social, or other community welfare expenses. Some commenters argue that all reporting of Table I-6 should be eliminated. We disagree. Price cap carriers may fully recover reasonable costs associated with regulated activities through the low-end adjustment mechanism or through a takings claim, therefore it is important that below-the-line expenditures are not included in regulated activities. The items reported in Table I-6, especially if material, could have significant impact on the carrier's regulated activities if not properly recorded. Routine monitoring of these expenses provides assurance that these amounts are properly recorded on the carrier's books.

We can significantly reduce the burdens associated with Table I-6 without seriously hampering our ability to monitor these expenses by raising the current reporting threshold level for abandoned construction projects and penalties and fines. In the NPRM , we sought comment on whether the reporting threshold for these items should be raised to a higher amount and, if so, what amount to establish as the reporting threshold. Commenters provided a range of options for raising the threshold level for these items, from $250,000 to $1,000,000. Based on our review of the data, we find it would be appropriate to increase the current threshold levels from $100,000 to $500,000 for both abandoned construction projects and penalties and fines. Specifically, we reviewed 1998 data reported in Table I-6 for abandoned construction projects and penalties and fines and found that the Bell Operating Companies and GTE reported 22 individual items with a total amount of approximately $16 million. We found that expenditures of $500,000 or more constituted 85 percent of the total amount reported for the two activities. Thus, we conclude that $500,000 or more is a reasonable level of reporting for both these activities. Any threshold lower than $500,000 would not significantly reduce the reporting burden for the largest carriers and any threshold higher than $500,000 may not provide us sufficient information to perform our monitoring function.

We also affirm our determination to retain reporting for Table I-7. We disagree with commenters that reporting of these amounts should be eliminated. The items reported in Table I-7 concern expenditures that may not be appropriate or reasonable to charge against regulated operations. Thus, our oversight responsibilities require that we maintain some degree of reporting to ensure that these expenditures are reasonable and recorded properly.

The NPRM requested comment on whether the current threshold levels for Table I-7 reporting should be revised. Under the current requirements, there are three reporting threshold levels depending on the type of payment. Carriers must report: (1) Amounts exceeding $250,000 for Advertising & Information Services, Clerical & Office Services, Computer & Data Processing Services, Personnel Services, Printing & Design Services, and Security Services; (2) amounts exceeding $25,000 for Audit & Accounting, Consulting & Research Services, Financial, and Legal; and (3) amounts exceeding $10,000 for Membership Fees & Dues. Table I-7 also requires carriers to report all amounts for Academia.

We find that an increase in the current threshold levels for reporting items on Table I-7 is justified. By raising the current threshold levels, we can significantly reduce the reporting burden for Table I-7 while retaining sufficient information to meet our oversight responsibilities. Our review of proposals submitted by the commenters finds that the threshold levels advanced by GSA and Ad Hoc would have a very small impact on the amounts provided under current reporting requirements and would provide little relief to carriers. We also find that by changing the payment types corresponding to the current threshold levels, and thus, proposing a fourth threshold level for some items, the proposals advanced by USTA and GTE result in a more complex reporting scheme than currently exists. Based on our analysis, we find that it is appropriate to raise the threshold levels for reporting items in Table I-7 as follows: (1) Amounts exceeding $1,000,000 for Advertising & Information Services, Clerical & Office Services, Computer & Data Processing Services, Personnel Services, Printing & Design Services, and Security Services; (2) amounts exceeding $500,000 for Audit & Accounting, Consulting & Research Services, Financial, and Legal; and (3) amounts exceeding $50,000 for Membership Fees & Dues. We find that these new thresholds will capture material information for our oversight needs while at the same time substantially reduce the reporting burden for carriers.

We also find that we can eliminate the reporting of amounts reported for Academia. Based on our analysis, we find that the existing requirement to report all amounts for Academia is no longer justified. As designed, this reporting requirement was established to provide the Commission with information relevant to expertise obtained by carriers for regulatory purposes. Reviewing our experience with the present reporting requirement for Academia, we find that it imposes substantial burdens on the carriers while providing little value to our oversight of carrier's activities. Given the minimum level of benefit this data provides we find that we can eliminate the collection of this information without compromising our oversight responsibilities.

In this Report and Order , we eliminate the expense matrix filing requirement; provide large ILECs the option to obtain a biennial attestation engagement to satisfy their CAM audit obligation; establish a $500,000 de minimis exception to our affiliate transactions fair market value estimate requirement; eliminate the 15-day pre-filing requirement for cost pool and time reporting procedures changes; eliminate the notification requirement for temporary or experimental accounts; eliminate the notification requirement for extraordinary items, contingent liabilities, and material prior period adjustments; eliminate the reclassification requirements for property in Account 2002; and eliminate the reclassification requirements for property in Account 2003. We substantially streamline the ARMIS 43-02 USOA Report and significantly reduce the reporting requirements for carriers. Specifically, we revise Table C-3 to include carrier's name, address, and operating states and eliminate Tables C-1, C-2, and C-4; eliminate nine of twelve reporting items in Table C-5 and establish reporting threshold levels for two items; eliminate seven of fifteen reporting items in Table B; eliminate three of seven reporting items in Table I; establish higher threshold levels for items reported in Tables I-6 and I-7 and eliminate the reporting requirements for Academia.

The Regulatory Flexibility Act of 1980 (RFA) requires that an agency prepare a regulatory flexibility analysis for notice-and-comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” In the NPRM , the Commission certified that the proposed rules would not have a significant economic impact on a substantial number of small entities. The Commission stated that the proposed rules would reduce certain recordkeeping and CAM audit requirements; that the changes should be easy and inexpensive for the ILECs to implement; and that the rule changes would not require costly or burdensome procedures. No comments were received concerning this certification. The Commission now reaffirms this certification with respect to the rules adopted in this Report and Order. The Commission anticipates that the rule changes adopted here will reduce regulatory and procedural burdens on ILECs. The rule modifications do not impose any additional compliance burden on persons dealing with the Commission. Accordingly, the Commission certifies, pursuant to 5 U.S.C. 605(b) of the RFA, that the rules adopted herein will not have a significant economic impact on a substantial number of small business entities, as defined by the RFA.

The Consumer Information Bureau, Reference Information Center, shall provide a copy of this certification to the Chief Counsel for Advocacy of the SBA, and include it in the report to Congress pursuant to the SBREFA. The certification will also be published in the Federal Register .

The decision herein has been analyzed with respect to the Paperwork Reduction Act of 1995, Public Law 104-13, and found to impose new or modified recordkeeping requirements or burdens on the public. The rule amendments set forth in this Report and Order will become effective 6 months after their publication in the Federal Register . The rules in this document contain information collections, which have not been approved by OMB. The Commission will publish a document in the Federal Register announcing the effective date of these rules.

Pursuant to Sections 1, 4, 201-205, 215, and 218-220 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154, 201-205, 215, and 218-220, §§ 32 and 64 of the Commission's rules, 47 CFR 32 and 64, are amended.

The rule amendments set forth in this Report and Order will become effective 6 months after their publication in the Federal Register . The rules in this document contain information collections which have not been approved by OMB. The Commission will publish a document in the Federal Register announcing the effective date of these rules.

The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this Report and Order, including this certification and statement, to the Chief Counsel for Advocacy of the Small Business Administration.

This is a synopsis of the Commission's Report and Order, MM Docket No. 98-55, adopted February 9, 2000, and released February 18, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Information Center (Room CY-A257), 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036.

This is a synopsis of the Commission's Memorandum Opinion and Order, MM Docket No. 98-135, adopted March 1, 2000, and released March 10, 2000. The full text of this Commission decision is available for inspection and copying during normal business in the Commission's Reference Information Center (Room CY-A257) at its headquarters, 445 12th Street, S.W. Washington, D.C. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Service, Inc. (202) 857-3800, 1231 20th Street, N.W., Washington, D.C. 20036.

The fisheries for coastal migratory pelagic resources are managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (FMP). The FMP was prepared jointly by the Gulf of Mexico Fishery Management Council and the South Atlantic Fishery Management Council (Councils), approved by NMFS, and implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

On July 6, 1999, NMFS announced the availability of Amendment 9 and requested comments on the amendment (64 FR 36325). NMFS approved Amendment 9 on October 7, 1999, and published a proposed rule to implement the measures in Amendment 9 and requested comments (64 FR 60151, November 4, 1999). The background and rationale for the measures in the amendment and proposed rule are contained in the preamble to the proposed rule and are not repeated here.

NMFS received twenty-one public comments, many with common statements. A summary of the comments and NMFS' responses follow.

Comment 1 : Three commenters expressed general support for the actions to be implemented by this final rule, with minor comments or suggestions for additional measures that could be considered by the Council (see Comment 10). One of the commenters stated that the actions to establish separate sub-zones along Florida's west coast and to implement a moratorium on gill net endorsements were long overdue. Another commenter supported measures that would bring catch capacity in line with total allowable catch until an individual fishing quota or other capacity limiting management strategy could be implemented. By contrast, one commenter opposed all of the actions proposed in Amendment 9, concluding that the actions were unwarranted and unnecessary.

Response : NMFS believes that the actions in Amendment 9 will enhance the socioeconomic benefits of the commercial king mackerel fishery, protect the stock from overfishing, and reduce waste which will improve the accuracy of fishing mortality estimates. NMFS is implementing these actions through this final rule.

Comment 2 : Three comments supported the establishment of a northern and southern subzone in the Florida west coast subzone, but three other commenters were opposed to the establishment of the subzones because they unfairly restricted access to the fishery resource. One of the latter commenters noted that the proposed boundaries of the northern and southern subzones would discriminate against central Florida Gulf coast fishermen. The commenter stated that the northern subzone quota will be caught by fishermen fishing off the Florida Panhandle during the summer, closing the fishery in the subzone before the fish migrated south to the central Florida area; central Florida fishermen then would be restricted to fish in the southern subzone (Collier and Monroe Counties), creating a hardship on the fishermen and their families.

Response : NMFS disagrees that the establishment of subzones and the reallocation of the Gulf group king mackerel Eastern Zone quota is unfair or discriminatory to any particular region or fishing sector. The allocations of the quota, as derived by the Councils, were based on the recent landing histories for each region. The Councils recommended an allocation to fishers in the northern zone that reflected their recent landings, while at the same time, protected the historical contribution and participation of the fishers in the south Florida area. NMFS agrees with the strategy employed to derive these re-allocations.

Comment 3 : Eleven comments stated the proposed northern subzone quota of 175,500 lb (79,606 kg) was too small. Several of these commenters expressed dismay that the proposed quota was only 14 percent of the total 1,170,000-lb (530,703-kg) eastern zone quota. The commenters thought that the northern subzone would receive a 25 to 30 percent allocation of the eastern zone quota. Several commenters stated that the re-allocation unfairly provided most of the quota to the southern subzone, noting that fishermen in the southern subzone also have the ability to fish seasonally on Atlantic group king mackerel, thus providing even greater access to king mackerel resources. Several commenters suggested that NMFS increase the allocation proposed by the Council for the northern subzone by at least 100,000 lb (45,359 kg).

Response : The Councils recognized that northern Florida landings of king mackerel have increased significantly in recent years. During the 1980s, Monroe County (the Florida Keys) accounted for nearly 90 percent of the king mackerel landings on the west coast of Florida. During the 1990s, the contribution by the Florida Panhandle area increased to approximately 25 percent of the total hook-and-line landings. The selection of a dedicated 175,500 lb (79,606 kg) to the proposed northern subzone equates to 30 percent of the existing 585,000-lb (265,352-kg) hook-and-line allocation for the existing Florida west coast subzone, and nearly 25 percent of the total Florida west coast hook-and-line allocation as implemented in this rule. The allocation of the 175,500 lb (79,606 kg) was derived by dedicating 7.5 percent of the total eastern Gulf commercial quota of 2.34 million lb (1.06 million kg) to the northern subzone. The remaining 92.5 percent was then divided equally between the Florida east coast and Florida west coast (excluding the northern subzone). The Florida west coast quota for the proposed southern subzone was then divided equally between the hook-and-line and run-around gillnet fisheries. In providing this option, the Councils attempted to reflect the recent increases in the proportion of the landings attributable to the northern area, while maintaining support for the more traditional and historical fishery of southern Florida.

With the seasonal shift in the boundary dividing the Atlantic group from the Gulf group king mackerel stocks, beginning on April 1 of each year, southern Florida (Monroe and Collier County) fishermen do have access to the Atlantic group fish. However, this fishery is short-lived as the fish soon migrate north out of the south Florida area.

NMFS supports the Councils' rationale in deriving the allocations for each subzone within the Gulf group eastern zone king mackerel fishery. NMFS cannot increase the proposed allocation for the northern subzone, as suggested by the various commenters. NMFS may approve, partially approve, or disapprove actions submitted by the Councils; NMFS may not substitute actions in this rule for those submitted by the Councils.

Comment 4 : Three commenters believed that the proposed reduction for the Florida east coast quota was unfair. Commenters noted that they had accepted lower trip limits for years so that the fishery could remain open year-round. With the reduction in their quota, the fishers are concerned that the fishery will be closed earlier resulting in hardship on Atlantic coast fishermen.

Response : The Florida east coast subzone was first established for the 1994-95 fishing year with a quota of 865,000 lb (392,357 kg) for this segment of the fishery. Beginning with the 1997-98 fishing year, the quota was increased to 1,170,000 lb (530,703 kg). The measures in Amendment 9 would reduce this quota to 1,082,250 lb (490,900 kg). This segment of the fishery has been closed only once when the quota was reached during the 1998-99 fishing year. That closure was only two weeks prior to the March 31 end of the fishing year. Given that this fishery has only once met its quota, NMFS does not believe that the redistribution of quota allocations will affect overall landings and fishing season for this segment of the fishery.

Additionally, any future increases of total allowable catch for the Gulf group king mackerel stock, when that stock is no longer overfished, would be distributed among the various fishery sectors.

Comment 5 : Two commenters believed that restricting gillnet endorsements to those fishers who were active in the fishery is unfair. One of the commenters also opposed the limited transferability of the endorsements. Both noted that fishers who may be inactive in a fishery still maintain their permits and endorsements in the event that their primary fisheries are closed, and it becomes necessary for them to fish in an alternative fishery. By contrast, two commenters supported the moratorium and limited transferability of gillnet endorsements, but questioned the continuing 50-percent allocation of the commercial quota for the proposed southern subzone gillnet segment of the fishery.

Response : The Councils chose to restrict the issuance of gillnet endorsements in the Gulf group king mackerel fishery to curtail expansion of that fishery, and NMFS agrees with this concept. The gillnet fishery has a long history of participating in the commercial king mackerel fishery. NMFS' records indicate that about 87 vessels hold active king mackerel permits with gillnet endorsements, but, since the 1994/1995 season, only 22 different vessels have participated in the fishery. Only about 17 of the 22 recently active gillnet endorsement holders would be able to retain their gillnet endorsements under Amendment 9. Two of the 22 vessels dropped out of the fishery prior to the 1995/1996 and 1996/1997 fishing seasons that will be used as the criterion for retention of the gillnet endorsement, and three vessels entered the fishery after these dates. Thus, the majority (17 of 22) of the current and active gillnet fishers will be eligible to remain in the fishery.

NMFS believes that limiting the number of participants in the gillnet fishery is imperative to prevent expansion and overcapitalization in the fishery and to reduce the probability of quota overruns by this prolific segment of the fishery. Limiting the issuance of gillnet endorsements to those vessels that can demonstrate active participation in the fishery and allowing transfer of those endorsements only to family members will allow continued participation by historical fishing families while the Councils consider whether additional or alternative options should be implemented to effectively manage the overfished Gulf group king mackerel fishery.

NMFS disagrees that the continued 50-percent allocation to the gillnet fishery in the proposed southern subzone of the Florida west coast subzone is inequitable. As noted, about 17 of the 22 recently active participants will be eligible to continue in this fishery, and this segment of the fishery historically has taken its allocation of the quota in a short timeframe. Should the number of eligible participants in the gillnet fishery decline in the future, the Council can reconsider this allocation.

Comment 6 : Two comments supported the sale of cut-off fish.

Response : One of the mandates in the 1996 Sustainable Fisheries Act is to reduce bycatch and waste in fisheries. NMFS agrees that allowing the possession and sale of cut-off fish that otherwise would meet the minimum size limit and be possessed within the legal trip limit will reduce waste in this fishery and provide a more accurate assessment of fishing mortality by reducing unreported regulatory discards.

Comment 7 : Three comments addressed a proposed action described in Amendment 9 that was rejected by the Councils and not included in the proposed and final rule. This action would have prohibited the sale of recreationally caught fish. Additionally, a minority report from one Gulf Council member expressed concern that this measure was not approved by the South Atlantic Council for consideration by the Secretary of Commerce. Commenters suggested that recreational sale, if allowed to continue, should be suspended when the commercial fishery closes.

Response : NMFS supports the concept of prohibiting the sale of recreationally caught fish. Allowing such sales leads to double-counting of fish which impacts the accuracy of the estimates of fishing mortality. The no-sale provision described in the amendment was not supported collectively by the Councils administering this joint FMP. Thus, the Councils could not forward the no-sale provision for inclusion in the proposed rule.

Comment 8 : Two commenters questioned the fairness of further restricting the commercial fishery by placing a moratorium on gillnet endorsements, while the recreational fishery is not required to have a permit and does not have to demonstrate any qualifications to maintain an active status in the fishery.

Response : There are currently no licensing requirements for private individuals to fish recreationally in the exclusive economic zone (EEZ). However, a charter vessel/headboat permit for coastal migratory fish must be issued and on board a vessel that is operating as a charter vessel or headboat to fish for or possess coastal migratory pelagic fish in or from the EEZ. Additionally, the owner or operator of a vessel for which a charter vessel/headboat permit for coastal migratory pelagic fish has been issued, or whose vessel fishes for or lands such coastal migratory pelagic fish in or from state waters adjoining the Gulf or South Atlantic EEZ, and who is selected by NMFS to report must maintain a fishing record for each trip or a portion of such trips, as specified by NMFS, on forms provided by NMFS and must submit such records on a regular basis. If selected, charter vessels must submit completed fishing records to NMFS weekly, and headboats must submit completed fishing records monthly. The Councils are currently considering a permit moratorium for the for-hire sector for coastal migratory pelagic fish, Gulf reef fish, and South Atlantic snapper-groupers to address the rapid expansion of the for-hire industry throughout the Southeast.

Comment 9 : One commenter questioned why it was necessary to further restrict directed commercial harvest by limiting the number of commercial fishermen in the coastal migratory pelagic fishery through a permit moratorium, when the Councils were not further restricting shrimping effort which has an impact on coastal migratory stocks through bycatch mortality.

Response : The Councils have addressed shrimp trawl bycatch and its impact on coastal migratory pelagic fishes. Bycatch reduction devices (BRDs) are required in all EEZ waters shoreward of the 100-fathom (183-m) depth contour west of Cape San Blas, Florida, in the Gulf of Mexico, and in all EEZ waters of the South Atlantic. BRDs are also required in all South Atlantic state waters, and the State of Florida requires the use of BRDs in shrimp trawls in state waters in the Gulf of Mexico. Additionally, the Gulf of Mexico Fishery Management Council is considering options to extend BRD requirements into the eastern Gulf of Mexico, making the use of BRDs mandatory in all EEZ waters in the Gulf of Mexico.

Comment 10 : Several commenters offered suggestions for additional actions that they believe would be beneficial to managing the coastal migratory pelagic fisheries but that were not included in Amendment 9. One comment suggested that NMFS allow for quota adjustments in subsequent years for any overruns that occur by a particular fishery segment. Two commenters suggested that a logbook or other reporting system should be required for recreational fishing vessels or operators who sell their catch to avoid the double-counting of recreationally caught fish that are later sold and counted against the commercial quota. One commenter further suggested that a fishing license system should be developed for the private recreational sector in the EEZ. One commenter suggested that 50 percent, not 25 percent, of the fisher's income should be derived from commercial fishing in order to be eligible for a commercial permit. Another commenter suggested that the criterion should be based on the landing history of mackerel and not just on income derived from fishing. One commenter stated that the stock assessment and proposed actions did not consider an 18.6-year lunar cycle, the North Atlantic oscillation, or the 11-year shift in sea water temperatures and the effects of these phenomena on coastal migratory pelagic fish stocks.

Response : NMFS agrees that numerous additional management options are available to the Councils to effectively manage the coastal migratory pelagic resources of the southeastern United States. However, as noted in Comment 3, NMFS cannot substitute measures for those proposed by the Councils in this rule. NMFS encourages the public to be actively involved in the Council process and provide suggestions to the Councils for their deliberations. Regarding the incorporation of environmental variables and their effects on fish stocks in stock assessments, although these phenomena may exist, there is currently no evidence suggesting that they have any effect on the biology, abundance, or distribution of mackerel.

The Administrator, Southeast Region, NMFS, determined on October 7, 1999, that Amendment 9 is necessary for the conservation and management of the FMP and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

This final rule has been determined to be not significant for purposes of E.O. 12866.

The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule would not have a significant economic impact on a substantial number of small entities. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not prepared.

Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection-of-information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid OMB control number.

This rule includes collection-of-information requirements that are subject to the PRA and which has been approved under OMB control number 0648-0205. The estimated response times are 20 minutes for a king mackerel permit application and 5 minutes for a king mackerel gillnet endorsement. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collections of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES ).

Regulations implementing the Fishery Management Plan for Atlantic Mackerel, Squid, and Butterfish Fisheries (FMP) require NMFS to publish annual specifications for initial optimum yield (IOY), allowable biological catch (ABC), domestic annual harvest (DAH), domestic annual processing (DAP), joint venture processing (JVP), and total allowable levels of foreign fishing (TALFF) for the species managed under the FMP.

Proposed 2000 initial specifications were published on January 5, 2000 (65 FR 431). Public comments were requested through February 4, 2000. The final specifications are unchanged from those that were proposed. A complete discussion of the specifications appears in the preamble to the proposed rule and is not repeated here.

The following table contains the final specifications for the 2000 MSB fisheries as recommended by the Mid- Atlantic Fishery Management Council (Council).

This rule also specifies an Atlantic mackerel JVP of 10,000 mt for the 2000 fishery, with a possible increase of up to 5,000 mt for a total JVP of up to 15,000 mt later in the fishing year. If applications received for JVP account for more than 10,000 mt in a fishing year, NMFS may increase this allocation up to 15,000 mt by publishing a final rule in the Federal Register . NMFS believes that increasing the JVP in this way could provide additional opportunities for U.S. vessels to participate in joint venture (JV) fisheries. This action also specifies an Atlantic mackerel DAP of 50,000 mt and a DAH of 75,000 mt, which includes a 15,000-mt recreational component.

Four special conditions recommended by the Council and imposed by NMFS in previous years continue to apply to the 2000 Atlantic mackerel fishery as follows: (1) River herring bycatch may not exceed 0.25 percent of the over-the-side transfers of Atlantic mackerel in JVs south of 37°30′ N. lat.; (2) The Regional Administrator (RA) must ensure that impacts on marine mammals are reduced in the prosecution of the Atlantic mackerel fishery; (3) If the Atlantic mackerel IOY is increased during the year, the total may not exceed 347,000 mt; and (4) Applications for a JV with a particular Nation's vessels for 2000 cannot be considered until the RA determines, based on an evaluation of performances, that the Nation's purchase obligations for previous years have been fulfilled.

In addition to the quota specifications, this rule establishes additional gear requirements for the Loligo fishery as follows: “The inside webbing of the codend shall be the same circumference or less than the outside webbing (strengthener). In addition, the inside webbing shall not be more than 2 ft (61 cm) longer than the outside webbing.” This is intended to help improve enforcement of the minimum mesh size requirements in the Loligo fishery while preserving the intended selective properties of the regulated mesh size (1 7/8 in (48 mm)).

This rule specifies a Loligo squid IOY of 13,000 mt, which is equal to ABC, and sub-divides the annual quota into three 4-month quota periods (Period I (Jan-Apr), Period II (May-Aug), and Period III (Sep-Dec)). The quota is allocated to each period based on the average proportion of landings that occurred in each 4-month period during the years 1994-1998. The directed Loligo fishery during Periods I and II will be closed when 90 percent of the amount allocated to the respective period is landed. The directed Loligo fishery will be closed in Period III when 95 percent of the annual quota has been taken. Once the directed squid fishery closes for a given period, a 2,500-lb (1,134-kg) Loligo trip limit would remain in place until the end of the respective period. The quota, allocated by 4-month periods, is shown in Table 2.

The Council recommended that any Period I or II quota underage be applied to the next trimester and that quota overages from Periods I and II be deducted from Period III. NMFS, in the preamble to the proposed rule, tried to clarify the Council's intent and proposed that any Period I and II quota underages be applied to Period III and any Period I and II quota overages be subtracted from Period III. However, that proposal would not provide the time needed to assess landings before the start of Period III. Each of the three trimester periods follow a monthly schedule, and not reporting weeks, therefore, the weekly reports using the data gathered by NMFS” interactive voice response (IVR) will need to be adjusted to account for reporting weeks in which a period ends in the middle of that week. This adjustment is accomplished by either adding or subtracting landings from one period or the other. Final landings are determined by using all sources of data available to NMFS, including detailed trip level dealer and vessel reports, to validate the weekly IVR data. This process normally takes 60 to 90 days, depending on the availability of the data. By revising § 648.21(e)(2) to apply any Period I and II quota underages or overages to Period III after November 15 of the same year, NMFS will have 75 days to validate the quota monitoring data and to make changes to the Period III commercial quota.

Editorial simplification and clarifications were made to § 648.23(c) to clarify further the mesh obstruction or constriction prohibition.

Eight comments were received on the proposed annual specifications and regulations. Summaries of the comments and responses on them are provided below.

Comment 1: In the proposed rule, DAH for Atlantic mackerel is composed of 15,000 mt for the recreational fishery, 50,000 mt for DAP, and 10,000 mt for JVP. A commenter proposed instead to specify 65,000 mt for DAH (15,000 mt for the recreational fishery), 35,000 mt for DAP, and 15,000 mt for JVP. The commenter noted that processors in past years have not attained the DAP levels recommended by the Council. The commenter also proposed allocation of 45,000 mt of TALFF to provide directed fishing as an incentive to foreign vessels considering JVs.

Response 1: These proposals, which could negatively affect U.S. processing and exports by infringing on markets currently engaged in by domestic processors, go well beyond any measures discussed and analyzed by the Council. In order to be considered by NMFS, all recommendations should be made through the Council for its consideration and analysis. Since passage of the American Fisheries Act of 1995, TALFF for mackerel may not be specified unless recommended by the appropriate Regional Fishery Management Council. However, NMFS may adjust JVP up to 15,000 mt, the level preferred by the commenter, provided certain conditions are met.

Comment 2: One commenter observed that the Atlantic mackerel specifications should be set for 2 fishing years, rather than 1.

Response 2: Setting the specifications for more than 1 year is not allowed under the FMP.

Comment 3: One commenter argued that there was not ample time to comment on proposed 2000 specifications. The draft EA/RIR/IRFA document was posted on the Internet in November 1999 and the comment period was only January 20, 2000, through February 4, 2000.

Response 3: The draft EA/RIR/IRFA document was posted on the Internet January 6, 2000, and the comment period was January 5, 2000 through February 4, 2000, allowing 30 days for written comments. NMFS believes that this is an adequate amount of time to solicit comments and notes that a 30-day comment period has been used for all Mid-Atlantic Council annual specifications for the past 10 years.

Comment 4: One commenter stated that very few vessels actually direct effort on both Loligo and Illex in a given year. If the first part of the year is closed to Loligo fishing when the proposed trimester quota is harvested, squid fishermen will have few, if any, other fisheries in which to participate.

Response 4: The commercial fishery for Loligo is primarily prosecuted with otter trawls and often harvests a mix of species, including Loligo , scup, black sea bass, summer flounder, Atlantic mackerel, and silver hake. Although the DAH for Loligo is less in 2000 than in 1999, the establishment of seasonal quotas for each of the trimesters preserves the percent of harvest for each of those 3 periods, based on 1994-1998 landings patterns. Loligo matures in a year or less from birth, therefore it is hoped that stock recovery will be rapid and higher DAHs will be possible within the next few years.

Comment 5: One commenter asked where in the draft EA/RIR/IRFA document are figures and information regarding the profile of the recreational squid fishery?

Response 5: In Section 8.4, on page 43 of the EA/RIR/IRFA document there is a discussion of the recreational squid fishery. The primary use of squid in the recreation sector is for bait.

Comment 6: Several commenters disagree with the 38 percent reduction in Loligo quota from 1999 and requested that the Loligo 2000 ABC be set at the 1999 ABC level of 21,000 mt.

Response 6: Because Loligo has been designated as overfished, the Council is required under the Magnuson-Stevens Act to implement a stock rebuilding strategy that will allow the Loligo stock to rebuild to levels that will produce the maximum sustainable yield (B MSY ) in as short a time period as possible, not to exceed 10 years. Stock projections from Stock Assessment Workshop (SAW)-29 indicated that the stock would rebuild to the B MSY level in 3 to 5 years if the fishing mortality rate is reduced below the level that would allow the stocks to produce MSY (F MSY ). As a result, the Council recommended, and NMFS implements by this action, an ABC specification for 2000 consistent with landings that would result from a fishing mortality rate of 90 percent of F MSY, or 13,000 mt. This specification represents an 8,000 mt reduction from the 21,000-mt ABC specified in 1999. However, the specification represents only an 18-percent reduction in landings relative to the average landings for the past 3 years (1996-1998). Specifying the Loligo 2000 ABC at the 1999 ABC level of 21,000 mt would conflict with the requirements of the Magnuson-Stevens Act to end overfishing and rebuild the resource.

Comment 7: Because of the small 2000 Loligo specification, one commenter stated that factory vessels will have the capacity to control the entire trimester quota allocation.

Response 7: Management advice from SAW-29 made special note that yield from the Loligo fishery should be distributed throughout the fishing year. Given that the current permitted fleet historically has demonstrated the ability to land Loligo in excess of the quota specified for 2000, the Council recommended, and NMFS has approved, a management action to sub-divide the annual quota into three quota periods (trimesters). The quota, which is allocated to each period based on the proportion of historical landings occurring in each trimester from 1994-1998, is divided as follows: Period I (January-April) is 5,460 mt (42 percent of the total); Period II (May-August) is 2,340 mt (18 percent of the total); and Period III (September-December) is 5,200 mt (40 percent of the total). NMFS believes that allocation of seasonal quotas allows all vessels to utilize the entire trimester quota allocations, and notes there is no information available to indicate that factory vessels will have more disproportionate access to Loligo than they had under the annual quota system.

Comment 8: One commenter stated that the proposed rule does not set forth or project the 1999 Loligo landings.

Response 8 : On page 5 of the EA/RIR/IRFA, supporting documents for the annual specifications, Table 2, lists the preliminary Loligo landings through September 11, 1999, as 11,004 mt.

Comment 9: One commenter believed that NMFS disregarded the best available scientific information and failed to provide updated estimates to reconcile the impacts of predators on the Loligo stock. The commenter also asked what are the agency's updated marine mammal consumption estimates (for Loligo ), based on the updated mammal stock assessments as required by the Marine Mammal Protection Act, how has the agency taken these energetic requirements into consideration, and how have these large removal levels impacted Loligo stock survey and biomass estimates. The commenter believed that the proposed rule did not appear to address this important issue about total Loligo squid mortality and ,therefore, did not use the best available scientific information.

Response 9: Loligo squid is an important forage species consumed in quantity by many fish, bird, and marine mammal predators. Unfortunately, there is currently no way to estimate the amount of Loligo taken by marine mammals because there are too many variables to consider. Natural mortality ( e.g., primarily predation) and human predation (fishing mortality) are “additive” as rates. As human predation increases, the resulting total mortality increases. The only element in the total mortality that can be controlled at this time is human predation. NMFS believes that the final Loligo specifications are based on the best scientific information available.

Comment 10: One commenter asked since real-time monitoring is critical but not a component of the current plan, how can NMFS accurately monitor the Loligo specifications and determine the status of the stock?

Response 10: NMFS currently collects landings for Loligo every week via the IVR dealer reporting system. These electronic reports are then followed by detailed dealer and vessel reports that are submitted monthly. The IVR system allows NMFS to monitor accurately the Loligo specifications and determine the status of the stock.

This action is authorized by 50 CFR part 648 and complies with the National Environmental Policy Act.

This final rule has been determined to be not significant for purposes of E.O. 12866.

NMFS completed a final regulatory flexibility analysis (FRFA) that contains the items specified in 5 U.S.C. sec. 604(a). The FRFA is as follows:

Final Regulatory Flexibility Analysis for Atlantic Mackerel, Squid, and Butterfish 2000 Specifications

This rule is needed to establish annual specifications for the Atlantic mackerel, squid and butterfish (MSB) fisheries and to prevent circumvention of a mesh restriction. The intent of this rule is to comply with the regulations for MSB that require the National Marine Fisheries Service (NMFS) to publish specifications for each fishing year to conserve and manage the resource in compliance with the regulations, fishery management plan (FMP), and Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

Three comments were submitted on the initial regulatory flexibility analysis (IRFA). These comments are addressed in the Comments and Responses section of the preamble to the final rule. No significant issues were raised by these comments, and no changes were made to the rule as a result of these comments.

There are 443 vessels fishing for Loligo, 77 for Illex, 443 for butterfish, and 1,980 for Atlantic mackerel in 1997 that would likely be impacted by the 2000 specifications. Many vessels participate in more than one of these fisheries; therefore, the numbers are not additive. The final Illex, butterfish, and Atlantic mackerel specifications represent no constraint on vessels in these fisheries as there exists a surplus between the proposed specifications and the actual landings for these species in recent years. The final specifications for Loligo represent an 18-percent reduction in landings compared to the average last 3 years' (1996-1998) landings. This reduction may result in a 5 to 10 percent revenue reduction (all species combined) for 121 of 443 vessels that reported landing Loligo in 1997. The remaining vessels (322) are expected to experience a reduction in revenues of less than 5 percent.

No additional costs of compliance, including those associated with recordkeeping and reporting, would result from the implementation of the quotas. There are no recordkeeping or reporting requirements associated with this rule. The prohibition on the use of any combination of mesh or liners in the Loligo fishery that effectively decreases the mesh size below the minimum mesh size of 1 7/8 in (48 mm) will not adversely impact any small entity that is not circumventing the mesh size regulations by using a larger codend. No additional gear is needed to comply with this restriction.

Alternatives considered and rejected for these four species were detailed in the IRFA. A review of the impacts of the final specifications, including alternatives to the final specifications, indicates that the impacts associated with the selected measures for Atlantic mackerel, Illex, and butterfish will not create significant economic impacts on small entities. As for Loligo, of the 443 vessels that reported landing Loligo in 1997, 121 vessels would be expected to experience a reduction in total gross revenues (all species combined) between 5 and 10 percent as a result of the 18 percent reduction in the Loligo quota in 2000. This represents 27.3 percent of the vessels that landed Loligo in 1997. The remaining vessels (322, or 72.7 percent) are expected to experience a reduction in total gross revenues (all species combined) of less than 5 percent as a result of the 18 percent reduction in the Loligo quota in 2000.

While all other considered alternatives for Atlantic mackerel would result in similar impacts on small entities, two of the three alternatives were found inconsistent with the FMP. The third alternative eliminated joint venture processing (JVP). NMFS believes JVP is necessary at this time to provide another opportunity for U.S. vessels to participate in joint venture fisheries. The selected Loligo alternative represented the alternative most consistent with the stated objectives of applicable statutes and the FMP. The rejected alternative resulted in 161 of 443 vessels being impacted (compared to 121 of 443 under the adopted alternative). Specifying the Loligo 2000 ABC at the 1999 ABC level of 21,000 mt was not analyzed by the Council because it would conflict with the requirements of the Magnuson-Stevens Act to end overfishing and rebuild the resource. The selected Illex alterative represented the alternative most consistent with the stated objectives of applicable statutes and the FMP. Alternatives considered and rejected for butterfish would have been detrimental to the stock and were not consistent with the FMP. The selected alternative was consistent with stated objectives of the applicable statutes and the FMP.

The final rule minimizes the economic impact on small entities by establishing a mechanism (the trimester quota system) of spreading the total quota throughout the year. The effect of this is to enable fishermen to fish for Loligo on a more consistent basis and to ensure that there is some quota available for harvest during the winter period when prices are higher. It also minimizes impacts on small entities by not establishing more restrictive quotas that were considered.

A copy of the IRFA can be obtained from the NMFS Northeast Regional Office (see ADDRESSES ).

The Assistant Administrator for Fisheries, NOAA (AA), finds that it would be contrary to the public interest to delay for 30 days the effectiveness of the quotas, § 648.21(e) (distribution of the Loligo quota among three periods and the overage deduction provision), and § 648.22 (fishery closures), because the quota for Period I will most likely be reached shortly, and a delay in the effectiveness of these regulations will prevent NMFS from closing the Loligo fishery for Period I in a timely manner. If the Period I fishery is not closed in a timely manner and the quota is exceeded, NMFS will be required to deduct the Period I quota overage from the quota allocated to Period III. However, Period III occurs at a time of year when fishermen receive higher prices for Loligo . As a result, the inability to restrict Loligo landings to the quota for Period I would cause fewer higher priced fish to be available for harvest in Period III, thereby reducing fishermen's profits. For these reasons, the AA finds good cause under 5 U.S.C. sec. 553(d)(3) not to delay for 30 days the effectiveness of the quotas and §§ 648.21(e) and 648.22.

(2) Beginning January 1, 2000, any underages of commercial period quota for Periods I and II will be applied to Period III after November 15 of the same year and any overages of commercial quota for Periods I and II will be subtracted from Period III after November 15 of the same year.

Regulations governing the Loligo squid fishery are found at 50 CFR part 648. The regulations require annual specifications for initial optimum yield as well as the amounts for allowable biological catch, domestic annual harvest (DAH), domestic annual processing, joint venture processing, and total allowable levels of foreign fishing for the species managed under the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan. The procedures for setting the annual initial specifications are described at § 648.21.

The 2000 specification of DAH for Loligo squid was set at 13,000 mt as part of the Atlantic mackerel, squid, and butterfish specifications published elsewhere in the Rules section of today's Federal Register . This amount is allocated among three quota periods as indicated in the following table.

Section 648.22 requires NMFS to close the directed Loligo squid fishery in the EEZ when 90 percent of the DAH for Loligo squid is harvested in either Period I or II, or 95 percent is harvested in Period III. NMFS is further required to notify, in advance of the closure, the Executive Directors of the Mid-Atlantic, New England, and South Atlantic Fishery Management Councils; mail notification of the closure to all holders of Loligo squid permits at least 72 hours before the effective date of the closure; provide adequate notice of the closure to recreational participants in the fishery; and publish notification of the closure in the Federal Register . NMFS has determined, based on vessel and dealer logbook data, that 90 percent of the DAH for Loligo squid in Period I has been harvested. Therefore, effective 0001 hours, March 25, 2000, the directed fishery for Loligo squid is closed and vessels issued Federal permits for Loligo squid may not retain or land more than 2,500 lb (1.13 mt) per trip. The directed fishery will reopen effective 0001 hours, May 1, 2000, which marks the beginning of Quota Period II.

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

The Hawaii-based pelagic longline fishery is managed under the Fishery Management Plan for the Pelagics Fisheries of the Western Pacific Region (FMP). The FMP was prepared by the Western Pacific Fishery Management Council (Council) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 660.

On November 26, 1999, the United States District Court, District of Hawaii, entered an Order in CMC v. NMFS directing NMFS to require, within 4 months of the date of entry of the Order, “every vessel with a Hawaii longline limited entry permit to carry and use line clippers and dip nets to disengage any hooked or entangled sea turtles with the least harm possible to the turtles.” NMFS published a proposed rule on February 17, 2000 (65 FR 8107), that provided background. That background is not repeated here.

Comment : One commenter objected to the requirement that all vessels registered for use under a Hawaii pelagic longline limited access permit carry and use a line clipper and dip net. The commenter believes longline fishermen targeting tuna south of 24° N. lat. should be exempt from the requirements because they do not experience major interactions with sea turtles or sea birds.

Response : Sea turtles may interact with longline gear set for tuna, as well as swordfish, and in areas south of 24° N. lat. Embedded hooks or entangled line left on a turtle may seriously injure it and result in mortality once the turtle is released. Vessels registered under a Hawaii longline limited access permit deploy longline gear, and therefore, NMFS considers it necessary to require such vessels to possess gear intended to assist with disengaging sea turtles hooked or entangled by longline fishing gear. NMFS continues to explore and consider other appropriate mitigation measures.

The final rule is unchanged from the proposed rule, with the exception of one change to increase the clarity of the rule text. The phrase “comply with” has been substituted for the term “follow” in 50 CFR 660.22(dd).

This final rule has been determined to be not significant for purposes of E.O. 12866.

NMFS prepared an environmental assessment/regulatory impact review/initial regulatory flexibility analysis (EA/RIR/IRFA). No public comments were received on the IRFA (summarized in the Federal Register on February 17, 2000, at 65 FR 8107).

A summary of the final regulatory flexibility analysis (FRFA) follows:

The fishery consists of 114 active vessels, all of which are considered small entities, and all of which would be affected. The rule does not contain any reporting or record keeping requirements and does not duplicate, overlap, or conflict with any other relevant Federal rules.

The preferred alternative, as set forth in this final rule, meets the objective of the District Court order while minimizing the economic impacts on fishery participants. It accomplishes this by establishing gear requirements based on performance and design standards, rather than requiring the purchase and use of specific devices. Total cost for the materials to fabricate and/or purchase line clippers and dip nets is estimated to be $250. The exact cost of resuscitating a sea turtle, as described herein, is not known; however, it is expected to be minimal.

In addition to the preferred alternative, two other alternatives were evaluated. The first, a “no action” alternative, would impose no cost burden on small entities; however, this alternative would fail to comply with the November 26, 1999, District Court order. The other alternative would require each permitted Hawaii pelagic longline vessel to purchase and carry on board a specific, prefabricated line clipper and sea turtle dip net, as well as require vessel operators to try and resuscitate inactive or comatose turtles. This alternative was rejected in favor of the preferred alternative. Although the preferred alternative also requires resuscitation of sea turtles, it proposes design standards for line clippers and dip nets rather than requiring the purchase of prefabricated items. Specifying design standards encourages innovation and is likely to minimize compliance costs. Moreover, such prefabricated line clippers and dip nets are not readily available in the commercial market. This rule would result in costs that represent less than 1 percent of the average exvessel revenue in 1998. A copy of the FRFA is available from NMFS (see ADDRESSES ).

An informal consultation under the Endangered Species Act was concluded on January 20, 2000. As a result of the informal consultation, the Regional Administrator determined that fishing activities conducted under this rule are not likely to affect adversely endangered or threatened species or critical habitat.