In Title 7 of the Code of Federal Regulations, parts 210 to 299, revised as of January 1, 2000, page 285, § 245.6a is corrected by revising the fourth sentence of paragraph (a)(2)(v), and revising the last sentence in paragraph (a)(5) to read as follows:

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

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

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

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

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

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

Many U.S. fisheries have excess fishing capacity. Excess fishing capacity decreases earnings, complicates management, and imperils conservation. To provide for fishing capacity reduction programs, Congress amended the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by adding section 312(b)-(e) (16 U.S.C. 1861a(b)-(e)). To finance reduction costs, Congress amended Title XI of the Merchant Marine Act, 1936 (Title XI), by adding new sections 1111 and 1112. The Title XI provisions involving fishing capacity reduction loans have been codified at 46 U.S.C. App. 1279f and g.

This action adds a subpart L to 50 CFR part 600 establishing framework regulations for requesting and conducting fishing capacity reduction programs. These framework regulations were published as a proposed rule on February 11, 1999 (64 FR 6854-6869), with a public comment period that ended on April 12, 1999.

While NMFS received numerous comments on the proposed rule (addressed in more detail below), it believes further comment on the revised capacity reduction referenda provisions would be useful.

NMFS received comments from 24 entities. Most of the comments are from organizations that represent the views of many parties. All but one of the comments supported fishing capacity reduction, although many comments disagreed with some aspects of the proposed rule. The following summarizes the comments and gives NMFS' responses.

Comment Issue 1 : Five comments addressed interest rates for loans financing capacity reduction costs.

Three comments said that a reduction loan interest rate 2 percent higher than the interest cost for borrowing loan capital from the U.S. Treasury is unnecessary, burdensome, and counterproductive.

One comment said that the interim final rule should state whether the reduction loan interest rate is fixed or adjustable and that the interest rate projected for reduction planning purposes can change before reduction implementation.

One comment said that there should be no interest prepayment penalties.

Response : A reduction loan interest rate 2 percent higher than NMFS' interest cost is required by the statute (46 U.S.C. App. 1279g).

Reduction loan interest rates depend on prevailing yields on comparable maturity Treasury obligations at the time the U.S. Treasury Department establishes the interest rate NMFS must pay on loan capital borrowed from the U.S. Treasury. The actual interest rate NMFS charges for a specific reduction loan could be higher or lower than the interest rates projected for reduction planning purposes. The projection of an interest rate could occur many months before the disbursement of reduction loan funds. The interim final rule revises the proposed rule to more fully address this issue (see § 600.1012(b) and (c) and the definition of “Treasury percentage” in § 600.1000).

All reduction loan interest rates are fixed rather than adjustable. There is no prepayment penalty.

Comment Issue 2 : Ten comments involved the reduction program process.

Six comments said that referenda about industry fee systems should occur earlier in the reduction process. Most believed that, until referenda first demonstrate the fishing industry's willingness to pay for financed reduction programs, fishery management councils (FMCs) will be reluctant to process fishery management plan (FMP) amendments complementing reduction programs and industry will be reluctant to submit reduction bids. Some also believed that industry will be reluctant to prepare business plans until after successful referenda.

Three comments said that the reduction process would be shorter if all its components were concurrent.

One comment said that the process for reduction loans should be kept as simple as possible, or the fishing industry will seek subsidized reduction programs rather than financed ones.

Two comments said that pre-bidding referenda should involve ranges of projected reduction results, with a minimum acceptable level.

Response : NMFS based the proposed rule's process for financed reduction programs on two concepts. First, industry reduction proponents and an FMC should demonstrate their commitment to a reduction program by establishing, at the time of making a reduction program request, everything necessary for prompt and reliable reduction program completion. Second, reduction bidding results need to be known before a referendum asks post-reduction harvesters to commit themselves to repaying a reduction loan.

NMFS acknowledges that FMCs may be reluctant to invest the time and resources necessary to prepare and process FMP reduction amendments, and industry may be reluctant to submit reduction bids, unless referenda have first demonstrated the industry's willingness to pay for financed reduction programs. The interim final rule revises the proposed rule in many places to better address these concerns (see, particularly, § 600.1010).

The interim final rule provides for pre-bidding referenda and, if necessary, a post-bidding referendum as well. The necessary pre-bidding referendum can occur at any time after an FMC requests a reduction program and before NMFS proposes a plan and regulations to implement the program. Each pre-bidding referendum is based on a reduction loan amount not greater than the maximum specified in the business plan being sufficient to reduce at least the minimum amount of fishing capacity specified in the business plan. A post-bidding referendum occurs only if the maximum reduction loan amount is insufficient to reduce at least the minimum amount of fishing capacity.

If an initial pre-bidding referendum occurs before the FMC adopts any FMP reduction amendment necessary, the referendum is based on the FMP reduction amendment that the business plan specifies. If afterwards, the referendum is based on the FMP reduction amendment that the FMC adopts.

If the initial pre-bidding referendum is successful, the reduction process proceeds. If the referendum precedes any FMP reduction amendment necessary, a second pre-bidding referendum is required if, in NMFS' judgment, the adopted FMP reduction amendment differs materially from the FMP reduction amendment that the business plan specifies. A material difference would, for example, be a post-reduction harvesting allocation for the harvesters who must repay a reduction loan that is less than the allocation specified in the business plan. The second pre-bidding referendum is to determine whether the referendum voters approve an industry fee system despite any such material difference.

If the initial pre-bidding referendum is unsuccessful, the reduction process then either ceases or is suspended pending an appropriate amendment of the business plan.

The interim final rule requires the business plan to specify the maximum amount of a reduction loan and the minimum amount of fishing capacity this must be sufficient to reduce. The interim final rule also requires the business plan to provide guidance about when pre-bidding referenda should occur.

Under the interim final rule, a reduction request from an FMC based on a business plan serves as the FMC's endorsement, in principle, of all aspects of the business plan that depend on the FMC's action (see § 600.1003(g)). Endorsement in principle does not, however, mean that the FMC will eventually vote to recommend implementing the business plan's concept of an FMP reduction amendment. Implementing any FMP reduction amendment necessary remains subject to all the requirements applicable to all other FMP amendments. Endorsement in principle merely means that the FMC has taken whatever action the FMC deems necessary to endorse the business plan (including the business plan's proposed FMP reduction amendment) by requesting NMFS to initiate a reduction program based on the business plan. Subsequent consideration, in accordance with the ordinary Magnuson-Stevens Act process, of the FMP reduction amendment may result either in no FMP amendment or one that differs from the business plan specifications.

Nevertheless, an FMC may not make a reduction request based on a business plan that the FMC does not endorse in principle. If an FMC cannot endorse the business plan in principle, the FMC should not make a reduction request.

If reduction bidding achieves, with a reduction loan not greater than the maximum amount that the business plan specifies, at least the minimum amount of fishing capacity reduction that the business plan specifies, then a post-bidding referendum does not occur. A post-bidding referendum occurs only if bidding does not achieve at least the minimum reduction for not more than the maximum reduction loan. Any necessary post-bidding referendum is to determine whether the referendum voters approve an industry fee system for a reduction less than the minimum.

This pre- and post-bidding approach should solve several problems. First, the approach should solve the problem of an FMC not wanting to make a large time and resource investment in an FMP reduction amendment without assurance that the industry is willing to repay a reduction loan. The business plan's survey (§ 600.1003(n)(12) in the interim final rule) of potential referendum voters should provide an FMC with enough assurance for the FMC to make a reduction request based upon that business plan. A successful pre-bidding referendum reinforces this assurance before an FMC invests time and resources in an FMP reduction amendment.

Second, allowing a second pre-bidding referendum should solve the problem of an actual FMP reduction amendment that differs materially from the FMP reduction amendment specified in the business plan.

Third, allowing a post-bidding referendum should solve the problem of reduction bidding results that do not achieve at least the minimum amount of fishing capacity reduction that the business plan specifies for a reduction loan whose principal amount is not greater than the maximum that the business plan specifies.

Finally, the approach eliminates the need for a linear processing sequence that precludes concurrent work on different parts of the reduction process. The revision allows the FMP reduction amendment process to proceed concurrently with the rest of the reduction process that occurs before NMFS proposes a plan and regulations to implement a reduction program. All other components of the reduction process, up to NMFS' publication of a plan and regulations implementing each reduction program, may now occur before an FMC prepares and processes, and NMFS approves, an FMP reduction amendment. The FMP reduction amendment must still, however, be in place before NMFS proposes the reduction plan and implementing regulations.

A completed business plan, however, remains essential both to an FMC's reduction request and the pre-bidding referendum that follows. Without a completed business plan, the FMC cannot fully know what it is endorsing in principle, NMFS does not fully know what the FMC and the industry is requesting, and referendum voters do not fully know for what they are voting.

The interim final rule requires that the business plan specify the maximum reduction cost and the minimum reduction that must be achieved for that cost. This achieves the same result as specifying ranges of projected reduction results, with a minimum acceptable level.

Comment Issue 3 : Five comments involved payment and collection of the reduction loan repayment fee.

All 5 comments, to one degree or another, said that the proposed rule's fee payment and collection provisions are too costly, burdensome, or complicated.

One comment said that fish buyers in California, Washington, and Oregon collect other fees for state and industry groups, and that the interim final rule should allow the payment and collection of the reduction loan repayment fee to conform to established regional practices.

One comment said that the fee payment and collection provisions provide an incentive for “kickbacks” based on misreported fish deliveries, and that this could change the assumptions upon which accurate catch reporting depends.

One comment said that these provisions do not accommodate fish buyers paying for fish on a periodic, rather than a trip, basis.

One comment said that collecting the fee that repays reduction loans is not the fish buyers' business, and that the fish buyers' cost of collecting the fee could itself be considered an illegal fee under the Magnuson-Stevens Act.

One comment said that, because bank rules about interest bearing accounts vary widely from state to state, some fish buyers might be able to offset some fee collection costs by interest earnings while others might not. The comment said that this violates section 301(a)(4) of the Magnuson-Stevens Act.

One comment said that fee collection audits are unrestricted.

One comment said that fish buyers are the enforcers of fee collection, without protection against fish sellers who might sue them. If a fish buyer deducts the fee over a fish seller's protest, the fish buyer risks the fish seller's legal action. Fish buyers refusing to buy fish from fish sellers who refuse to pay the fee (the alternative to deducting the fee over the fish seller's protest) is inconsistent with the business of buying fish.

One comment said that the proposed rule's provision about state confidentiality requirements not preventing NMFS' access to fish tickets places fish buyers in an impossible position.

One comment said that many fish buyers will be unaware of their fee collection responsibilities.

Response : The proposed rule is a framework rule involving matters common to all reduction programs. Some aspects of a framework rule will apply, without exception, to all reduction programs. Other aspects of the framework rule may be inappropriate for application to some reduction programs in some reduction fisheries. Nevertheless, these aspects provide a framework against which everyone can measure the circumstances of different reduction programs in different reduction fisheries. The rule's fee collection, deposit, disbursement, accounting, record keeping, and reporting procedures are of the latter type. § 253.27(q)(10), § 253.36(f), and § 253.37(h) of the proposed rule provide sufficient opportunity for approaches in each reduction program different from the framework approach. Nevertheless, the interim final rule revises the proposed rule to require business planners to consult with fish buyers before including in their business plan any special circumstances in their reduction fishery that might require some fee provisions different from the framework provisions (see § (n)(9)). Thus, the interim final rule provides opportunity for reduction program to accommodate the circumstances of, and practices, in different fisheries as long as accommodation does not jeopardize the intent and purpose of the framework rule provisions.

There are substantial penalties for misreporting catches and otherwise failing to pay and collect the fees due. The rule's fee accounting and reporting provisions require documentation that provides ample audit opportunity, and NMFS intends to audit sufficiently to ensure compliance.

NMFS believes the time at which fish sellers deliver fee fish to fish buyers is the most appropriate time for the fish sellers to pay and the fish buyers to collect the fee. The interim final rule, however, revises the proposed rule to provide for paying and collecting fees on bonuses at the time the bonuses first become known rather than at the time the fish sellers deliver the fee fish involving the bonuses to fish buyers (see § 600.1013(c)(2)).

The Magnuson-Stevens Act requires fish buyers to collect the fee. Interest earnings on collected fee revenues might allow, depending on state banking regulations, some fish buyers to offset some of the costs of discharging this statutory obligation.

A reduction loan can involve up to $100 million repaid on a incidental basis amortized over 20 years by many fish sellers, and collected by many fish buyers, as a small percentage of variable revenue from many fishing trips. This loan collection environment is susceptible to considerable nonperformance and fraud. Due diligence requires audit and, where necessary, enforcement.

Auditing is not, however, unrestricted. The rule restricts audits to those “reasonably necessary...to ensure proper fee payment, collection, deposit, disbursement, record keeping, and reporting.” The rule also restricts audits to “reasonable times and places...” NMFS does not intend any greater auditing burden than reasonable due diligence requires for the proper repayment of reduction loans. Audits may either be random (deterrent) or triggered by circumstances that indicate fee payment and collection activities inconsistent with this rule's requirements, but will not be more frequent or burdensome than needed to fulfill due diligence.

NMFS does not anticipate that fish sellers will violate these regulations by refusing to pay the fee. If any do, this does not excuse fish buyers from failing to comply with these regulations, either by collecting the fee over the fish seller's protest or by refusing to buy fish from fish sellers from whom fish buyers are unable to collect the fee as the Magnuson-Stevens Act requires.

The interim final rule does not contain the proposed rule's provision about fish tickets and state confidentiality requirements.

The interim final rule requires fish buyers to maintain the records and to submit the reports specified in § 600.1014(d) (or whatever alternative records and reports might be specified, under § 600.1014(j), in the implementation regulations for each reduction program). If landing records that a state requires contain some or all of the data that § 600.1014(d) requires and state confidentiality provisions do not prevent NMFS' access to the records maintained for the state, then fish buyers can use those records to meet appropriate portions of the § 600.1014(d) requirements. If, however, state confidentiality provisions make those records unavailable to NMFS, then fish buyers will be required to maintain separate records that meet the requirements of § 600.1014(d).

Where it becomes necessary to audit the reports that fish buyers submit in compliance with § 600.1014(d), trip tickets (or equivalent accounting records establishing the pounds of fee fish purchased and the price paid) are essential audit documentation. If, for any reason, any state law or regulation makes it illegal for fish buyers to keep separate records that involve some or all of the same data as the landing records that the fish buyers keep for state purposes, then a financed reduction program will not be possible unless there is a change in the state law or regulations to give NMFS access to the records necessary for administration of reduction loans. The interim final rule revises the proposed rule accordingly (see § 600.1003(n)(11)(i) and § 600.1014(f) and (g)).

Existing regulations require many fish buyers to have dealer permits, so NMFS often knows who the authorized fish buyers are. The rule also requires each business plan to include information about fish buyers who can, after reduction, reasonably be expected to have fee collection responsibilities. The rule requires NMFS to notify, both by a Federal Register notice and by mailed notification to fish buyers of whom NMFS is aware, all fish buyers about their fee collection responsibilities.

Comment Issue 4 : Four comments involved exempting reduction requests preceding publication of the proposed rule from some aspects of the interim final rule.

All four comments generally said that various parties had expended much effort and expense on two reduction requests that substantially preceded NMFS's publishing the proposed rule. The proposed rule required the FMCs and the business planners for these two reduction requests to start at the beginning of a process of which they were unaware before NMFS published the proposed rule. Thus, these parties would have to expend additional time and money for the sole purpose of resubmitting their requests to conform with the interim final rule. This may be inequitable, because NMFS assured the parties involved that the lack of a proposed rule would not deter NMFS from processing their reduction requests as far as possible without a interim final rule. The interim final rule should ensure expeditious consideration of these two reduction requests.

Response : On November 27, 1997, the Pacific FMC submitted a request for a financed reduction program in the fishery for Pacific coast groundfish (limited entry trawl fishery). On October 10, 1997, the North Pacific FMC submitted a request for a financed reduction program in the fishery for Bering Sea and Aleutian Islands king and tanner crab. Industry proponents have since prepared business plans for each of these requests. The business planners and the FMCs have already expended considerable effort on these business plans and reduction requests. Both requests and their acceptances preceded, by many months, the publication of the proposed rule. NMFS agrees that it is counterproductive to now require the FMCs to resubmit these two reduction requests. The FMCs do not, consequently, have to resubmit these two reduction requests in accordance with the process in the interim final rule. However, the business planners and the FMCs will have to submit some additional information required by the interim final rule. After review of both plans and the interim final rule, NMFS will specify this additional information.

Comment Issue 5 : Six comments concerned proposed rule provisions that allow financed reduction programs to involve only fishing permits in the reduction fishery, rather than requiring reduction programs to involve all fishing permits held by reduction program participants. These comments were evenly divided between supporting and opposing these provisions.

Three comments supported the proposed rule provisions. These comments generally said that it is impractical and unreasonable to require post-reduction harvesters in reduction fisheries to pay for the cost of reducing fishing permits in non-reduction fisheries, and otherwise agreed with the proposed rule's preamble discussion of this aspect.

Three comments opposed the proposed rule provisions. These comments generally said that reducing only the fishing permits in the reduction fishery causes reduction program fishing vessels to shift their effort from the reduction fishery to any non-reduction fisheries for which the vessels also have fishing permits. The goal of each reduction program should be removing the fishing capacity involved in a reduction program from all fishing rather than just fishing in the reduction fishery. To enable this result, one of these comments said that the interim final rule must define the term “fishery” differently than the Magnuson-Stevens Act does.

One comment said that the proposed rule provisions are inconsistent with the objective in section 312(b)(2) of the Magnuson-Stevens Act because the proposed rule provisions merely shift reduction costs to other fisheries in which reduction participants' vessels might also have fishing permits rather than obtaining the maximum sustained reduction in fishing capacity at the least cost.

Another comment said that all reduction programs should involve analysis of the reduction programs' impact on non-reduction fisheries and that it is unacceptable and contrary to the Magnuson-Stevens Act for improvements in a reduction fishery to occur at the expense of any other fishery.

Response : The Magnuson-Stevens Act authorizes conducting reduction programs, like fishery management plans, on a fishery-by-fishery basis. Each reduction program must occur within a fishery that meets the Magnuson-Stevens Act's definition of “fishery”. This requires each reduction program to occur in “one or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational, and economic characteristics...” and to involve “fishing for such stocks...” The objective in section 312(B)(2) of the Magnuson-Stevens Act relates to each reduction program in each reduction fishery.

While section 312(b)(2)(A) of the Magnuson-Stevens Act authorizes reductions that include both fishing permit revocations and fishing vessel scrappings (or title restrictions that prevent future fishing), section 312(b)(2)(B) also authorizes reductions that are restricted to fishing permit revocations alone.

In a financed program, the post-reduction harvesters in the reduction fishery are paying for fishing capacity reduction. They are retiring excess capacity in their fishery. The Government is simply lending them the money to do this. NMFS should not require a borrower composed of post-reduction harvesters to spend any of the borrower's reduction loan proceeds on reducing fishing capacity that the borrower does not want to reduce. This includes reducing capacity in non-reduction fisheries, which benefits parties other than the borrower.

In a subsidized program, however, the taxpayers are paying the cost of reducing fishing capacity. The taxpayers can choose, through their Government, the fishing capacity reduction alternative that provides the broadest fishery conservation and management benefit. This may include withdrawing fishing vessels (either by scrapping them or imposing title restrictions that prevent their fishing) and revoking all fishing permits associated with the scrapped vessels that are not individually transferable. Individually transferable fishing permits in non-reduction fisheries could not, however, be revoked as part of such a reduction program (because these permits may be used by vessels other than the vessels whose fishing is prevented by scrapping or title restriction). Revoking individually transferable fishing permits in non-reduction fisheries would require separate reduction programs in the non-reduction fisheries involved.

A financed reduction program is, in essence, a contribution from post-reduction harvesters in a reduction fishery to fisheries conservation and management in that fishery. It is a contribution that is in the best economic interest of the post-reduction harvesters, but, nonetheless, it is their voluntary contribution. NMFS should not limit the opportunities for satisfying the statutory purposes by requiring post-reduction harvesters willing to repay the cost of buying and retiring fishing permits in their reduction fishery to also pay the cost of buying and retiring fishing permits in non-reduction fisheries. It is not in the taxpayers' interest to do so, because the net effect may be to limit most reduction programs to those whose entire cost the taxpayers bear. This is true because harvesters in reduction fisheries are generally unlikely to approve industry fee systems in reduction fisheries for repaying reduction loans that benefit harvesters in non-reduction fisheries.

In the interim final rule's revision of the proposed rule, business planners have the option of reducing only fishing permits in the reduction fishery or both doing that and withdrawing fishing vessels by scrapping or title restriction. The latter enables the revocation of all permits, except individually transferrable ones in non-reduction fisheries, associated with withdrawn vessels. Although business planners may voluntarily choose to withdraw fishing vessels, either by scrapping them or imposing title restrictions that prevent their fishing, FMCs may not require business planners to do so.

There is, however, one exception where a financed reduction program should always include the reduction of fishing permits that involve species other than those in the reduction fishery. That exception is fishing permits that merely allow the incidental catch of non-reduction species during directed fishing for reduction species. Once the directed fishing permits are bought and retired, the incidental fishing permits are of no further use. In addition to being useless, the incidental fishing permits were always a corollary of the directed fishing permits, and should be revoked along with the directed fishing permits. Accordingly, the interim final rule revises the proposed rule in this respect (see § 600.1011(d)).

The interim final rule also revises the proposed rule to require business planners and FMCs to consider the effect on non-reduction fisheries of financed reduction programs that involve only fishing permits in the reduction fishery (see § 600.1003(l) and § 600.1003(n)(9)).

NMFS notes that there may be other potential alternatives to deal with this situation. One alternative might be combining fisheries for fishery conservation and management purposes, which might then allow a financed reduction program to relate to the combined fishery rather than just to one of the fisheries. Another alternative might be conducting a separate financed (indeed, even subsidized) program in a fishery that a reduction program in another fishery affects. Both these potential alternatives would avoid one group of post-reduction harvesters paying for another group's benefit.

Comment Issue 6 : Two comments concerned post-reduction fish allocations in financed reduction programs that do not involve all the harvesters in the reduction fishery. For example, say, a reduction fishery involves both longline and pot gear, but the financed reduction program in that reduction fishery involves only fishing permits for the longline gear.

One comment supported, and one comment opposed, allocations of this type and the proposed rule's treatment of this issue. The supporting comment said that allocation of the post-reduction resource protects the investment of the post-reduction harvesters who must repay a reduction loan as well as the interest as the Federal Government in ensuring the reduction loan's repayment. The opposing comment said that the allocation might damage the operators of non-reduction fishing gear who may have been less responsible for overfishing and, thus, creating the crisis in the fishery to which the financed reduction program relates.

Response : NMFS believes post-reduction allocation is essential in financed reduction programs that involve fewer than all the harvesters in a reduction fishery.

Assume that a fishery is composed of “A” gear fishermen and “B” gear fishermen, each group has a pre-reduction allocation equal to 50 percent of the fishery's total allowable catch, and the “A” gear fishermen encumber themselves with a 20-year debt to pay for buying and retiring 50 percent of the “A” gear fishing permits. Unless their post-reduction allocation stays at 50 percent of the fishery's total allowable catch, there is no economic incentive for the “A” gear fishermen to pay for buying half of the pre-reduction “A” gear fishing permits. Similarly, neither does the government have the requisite assurance that up to 5 percent of the “A” gear fishermen's post-reduction trip proceeds will be sufficient to repay the reduction loan over a 20-year period. Without post-reduction allocations, there is little economic incentive either for the reduction borrowers to borrow or for the reduction lender to lend, and the taxpayers may, consequently, be called upon to pay for most reduction programs of this type.

Moreover, it is inequitable for “A” gear fishermen to pay for a benefit that “B” gear fishermen receive without payment. Business plans for, and FMPs complementing, financed reduction programs that involve only one of several gear types within a reduction fishery must adequately address this critical issue sufficiently to provide economic incentive both for reduction borrowers and the reduction lender.

Financed reduction programs cannot usefully address the possibility that allocations to gear operators who some perceive as less responsible harvesters may have impacted allocations to other gear operators who some perceive as more responsible harvesters.

Comment Issue 7 : Two comments involved consultation with fishing communities and other interested parties during reduction program development. One comment pointed out, in the context of reduction programs that involve only fishing permits in a reduction fishery, that the law requires this consultation. The other comment said that, if NMFS consults with conservation organizations (and other interested parties who are, presumably, not directly involved in the reduction fishery), “those entities must have their own substantiated fishery and economic data base [sic] to be considered a valid consulting participants [sic], or we will challenge their participation. No more rhetoric of how many people they represent, they will deal in facts and not personal agenda generalities.”

Response : The statutory reduction provisions require consultation “as appropriate, with Councils, Federal agencies, State and regional authorities, affected fishing communities, participants in the fishery, conservation organizations, and other interested parties throughout the development and implementation of any...” reduction program.

Comment Issue 8 : One comment addressed the potential for the eventual replacement of the fishing capacity that reduction programs remove from reduction fisheries (and other comments also indirectly involved this issue). The comment expressed concern about the potential for post-reduction fishing capacity to gradually expand through the post-reduction adoption of new technology and the pre-reduction existence of latent fishing capacity. This comment said that analysis of the Fishing Capacity Reduction Demonstration Program and the Fishing Capacity Reduction Initiative in the Northeast multispecies fishery suggests that the existence of significant latent fishing capacity will result in little or no long-term reduction in the multispecies fishery's fishing capacity.

Response : The reduction programs in the Northeast multispecies fishery were authorized under the Interjurisdictional Fisheries Act rather than under the Magnuson-Stevens Act. The Interjurisdictional Fisheries Act does not address the issue involved in this comment, but the reduction provisions of the Magnuson-Stevens Act do. The reduction provisions of the Magnuson-Stevens Act require FMPs for reduction fisheries to prevent the replacement of fishing capacity removed by the program through a moratorium on new entrants, restrictions on vessel upgrades, and other effort control measures, taking into account the full potential fishing capacity of the fleet (16 U.S.C. 1861a(b)(1)(B)(i)).

The proposed rule addresses this statutory provision by requiring each reduction request (and, in the instance of financed reduction programs, each business plan) to demonstrate how the FMP complies with this statutory provision or will comply with it after an FMP reduction amendment. The interim final rule continues this requirement.

Comment 9 : NMFS should evaluate the efficacy of each reduction program two years after the reduction program's implementation. The evaluation should help identify areas where capacity leaks back into the fishery and will help in designing future reduction programs. It will take a few more reduction programs to iron out the difficulties in designing efficient reduction programs, and post-program evaluation will be critical.

Response : NMFS agrees. NMFS will include post-reduction evaluations as part of the SAFE reports under 50 CFR 600.315(e).

Comment 10 : Reduction is an extremely valuable tool to remove capital from fisheries in a rational and orderly fashion. Many of the proposed rule's elements will allow capacity reduction to move forward.

Response : NMFS agrees.

Comment 11 : The proposed rule does not define “capacity”. If this is intentional in order to provide flexibility in constructing reduction programs this should be stated. The proposed rule's preamble uses “excess capacity”, but does not define the term. “Excess capacity” could mean either that there are more vessels than necessary for maximum economic efficiency or that the capacity exceeds the resource's ability to support the capacity. The use of “full potential fishing capacity” highlights this problem. Defining these terms has enormous implications for interpreting the regulations and these definitions should undergo public comment before their adoption. Alternatively, the interim final rule should state that definitions for these terms will be included in the program implementation regulations.

Response : The term “excess capacity” did not appear in the proposed rule (the term appeared only once in the proposed rule's preamble).

The statutory term “full potential fishing capacity” appeared once in the proposed rule (in the definition of the term “non-replacement requirement”) and once in the proposed rule's preamble.

The appropriate context in which to make distinctions between concepts like “more vessels in a fishery than are necessary for maximum economic efficiency” and “capacity in the fishery...[exceeding] what the resources can support” is implementation of the Magnuson-Stevens Act's provision that authorizes a reduction program only if the reduction program “is necessary to prevent or end overfishing, rebuild stocks of fish, or achieve measurable and significant improvements in the conservation and management of the fishery.” Each reduction program must meet one of these criteria. For the sake of flexibility, NMFS does not qualify these criteria further. Each reduction request must make its best case on the merits of the request's own particulars.

Comment 12 : “Reduction fishery” traditionally refers to fisheries that convert fish to meal and/or oil. Substitute “buyback fishery” for “reduction fishery”.

Response : “Fishing capacity reduction” is the operative statutory term. NMFS chose, for brevity's sake, to define a fishery in which reduction is proposed or occurs as a “reduction fishery” rather than a “fishing capacity reduction fishery”. The interim final rule defines the term “reduction fishery” sufficiently to distinguish this term from a fishery involving the production of fish meal and oil.

Comment 13 : The interim final rule should “include criteria that will be used to determine...” a reduction loan's repayment period. A repayment period can be longer than the maximum 5 percent repayment fee might otherwise indicate.

Response : The amount annually required to service debt is a function of principal, interest, and the repayment term. Business planners must propose an annual reduction loan debt service burden that post-reduction harvesters are likely to be willing to undertake in return for a finite reduction in fishing capacity. Harvester referenda must subsequently approve this. Subject to the statutory constraints (maximum 5 percent fee and maximum 20-year repayment period), NMFS will accommodate each business plan's debt service proposal unless the circumstances of the reduction program involved clearly warrant doing otherwise.

Comment 14 : Failure to address how in-kind compensation (e.g., dock space, ice) affects the delivery value used to calculate the reduction loan repayment fee could result in “creative reimbursement arrangements to avoid fees.” The interim final rule should avoid this result by addressing this issue.

Response : The fee rate required to repay reduction loans is applied to “delivery value”. The proposed rule's definition of “delivery value” excludes in-kind compensation because “delivery value”, as defined in the proposed rule, is the “full, fair market value...in an arm's length transaction...” Full, fair market value in an arm's length transaction cannot, by definition, include in-kind compensation. In-kind compensation cannot, consequently, be used to avoid the fee. Nevertheless, the interim final rule revises the proposed rule's definition of “delivery value” to clarify that the term includes “the value of in kind compensation or all other goods or services exchanged in lieu of cash.” (see the definition of “delivery value” in § 600.1000).

Comment 15 : The proposed rule's definition of “fee fish” requires fishing vessels in a post-reduction fishery to pay the reduction loan repayment fee on fish harvested incidentally to the targeted reduction species. The definition of this term should allow each reduction program to define the “fee fish” that will be used to calculate the fee. Some fisheries may have an incidental catch of “fee fish”, and the interim final rule should “clearly state that incidental catches in non reduction program fisheries are not subject to the fee unless those fisheries are included in the referendum for a financed reduction program.”

Response : The term “fee fish”, as defined in the interim final rule, means all fish harvested from the reduction fishery. The term fee fish excludes fish harvested incidentally while fishing for fish not included in the reduction fishery. The term “reduction fishery”, as defined in the interim final rule, means the fishery or portion of a fishery to which a program applies. The reduction fishery must specify each included species, as well as any limitations by gear type, size of fishing vessel, geographic area, and any other relevant factor. Except in extraordinary instances, the interim final rule's intent is to limit fee fish to those that are directly rather than incidentally harvested.

Comment 16 : The proposed rule requires a reduction request to list all parties who are authorized to fish in the proposed reduction fishery and to specify the catch allocated to those parties for the past five years. The proposed rule also requires a business plan to analyze the proposed reduction loan's cost effectiveness based on the best historical fishing revenue and expense date available in the reduction fishery. NMFS is a likely source for this information, but these data are considered confidential at the individual fishing vessel level required by the regulations. The regulations in 50 CFR 600 Subpart E state that this type of information can only be released to NMFS employees or contractors, state employees, and Council staff or contractors. Thus, business planners will not have access to this information. The interim final rule should address this by requiring NMFS to provide, in an aggregate form, the data business planners need.

Response : The proposed rule intends catch allocation data to be aggregate data for all parties authorized to fish in the reduction fishery rather than individual data for each such party. The interim final rule revises the proposed rule to make this intent clearer (see § 600.1003(j) and § 600.1005(f)).

Section 253.27(q)(5)(1) of the proposed rule merely requires that business plans include the “Best historical fishing revenue and expense data (and any other relevant productivity measures) available in the reduction fishery.” This neither requires these data to be provided at the individual fishing vessel or fishing permit level nor requires those data to be identified with specific fishing vessels or fishing permits. The interim final rule revises this aspect of the proposed rule to clarify that NMFS seeks the “best and most representative historical...data... available...” (see § 600.1003(n)(5)(l)).

NMFS does not know, in every fishery that may become the subject of a reduction request (which includes fisheries managed by states), who may have the best available data. NMFS may have these data for some fisheries, but may not have them for others. The fishing industry itself generally is the source of these data, and, if adequate data have not been elsewhere gathered, business planners must arrange to make available sufficiently representative data from the industry in order to make the business planners' case.

This aspect of the rule does not require NMFS to violate data confidentiality, and NMFS intends, upon request, to make available to business planners, in a way that does not violate data confidentiality, whatever useful data NMFS has.

Comment 17 : The proposed rule requires the FMCs to provide the names and addresses of fishing permit holders authorized to fish in a reduction fishery, but NMFS (as the permitting authority) has the most current information and should supply the information itself.

Response : NMFS has these data for fishing permits in Federal fisheries. Nevertheless, the referenda aspect of the statutory reduction provisions requires NMFS, “in consultation with the FMC...” to “identify, to the extent practicable, and notify all permit or vessel owners who would be affected by the...” (16 U.S.C. App. 1861a) reduction. The proposed rule was premised on the assumption that an FMC would ask NMFS for the data needed to complete this aspect of a reduction request, examine the data NMFS provided, and, where necessary, consult with NMFS about any aspect of the data before confirming the data by including them in a reduction request to NMFS. NMFS continues to believe this is the most appropriate approach. Moreover, reduction programs can involve state, as well as Federal, fisheries, and NMFS may not have these data for fishing permits in state fisheries.

The interim final rule revises the proposed rule to clarify that NMFS is a source of Federal fishing permit data (see § 600.1003(i) and § 600.1005(e)).

Comment 18 : The proposed rule requires the FMCs to provide the names and addresses of likely post-reduction fish buyers, but NMFS has this information in NMFS' dealer permit database and should, consequently, remove this requirement.

Response : The proposed rule requires business planners, not FMCs, to provide this information (although FMCs must include business plans with reduction requests). NMFS may not always have these data even for all Federal fisheries, let alone state fisheries. Where NMFS has these data, however, NMFS will be pleased to supply the data to business planners for their review, (where appropriate) revision, and inclusion in their business plans. Where NMFS does not have these data, business planners must produce the data for inclusion in their business plans.

Comment 19 : Business planners must be able to gauge the amount of time NMFS will take to implement reduction. The regulations should specify a maximum time for the agency to do this.

Response : NMFS will process reduction requests as quickly as NMFS can, but cannot specify time limits for doing so.

Comment 20 : Reduction amendments to FMPs may not always be necessary to accommodate reduction because “some Councils may be able to adjust management plans through a framework adjustment rather than a full plan amendment.” The interim final rule should change “reduction amendment” to “reduction amendment or framework adjustment.”

Response : The interim final rule revises the proposed rule's definition of the term “reduction amendment” to include framework adjustments (see the definition of this term in § 600.1000).

Comment 21 : In some cases, latent fishing permits may be held by parties who do not own fishing vessels. The basis of the referendum voter lists should be explained (“in particular, whether it is based on vessels or permits”). The proposed rule “does not state if a reduction program could apportion voting rights based on landings, permit categories, days-at-sea usage, or other criteria.” Referenda results “may require as much as one-third of the industry to fund a program they oppose.” This could both be unfair and make designing successful reductions difficult. In a fishery where the few catch most of the fish, the many who catch few of the fish could force the former into a reduction they oppose. (The example given is a 100 permit fishery where 20 percent of the fishing permit holders catch 80 percent of the fish). “The interim final rule should clearly state how voting rights are apportioned...[and should allow apportionment] based on relative criteria determined by the designers of the program.” The proposed rule does not specify what happens if an eligible voter is inadvertently omitted. The interim final rule should provide for an appeal process prior to referendum ballot distribution.

Response : Referenda voters under the statutory reduction provisions are “permit or vessel owners who would be affected by the program...” The rule mirrors the statutory language by including either fishing vessel owners or fishing permit owners as potential referenda voters. Nevertheless, because reduction programs can occur only in limited access fisheries, NMFS believes referenda voters will always be those who hold fishing permits at the time of the referenda.

The proposed rule requires each reduction implementation plan to include the names and addresses of all parties eligible to vote in a referendum. The interim final rule, however, revises the proposed rule to allow referenda before reduction implementation plans. This requires public comment about voter eligibility to occur earlier in the reduction process. Consequently, the interim final rule also revises the proposed rule to make the names and addresses of eligible voters subject to public comment by including them in the Federal Register notice that NMFS publishes when NMFS accepts a request for a financed reduction program (see § 600.1003(i) and § 600.1004(a)).

During the proposed rule's formulation, NMFS considered the possibility of apportioning referenda votes according to various criteria. NMFS believed, however, that the most equitable approach in the greatest number of cases is a one fishing permit/one vote rule. NMFS still believes this. NMFS believes that the concern in this comment might be better addressed by an FMC. This Council, by refusing to request a reduction program (based on a business plan that allows the many who catch little to force a reduction of their fishing permits on the few who catch much) unless it appears to be in the best conservation and management interest of the reduction fishery and in the best economic interest of all post-reduction harvesters in the reduction fishery. However, NMFS does not, for a variety of reasons, anticipate that this hypothetical situation will often occur. Initiating a financed reduction program requires NMFS, for example, to determine that post-reduction harvesters will be able to repay the reduction loan. If, prospectively, the cost of buying 80 percent of the fishing permits that produce 20 percent of the fish were so high that the remaining 20 percent of fishing permit holders could not, with 20 percent more fish to harvest, reasonably afford to repay that cost over 20 years at a maximum fee limited to 5 percent of ex-vessel landings, then NMFS could decide not to initiate the reduction program.

Comment 22 : The interim final rule should address the impact of fishing vessels or fishing permits being sold, bankruptcies, and corporate dissolutions during the interim between bid acceptance and actual fishing capacity reduction.

Response : Bids are irrevocable offers. NMFS' acceptance of bids creates reduction contracts that entitle NMFS to specific performance of the contract obligations. This is as far as NMFS can reasonably go to ensure that reduction contracts culminate in the reduction results upon which referenda are based. NMFS will, as a matter of course, take whatever legal action may be available to NMFS to enforce specific performance of reduction contracts, but cannot predict the outcome of hypothetical future events. NMFS realizes that some circumstances (e.g., bankruptcy) could conceivably delay or prevent NMFS' enforcing specific performance, but NMFS will have to deal with these circumstances as they present themselves during the conduct of each reduction program. Nevertheless, the interim final rule revises the proposed rule to more specifically address the impact of these potential occurrences (see § 600.1011, particularly § 600.1011(f) and (g)).

Comment 23 : “There may be a long period between bidding and actual implementation of the program. While at some point the bidders must commit to participation...they should...[be able to] withdraw up to the point...referendum ballots are prepared.”

Response : The proposed rule requires NMFS immediately after bid closing to accept bids, notify bidders, and conduct a referendum.

The proposed rule also requires NMFS to tally all ballots and notify all referendum voters, within seven business days after the last day for receipt of ballots, of the referendum results.

Additionally, in response to other comments about the proposed rule, the interim final rule revises the proposed rule to restrict post-bidding referenda to situations in which bidding results are insufficient for the maximum reduction loan amount specified in the business plan to reduce the minimum amount of fishing capacity specified in the business plan (see § 600.1010(c)).

NMFS will do everything possible to keep the elapsed time between bid closing and actual reduction as short as possible. NMFS fully realizes the commercial necessity of doing so.

NMFS' reduction experience in the Northeast multispecies fishery demonstrates that irrevocable bids are essential to effective reduction. Irrevocability will limit bidding to fishing permit or fishing vessel owners who are serious about reduction. This will also prevent the situation in which bid results that initially conformed with a business plan's capacity reduction specifications become nonconforming because of subsequent bid withdrawals.

Comment 24 : Invitations to bid “should include projections of the benefits of capacity reduction on the management plan for the subject species, notice of possible capital gains tax liabilities, and other limitations such as to CCF contributions. This information may not be readily apparent to permit holders.”

Response : The reduction plan that NMFS publishes in the Federal Register will, for each financed reduction program, “describe in detail all relevant aspects of implementing...” each reduction program. NMFS believes the reduction plan may be the better place to discuss, if appropriate, any matters like those involved in this comment. Invitations to bid are contractual in nature, and NMFS believes they should focus only on contractual matters.

Comment 25 : The interim final rule “should specify that NMFS will follow established standards for conducting referenda.” The proposed rule does not specify that voting would be conducted by secret ballot, but the interim final rule should.

Response : NMFS does not know to what standards this comment refers. The interim final rule revises the proposed rule to clarify ballot confidentiality (see § 600.1010(d)(10)).

Comment 26 : Where reduction programs involve withdrawing fishing vessels from fishing, the proposed rule requires state registered fishing vessels to always be scrapped (rather than either being scrapped or having their titles restricted). This complicates reduction programs involving both Federally registered and state registered fishing vessels, and may increase reduction cost or put owners of state-registered fishing vessels at a disadvantage. Some states may have the ability to impose title restrictions that will prevent the future use of state-registered fishing vessels in other fisheries. Fishing vessels not required to be scrapped should not be allowed to be sold to other countries if they exacerbate overcapacity in (presumably) any other fishery in the world. “Vessels should also not be allowed to be sold to foreigners and then enter a fishery in U.S. waters that may not be subject to U.S. jurisdiction.”

Response : Although some states may have this title-restriction ability, NMFS has no way of ensuring that these states will enforce such title restrictions for as long as the fishing vessels exist. Moreover, little may prevent a fishing vessel owner whose fishing vessel title has been restricted in one State from re-registering the vessel in another state that cannot or will not similarly restrict the vessel's title. Federal title restrictions for Federally-documented fishing vessels are effective for reduction purposes, but state title restrictions for state-registered fishing vessels may not always be effective.

For the reasons stated in the preamble to the proposed rule, NMFS does not believe it should, for fishing vessels involved in financed reduction programs, impose any non-statutory use restrictions. No foreign country need allow these fishing vessels to be registered under the country's national flag or harvest fisheries resources under the country's national jurisdiction if the country believes that this registration is inconsistent with: the country's economic interests, the country's fisheries conservation and management responsibilities, the country's obligations under treaties or international law, or any other aspect of the country's sovereign affairs. Finally, all vessels fishing in U.S. waters are subject to U.S. jurisdiction.

Comment 27 : The interim final rule should state that reduction loan repayment is the only basis for post-reduction fee increases. The interim final rule should “describe the criteria NMFS will use to increase the fee amount rather than extend the period of the payback... This should include a determination that the increased fee will not result in a significant impact on ...[post-reduction fishermen or communities].”

Response : The only statutory authority NMFS has for any reduction fee (including the subsequent increase of an initial fee) is repayment of a reduction loan. Absent specific circumstances that clearly warrant the contrary, NMFS has no particular preference, in the instance of a reduction loan whose initial maturity was shorter than the statutory maximum, for either fee increases or longer repayment periods. NMFS will certainly attempt to avoid significantly adverse effects on post-reduction harvesters and fishing communities, but, where actual gross revenue experience in a reduction fishery clearly indicates the projected need for a fee increase in order to repay a reduction loan within the maximum maturity, NMFS is obliged to increase the fee up to and including the maximum fee.

Comment 28 : Harvesters base their referenda votes on the fee rate projected to be necessary to repay the reduction loan. Additional fees during the time that post-reduction harvesters are paying the reduction loan repayment fee may become an economic burden. The interim final rule should prohibit the adoption of additional fees (e.g., for observer programs, for research or enforcement costs) during the period the industry is paying back reduction loan.

Response : Neither the reduction framework rule nor reduction regulations implementing any reduction program can control matters not pertinent to fishing capacity reduction. Fees involving matters other than the repayment of reduction loans may become necessary or advisable at some time during the 20 years during which reduction loans are repayable. While NMFS will always attempt to avoid fees that have significant adverse impacts, neither the reduction framework rule nor reduction program implementation regulation can prohibit whatever non-reduction fees may become necessary or advisable in the future. Furthermore, a reduction program should make the fishery economical and paying reduction fees should not be overly burdensome.

Comment 29 : The proposed rule's requirement that the fishing industry submit business plans and the FMCs make certain other submissions places an enormous burden on the industry and the Councils—or, for state requests, on the states—to prepare capacity reduction programs. This shifts the burden of preparation from the Secretary to the Council and the industry. This is a shift that has not been accompanied by an increase in Council resources. Business plans should not always be required. The interim final rule should allow flexibility in determining the lead authority for the preparation of a financed reduction program or, alternatively, NMFS should immediately identify resources that will be made available to Councils to meet the requirements imposed by the regulation.

Response : For the reasons stated in the preamble to the proposed rule, NMFS believes that the business plan requirements appropriately place, on a reduction's industry proponents, the burden of developing proposals for financed reduction programs. NMFS realizes that business plans require industry to undertake a large effort. This is, however, no different from planning for other business investments. NMFS views financed reduction programs as post-reduction harvesters making business investments in their economic future by retiring some of their competition, thereby increasing their harvests of finite natural resources. NMFS can lend post-reduction harvesters the money required to make this investment. As a lender, however, it is not appropriate for NMFS to do the business planning that may determine whether the investment succeeds or fails. Moreover, no one is more qualified to do this business planning than the harvesters affected by the plan and who will be required to mortgage, in effect, up to 5 percent of their future gross revenue over as much as 20 years to repaying the reduction investment's cost. Reduction planning is expensive, but so is most business planning. Reduction planning may, however, from time-to-time be eligible for grants. The Saltonstall-Kennedy Fisheries Research and Development Program's fiscal year 2000 grant cycle includes reduction planning.

Although FMCs have the lesser burden of reviewing, rather than preparing, business plans, the burden is one that cannot reasonably be avoided. It is the FMCs' responsibility to manage and conserve the national fisheries. Determining if a reduction program will assist in this is integral to an FMC's mandate. The reduction framework rule is not the proper venue for addressing FMC personnel or resource matters.

Comment 30 : “By failing to list the four possible funding sources included in the statute, the proposed rule sends a strong message that reduction programs must be industry funded. The interim final rule should clearly identify possible funding sources and ...emphasize that industry funding is only one way to finance a reduction program.”

Response : Financed reduction programs, in which the direct beneficiaries of a reduction program repay the programs' cost, are the preferred way of funding most reduction programs. The proposed rule, however, also equally addressed subsidized reduction programs, in which the taxpayers or other contributors fund reduction program costs. These are the only two basic methods of funding reduction program costs. Under the proposed rule, if any portion of a reduction program's cost is funded by a reduction loan, the reduction program is a financed reduction program. All other reduction programs are subsidized reduction programs, even though three different statutory funding sources are included in this category: (1) appropriations under the reduction provisions of the Magnuson-Stevens Act, (2) appropriations under the Saltonstall-Kennedy Act, and (3) contributions from States or other public or private sources. In the first 2 funding sources for subsidized reduction programs, Federal taxpayers provide the subsidy; in the third, State taxpayers or other public or private entities provide the subsidy. There appears to be no functional reason for the reduction framework rule to separately address the 3 different sources of subsidized funding.

Comment 31 : Different industry groups may present competing business plans to the FMCs. The proposed rule does not provide criteria for deciding what industry groups have standing. “Do the FMCs decide which proposals are forwarded to the Secretary for review? How will specific reduction proposals be compared and how will the choice be made between them?” The interim final rule should allow the FMCs to decide what reduction request to forward to NMFS, but should clearly explain the criteria the FMCs should consider in making this decision.

Response : NMFS believes it is best to leave this to the FMCs' discretion. NMFS cannot, in a fishery subject to an FMC's jurisdiction, undertake a reduction program unless the FMC first requests NMFS to do so. Consequently, the FMCs have discretion to entertain reduction proposals from whatever industry reduction proponents the FMCs deem appropriate. The FMCs may reject proposals, merge or consolidate proposals, or accept proposals as submitted. If the industry proponents of a financed reduction program and the appropriate FMC cannot come to agreement about a prospective reduction program, it makes little sense for the FMC to request a financed reduction program. In financed reduction programs, NMFS believes the FMCs should defer to representative business planners who make a strong case for increasing the economic efficiency of post-reduction harvesters in the reduction fishery and, most particularly, for the widespread industry support that successful referenda require. Proposals for financed reduction programs that do not potentially enjoy widespread industry support will fail and waste much time, effort, and resources.

Comment 32 : Reduction “is important for the preservation of natural resources and the economic stability of American fisheries.”

Response : NMFS agrees.

Comment 33 : The requirement that a proposed reduction be lawful at the time of reduction must be made clear. No person or government body can guarantee what will be lawful in the future. Future judicial interpretation is always an unknown. As long as a proposed reduction is not known to be unlawful at the time it is requested, all such requirements should be deemed satisfied.

Response : All reduction programs will be lawful at the time of their occurrence, and NMFS agrees that no one can guarantee what will be lawful in the future.

Comment 34 : The proposed rule is sufficient for fisheries under Federal jurisdiction. For state-managed fisheries, however, it would be useful to have a sample request and business plan accessible at NMFS' web site.

Response : The proposed rule outlined the required contents of reduction requests and business plans for both Federal and state fisheries. NMFS does not have any samples that NMFS could post at NMFS' web site. NMFS is, however, willing to advise all parties about reduction in any appropriate way NMFS can.

Comment 35 : The proposed rule “has been thoughtfully and thoroughly developed...” and “has great merit and practical application ...” to the salmon driftnet and purse seine fishery in Bristol Bay, Alaska.

Response : NMFS notes this comment.

Comment 36 : “In some cases...industry-funded license reductions may represent the only viable alternative to achieving needed reductions of capacity. In complex fisheries, overcapacity and inadequate management in any major fishery can lead to adverse consequences for other fisheries.”

Response : NMFS agrees.

Comment 37 : Where fishing permit reductions involve Bristol Bay and Chignic, the number of fishing permits bought back from local residents must be proportional with the number of fishing permits bought back from parties who do not reside in Alaska. 1,325 Bristol Bay salmon fishing permits were initially issued to residents of the Bristol Bay and Chignic watershed region. Today, only about 900 of these remain owned by local residents. Each fishing permit sold to non-residents of the local area results in the loss of 2 crewmen jobs from the local economy. This devastates the local economy.

Response : A framework rule involving matters common to all reduction programs is not the appropriate place to address this matter.

Comment 38 : The “technical requirements for information ...[should not be] implemented in a way that the available databases and their managers cannot accommodate. Flexibility to meet the data variability and personnel constraints should be clearly provided.”

Response : It is not clear to what “technical requirements for information” this comment related. Requiring unavailable data is nonfunctional. The interim final rule is a framework rule common to all reduction programs, and NMFS will accommodate specific data or technical information circumstances that do not reasonably allow individual requests for reduction programs to comply with the framework rule. The interim final rule revises the proposed rule to provide flexibility in this and other respects (see § 600.1001(f)).

Comment 39 : Reduction planners (either industry business planners or Government reduction planners) will be unqualified to fully understand fisheries complexity and to “comprehensively formulate a feasible...plan.” Theoretical reduction plans might not achieve the intended purpose, and might have unplanned impacts on “the permit holder, vessel owner, financiers, and buyers (fish fee collectors)...” Experience demonstrates that “decisions are reached to appease political agendas, therefore, constituents of the fisheries will not take a plan or program at face value.” Industry members will incur substantial expense in analyzing reduction plans. Reduction plans will involve a major economic impact on small fishery businesses. The “massive economic data that will be required...” may be nonexistent.

Response : Financed reduction programs are based on business plans that the fishing industry itself develops. When FMCs request financed reduction programs, they must base their requests on those business plans. If NMFS undertakes financed reduction programs, NMFS must, to the greatest extent possible, base these programs on those business plans. Moreover, all fishing permit holders or fishing vessel owners affected have the opportunity, through a referendum, to approve or reject the business plans upon which financed reduction programs are based. A financed reduction program is not possible unless at least two-thirds of those voting in a referendum approve the fee necessary to repay a reduction loan.

Subsidized reduction programs are based on implementation plans that NMFS develops from general FMC recommendations. The rule provides ample opportunity for the views of all affected parties to be heard and duly considered.

Whether to offer one's fishing capacity for reduction in either a financed or subsidized reduction program is the voluntary decision of each fishing permit holder and/or fishing vessel owner.

Comment 40 : A business plan should be subjected to a referendum of fishing permit holders and fishing vessel owners. Additionally, the fish buyers that are responsible for collecting the fee that repays a reduction loan should vote in a referendum about (presumably) the “fee collection, disbursement, and accounting...” aspects of the reduction. Moreover, a referendum committee of fishing vessel and fishing permit owners and fish buyers should review the results of all referenda involving financed reduction programs “to alleviate [sic] any questions by the fishery as to the valid tally of support or non-support...” A subsidized reduction program should also be subjected to a referendum of fishing permit and fishing vessel owners.

Response : The Magnuson-Stevens Act reduction provisions authorize referenda only for fee payers (fish sellers), not fee collectors (fish buyers). Fish buyers pay no fee, and cannot vote in referenda about fee payment. The statutory reduction provisions do not authorize referenda for subsidized reduction programs, where no one either pays or collects a fee. Those provisions do, however, require NMFS to consult with fish sellers, fish buyers, and all other affected parties through the development and implementation of subsidized reduction programs.

NMFS is the referendum authority under the statutory reduction provisions, and NMFS believes it can competently exercise this authority. NMFS does not, consequently, perceive a need for fish-seller and fish-buyer committees that will review referenda results. Moreover, the fact that referenda may sometimes follow irrevocable bidding precludes any referenda review or collaboration that lengthens the time between the submission of irrevocable bids and completing the reduction programs to which the bids relate.

Comment 41 : It is good “that industry is expected to pay for...[reduction] in the long run.”, but landing taxes are already high (“nearly 10 percent off the top for salmon in

Alaska...”) This, combined with the high cost of business and depressed markets, threatens the survival of many family fishing businesses. Further landing taxes should be minimal. As an alternative, consider putting “a large tax [25 percent or more] on the sales of permits.”

Response : In financed reduction programs, the industry's business plans project the amount by which fishing capacity is reduced and the prospective fee rate necessary to pay for that reduction. Fee rates are based on post-reduction gross revenue that can only be projected over the life of the reduction loans, but all business is planned on the basis of future income that can only be projected. For a financed reduction loan to be possible, affected fishing vessel or fishing permit owners must vote in a referendum to approve the fee necessary to repay a reduction loan of a certain maximum amount whose disbursement in the form of reduction payments will reduce fishing capacity by a certain minimum amount. Business planners are unlikely to suggest a fee higher than post-reduction producers are reasonably likely to be able to pay, and, in the event they do, referenda voters are unlikely to approve a higher fee. Post-reduction fee rates may increase if post-reduction gross revenue proves to be lower than projected at the time of reduction, but may never exceed 5 percent of gross revenue. NMFS has no authority to consider the alternative this comment suggested.

Comment 42 : The proposed rule is a “very well done plan on how to implement. It is believable, do-able, and very much needed in the fishing industry.”

Response : NMFS notes this comment.

Comment 43 : The comment applauds this avenue to reduce overcapitalization, return economic viability to fishing, and resolve many concerns (including bycatch and habitat) that the race for fish creates. Reductions reduces fishermen's pressure by eliminating “derby fisheries.”

Response : NMFS agrees that fishing capacity reduction can help improve fisheries economics and fisheries conservation and management.

Comment 44 : The fee for fish processed at sea cannot equitably be calculated in the same way as the fee for raw fish delivered ashore. Using appropriate recovery rates, NMFS should convert processed fish to the fish's round weight equivalent and calculate the fee based on the ex-vessel price for raw fish. If there is an ex-vessel price for raw fish delivered at sea, NMFS should use this. If not, NMFS should use the ex-vessel price for raw fish delivered ashore. Where all fish in a reduction fishery are processed and delivered at sea, NMFS must devise an appropriate proxy for a raw-fish, ex-vessel price. The fee should, in all cases, be based on the ex-vessel price for raw fish, rather than on the value that at-sea processing adds.

Response : NMFS considered this issue during the proposed rule's formulation, but elected in the proposed rule to define “delivery value” and associated terms in a way that required payment of the reduction loan repayment fee based on fish in whatever form the fish existed at the time that the party who harvested the fish first delivered the fish for value to an unrelated fish buyer. This resulted, for fish harvested and processed at sea by the same party, in applying the fee rate to a higher delivery value than for fish delivered unprocessed and subsequently processed ashore by an unrelated fish buyer. There are good arguments for and against this approach, but, on balance, the more equitable way to resolve this issue is, as this comment suggests, to apply the fee to unprocessed fish. Doing so, however, creates considerable problems of its own.

One primary problem is a formula for accurately and efficiently converting the weight of processed fish to the weight of unprocessed fish. Another is a common value for unprocessed fish (prices may vary from time to time and from fish buyer to fish buyer). Nevertheless, the interim final rule revises the proposed rule to make the fee payable on the basis of the value of unprocessed fish. The interim final rule requires each business plan, for fisheries in which related parties both catch and process fish at sea, to formulate an accurate and efficient means of converting processed weight to unprocessed weight and of commonly valuing unprocessed fish (see, in § 600.1000, the definition of the terms “delivery value”, “processed fish”, and “unprocessed fish” and, in § 600.1003(n)(11), the new business plan requirement in this respect).

Comment 45 : The framework rule represents an “excellent job of distilling common sense answers from some very difficult and complex issues.”

Response : NMFS notes the comment.

Comment 46 : The reduction loan repayment fee is the delivery value of fee fish times the fee rate. The definition of “delivery value”, however, excludes “any deductions whatsoever” from the price that a fish buyer pays a fish seller when the fish seller first delivers fish to the fish buyer. This excludes “weighbacks” (small, unmarketable fish that the fish buyer deducts from the weight of delivered fish upon which the fish buyer calculates the delivery value). To comply with the statute's restriction of the fee to no more than 5 percent of ex-vessel value, the fee rate must be applied to the net weight of delivered fish (landed fish minus “weighbacks”).

Response : Representative fish tickets provided with this comment deduct the weight of weighbacks from the gross weight of fee fish delivered before applying the purchase price per pound to the resulting net weight. Under these circumstances, the fee is not, as the proposed rule defined the relevant term, applied to the weighbacks because the fish buyer did not pay any “delivery value” for the weighbacks because they were deducted from the total weight of delivered fish before calculating the “delivery value” on the net weight of delivered fish. The rule bases the fee on whatever value fish buyers pay fish sellers for fish subject to the fee (see the definition of the term “delivery value” in § 600.1000).

Comment 47 : This comment supported fishing capacity reduction, but is frustrated that “the system” moves so slowly.

Response : NMFS will expedite the process as much as it possibly can, but fishing capacity reduction is a complex undertaking. The FMP amendment required to complement each reduction program may become a major source of delay in implementing each reduction program.

Comment 48 : The reduction concept is “totally objectionable and immoral.” Allowing “two thirds of the fishermen in a fishery...” to authorize the fee system required to repay a loan forces the other one third to repay a loan they do not want. The commenter objects to “forced loans.” The commenter does not “believe in borrowing...”, and “objects] to being forced to pay back a loan to stay fishing.” Government should not be in the business of making loans. Reduction programs will not increase the price of post-reduction fish. The reduction concept “has the potential to force out small boat owners.”

Response : NMFS notes the comment. The Magnuson-Stevens Act authorizes reduction programs and specifies the way in which they must be conducted. This rule implements the Act.

The reduction concept has the potential to reduce fishing capacity of every size, but decisions about whether to offer any fishing capacity for reduction are always the voluntary decisions of individual fishing permit and/or fishing vessel owners.

Comment 49 : Reduction might have the collateral effect of putting some shoreline processors out of business, because fewer fishing vessels could result in the need for fewer shoreline processors.

Response : Absent concurrent reductions in total allowable catches, post-reduction harvests will require the same fish processing capacity as pre-reduction harvests. NMFS hopes that fewer harvesters catching the same amount of fish will not always mean a need for fewer processors, but it sometimes unavoidably may. Nevertheless, the statutory objective of the reduction provisions of the Magnuson-Stevens Act is to reduce fishing capacity.

Comment 50 : “Congress made it very clear in the Sustainable Fisheries Act of 1996 that all capacity reduction plans must achieve measurable and significant improvements in the conservation and management of the fishery in question...”

Response : The rule reflects this aspect of the statutory reduction provisions.

The proposed rule was Subpart D of 50 CFR Part 253. The interim final rule, however, is subpart L of 50 CFR Part 600.

The following sections of the interim final rule revise the proposed rule:

(1) § 600.1000 . This section is revised to add some terms, delete some terms, rename some terms, and amend the definition of some terms. Added terms include: “address of record”, “bid”, “business week”, “fair market value”, “fishing capacity reduction specifications”, “net delivery value”, “post-bidding referendum”, “pre-bidding referendum”, “processed fish”, “reduction amendment specifications”, “request”, “treasury percentage”, “unprocessed fish”, and “vote”. Deleted terms include: “consistency requirement”, “control requirement”, “Council”, “necessity requirement”, and “nonreplacement requirement”. Renamed terms include: “program plan”, which becomes “implementation plan”; “program regulations”, which becomes “implementation regulations”; and “management plan”, which becomes “controlling fishery management plan or program (CFMP)”. Amended definitions include “borrower”, “delivery value”, “fee fish”, “fish buyer”, “fish delivery”, “fish seller”, “reduction amendment”, “reduction fishery”, and “reduction payment”.

(2) § 600.1001(f) . This section is added to provide for waivers of framework rule provisions in order to accommodate special circumstances in particular reduction fisheries.

(3) § 600.1002 . This section is new. It encompasses four general requirements, three of which were, in the proposed rule, terms defined in § 253.25. This new section required conforming revisions of various other sections of the proposed rule.

(4) § 600.1003 . Paragraph (g) of this section is revised to require each request for a financed reduction program to include the FMC's endorsement in principle of any reduction amendment to the FMP that the business plan proposes. Paragraph (i) of this section is revised to clarify that NMFS is a source for the fishing permit data that this section requires in requests for financed reduction programs. Paragraph (j) of this section is revised to clarify that financed reduction program requests require aggregate, rather than individual, catch data. Paragraph (n)(11) of this section is revised to require the business plan included in each financed reduction request to evaluate the need for fee payment and collection provisions in each reduction fishery's implementation regulations different from the fee collection provisions in the framework rule.

(5) § 600.1005 . Paragraph (e) of this section is revised to clarify that NMFS is a source for the fishing permit data that this section requires in requests for subsidized reduction programs. Paragraph (f) of this section is revised to clarify that financed reduction program requests require aggregate, rather than individual, catch data.

(6) § 600.1010 . This section is revised extensively to provide for referenda preceding reduction amendments to FMPs as well as other referenda that may be required by no longer limiting referenda to those following reduction bidding. This also required appropriately revising other sections of the proposed rule that referenced referenda. Paragraph (d)(10) of this section is revised to establish the confidentiality of referenda ballots.

(7) § 600.1011 . This section, particularly paragraphs (f) and (g), is revised to clarify the effect of reduction payments that NMFS is unable to make because of reduction contract non-performance.

(8) § 600.1012 . This section is new. Paragraphs (b) and (c) of this section pertain to reduction loan interest rates, including the effect of any difference between prospective and actual reduction loan interest rates. The balance of this new section pertains to the reduction loan obligation, including principal amount, repayment term, and penalties for non-payment or non-collection.

(9) § 600.1013(c)(2) . This paragraph is revised to clarify that the fee applicable to post-delivery fish bonuses is paid and collected when the bonuses first become known rather than when fish sellers first deliver fish to fish buyers.

(10) § 600.1015 . This section is new. This provision is necessary to ensure prompt payment.

(11) § 600.1016 . This section is new. This provision is necessary to ensure compliance.

The interim final rule further revises the proposed rule to make the rule briefer, clearer, and more internally consistent.

NOAA codifies its OMB control numbers for information collection at 15 CFR part 902. Part 902 collects and displays the control numbers OMB assigned to NOAA's information collection requirements pursuant to the Paperwork Reduction Act (PRA). This interim final rule codifies OMB control number 0648-0376 and OMB control number 0648-0413 for Part 600 Subpart L—Fishing Vessel Capacity Reduction.

The Assistant Administrator for Fisheries, NMFS, determined that this interim final rule is consistent with the Magnuson-Stevens Act and other applicable laws.

This interim final rule has been determined to be significant for purposes of E.O. 12866, and a Regulatory Impact Review has been prepared by NMFS (see ADDRESSES ).

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration when this rule was proposed that, if adopted as proposed, it would not have a significant economic impact on a substantial number of small entities. NMFS received no comments about this certification. Because this interim final rule only establishes a framework for implementing future reduction programs in specific reduction fisheries, each future reduction program will require its own implementation regulations and analysis of effects on small entities. 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 any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number.

This interim final rule contains new collection of information requirements subject to the PRA that have been approved by OMB, under OMB Control No. 0648-0376. The estimates of the public reporting burden for these requirements are: 6,634 hours for developing a business plan, 4 hours per voter for a referendum, four hours to make a bid, 10 minutes per fishing trip to maintain records on transactions, 2 hours for a buyer's monthly report, 4 hours for a buyer's annual report, 2 hours for a buyer/seller report (where either a buyer refuses to a fee or the seller refuses to pay the fee to the buyer), and 270 hours for state approval of a business plan and amendments to a state fishery management plan.

Emergency clearance has also been obtained under OMB Control Number 0648-0413 to conduct, in accordance with the interim final rule's revised referenda procedures, more than one referendum for each reduction program if the circumstances of a reduction program require multiple referenda. The response time per voter for these referenda is 4 hours. NMFS intends to ask OMB for a three-year extension of the clearance for these requirements, which are currently only approved on an emergency basis.

The response time estimates above include the time needed for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and revising the collection of information.

Send comments regarding the extension of the emergency clearance or any other aspect of the collection of information requirements contained in this rule, including the burden hour estimates, and suggestions for reducing the burdens to NMFS (see ADDRESSES ) and to OMB (see ADDRESSES ).

In a proposal published in the Federal Register of June 10, 1999 (64 FR 31164) (hereinafter referred to as the June 10, 1999, proposal), FDA solicited comments regarding the proposed classification of female condoms. The June 10, 1999, proposal provided the regulatory history of female condoms, as well as the recommendation of the Obstetrical and Gynecological Device Classification Panel (the Panel) that this particular device be classified into class III. Specifically, the Panel recommended that this device be classified into class III because no published laboratory or clinical study data could be found that demonstrate its safety and effectiveness. Also, the Panel believed that general controls and special controls would not provide reasonable assurance of the safety and effectiveness of the device and the device is purported or represented to be for a use in supporting or sustaining human life or for a use which is of substantial importance in preventing impairment of human health, or presents a potential unreasonable risk of illness or injury. FDA agreed with the Panel's recommended classification.

The Panel also recommended that the device be identified as an intravaginal pouch because it is a sheath-like device that lines the vaginal wall and is inserted into the vagina prior to the initiation of coitus. FDA proposed to change the name of the generic type of the device to female condom.

The 90-day comment period ended September 8, 1999, and FDA stated that upon consideration of public comment it would issue a final rule classifying this device. FDA received one comment endorsing the June 10, 1999, proposal.

FDA has concluded that the female condom be classified into class III because general controls and special controls do not provide reasonable assurance of the safety and effectiveness of the device, and the device is purported or represented to be for a use in supporting or sustaining human life or for a use which is of substantial importance in preventing impairment of human health, or presents a potential unreasonable risk of illness or injury. FDA has further concluded that the generic type of this device be identified as “female condom.” FDA intends to issue a call for premarket approval applications (PMA's) for these devices.

The agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

FDA has examined the impacts of the rule under Executive Order 12866, Executive Order 13132, the Regulatory Flexibility Act (5 U.S.C. 601-612) (as amended by subtitle D of the Small Business Regulatory Fairness Act of 1996 (Public Law 104-121)), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this final rule is consistent with the regulatory philosophy and principles identified in the Executive Order. In addition, the final rule is not a significant regulatory action as defined by the Executive Order and so it is not subject to review under the Executive Order.

FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the agency has concluded that the rule does not contain policies that have federalism implications as defined in the order and, consequently, a federalism summary impact statement is not required.

The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. FDA believes that there is no interest at this time in marketing the device to be classified by this rule. FDA is taking this action because it has determined that premarket approval is necessary to provide reasonable assurance of the safety and effectiveness of the device, if there is any interest in marketing one in the future. Without this rule (and a subsequent requirement for PMA's), a person could market a device by claiming substantial equivalence to the Gee Bee Ring. All premarket submissions for “female condom” type devices that FDA has received to date have been for devices that have been found to be not substantially equivalent to the Gee Bee Ring and, therefore, those devices are not preamendments devices and are not to be classified by this rule. Under section 501(f)(2)(B) of the act (21 U.S.C. 351(f)(2)(B)), a rule requiring PMA's for this device could not take effect any sooner than 30 months after the effective date of a final rule classifying the device or 90 days after publication of the final rule requiring the PMA's, whichever is later.

The agency therefore certifies that this rule will not have a significant economic impact on a substantial number of small entities. In addition, this rule will not impose costs of $100 million or more on either the private sector or State, local, and tribal governments in the aggregate, and, therefore, a summary statement or analysis under section 202(a) of the Unfunded Mandates Reform Act of 1995 is not required.

FDA tentatively concludes that this rule requires no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

Therefore, under the Federal Food, Drug, and Cosmetic Act, and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 884 is amended as follows:

It has been determined that 32 CFR part 701, subparts F and G are not significant regulatory action. The rule does not:

(1) Have an annual effect to the economy of $100 million or more; or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or state, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof;

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.

It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities.

It has been certified that this part does not impose any reporting or record keeping requirements under the Paperwork Reduction Act of 1995.

Privacy.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds good cause exists for not publishing an NPRM. This temporary bridge closure has become an annual event in conjunction with the 4th of July fireworks celebration. The closure is for two hours and does not significantly affect marine traffic.

The City of Panama City, Florida requested a temporary rule, changing the operation of the Tarpon Dock bascule span drawbridge. The rule is needed to accommodate the additional volume of vehicular traffic that the fireworks display is expected to generate. The Tarpon Dock bascule span drawbridge across Massalina Bayou has a vertical clearance of 7 feet above mean high water in the closed-to-navigation position and unlimited in the open-to-navigation position. Navigation on the waterway consists primarily of commercial fishing vessels, sailing vessels and other recreational craft.

This temporary rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT)(44 FR 11040, February 26, 1979).

We expect the economic impact of this temporary rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

This is because the number of vessels impaired by the closed-to-navigation period is minimal. All commercial vessels still have ample opportunity to transit this waterway before and after the two-hour closure on July 4, 2000.

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

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

This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit through the Tarpon dock bridge across Massalina Bayou from 9 p.m. to 11 p.m. on July 4, 2000.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding the temporary rule so that they can better evaluate its effects on them and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the Bridge Administration Branch, Eighth Coast Guard District at the address above.

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

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

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

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

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

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

The Coast Guard considered the environmental impact of this temporary rule and concluded that under Figure 2-1, paragraph 32(e) of Commandant Instruction M16475.1C, this temporary rule is categorically excluded from further environmental documentation. Bridge Administration Program actions that can be categorically excluded include promulgation of operating regulations or procedures for drawbridges. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES .

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing an NPRM and delaying the effective date would be contrary to national safety interests since immediate action is needed to minimize potential danger to the public. The OSPREY platform is a large structure that is difficult to maneuver, and will be towed in the strong currents of Cook Inlet, Alaska and vessels or personnel not engaged in the towing or setting down operation operating within the 600-yard radius may place themselves at risk of injury. The event is scheduled for June 16, 2000 and the permit request was only recently received.

The Coast Guard is establishing a temporary 250-yard radius safety zone on the navigable waters of the United States around the position Latitude 59-21.40 N, Longitude 151-49.50 W. The Derrick Barge LOS ANGELES will anchor in this position and assemble the tower to the tower legs of the Exploratory Drilling Structure “OSPREY” in Port Graham, Cook Inlet, Alaska. The safety zone is designed to permit the safe and timely anchoring and assembly of this structure in the narrow timeframe in which this can be safely done. The safety zone's 250-yard standoff also aids the safety of these evolutions by minimizing conflicts and hazards that might otherwise occur with other transiting vessels. The limited size of the zone is designed to minimize impact on other mariners transiting through the area.

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

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), the Coast Guard considers whether this rule will have significant economic impacts on a substantial number of small entities. “Small entities” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations less than 50,000. Because this safety zone is very small, will only be in effect for twenty five days, and does not impede access to other maritime facilities in the area, the Coast Guard believes there will be no impact to small entities. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule does not provide for a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Coast Guard has analyzed this rule under the principles and criteria contained in Executive Order 12612 and has determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

The Coast Guard considered the environmental impact of this rule and concluded that, under Figure 2-1, paragraph 34(g) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation because it establishes a safety zone

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) and E.O. 12875, Enhancing the Intergovernmental Partnership, (58 FR 58093; October 28, 1993) govern the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This rule will not impose an unfunded mandate.

This section provides additional information by addressing the following questions:

Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards that we established. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide. Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally enforceable SIP. Each Federally approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

In order for state regulations to be incorporated into the Federally enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding our proposed action on the state submission. If adverse comments are received, we must address them prior to taking any final action.

All state regulations and supporting information that we approve under section 110 of the CAA are incorporated into the Federally approved SIP. The record of such SIP approvals is maintained in the Code of Federal Regulations (CFR) at Title 40, Part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR but are “incorporated by reference,” which means that EPA has approved a given state regulation with a specific effective date.

Enforcement of the state regulation before and after it is incorporated into the Federally approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take an enforcement action to return a violator to compliance. Citizens are also offered legal recourse to address violations as described in section 304 the CAA.

In a letter of November 10, 1999 to Dennis Grams, Regional Administrator, Stephen Mahfood, Director, Missouri Department of Natural Resources (MDNR), submitted a revised I/M program as an amendment to the SIP. The submittal included the SIP revision and a number of attachments including the adopted state statute and regulation, the signed I/M contract, a memorandum of understanding with the Missouri Highway Patrol, an interagency agreement with the Missouri Department of Revenue (MDOR), the ­I/M budget, modeling input and output files, sample calculations, a table showing the number of vehicles in the I/M program, procedures and specifications, a list of zip codes for the I/M program, the public education program, and an example of the MDOR contract with fee offices. The Missouri rule being approved is 10 CSR 10-5.380, Motor Vehicle Emissions Inspection, with a state effective date of December 30, 1999.

On February 17, 2000 we proposed to approve this SIP revision. The proposal stated that the state I/M regulations established pass/fail exhaust standards for hydrocarbons, carbon monoxide, carbon dioxide, and oxides of nitrogen. Missouri neither passes nor fails vehicles based on carbon dioxide readings, nor do we require states to base compliance on carbon dioxide measurements, anywhere. Carbon dioxide is measured but only as a quality control process.

The public comment period was open through March 20, 2000. No comments were received. In the February 17, 2000, proposal, we noted that comments had been received on a prior proposal (64 FR 9460 on February 26, 1999) on a previous submission of the I/M program. The comments asserted deficiencies in the previous state submission. We also noted that the submission on which the February 17 proposal was based contained substantial revisions to the prior submittal, and encouraged comments relevant to the revised submittal. No comments were forthcoming, and we have determined that the prior comments are not relevant to the state's November 1999 submittal and our February 17, 2000 proposal.

On April 5, 2000 MDNR began implementation of the I/M program in the St. Louis nonattainment area.

This Federal Register notice takes final action to fully approve the I/M program, including the state's I/M rule, as it relates to the Missouri portion of the St. Louis nonattainment area.

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR section 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in our proposal published February 17, 2000, the revision meets the substantive SIP requirements of the CAA, including section 110, Part D of Title I, and implementing regulations in 40 CFR part 51, subpart S (the “I/M rule”). In the February 17 proposal, we discussed in detail how the state's submittal meets each of the relevant requirements of the I/M rule and EPA's rationale for approval. The reader is referred to that discussion for the rationale for this final action.

Section 182(b) of the Act requires states with moderate ozone nonattainment areas to implement a “basic” I/M program. The state's plan relies on the I/M program and other specific control measures to achieve the necessary emission reductions so that the National Ambient Air Quality Standards are met. The I/M rule strengthens the SIP by obtaining needed emission reductions. Today's final action incorporates the St. Louis I/M program into the SIP.

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 preexisting 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 CAA. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. 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. section 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 United States Senate, the United States 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. section 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 17, 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 whenever “we, us, or our” is used, we mean EPA. This section provides additional information by addressing the following questions:

Section 110 of the CAA requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state must submit these regulations and control strategies to EPA for approval and incorporation into the Federally enforceable SIP.

Each Federally approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

In order for state regulations to be incorporated into the Federally enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.

All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at Title 40, Part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.

Enforcement of the state regulation before and after it is incorporated into the Federally approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.

NO X emissions combine with volatile organic compound emissions on hot, sunny days to form ground level ozone, commonly known as smog. The purpose of the following rule is to establish RACT requirements in Missouri for major sources of NO X emissions. These requirements will result in reductions of NO X emissions which will help achieve reductions in ozone levels in the St. Louis ozone nonattainment area. The St. Louis ozone nonattainment area includes Franklin, Jefferson, St. Charles, and St. Louis counties, and St. Louis City in Missouri and Madison, St. Clair and Monroe counties in Illinois.

We are taking final action to approve as an amendment to the Missouri SIP, rule 10 CSR 10-5.510, “Control of Emissions of Nitrogen Oxides,” submitted to us on November 12, 1999. This NO X RACT rule is applicable to all sources with the potential to emit 100 tons per year or more of nitrogen oxides in the Missouri portion of the St. Louis nonattainment area. The rule establishes emission limits, work practices, monitoring, testing, and recordkeeping and reporting requirements for boilers, stationary internal combustion (IC) turbines, stationary IC engines, incinerators, regenerative container melting glass furnaces, and portland cement kilns.

The rule also requires any other stationary source, which has the potential to emit NO X in amounts greater than the major stationary source threshold, to undertake a “case-by-case” RACT study to evaluate controls to minimize NO X emissions. This “case-by-case” analysis establishes a procedure for identifying all available control technologies and selecting the technology that provides the most effective, cost reasonable reduction technique.

For those units subject to a NO X emission limitation, the final compliance deadline is May 1, 2002. An extension of the compliance deadline may be granted by the director, if the affected installation submits a plan no later than January 1, 2001. This plan, which is subject to approval by the Missouri Department of Natural Resources, must include a detailed analysis of the air quality benefit that will occur if the compliance date is extended, a detailed explanation of why the compliance date should be extended, and a proposed schedule for meeting compliance.

As required by 40 CFR 51.261(a)(2), no extension of the compliance date can be approved if it extends final compliance beyond the attainment date in the approved SIP.

We have reviewed the NO X controls and averaging provisions in this rule and have determined that they are consistent with relevant EPA guidance and with NO X controls approved as RACT for other states.

No comments were received in response to the public comment period regarding this rule action.

For more background information, the reader is referred to the proposal for this rulemaking published on February 17, 2000, at 65 FR 8092.

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR Part 51, Appendix V. In addition, as explained above and in more detail in the technical support document which is part of this document, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations and part D of Title I of the CAA.

We are taking final action to approve as an amendment to the Missouri SIP rule 10 CSR 10-5.510, “Control of Emissions of Nitrogen Oxides,” as meeting the requirement for NO X RACT which is applicable to the Missouri portions of the St. Louis ozone nonattainment area.

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 preexisting 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 CAA. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, our role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), we have no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. 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, we have 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. section 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. We will submit a report containing this rule and other required information to the United States Senate, the United States 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. section 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 17, 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 whenever “we, us, or our” is used, we mean EPA. This section provides additional information by addressing the following questions:

Section 110 of the CAA requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state must submit these regulations and control strategies to EPA for approval and incorporation into the Federally enforceable SIP.

Each Federally approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

In order for state regulations to be incorporated into the Federally enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.

All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at Title 40, Part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.

Enforcement of the state regulation before and after it is incorporated into the Federally approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.

On November 12, 1999, Missouri submitted a revised ROPP. The plan established the 1996 target level of volatile organic compound (VOC) emissions for the Missouri portion of the St. Louis ozone nonattainment area. Missouri achieves the required reductions through a combination of 19 state and 9 Federal measures.

On February 17, 2000, (65 FR 8083) EPA proposed to approve Missouri's ROPP and VOC rule 10 CSR 10-10.300. The public provided comments on the proposed action. We are responding to those comments below.

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, Appendix V. In addition, as explained above and in more detail in the technical support document which was part of the proposed action, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

The Missouri Coalition for the Environment and the Sierra Club submitted jointly written comments regarding our February 17, 2000 proposal (65 FR 8083) to approve Missouri's 15% ROPP, and Missouri rule 10-CSR 10-5.300, “Control of Emissions From Solvent Metal Cleaning.” Their paraphrased comments and EPA's responses follow.

Comment: The commenters stated that the ROPP should be disapproved because it fails to show reasonable further progress “as a matter of law.” The commenters argue that the St. Louis nonattainment area is currently classified as “serious” under section 181 of the Act, and is therefore subject to the reasonable further progress (RFP) requirements of section 182(c) rather than 182(b).

In addition, they argue section 182(b) is no longer relevant for purposes of determining RFP because it governs RFP toward the goal of attainment by 1996 whereas it is now 2000. They contend the plan should be disapproved based on the premise that section 182(c) is the applicable CAA requirement and their conclusion that Missouri's plan does not purport to satisfy the RFP requirements of section 182(c).

Response: The St. Louis area is classified under section 181(a) of the Act as a moderate ozone nonattainment area, and has not been reclassified under section 181(b) as suggested by the commenters. In any event, the RFP requirements of section 182(b)(1) are applicable to all areas classified as moderate or higher, and must be met regardless of an area's classification and attainment date.

The RFP requirements of the CAA are structured in an additive fashion. For example, section 182(c) states that serious areas must meet the requirements of both subsections (b) and (c). As stated in the proposal on Missouri's submission, the scope of this rulemaking is limited to determining whether the submission meets the RFP requirements in section 182(b)(1). Whether it also meets additional requirements of the Act, even if such requirements were relevant, is beyond the scope of the rulemaking.

Comment: The commenters argue that EPA failed to give notice of its statutory authority to approve a 15% Plan which relies on reductions in VOC emissions achieved after November 15, 1996 (the date specified in section 182(b)(1)(A)(i) for achieving the reductions). The commenters state that EPA has not met the notice requirements of section 307(d)(3)(C) of the Act, or section 553 of the Administrative Procedure Act (APA).

Response: As a preliminary matter, EPA notes that section 307(d) is not applicable to this rulemaking. Section 307(d)(1) lists the actions to which section 307(d) applies, and the list does not include approval of SIP submissions. See, e.g., Missouri Limestone Producers v. Browner, 165 F. 3d 619, 621 (8th Cir. 1999). Therefore, the rulemaking is governed by the provisions of section 553 of the APA, which requires, in relevant part, that a notice of proposed rulemaking include “reference to the legal authority” for the proposed rule, and “a description of the subjects and issues involved” in the proposed rule. APA, section 553(b). In general, the notice must be sufficient to allow for “informed public comment.” Id. at 623.

EPA believes that the notice criteria in section 553(b) were met in the notice of proposed rulemaking on the ROPP. The notice contained a description of the statutory requirements in section 182(b)(1) of the Act against which submission was evaluated and a description of how the submission meets those requirements. The notice contains a description of the issues involving the November 15, 1996 deadline, and a discussion of the rationale for approving a ROPP extending beyond that date. See 65 FR 8089-8091.

EPA notes that the commenters submitted extensive comments which took issue with EPA's stated legal basis for proposing to approve the ROPP. Therefore, EPA believes that the notice of proposed rulemaking provided sufficient notice to allow for “informed public comment” and to satisfy the requirements of the APA. The fact that the commenters disagree with EPA's basis for approval, to which EPA is responding below, does not mean that EPA failed to provide adequate notice of the basis for the proposed approval.

Comment: In general, the commenters assert that since section 182(b)(1) requires that the plan include a 15% decrease in baseline emissions by November 15, 1996, EPA cannot approve a plan which includes reductions occurring after 1996.

Response: This assertion is contrary to relevant case law and would provide a disincentive for states to continue to achieve emission reductions in an area once a statutory date is missed, thus defeating the purpose of section 182(b)(1). As EPA explained in the proposal, even after the November 15, 1996 deadline for demonstrating the 15% VOC reduction has passed, the requirement to achieve the emission reduction remains, and the reduction must be demonstrated as soon as practicable. This is based on the ruling in Delaney v. EPA, 898 F. 2d 687, 691 (9th Cir. 1990), stating that once a statutory deadline has passed and has not been replaced by a later one, the deadline then becomes as soon as possible, which EPA has interpreted to be as soon as practicable. The Missouri submission indicates, and EPA agrees, that this date is 2003, when the full reductions from the second phase of Missouri's motor vehicle inspection and maintenance program will be realized. As indicated in EPA's proposal, neither Missouri nor EPA has been able to identify any practicable measures which are not included in the plan and which could accelerate this demonstration date.

EPA also notes that the commenters do not take issue with the analysis of other measures, but only with the determination that a plan with a demonstration date after 1996 can be approved. For the reasons stated above and in the proposal, EPA believes that the Missouri submission can be approved even though the demonstration date is after 1996.

EPA also notes that, under the commenters' view that a 15% ROPP with a post-1996 demonstration date cannot be approved, there would be a disincentive for a state to adopt and implement a plan for achieving the 15% ROPP reductions, since EPA would be required to disapprove any post-1996 plan submitted by a state. In addition, EPA would be unable to promulgate a Federal plan after 1996, since it would also be unable to achieve emission reductions by 1996. EPA's approach keeps the requirement for emission reductions in place after 1996, and ensures that the reductions will be achieved as soon as practicable after that date.

Comment: Referring to language in section 182(b)(1)(A) of the CAA the commenters assert that Missouri's ROPP falls short of achieving the required VOC emissions reductions. They note that Missouri's plan only accounts for emissions growth between 1990 and 1996 and contend that the plan should also account for growth that occurred between 1996 and the time the state's plan was submitted. They further contend that Missouri's use of 1996 emissions projections (developed by applying economic growth factors to emissions estimates from previous years), is arbitrary and capricious for two reasons: (1) Their belief that there is no basis for relying on emissions projections at this late date, asserting that 1996 actual emissions should be inventories instead; and (2) the ROPP does not account for growth after 1996.

Response: Section 182(b)(1)(A)(i) reads, “By no later than 3 years after the date of enactment of the Clean Air Act Amendments of 1990, the state shall submit a revision to the applicable implementation plan to provide for volatile organic compound emission reductions within 6 years after the enactment of the Clean Air Act Amendments of 1990, of at least 15 percent from baseline emissions accounting for any growth in emissions after the year in which the Clean Air Act Amendments are enacted.” As acknowledged by the commenters, the statute clearly contemplated that states would submit their ROPP by 1993 and implement them by 1996. The growth for which they must account is clearly tied to 1996.

The 1993 due date leads to a reasonable conclusion that Congress intended for the states to determine the required level of emissions reductions based on projected as opposed to actual emissions. Such an approach provides for equitable treatment of the states. It ensures there is no advantage gained from delayed implementation of emission control measures until after the compliance date has passed and actual emissions can be estimated, rather than risk implementing a control plan designed around emission projections that are too high.

Though not directly relevant to this rulemaking, but nonetheless important to achieving the air quality standards, EPA notes that neither Missouri nor EPA intends to ignore post-1996 changes in the area's emissions inventory. Appropriate consideration of such changes is paramount to ensuring that ozone levels in the St. Louis area are reduced to acceptable levels. Missouri has accounted for such changes in its attainment demonstration upon which EPA proposed action on April 17, 2000 (65 FR 20404).

Comment: The commenters stated that, even if a plan could be submitted after the statutory deadline for achieving the 15% reductions, most of the reductions included in the Missouri submission are not creditable because they did not occur prior to November 15, 1996.

Response: As stated previously, once the statutory deadline for demonstrating the 15% ROPP reductions has passed, the requirement remains in effect, and the new deadline is a date which is as expeditious as practicable. Similarly, ROPP reductions are creditable if the state shows that the reduction will occur by the new ROPP demonstration date. Because Missouri has shown that the remaining reductions will occur by the 2003 demonstration date, EPA believes that the reductions are creditable under section 182(b)(1).

Comment: The commenters argue that Missouri's submission should not be approved because it does not include “any specific contingency measures,” and EPA's proposal makes no reference to the contingency measures to be approved as part of the 15% ROPP. The commenters assert that section 172(c)(9) of the Act requires that contingency measures meeting the requirements of that section must be included in any ROPP, and that failure to do so must result in disapproval of the plan. The commenters argue that this view linking the requirements of section 172(c)(9) with the requirements for ROPP was announced as an EPA interpretation of section 172(c)(9) in the April 16, 1992, General Preamble (57 FR 13,498).

Response: EPA does not agree that the contingency measure requirement in section 172(c)(9) must be met in order to meet the requirements for an approvable 15% ROPP. The Act requires contingency measures as part of the overall SIP and not as feature of each component of that plan, such as the 15% ROPP. Contrary to the commenters' contention, our position is supported by the plain language of section 172(c)(9). While the other subsections in section 172(c) begin with “such plan provisions shall * * * ,” section 172(c)(9) begins with “such plan shall * * *.” “Such plan” refers to the overall nonattainment plan rather than an individual element or provision of it. The difference in language between the contingency measures requirement and the other requirement in section 172(c) emphasizes that the contingency measures serve to backstop the entire nonattainment plan and not just particular elements of it.

This interpretation is consistent with the statement in the General Preamble cited by the commenters which, contrary to their characterization, did not state that contingency measures must be included in the ROPP. In the General Preamble, EPA stated the Act's requirements for nonattainment plan submittals for moderate nonattainment areas. these included the requirement for a 15% ROPP (discussed in section III.A.3.(a)), an attainment demonstration (discussed in section III.A.3.(b)), and contingency measures (discussed in section III.A.3.(c)), see 57 FR 13,498, 13507-13,512, as well as other requirements for moderate areas.

EPA stated that it expected the contingency measures would be submitted at the same time as these other plan elements, but did not state that the 15% ROPP or any other specific submittals were required to include contingency measures. Logically, had EPA intended to assert that contingency measures are required in 15% Plans, it would have said so in the General Preamble discussion of the requirements for 15% ROPP (section III.A.3.(a)), which contained a lengthy discussion of the contents of 15% Plans.

The commenters correctly note that EPA's proposal did not address the issue of whether the various VOC rule submittals, including rule 10 CSR 10-5.300 (which EPA proposed to approve into the SIP in the February 17, 2000, proposed rulemaking), were adequate to meet the contingency measure requirements of section 172(c)(9). The issue was not addressed because the proposal related only to whether Missouri met the 15% ROPP requirements in section 182(b)(1).

In the proposal (65 FR 8083, 8088), EPA noted that rule 10-5.300 had been submitted as part of the state's 1998 contingency measure SIP, and that a small fraction of the VOC reductions (0.64 tons per day out of an approximate total of 9 tons per day) was included in the state's 15% Plan demonstration. EPA has not determined whether the 1998 submittal meets the requirements of section 172(c)(9), and, as explained above, can approve Missouri's ROPP demonstration without making that determination. EPA will address the SIP's adequacy with respect to contingency measures in a separate rulemaking.

Comment: Finally, the commenters object to EPA's proposed action as “retroactive” rulemaking which is not authorized under the Act. This comment is based on their assertion that EPA is proposing “to give legal effect as of 1996 to events potentially occurring in 2000 and beyond.”

Response: This comment is based on an incorrect characterization of EPA's proposal. Although not stated, this comment appears to be based on the commenters' view, addressed above, that EPA cannot approve a 15% ROPP which relies on reductions occurring after 1996, and that to approve such a plan we are making it “retroactive” to 1996. However, this is not what EPA has done. Rather, EPA has explained the legal and policy basis for approving a ROPP demonstration which extends beyond 1966.

In addition, EPA's approval of the state plan does not take effect until the future effective date specified in this notice, and EPA's approval of the plan does not alter the effective dates (which were established by Missouri during its rulemaking process) of the rules on which the plan relies. For these reasons, EPA is not engaged in “retroactive” rulemaking and is authorized under the Act to take this final action.

We are taking final action to approve Missouri's 15% ROPP for the St. Louis area and VOC rule 10 CSR 10-5.300. In separate actions published in today's Federal Register , we are approving several other VOC regulations which are elements of the ROPP.

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 preexisting 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 CAA.

This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, our role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), we have no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirement 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, we have 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. section 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. We will submit a report containing this rule and other required information to the United States Senate, the United States 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. section 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this section must be filed in the United States Court of Appeals for the appropriate circuit by July 17, 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 whenever “we, us, or our” is used, we mean EPA. This section provides additional information by addressing the following questions:

Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state must submit these regulations and control strategies to EPA for approval and incorporation into the Federally enforceable SIP.

Each Federally approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

In order for state regulations to be incorporated into the Federally enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.

All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at Title 40, Part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.

Enforcement of the state regulation before and after it is incorporated into the Federally approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.

VOC emissions combine with nitrogen oxide emissions on hot, sunny days to form ground level ozone, commonly known as smog. The purpose of the following rules is to establish RACT requirements for major sources of VOC emissions to help reduce ozone concentrations in the St. Louis ozone nonattainment area. The St. Louis ozone nonattainment area includes Franklin, Jefferson, St. Charles, and St. Louis counties, and St. Louis City in Missouri.

We are taking final action to approve as an amendment to the Missouri SIP the following rules:

Missouri has updated its existing rule 10 CSR 10-5.220 to improve the clarity of the regulation and generally strengthen the SIP. This rule restricts VOC emissions from the handling of petroleum liquids in five specific areas. These areas include petroleum storage tanks with a capacity greater than 40,000 gallons, the loading of gasoline into delivery vessels, the transfer of gasoline from delivery vessels into storage containers, gasoline delivery vessels, and the fueling of motor vehicles from storage containers.

This new rule requires all aerospace manufacture and rework facilities in the St. Louis nonattainment area, which emit greater than 25 tons per year, to use low VOC coatings and cleaning solvents.

This rule limits the VOC emissions from installations storing large volumes of volatile organic liquids. The control requirements apply to all 40,000 gallon or larger volatile organic liquid storage containers storing liquid with a maximum true vapor pressure of one-half pound per square inch or greater.

This new rule requires major facilities that are not regulated by current category-specific RACT regulations to conduct a RACT study and implement the RACT level controls defined by the study as approved by Missouri. Major facilities are defined as having the potential to emit 100 tons per year or more of VOCs.

This rule limits the VOC emissions from wood furniture manufacturing operations that have the potential to emit equal to or greater than 25 tons per year of VOC emissions.

This rule establishes RACT controls to limit the VOC emissions from batch process operations. The control requirements apply to batch operation sources that have the potential to emit equal to or greater than 100 tons per year of VOC emissions and that are identified by one of seven different four digit standard industrial classification codes under the chemical manufacturing category.

This new rule implements RACT control of VOC emissions from the synthetic organic chemical manufacturing industry. Specifically, this rule requires RACT for control of VOC emissions from any vent stream originating from a process unit in which a reactor process or distillation operation is located.

These new VOC RACT rules are consistent with Federal regulations and are consistent with the appropriate EPA control techniques guidelines or alternative control techniques documents. The rules contain enforceable emission limits, appropriate compliance methods, require recordkeeping to determine compliance, and meet all applicable enforceability requirements.

No comments were received in response to the public comment period regarding this rule action.

For more background information and a more detailed description of EPA's rationale for approval, the reader is referred to the proposal for this rulemaking published on February 17, 2000, at 65 FR 8094.

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, Appendix V. In addition, as explained above and in more detail in the technical support document which is part of this document, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations and Part D of Title I of the Act.

We are taking final action to approve as an amendment to the Missouri SIP the following rules applicable to the St. Louis nonattainment area:

These rules will reduce VOC emissions in the St. Louis area and meet the RACT requirements of section 182(b)(2) of the Act as amended in 1990.

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 preexisting 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 CAA. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, our role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), we have no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. 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, we have 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. section 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. We will submit a report containing this rule and other required information to the United States Senate, the United States 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. section 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 17, 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).)

Section 102(c) of the Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA), as amended, (33 U.S.C. 1401 et seq. ), gives the Administrator of EPA the authority to designate sites where ocean dumping may be permitted. On December 23, 1986, the Administrator delegated the authority to designate ocean dumping sites to the Regional Administrator of the Region in which the site is located. This site designation is being made pursuant to that authority.

EPA's Ocean Dumping Regulations (40 CFR Chapter I, Subchapter H, Section 228.4) state that ocean dumping sites will be designated by promulgation in Part 228. A list of “Approved Interim and Final Ocean Dumping Sites” was published on January 11, 1977 (42 FR 2461 et seq. ). That list established the Atchafalaya River Bar Channel ocean dredged material disposal site (ODMDS) on an interim basis.

The interim designation of the Atchafalaya River Bar Channel ODMDS was extended indefinitely in January 1980. However, Section 506 of the Water Resources Development Act (WRDA) of 1992, amended MPRSA such that beginning January 1, 1997, open water offshore disposal could only be into ODMDSs either designated by EPA under § 102(c) of the Act or selected by the Corps of Engineers (COE) under § 103(b) as an alternative site. Since EPA had not ruled on final designation by January 1, 1997, the Atchafalaya River Bar Channel ODMDS was selected by the New Orleans District COE as a § 103(b) alternative to accommodate annual channel maintenance dredging beyond 1996. Recognizing a five (5) year extension of the COE's § 103(b) selection allowed the continued use of the Atchafalaya River Bar Channel ODMDS through the year 2006, EPA was to designate the Atchafalaya River Bar Channel ODMDS site pursuant to § 102(c) of MPRSA, or to find that the site is inappropriate for final designation. This site designation is being published as final rulemaking in accordance with § 228.4(e) of the Ocean Dumping Regulations, which permits the designation of ocean disposal sites for dredged material.

Entities potentially regulated by this action are persons, organizations, or government bodies seeking to dispose of dredged material in ocean waters at the Atchafalaya River Bar Channel ODMDS, under the MPRSA, 33 U.S.C. 1401 et seq. The Rule would be primarily of relevance to parties in the Morgan City area seeking permits from the COE to transport dredged material for the purpose of disposal into ocean waters at the Atchafalaya River Bar Channel ODMDS, as well as the COE itself (when proposing to dispose of dredged material at the ODMDS). Potentially regulated categories and entities seeking to use the ODMDS and thus subject to this Rule include:

This table lists the types of entities that EPA is now aware could potentially be regulated. EPA notes, however, that nothing in this final ruling alters in any way, the jurisdiction of EPA, or the types of entities regulated under the MPRSA. To determine if you or your organization is potentially regulated by this action, you should carefully consider whether you expect to propose ocean disposal of dredged material, in accordance with the Purpose and Scope provisions of 40 CFR 220.1, and if you wish to use the Atchafalaya River Bar Channel ODMDS. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. Since ODMDS use is restricted to dredged material removed from the bar channel of the Atchafalaya River, EPA anticipates that the COE will be the only user of the ODMDS.

Section 102 (2)(c) of the National Environmental Policy Act of 1969 (NEPA), as amended (Pub. L. 91-190, 42 U.S.C. 4321 et seq. ), requires that Federal agencies prepare Environmental Impact Statements (EISs) on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment. NEPA does not apply to ODMDS designations, however EPA voluntarily prepared an EIS in connection with this designation action.

EPA prepared a Draft EIS on the designation of the Atchafalaya River Bar Channel ODMDS in November, 1983. Six comment letters were received on the Draft EIS. Based on the comments received, EPA determined that a Supplemental Draft EIS was appropriate to correct information deficiencies and include more recent data in response to the commenting agencies. EPA and the COE jointly prepared the Supplemental Draft EIS, which was distributed to interested agencies, environmental groups and individuals for review in December, 1990. Five comments letters were received on the Supplemental Draft EIS. Responses to these comments were included in EPA's Final EIS, which was completed and distributed to interested agencies, environmental groups and individuals in November, 1998. The 30-day comment period on EPA's Final EIS closed on January 11, 1999.

Only one comment letter, from the State of Louisiana, Department of Culture, Recreation and Tourism, Office of Cultural Development, was received on the Final EIS. The Louisiana Office of Cultural Development found the document to be thorough and well written, and concurred with the evaluation that there would be no effect on significant cultural resources, and as such, had no objections to the proposal.

EPA's NEPA review included coordination with the State of Louisiana under requirements of the Coastal Zone Management Act. The State of Louisiana concurred with EPA's determination that final designation of the Atchafalaya River Bar Channel ODMDS is consistent, to the maximum extent practicable, with the Louisiana Coastal Resources Program.

This final rulemaking document fills the same role as the Record of Decision required under regulations promulgated by the Council on Environmental Quality for agencies subject to NEPA.

EPA's proposal to designate the Atchafalaya River Bar Channel ODMDS was published in the Federal Register on February 6, 1991 (pages 4777-4781). The public comment period on this proposed rule closed on March 25, 1991. One comment letter was received on the proposed rule from the U.S. Department of the Interior (DOI), Office of the Secretary, in Washington, D.C. The DOI recommended: (1) That dredged material be used for beneficial purposes (e.g., to rebuild eroded shoreline and increase marsh habitats); (2) that the final rule include a requirement for dredged material to be used to build bird islands and avoid shell reefs, in consultation with the U.S. Fish and Wildlife Service and the Louisiana Department of Wildlife and Fisheries; and (3) that the final rule require, prior to each dredging event, an interagency evaluation of the feasibility of using the dredged material to create marsh, reduce shoreline erosion, or build bird nesting/roosting islands.

In response to DOI's comments on the proposed rule (and similar comments received on the Supplemental Draft EIS), the Final EIS evaluated these recommendations, and other reasonable, beneficial use alternatives. EPA's action [ i.e., site designation under § 102(c) of MPRSA] does not authorize the placement of dredged materials or require interagency evaluation of beneficial use alternatives. However, beneficial use alternatives and other options for the placement of dredged material are evaluated through annual COE dredging conferences.

The Atchafalaya River Bar Channel ODMDS is located east of, and parallel to, the Atchafalaya River bar channel and is approximately 18.5 miles long. The center of the ODMDS is approximately 16 miles from the mouth of the Atchafalaya River. North Point of Point au Fer Island is about 2 miles east of the northern end of the site. The average water depth at the site is approximately 16 feet. Boundary coordinates of the rectangular shaped site are as follows: 29E20′59.92″N, 91E 23′33.23″W; 29E20′43.94″N, 91E23′09.73″W; 29E08′15.46″N, 91E34′51.02″W; and 29E07′59.43″N, 91E34′27.51″W.

Five general criteria are used in the selection and approval of ocean disposal sites for continuing use. Sites are selected so as to minimize interference with other marine activities, to keep any temporary perturbations from the disposal from causing impacts outside the disposal site, and to permit effective monitoring to detect any adverse impacts at an early stage. Where feasible, locations off the Continental Shelf are chosen. If at any time disposal operations at a site cause unacceptable adverse impacts, further use of the site may be terminated or limitations placed on the use of the site to reduce the impacts to acceptable levels.

The five general criteria are given in 40 CFR 228.5 of the Ocean Dumping Regulations. EPA has determined, based on the information and analyses in the Draft EIS, Supplemental Draft EIS, and Final EIS, that the site is acceptable under the five general criteria. The Continental Shelf location is not feasible and no environmental benefit would be obtained by selecting such a site. Historical use of the site has not resulted in substantial adverse impacts to living resources of the ocean or to other uses of the marine environment.

Section 228.6 of the Ocean Dumping Regulations lists eleven specific factors to be used in evaluating a proposed disposal site to assure that the general criteria are met. The characteristics of the site are reviewed below in terms of these eleven specific factors.

1. Geographical position, depth of water, bottom topography, and distance from coast (40 CFR 228.6(a)(1)).

Geographical position and average water depth are given above. The Atchafalaya River Bar Channel ODMDS is located in the near shore area of the Gulf of Mexico ( i.e., to a depth of about 75 feet). The ODMDS gently slopes from a depth of about 5 feet at its near shore end to about 22 feet at its seaward end. Except for being located adjacent to the dredged channel, the area occupied by the ODMDS is similar in depth and bottom topography to the overall lower Atchafalaya River area.

2. Location in relation to breeding, spawning, nursery, feeding, or passage areas of living resources in adult or juvenile phases (40 CFR 228.6(a)(2)).

The northwestern Gulf of Mexico is a breeding, spawning, nursery, and feeding area for shrimp, menhaden, and bottomfish. To complete their life cycles, many of the species migrate seasonally between the coastal estuaries and the Gulf. Because the timing varies by species, some migration can occur at almost any time of the year. The ODMDS is located in a region dominated by species that are estuary-related. The ODMDS represents a small area (9.14 square miles) of the total range of the white and brown shrimp and their related communities; however, the nearby Atchafalaya River estuarine area is one of the region's major nursery areas.

Disposal of material at the ODMDS would have negligible effects on Federally listed endangered and threatened species. Endangered whale species which may be found in the vicinity of the ODMDS are the sei, fin, humpback, right, and sperm. However, occurrences of whales off Louisiana are considered rare, and because the animals generally inhabit waters far deeper than those in the ODMDS, it is unlikely that disposal operations would have any impact on whale species.

Three species of sea turtles (hawksbill, Kemp's ridley, and leatherback) classified as endangered and two species of sea turtles (green and loggerhead) classified as threatened could potentially inhabit the ODMDS. Hopper dredging has been identified as a source of mortality (incidental take) to sea turtles in inshore waters. However, disposal of maintenance material dredged from the Atchafalaya River Bar Channel is by hydraulic cutter head pipeline dredge, which has not been identified as a source of sea turtle mortality.

3. Location in relation to beaches and other amenity areas (40 CFR 228.6(a)(3)).

The nearest point of land is North Point of Point au Fer Island, about 2 miles from the northeast end of the ODMDS. While it may be possible to observe the disposal plume, the plume is expected to dissipate quickly after completion of the disposal operations. Except for minor affects of these limited observations, there should be no effects on the aesthetics of the area. There are no known recreational parks, beaches, or other amenity areas in proximity to the ODMDS.

4. Types and quantities of wastes proposed to be disposed of, and proposed methods of release, including methods of packing the waste, if any (40 CFR 228.6(a)(4)).

Material dredged from the upper one-third of the bar channel generally is comprised of 26% sand, 30% silt, and 44% clay, and material from the lower two-thirds of the bar channel generally is comprised of 7% sand, 44% silt, and 49% clay. An estimated 9 to 11 million cubic yards of material is removed annually from the Atchafalaya River Bar Channel using a hydraulic cutter head pipeline dredge and released within the ODMDS as an un-cohesive slurry. Future disposal operations will follow the past disposal pattern with respect to types, quantities, and methods of release. Any material disposed of at the site is required to comply with the criteria of the Ocean Dumping Regulations. None of the material will be packaged in any way. The COE will likely be the only user of the site.

5. Feasibility of surveillance and monitoring (40 CFR 228.6(a)(5)).

The ODMDS is shallow and close to shore, which facilitates surveillance and monitoring of the site. Operational observations can be made using shore-based radar, aircraft, ship riders, and day-use boats. Monitoring would be facilitated by the database that has been established for the ODMDS. A monitoring program has been developed by EPA in cooperation with the COE for the ODMDS, as part of the “Atchafalaya ODMDS Site Management Plan.”

6. Dispersal, horizontal transport and vertical mixing characteristics of the area, including prevailing current direction and velocity, if any (40 CFR 228.6(a)(6)).

Water currents in the vicinity of the ODMDS are very complex. Although tides, loop current intrusions, and river flow may affect the local currents, the currents are influenced predominantly by winds. Thus, the direction and velocity of currents vary throughout the year.

Water currents in the area can reach velocities sufficient to resuspend the disposed dredged material. The resuspended material would be transported in the direction of the current causing the resuspension. During these periods, constant mixing of the dredged material and sediments originally in the area takes place. The mixed dredged material and background sediments settle as the velocity decreases, and become resuspended when some event again raises the current velocity.

Sediment transport at the ODMDS is both to the northwest and to the southeast. The prevailing northwest currents are relatively weak and generally transport silt-sized and clay-sized particles. In the winter, however, stronger currents to the southeast, which are driven by the passage of cold-air outbreaks (northers), transport the latter particle sizes plus sand-sized particles. Gale-force winds for a duration of 20 to 30 hours are common during the passage of one of the cold-air outbreaks, which occur from 15 to 30 times each year.

7. Existence and effects of current and previous discharges dumping in the area (including cumulative effects ) (40 CFR 228.6(a)(7)).

Sediment physical and chemical characteristics are generally similar within and adjacent to the ODMDS. Identified effects of dredged material disposal on sediments within the ODMDS include a few relatively high concentrations for sedimentary constituents (alpha chlordane, some chlorinated biphenols, para-para-DDD, iron, aluminum, perylene, zinc, oil, and grease). However, the area is influenced by shallow water depths, frequent resuspension of bottom sediments by winds and waves, and input of large quantities of fine sediments from riverine sources. Furthermore, dredged materials released at the ODMDS are similar to background sediments in the vicinity and are widely distributed by natural processes after deposition. Since the effects of disposal area temporary, there are no cumulative effects.

8. Interference with shipping, fishing, recreation, mineral extraction, desalination, fish and shellfish culture, areas of special scientific importance and other legitimate uses of the ocean (40 CFR 228.6(a)(8)).

The ODMDS is outside the navigation channel and, thus, not in the path of ocean-going vessels. Some smaller boats may pass over the site; however, since any mounds are expected to be short-lived, there should be no interference. All dredging and disposal operations are closely coordinated among the dredging operators and the shipping interests to avoid interference with ship traffic. Without dredging, the channel would be impassible to most shipping.

There is periodic, short-term, interference with recreational activities at the ODMDS during disposal operations. The plumes of dredged material have a minor impact on targeted fish stocks, temporarily affecting recreational fishing in the area. This interference is temporary and restricted to the relatively small area of the ODMDS being used for disposal at the particular time. Past experience with use of the site for disposal of dredged material has not indicated interference with oil and gas exploration or production. No other types of mineral extraction are taking place either within the site or in the general vicinity of the site.

The nearest oyster leases are located about 4 miles to the east of the ODMDS, near Point au Fer. Because the transport of suspended materials from the ODMDS is mainly parallel to the coastline, adverse effects of disposal operations on these oyster beds should be minimal. In addition, the oyster beds are naturally subjected to periodic episodes of high, suspended-solid concentrations from the waters of the Atchafalaya River. There have been no impacts to oyster leases from past use, and no impact is expected to result from future use of the ODMDS.

The Atchafalaya Delta Wildlife Management Area is located about 8 miles to the north of the ODMDS. Shell Keys National Wildlife Refuge and Russell Sage—Marsh Island State Wildlife Refuge are located about 29 miles to the west of the ODMDS. There has been no impact to the refuges from past use, and none is expected to result from future use of the ODMDS.

Periodically, scientific studies are carried out in the area. Use of the site is not expected to interfere with any such studies. It is not expected that use of the site for disposal of dredged material would interfere with any other legitimate uses of the ocean.

9. The existing water quality and ecology of the site as determined by available data or by trend assessment of baseline surveys (40 CFR 228.6(a)(9)).

The water quality and ecology of the ODMDS generally reflect that of the near shore region off the Louisiana coast affected by discharges from the Atchafalaya River. The variations in water quality depend on the amount and mixing of freshwater runoff, which are highly variable.

In the summer, calm winds, freshwater input, and intrusions of offshore waters may restrict vertical mixing in the near shore waters. Under these conditions, bottom waters can be depleted of oxygen. This hypoxic condition (dissolved-oxygen content of less than 2 ppm) may be an annual phenomenon, but the event is patchy and ephemeral and has been shown to affect shelf waters from the Mississippi Delta to the upper Texas coast.

With the following exceptions, concentrations of trace metals in waters from the Atchafalaya River Bar Channel were below detection limits: concentrations of barium, iron, and manganese from the channel sample were greater, by a factor of 4, 2, and 3, respectively. There are no EPA marine acute or chronic criteria for these elements, however, and copper was less than the detection limit.

None of the water-column parameters measured during site surveys indicated that dredged material after disposal has a permanent or measurable effect on water quality in the area of the ODMDS. Waters off southeastern Louisiana are generally turbid because of shallow depths and riverine influences, and the levels of most parameters in the ODMDS appear to be typical of the region.

A site survey of macrofaunal distribution and abundance found 40 taxa, with very little difference in average taxa richness or overall average abundance. The general pattern of percent taxa and abundance group was approximately similar to those identified in other near-coastal and estuarine waters of the northern Gulf of Mexico.

The ODMDS benthic assemblage is dominated by species that live for about 1 year and undergo rapid population expansions. Results of site surveys indicated that most macrofaunal species were distributed in patches throughout the study area and several are considered opportunistic. Endemic species have considerable ability to adapt to a range of natural disturbances in their habitat. Thus, if dredged-material disposal had affected the density of these organisms, these effects could not be discerned.

Fish collected during site surveys are characteristic of the area. Furthermore, relative numbers of dominant organisms collected, such as large numbers of sciaenids (drums and croakers), are similar to results of other baseline studies conducted in the area.

10. Potentiality for the development or recruitment of nuisance species in the disposal site (40 CFR 228.6(a)(10)).

Past disposal of dredged material at the existing ODMDS has not resulted in the development or recruitment of nuisance species. Considering the similarity of the dredged material with the existing sediments, it is expected that continued disposal of dredged material will not result in the development or recruitment of such species.

11. Existence at or in close proximity to the site of any significant natural or cultural features of historical importance (40 CFR 228.6(a)(11)).

Studies, which involved literature search and coordination with the Louisiana State Historic Preservation Officer, did not demonstrate any known features of historical importance within the ODMDS. However, results from the literature review indicate shipwrecks may be found near the Point Au Fer Shell Reef and at the mouth of the Atchafalaya River. Hence, the northernmost portion of the ODMDS is considered to have the greatest potential to contain submerged cultural resources.

Future dredging and disposal operations at the ODMDS will consider the results of the submerged cultural resources survey. Plans and specifications for dredging contracts would be reviewed by COE cultural resources specialists to ensure that significant cultural resources are not impacted by any proposed action. In addition, future disposal into the ODMDS area will be reviewed by the COE in compliance of Section 106 of the National Historic Preservation Act of 1966 (as amended), Final Rule for Operation and Maintenance Of Army Corps of Engineers Civil Works Projects Involving the Discharge of Dredged Material Into Waters of the U.S. or Ocean Waters (33 CFR parts 209, 335, 336, 337, and 338), and requirements of the Louisiana SHPO.

The action evaluated through this EPA rulemaking and completed NEPA/EIS processes is designation under § 102(c) of MPRSA of the existing COE § 103(b) alternative ODMDS for dredged material removed from the Atchafalaya River Bar Channel. The purpose of the designation is to provide an environmentally acceptable location for ocean disposal of dredged materials removed from the Atchafalaya River Bar Channel. The evaluative processes provide a thorough and objective evaluation of reasonable alternatives, including no action, and the information needed to evaluate the suitability of an ocean disposal area for final site designation. EPA's final site designation is being conducted in accordance with the MPRSA, the Ocean Dumping Regulations, and other applicable Federal environmental legislation. Once designated, the appropriateness of ocean disposal is determined on a case-by-case basis.

EPA emphasizes that ocean disposal site designation does not constitute or imply EPA Region VI's or the COE's approval of ocean disposal of dredged material from any project. Before disposal of any dredged material at the Atchafalaya River Bar Channel ODMDS may occur, EPA Region VI and the COE must evaluate the proposed project according to the Ocean Dumping Criteria (40 CFR part 227) adopted pursuant to the MPRSA. EPA Region VI or the COE will not allow ocean disposal of dredged material if either agency determines that the Ocean Dumping Criteria are not met. In addition, the COE is required to evaluate all proposed dredging projects associated with the Atchafalaya River in accordance with the Coastal Zone Management Act, the Magnuson-Stevens Fishery Conservation and Management Act, and the Endangered Species Act.

Under Executive Order 12875, EPA may not issue a regulation that is not required by statute and that creates a mandate upon a State, local, or tribal government, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by those governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 12875 requires EPA to provide to the OMB a description of the extent of EPA's prior consultation with representatives of affected State, local, and tribal governments, and a statement supporting the need to issue the regulation. In addition, Executive Order 12875 requires EPA to develop an effective process permitting elected officials and other representatives of State, local, and tribal governments to provide meaningful and timely input in the development of regulatory proposals containing significant unfunded mandates.

Today's final Rule does not create a mandate on State, local, or tribal governments. As described elsewhere in this preamble, today's final Rule would only have the effect of designating an existing ocean disposal site pursuant to section 102(c) of MPRSA. This final Rule does not impose any enforceable duties on these entities. Accordingly, the requirements of section 1(a) of Executive Order 12875 do not apply to this Rule.

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly 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 OMB, 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 final Rule does not significantly or uniquely affect the communities of Indian tribal governments. As described elsewhere in this preamble, today's final Rule would only have the effect of designating an existing ocean disposal site pursuant to section 102(c) of MPRSA. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

Under Executive Order 12866, (58 FR51735, October 4, 1993), EPA must determine whether the regulatory action is “significant” and therefore subject to OMB review and other requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to lead to a rule that may:

This final Rule should have minimal impact on permittees. As described elsewhere in this preamble, today's final Rule would only have the effect of designating an existing ocean disposal site pursuant to section 102(c) of MPRSA. Consequently, EPA has determined that this Rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

Executive Order 13045, 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, EPA 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 EPA.

This final Rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because EPA does not have any reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. As described elsewhere in this preamble, today's final Rule would only have the effect of designating an existing ocean disposal site pursuant to section 102(c) of MPRSA.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), 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 no 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.

If EPA complies by consulting, Executive Order 13132 requires EPA to provide to the Office of Management and Budget (OMB), in a separately identified section of the preamble to the rule, a federalism summary impact statement (FSIS). The FSIS must include a description of the extent of EPA's prior consultation with State and local officials, a summary of the nature of their concerns and the Agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met. Also, when EPA transmits a draft final rule with federalism implications to OMB for review pursuant to Executive Order 12866, EPA must include a certification from the agency's Federalism Official stating that EPA has met the requirements of Executive Order 13132 in a meaningful and timely manner.

This 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, as specified in Executive Order 13132 because it only has the effect of designating an existing ocean disposal site and does not alter the relationship or the distribution of power and responsibilities among the levels of government. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

The Regulatory Flexibility Act (RFA) provides that whenever an agency promulgates a final rule under 5 U.S.C. 553, the agency must prepare a regulatory flexibility analysis (RFA) unless the head of the agency certifies that the final Rule will not have a significant economic impact on a substantial number of small entities (5 U.S.C. 604 and 605). Today's final Rule would only have the effect of designating an existing ocean disposal site pursuant to section 102(c) of MPRSA. Consequently, EPA's final Rule will not impose any additional economic burden on small entities. For this reason, the Regional Administrator certifies, pursuant to section 605(b) of the RFA, that the final Rule will not have a significant economic impact on a substantial number of small entities.

The Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , is intended to minimize the reporting and record-keeping burden on the regulated community, as well as to minimize the cost of Federal information collection and dissemination. In general, the Act requires that information requests and record-keeping requirements affecting ten or more non-Federal respondents be approved by OMB. Since the final Rule would not establish or modify any information or record-keeping requirements, but only finalizes existing requirements, it is not subject to the provisions of the Paperwork Reduction Act.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year.

This final rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector. As described elsewhere in this preamble, today's final Rule would only have the effect of designating an existing ocean disposal site pursuant to section 102(c) of MPRSA. Consequently, it imposes no new enforceable duty on any State, local, or tribal governments or the private sector. Similarly, EPA has also determined that this Rule contains no regulatory requirements that might significantly or uniquely affect small government entities. Thus, the requirements of section 203 of the UMRA do not apply to this Rule.

The National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104-113, section 12 (d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g. materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This Rule does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A Major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective June 19, 2000.

Pursuant to section 7(a) of the Endangered Species Act, federal agencies must insure that their actions are unlikely to jeopardize the continued existence of listed threatened or endangered species or result in adverse modification or destruction of designated critical habitat. Continuing to dispose of dredged material at the designated site will not materially change the status quo and there is no designated critical habitat in the area. Moreover, the COE will continue to consult with the National Marine Fisheries Service (NMFS) on its own project-specific use of the site and on any project for which it proposes to issue a permit authorizing disposal of dredged material at the site. EPA accordingly found today's designation action was unlikely to adversely affect any listed species or critical habitat. NMFS concurred in that finding by letter dated September 9, 1999.

Under section 305(b)(2) of the Magnuson-Stevens Fishery Conservation and Management Act, federal agencies must consult with the NMFS and appropriate fisheries councils before undertaking actions that may adversely affect designated essential fish habitat. NMFS has designated most of the Gulf of Mexico, including the area in which the designated disposal site is located, as essential fish habitat. It is unlikely that today's designation action will adversely affect essential fish habitat because it will not materially change the status quo. Because potentially adverse effects might be associated with its future use in the context of a specific project, the COE will continue to consult NMFS on a case-by-case basis. See 50 CFR 605.920(2).

This is a synopsis of the Commission's Report and Order in MM Docket No. 98-112, adopted April 24, 2000, and released April 28, 2000. The full text of this decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW, Washington, D.C. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Service, Inc., (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036.

Why is EPA utilizing a direct final rule to revise an EPAAR clause? Federal Acquisition Circular 97-15 amended the FAR to implement the rulings of the United States Court of Appeals and the United States Court of Federal Claims (Burnside-Ott case) that the Contract Disputes Act applies to all disputes arising under Government contracts, unless a more specific statute provides for other remedies. This direct final rule is being published without prior proposal because we view this as a non-controversial change to the EPAAR intended to make the EPAAR consistent with the FAR. We do not anticipate any adverse comments. This rule will be effective on August 16, 2000, without further notice unless we receive adverse comments by June 19, 2000. If EPA receives adverse comments, we will, before the rule's effective date, publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We also will publish a notice of proposed rulemaking in a future edition of the Federal Register . We will address the comments on the direct final rule as part of that proposed rulemaking.

This direct final rule is not a significant regulatory action for the purposes of Executive Order 12866; therefore, no review is required by the Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB).

The Paperwork Reduction Act does not apply because this direct final rule does not contain information collection requirements that require the approval of OMB under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq. ).

The EPA certifies that this direct final rule does not exert a significant economic impact on a substantial number of small entities. The requirements to contractors under the rule impose no reporting, record keeping, or any compliance costs.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess their regulatory actions on State, local, and Tribal governments, and the private sector. This direct final rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in one year. Any private sector costs for this action relate to paperwork requirements and associated expenditures that are far below the level established for UMRA applicability. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Executive Order 13045, 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 E.O. 13045 because it is not an economically significant rule as defined by E.O. 12866, and because it does not involve decisions on environmental health or safety risks.

Executive Order 13132 entitled “Federalism” (64 FR 43255, August 10, 1999), 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 Section 6 of 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 direct final rule does not have federalism implications. It 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. This direct final rule merely changes the EPAAR to be consistent with the FAR. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Under E.O. 13084, EPA may not issue a regulation that is not required by statute, that significantly 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 Tribal governments, or EPA consults with those governments. If EPA complies by consulting, E.O. 13084 requires EPA to provide to the OMB, 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, E.O. 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian Tribal government “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's rule does not significantly or uniquely affect the communities of Indian Tribal governments. Accordingly, the requirements of section 3(b) of E.O. 13084 do not apply to this rule.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This rule does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rules 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).

All sea turtles that occur in U.S. waters are listed as either endangered or threatened under the Endangered Species Act of 1973 (ESA). The Kemp's ridley ( Lepidochelys kempii ), leatherback ( Dermochelys coriacea ), and hawksbill ( Eretmochelys imbricata ) are listed as endangered. Loggerhead ( Caretta caretta ) and green ( Chelonia mydas ) turtles are listed as threatened, except for populations of green turtles in Florida and on the Pacific coast of Mexico, which are listed as endangered.

Under the ESA and its implementing regulations, taking sea turtles—even incidentally—is prohibited, with exceptions identified in 50 CFR 223.206. The incidental take of endangered species may only legally be authorized by an incidental take statement or an incidental take permit issued pursuant to section 7 or 10 of the ESA. Existing sea turtle conservation regulations specify procedures that NMFS may use to determine that unauthorized takings of sea turtles are occurring during fishing activities, and to impose additional restrictions to conserve listed sea turtles and to prevent unauthorized takings (50 CFR 223.206(d)(4)). Restrictions may be effective for a period of up to 30 days and may be renewed for additional periods of up to 30 days each.

The Sea Turtle Salvage and Stranding Network has documented a high level of sea turtle strandings in North Carolina this spring. There have been two stranding events involving unprecedented numbers of turtles, along the Outer Banks in Dare and Hyde counties.

During the first stranding event, a total of 71 turtles (69 loggerheads and 2 Kemp's ridleys) washed ashore on the ocean-facing beaches between Rodanthe and Ocracoke from April 14-17, 2000. There were no externally obvious signs of death on the turtles. Necropsies revealed that the turtles had excellent fat stores and were probably in good health prior to their deaths. A few of the turtles had been feeding on nearshore, benthic species, but most had empty guts, suggesting that they were in a migratory, rather than foraging, mode. The uniform state of decomposition of the turtles indicated that they had likely all died suddenly within a short period of time, probably no more than a few days before stranding on the beach. Large amounts of sargassum weed blew ashore, coincident with the turtle strandings, and indicative of the movement of warm Gulf Stream waters close to shore.

NMFS began investigating possible causes of the sea turtle mortality event immediately. The absence of other species in the die-off was inconsistent with a toxic algae bloom. Also, there were no major traumatic injuries such as might be caused by dredging or blasting. None of the turtles had ingested any fishing hooks. NMFS, therefore, turned attention to activities that could drown large numbers of turtles, such as net fishing. There was no trawl fishing activity in the area at the time, and gillnetting was reportedly light, although there was some activity for dogfish nearshore. Monkfish gillnetting was reported to be over in the area, but NMFS subsequently learned that gillnetters continued landing monkfish in North Carolina through the end of April. Gillnetting therefore was the most likely cause of this stranding event. Sea turtles are vulnerable to entanglement in gillnets and can drown in under an hour of forced submergence.

Oceanographic conditions probably played a role in concentrating the sea turtles off the Outer Banks. Loggerhead and Kemp's ridley turtles are known to use summer foraging grounds along the mid-Atlantic and northeast seaboard. For many turtles, their spring migrations to these feeding grounds from wintering areas along the southeastern U.S. or from warm offshore waters will bring them near Cape Hatteras. The warm Gulf Stream flows southwest to northeast past Cape Hatteras. The exact position of the Gulf Stream in this area can be highly variable week-to-week, and its position, along with local winds and counterclockwise warm-water currents from the Gulf Stream can strongly affect the coastal waters. This spring, the Gulf Stream has come quite close to Cape Hatteras: only 10 to 15 nautical miles. As usual, the coastal water inshore of the Gulf Stream has been strongly affected by eddies off the Gulf Stream. Around the time of this first stranding event, warm eddies brought water up to 20 °C (68 °F) ashore along Ocracoke and Hatteras Islands, while coastal waters farther to the north were still cold (less than 14 °C), deterring turtles from proceeding northward up the coast. The warm eddy allowed turtles to move inshore where they were vulnerable to coastal fisheries and where they were more likely to strand. Onshore winds that began on April 14 likely pushed the carcasses ashore. Immediately after this stranding event, cold water pushed in from the north around Cape Hatteras, replacing the warm eddy waters. Sea turtles were forced back offshore to find warmer water. While cold water prevailed along the coast, the strandings were greatly diminished.

A second stranding event began on May 3. From May 3-8, approximately 209 additional sea turtles (3 Kemp's ridleys, the rest loggerheads) were found dead on ocean beaches between Oregon Inlet and Hatteras Inlet. Virtually all were severely decomposed, suggesting that they had been dead at sea for at least several days before stranding. The sheer numbers and the advanced decomposition of these animals preclude meaningful necropsies. Those carcasses that have been scanned with a magnetometer have not contained any hooks. Four of the carcasses were entangled in fishing gear: Three loggerheads carried pieces of gillnet with a mesh size of 12 inches (30.48 cm) stretched, and one loggerhead was carrying gillnet with a mesh size of 10 inches (25.4 cm) stretched.

Oceanographic conditions were again a factor in this wave of strandings. Cold water lay along the North Carolina coast all the way to Cape Lookout through the end of April. Sea turtles can tolerate water temperatures down to about 10 °C, but with warm water (greater than 20 °C) only 15 to 20 nm offshore, they likely would have remained in or near the 20 °C thermal front. Satellite imagery showed a small tongue of warm water curling back towards the coast from the Gulf Stream, about 15 nautical miles east of Avon, on April 30. This tongue of warm water slowly grew and extended westward until it hit the North Carolina coast between Avon and Rodanthe on May 3, the day the turtle carcasses washed ashore. Because the satellite imagery so clearly shows a distinct water mass moving in from offshore at the exact place and time that the strandings started, it is clear that the turtles also died offshore, perhaps as much as a week before they stranded, and were then brought ashore by that water mass. Three fisheries were active in offshore waters the week prior to the strandings: hook-and-line fishing for mackerel, bluefish gillnetting, and monkfish gillnetting. The mesh sizes of the gear recovered with the stranded turtles are only consistent with gillnets for monkfish. Again, there was no evidence that the turtles had been hooked.

Examination of the strandings on the Outer Banks indicates that the most likely source of sea turtle mortality is large-mesh gillnetting for monkfish and possibly dogfish. Other possible causes are not consistent with the nature of the strandings. Satellite sea surface temperature information has allowed NMFS to reconstruct the likely times and locations of the sea turtle mortality. Gillnetting for dogfish and monkfish have been the active fisheries in those times and places. These fisheries deploy thousands of yards/meters of gillnets and have very long soak times, ranging from overnight to several days. Large-mesh gillnets are known to be highly effective at catching turtles and in fact were the gear of choice during the historical sea turtle fishery. Bluefish gillnetting was also active in offshore waters at the time of the second mortality event. The bluefish fishery, however, uses smaller-mesh nets (5 1/2 inches/13.97 cm), much less net per boat, and much shorter soak times (less than an hour to several hours) than the large-mesh gillnet fisheries. While bluefish gillnets can catch and drown turtles, these fishing characteristics make bluefish gillnetting a smaller threat to sea turtles.

The number of dead turtles in these two stranding events is unprecedented. The 10-year stranding average (1989-98) for the entire state of North Carolina for loggerheads is 219 per year; in contrast, approximately 290 have stranded in just these two events. Springtime strandings in Dare and Hyde counties, North Carolina, however, are not unusual. Historically, there has been a small spike in turtle strandings in statistical zone 35, which generally corresponds to those two counties, as the north-migrating turtles encountered coastal fisheries. In recent years, the number of stranded turtles, particularly loggerheads, has grown. In 1997 and 1998, a total of 34 and 26 loggerheads stranded in Zone 35 in May and the first 2 weeks of June. The strandings increased dramatically in 1999, to a total of 86 loggerheads for that same period. That stranding level was itself a record. NMFS believes that these increases in mortality are the result of increased fishing effort, a shift of fishing effort later into the season, fishing methods that are more lethal to sea turtles, and, this year, oceanographic conditions that likely concentrated sea turtles off Cape Hatteras.

Strandings are a minimum indicator of at-sea mortality as winds and currents will carry many carcasses offshore. The turtles involved in the second stranding event likely were killed 10-20 nm offshore and only reached shore because a warm eddy broke off. Other turtles that may have died before the eddy formed likely were swept out to sea by the Gulf Stream.

This extreme increase in loggerhead mortality may pose a serious threat to the species' recovery, especially as the mortality has occurred at a choke point in these turtles' migration to their summer foraging grounds. Most loggerheads in U.S. waters come from one of two genetically distinct nesting populations. The population that nests in south Florida is much larger and has shown increases in nesting. The northern population that nests from northeast Florida through North Carolina is much smaller and nesting numbers are stable or declining. Previous studies suggest that up to half of the turtles stranded in North Carolina would be from the smaller, northern population. The overwhelming number of stranded turtles has precluded a full analysis of the sizes of the affected animals, but preliminary data suggest that they had a representative distribution, ranging from immatures to adults.

Historical data show that increases in sea turtle strandings move south-to-north up the mid-Atlantic coast in May and June, as the migratory turtles arrive. Virginia has shown seasonal pulses in sea turtle strandings which could be magnified if the stranding trend in North Carolina continues northward. Strandings in Virginia are always the highest in the month of June, and the stranding reports for zone 36 (36-37° N. latitude) and zone 37 (37-38° N. latitude [approximately the Virginia-Maryland border]) combined have shown a definite increase in strandings in the past several years. For example, strandings in June of 1994 were recorded to be 62 animals in zones 36 and 37 combined, 81 were found in 1995, 64 in 1996, 145 in 1997, 161 in 1998, and 157 in 1999. A total of 230 dead sea turtles stranded in Virginia in 1999, including 200 loggerheads, 18 Kemp's ridleys, 6 leatherbacks and 6 unidentified turtles. Most of the strandings in Virginia have been documented from the ocean beaches south of Cape Henry and the inshore beaches in southern Chesapeake Bay. Relatively few strandings are reported from the remote and sparsely populated barrier islands of the Eastern Shore.

Based on past data, NMFS anticipates an increase in strandings in Virginia during late May and June with the migration of turtles up the Atlantic coast. Given the unusually high level of strandings in North Carolina this year and the increasing trend in strandings in recent years in Virginia, it is critical that action be implemented to reduce the likelihood that interactions with fishing gear will result in additional mortalities of sea turtles. Several large-mesh gillnet fisheries-monkfish, smooth dogfish, and black drum-are currently operating in Atlantic waters off Virginia and in Chesapeake Bay.

The coastal waters north of Cape Hatteras have warmed rapidly since May 3, and sea turtles are now moving northward toward Virginia. In fact, an aerial survey flown May 6 between the Virginia border and Cape Hatteras, approximately 5 nm offshore, sighted 30 turtles that are already north of Oregon Inlet. South of Oregon Inlet, where the strandings have been occurring, only 3 turtles were sighted. The waters to the north and farther offshore have not been surveyed, but it is clear that turtles are already entering waters off Virginia. No major stranding event has occurred in Virginia yet, but as the turtles continue their northward migration, they will continue to be vulnerable to coastal and offshore large-mesh gillnet fisheries. The turtles will likely still be concentrated on their migratory routes over the next weeks, until they disperse over their foraging grounds. Gillnet fisheries in the path of the migration can capture and kill large numbers of turtles and possibly disrupt other turtles from reaching important feeding areas. Further mortality, added to the already record-setting number of strandings, along with the undetected at-sea mortality, could be extremely damaging to loggerheads, particularly the non-recovering northern population.

Pursuant to 50 CFR 223.206(d)(4), the exemption for incidental taking of sea turtles in 50 CFR 223.206(d)(1) does not authorize incidental takings during fishing activities if the takings may be likely to jeopardize the continued existence of a species listed under the ESA. Regulations at 50 CFR 223.206(d)(4) provide that the Assistant Administrator for Fisheries, NOAA, (AA) may issue a determination that incidental takings in the course of fishing activities are unauthorized, and specify procedures that the AA may use to impose additional restrictions to conserve listed sea turtles and prevent such takings. The level of mortality suffered by loggerhead turtles this spring off eastern North Carolina is already unprecedented and is severely impacting the northern nesting population of loggerheads. Continued mortality caused by incidental capture in large-mesh gillnets during loggerhead migrations along the mid-Atlantic coast could significantly affect this population and its ability to recover and may be likely to jeopardize the species. Therefore, the AA issues this determination that takings of threatened or endangered sea turtles by large-mesh gillnetters in mid-Atlantic waters along eastern North Carolina and Virginia are unauthorized and issues this additional restriction on fishing activities to conserve threatened and endangered sea turtles, particularly loggerhead turtles. Specifically, the AA closes the Atlantic Ocean waters of North Carolina and Virginia and in the mouth of the Chesapeake Bay to all fishing with gillnets with a stretched mesh size of 6 inches (15.24 cm) or greater. The closed area includes all offshore waters bounded by 35°13′ N. latitude on the south (approximately Cape Hatteras), 38° N. latitude on the north (just south of the Maryland-Virginia border), 75° W. longitude on the east, and the North Carolina and Virginia coasts on the west. At inlets, the western boundary of the closed area is the COLREGS demarcation line, except in Chesapeake Bay, where the closed area includes the waters contained in the regulated navigation area for Chesapeake Bay entrance and Hampton Roads, Va. and adjacent waters (as defined at 33 CFR 165.501(a)) that are east of the southeastern span of the Hampton Roads Bridge-Tunnel and the line connecting Old Point Comfort Light and Fort Wool Light. This closure is effective from May 12, 2000 through 11:59 p.m. (local time) June 12, 2000. For the duration of this closure, no gillnet with a stretched mesh size measuring 6 inches (15.24 cm) or greater may be set in the closed area. All such gillnets that are currently set must be retrieved by 11:59 p.m on May 15, 2000.

This restriction has been announced on the NOAA weather channel, in newspapers, and other media.

The AA may withdraw or modify any additional restriction on fishing activities if the AA determines that such action is warranted. Notification of any additional sea turtle conservation measures, including any extension of this 30-day action, will be published in the Federal Register pursuant to 50 CFR 223.206(d)(4).

NMFS will continue to monitor sea turtle strandings to gauge the effectiveness of these conservation measures.

This action has been determined to be not significant for purposes of Executive Order 12866.

The AA has determined that this action is necessary to respond to an emergency situation to provide adequate protection for endangered and threatened sea turtles, primarily the loggerhead sea turtle, pursuant to the ESA and other applicable law.

Pursuant to 5 U.S.C. 553(b)(B), the AA finds that there is good cause to waive prior notice and opportunity to comment on this action. It would be contrary to the public interest to provide prior notice and opportunity for comment because providing notice and comment would prevent the agency from implementing this action in a timely manner to protect the listed sea turtles. Notification of and opportunity to comment on the procedures allowing the implementation of temporary measures to protect sea turtles was provided through the proposed rule which established these actions (57 FR 18446, April 30, 1992). For the same reasons, the AA finds good cause also under 5 U.S.C. 553(d)(3) not to delay the effective date of this rule for 30 days. NMFS is making the rule effective May 12, 2000 through June 12, 2000. Immediately, no gillnets with a stretched mesh size measuring 6″ (15.24cm) or greater may be set in the closed area. The rule provides sufficient time—over one day—to retrieve all nets set previously. As stated earlier, this restriction has been announced on the NOAA weather radio, in newspapers, and other media.

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

The AA prepared an Environmental Assessment (EA) for the final rule (57 FR 57348, December 4, 1992) requiring turtle excluder device use in shrimp trawls and creating the regulatory framework for the issuance of notices such as this. Copies of the EA are available (see ADDRESSES ).