This rule has been determined to be significant and was reviewed by the Office of Management and Budget under Executive Order 12866.

The Food Stamp Program is listed in the Catalog of Federal Domestic Assistance under 10.551. For the reasons set forth in the final rule and related notice to 7 CFR 3015, subpart V (48 FR 29115), this Program is excluded from the scope of Executive Order 12372 which requires intergovernmental consultation with State and local officials.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full implementation. This rule is not intended to have retroactive effect unless so specified in the “Dates” section of this preamble. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be exhausted. In the Food Stamp Program the administrative procedures are as follows:

(1) For program benefit recipients—State administrative procedures issued pursuant to 7 U.S.C. 2020(e)(10) and 7 CFR 273.15;

(2) For State agencies—administrative procedures issued pursuant to 7 U.S.C. 2023 set out at 7 CFR 276.7 (for rules related to non-QC liabilities) or Part 283 (for rules related to QC liabilities);

(3) For program retailers and wholesalers—administrative procedures issued pursuant to 7 U.S.C. 2023 set out at 7 CFR 278.8.

This action has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Shirley R. Watkins, Under Secretary of the Food, Nutrition and Consumer Services, has certified that this rule does not have a significant economic impact on a substantial number of small entities. This rule will affect the State and local agencies which administer the Food Stamp Program, by modifying the recordkeeping and reporting requirements applicable to them, and modifying the rates of Federal funding reimbursement for certain Food Stamp Program activities.

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. FNS has considered the impact on State agencies. This rule deals with reimbursements of State agency costs and codifies a cut in the reimbursement rate that was effective April 1, 1994, by law. This rule is intended to have preemptive effect with respect to any State law which conflicts with its provisions or which would otherwise impede its full implementation. FNS is not aware of any case where any of these provisions would in fact preempt State law and no comments were made to that effect.

Prior to drafting this final rule, we received input from State agencies at various times. Since the Food Stamp Program is a State administered, federally funded program, our regional offices are having informal and formal discussions with State and local officials on an ongoing basis regarding funding and implementation issues. This arrangement allows State agencies to provide feedback that form the bases for many discretionary decisions in this and other Food Stamp Program rules. In addition, we send representatives to regional, national, and professional conferences to discuss our issues and receive feedback on funding issues, fraud control, and State information systems. Lastly, the comments on the proposed rule from State and local officials were carefully considered in the drafting of this final rule.

States were concerned that the cut in the funding rate would put a burden on State funding for the Food Stamp Program and may result in reduced State effort to combat fraud and upgrade State information systems. Concern was also raised that the cutback in the funding rate while States would need to continue to submit a fraud control plan would represent an unfunded mandate. Finally, there was concern regarding the proposed deadline for filing retroactive claims for reimbursement.

While the cutback in the funding rate in 1994 had an impact on State agencies, the reduced reimbursement rate is mandated by law and does not involve Department discretion. The rule is necessary to codify the cut in the reimbursement rate. The deadline on retroactive claims is necessary to direct State and Federal resources toward the present operation of the program.

With the increase in recipient claim collections since FY 1994, States are receiving additional funds through the retention of a part of those increased collections. In response to State concerns, FNS did eliminate the requirement for a fraud control plan based on State comments in this rule but will consider what information, if any, should be required as part of a separate overall revision to State Plan requirements. That will be done outside this rule. We clarified the wording regarding the deadline and the process for submitting prior year claims to FNS.

While FNS did not seek State agency comment in advance regarding the change in payment systems and the change in reporting form (from the SF-270, Request for Advance or Reimbursement, to the SF-269, Financial Status Report) for prior year administrative cost reporting, FNS does believe the change benefits States because it streamlines the payment process. States benefit because the electronic form SF-269 minimizes rekeying data in the event of a revised report and reduces the processing time to make funds available to the State. Faster payment processing benefits States.

In accordance with the Paperwork Reduction Act of 1995, the Food and Nutrition Service is submitting for Office of Management and Budget (OMB) approval the proposed information collection resulting from implementing the provisions contained in this rule. The proposed information collection is for a change in use of the SF-269.

The reporting requirements relating to the FCS-366A, Budget Projection, are approved under OMB No. 0584-0083. The reporting requirements relating to the use of the Standard Form (SF)-269, Financial Status Report, and the SF-269A, Financial Status Report Addendum, are approved under OMB No. 0348-0039. The reporting requirements for the SF-270, Request for Advance or Reimbursement, are approved under OMB No. 0348-0004.

Comments on this information collection must be received by July 24, 2000 to be assured of consideration.

Comments are invited on: (a) Whether the proposed collection of information is necessary for the performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Comments may be sent to: Manish Desai, Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503.

Send requests for additional information or copies of this information collection to: Barbara Hallman, Chief, State Administration Branch, Program Accountability Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Alexandria, VA 22302 or call (703) 305-2383.

Title: Uniform Administrative Requirements for Grants and Cooperative Agreements—7 CFR Parts 3016 and 3019.

OMB Number: 0348-0039.

Expiration Date: Three years from date of approval.

Type of Request: Revision of a currently approved collection.

Abstract: Section 16(a) of the Food Stamp Act of 1977 (7 U.S.C. 2011 et. seq.) authorizes the Secretary to pay each State agency an amount equal to 50 percent of all allowable administrative costs involved in each State agency's operation of the Food Stamp Program. State agencies draw the funds for administrative costs from the United States Treasury through a Letter of Credit. Under corresponding Food Stamp Program regulations at 7 CFR 277.11(c) State agencies are required to use the standard Financial Status Report (Form SF-269) on a quarterly basis to report program administrative costs to FNS and to support the claims made for Federal funding. Final reports are due December 30 for the preceding Federal fiscal year which runs from October 1 through September 30 or 90 days after termination of Federal financial support.

Beginning in FY 1998, State agencies were required to use the SF-269, rather than the SF-270, to revise prior year expenditure reports. The SF-269 is used with a Letter of Credit payment system. Prior to FY 1996, under FNS' previous payment system, the Letter of Credit closed after the end of the fiscal year. In FY 1996 FNS changed to the Department of Treasury's new payment system, Automated Standard Application for Payments (ASAP), which kept the Letter of Credit system open after the end of the fiscal year. As a result, the SF-269 could continue to be used after close-out in the event it was necessary for a State to revise a prior year's report.

The use of the SF-269 and the ASAP for prior years is much more efficient both for States and FNS. With the electronic SF-269 reporting and new payment system, States get their reimbursement faster. The SF-270 process is a manual process that is not tied into State electronic reporting to FNS. Therefore, FNS believes it would require more State resources to complete the SF-270 form compared to electronic SF-269 reporting. The SF-270 process would also require more FNS resources to process the request.

These changes were done at the time without public comment. The use of the Letter of Credit system as the payment system when there is a continuing relationship with the State agency and the use of the SF-269 by State agencies as the reporting form for such systems are required respectively by 7 CFR 3015.102 and 3015.82. In accordance with 7 CFR 3015.1(b), Part 3015 provisions take precedence over any individual agency regulations which may be inconsistent with Part 3015 unless the inconsistency is based on a statutory provision or an exception has been obtained. Because these changes were in accordance with 7 CFR 3015, which takes precedence over agency rules, and because these procedures have been in effect since FY 1998, the Department believes requesting public comment on the procedural change to use the SF-269 for prior year costs that is being codified in this final rule would cause unnecessary delay which is contrary to the public interest. However, the Department is interested in comments regarding the change in the burden estimate for the SF-269 due to its continued use as necessary after fiscal year close-out.

The Financial Status Report Addendum (SF-269A) is used by State agencies to report on a quarterly basis outlays of program cash-out benefits where FNS has approved the issuance of checks in lieu of food coupons. Final reports are due December 30 for the preceding Federal fiscal year.

Beginning June 1995, State agencies were allowed to submit the SF-269 and SF-269A data electronically to the national database files stored in FNS' Food Stamp Program Integrated Information system in lieu of a paper report. The voluntary changeover from paper to electronic reporting of SF-269 and SF-269A data by States was done as part of FNS' State Cooperative Data Exchange (SCDEX) Project. This project is being expanded each year as more FNS forms are transformed to electronic formats for State data entry. As of January 2000, 47 State agencies submit the SF-269 (and SF-269A if appropriate) data electronically and 6 State agencies continue to submit paper reports.

For FY 1995 and prior fiscal years, the SF-270 continues to be used until the funding fiscal year has been canceled because the Letter of Credit is no longer open for those years. OMB requires the use of the Form SF-270 when a State agency wants to adjust the program's financial status when the Letter of Credit is not used. The Department regulations at 7 CFR 3015.84(b) implemented this mandatory use of the SF-270. The SF-269 is authorized under 7 CFR 3015.82(a) and 7 CFR 277.11.

Section 277.11(d) of this final rule contains a deadline for filing claims for Federal reimbursement. Thus, State agencies will no longer be able to claim reimbursement for Fiscal Years 1998 and before effective October 1, 2000.

Section 277.11(d) of this final rule contains an information collection and reporting requirement. It requires the State agency to use a reporting form specified by FNS to request retroactive funding. With the time limit on filing claims, this form will be the SF-269.

Respondents: State agencies that administer the Food Stamp Program.

Number of Respondents: 53.

Estimated Number of Responses per Respondent:

Form SF-269: 53 State agencies five times a year for current year (required) and three times a year for prior years (estimated based on an as-needed basis).

Form SF-269A: 12 State agencies five times a year.

Estimate of Burden:  

Form SF-269: The 53 State agencies submit Form SF-269 for the current year at an estimate of 16.8 hours per respondent, or 4,452 hours. The 53 State agencies submit revised SF-269 (for prior years) three times annually at an estimate of 1 hour per respondent for an additional 159 hours annually. The use of the electronic SF-269 in FNS information system will minimize the amount of information to be rekeyed by States for a revised SF-269 since States only need to rekey information that has changed. Because the additional 159 hour burden had not been previously approved by OMB, this represents an increase of 159 hours.

Form SF-269A: Approximately 12 State agencies submit Form SF-269A at an estimate of 1 hour per respondent or 60 total hours.

Estimated Total Annual Burden on Respondents: FNS use of the SF-269, SF-269A, and SF-270 was previously approved under OMB No. 0505-0008; however, this package was eliminated. The SF-269 and SF-269A are approved under OMB No. 0348-0039. The SF-270 is approved under OMB No. 0348-0004. Consequently, we are requesting approval of the burden increase for FNS use of the SF-269 form. The revised annual reporting and recordkeeping burden for the Food Stamp Program for this form is estimated to be 4,671 hours. This estimate represents an increase of 159 hours from the previously approved burden of 4,512 hours.

The remaining provisions of this rule do not contain reporting or recordkeeping requirements subject to approval by OMB.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 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, the FNS 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, or tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires the FNS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost effective or least burdensome alternative that achieves the objectives of the rule.

This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector. Thus today's rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Section 13961 of the Mickey Leland Childhood Hunger Relief Act of 1993 (Leland Act) (Pub. L. 103-66, 107 Stat. 679), signed on August 10, 1993, amended Section 16 of the Food Stamp Act (Act) (7 U.S.C. 2025) to reduce the Federal reimbursement rate for fraud control from 75 percent to 50 percent, the rate for automatic data processing (ADP) development from 75 or 63 percent to 50 percent, and the rate for Systematic Alien Verification for Entitlements (SAVE) costs from 100 percent to 50 percent. The change in rates was effective by law April 1, 1994.

In October and November 1993, the Food and Nutrition Service (FNS) regional offices briefed State agencies administering the Food Stamp Program (FSP) on how to implement the new Federal funding rates for reporting and payment purposes effective April 1, 1994. The prompt implementation was necessary to comply with the Leland Act's mandate to reduce the Department's share of State agency administrative costs to the mandated rate as of April 1, 1994, and to minimize the need for revised reporting by State agencies related to budget projections for FY 1994 and actual cost reporting on or after April 1, 1994. Beginning April 1, 1994, State agencies began drawing down Federal funds for expenditures based on the new funding rate for these activities. Effective with the SF-269 Financial Status Report for the third quarter Fiscal Year 1994, State agencies began reporting costs using the new funding rate for these activities.

On November 22, 1994, the Department published in the Federal Register (59 FR 60079) a proposed rule which proposed changes in the Federal reimbursement rates for certain activities as required by the Leland Act and a limit on retroactive claiming of Federal funding for State administrative costs. Five comment letters were received which addressed provisions of the proposed rule. FNS has given careful consideration to all comments received. The major concerns of the commenters are discussed below.

The proposed rule reduced the Federal reimbursement rate for fraud control activity from 75 percent to 50 percent in accordance with Section 13961 of the Leland Act, which amended Section 16 of the Act. In the FSP regulations, Federal reimbursement is also referred to as Federal Financial Participation (FFP). The new FFP rate was effective by law April 1, 1994.

FNS received 4 comments on this part of the proposed rule, all from State agencies. All commenters objected to the cutback in the FFP rate for fraud control activity.

One commenter stated that fraud control activity was an important activity that more than paid for itself in FSP (Federal) savings and that the reduction in the Federal reimbursement rate will result in a reduced level of effort. The commenter pointed out that the unprecedented growth in the FSP demonstrates the need for increased fraud control activities, but that some States lack adequate staff to address the need for fraud control programs. Another commenter stated that activities like front-end investigations to catch fraudulent applicants before the benefits go out the door, prosecutions of violators, and claim recovery work are costly and time consuming activities that were feasible for States to perform due to the enhanced Federal funding. Reinstating the 75 percent FFP rate would help States combat food stamp fraud and would recognize the extra effort that is required to ensure that benefits go only to the truly needy. Another commenter stated that the drop in the funding rate was a step backwards in efforts to combat fraud and that it puts a burden on State funding.

The reduction in the Federal reimbursement rate for fraud control activity is mandated by the Leland Act and does not involve Departmental discretion. Because the reimbursement rate is mandated by law, the final regulation retains the new funding rate as specified in the proposed rule.

The reduction in the Federal reimbursement rate for fraud control reflects a shift in emphasis from up-front funding to performance-based funding through the retention of claims collections. State agencies currently retain 35 percent of claims collected for intentional program violations and 20 percent of inadvertent household error claim collections. The Federal Tax Refund Offset Program provides an additional fiscal incentive for anti-fraud activity by making available to State agencies a new cost-effective means of claims collection. The Department encourages State agencies to use this new tool to boost claims collection and create additional State funding through increased retentions. The increase in retentions would replace some of the lost Federal administrative funding, and could be used to do front-end investigations.

With the elimination of enhanced fraud funding, the detailed requirements for funding investigations has been removed and Section 277.15 has been removed and reserved. However, the requirement to conduct investigations of alleged intentional FSP violations in § 273.16, and to operate fraud detection units in all project areas of 5,000 or more participating households in § 272.4(h) remain in effect.

In the proposed rule, specific reference to prosecution activity of intentional program violations as being an allowable cost would be eliminated because the regular 50 percent funding rate would apply to food stamp prosecutions, thereby eliminating the need for the reference. However, since the proposed rule was published, a revised OMB Circular A-87 has been issued. The revised circular provides that prosecution activities are an unallowable cost unless treated as a direct cost to a specific program when authorized by program regulations. Section 16(a) of the Act authorizes payment of FSP prosecution costs. Consequently, the final rule includes additional specific wording in Appendix A of 7 CFR part 277 that reflects that prosecution of FSP intentional program violations is an allowable cost of FSP administration. This wording is intended to continue the current practice of classifying such costs as allowable, and ensures that program regulations continue to reflect this, consistent with the requirements of the revised OMB Circular A-87. However, the provision on prosecutions will now be found in Appendix A of 7 CFR Part 277, along with other general cost principles applicable to State agencies administering the FSP.

The proposed rule retained the requirement for a fraud control plan in 7 CFR 272.2 and 277.15 but changed the timing of the submission of the plan. Two State agencies commented on this provision. One pointed out that the fraud control plan was originally required as part of the request for enhanced funding and that to require the plan without providing the enhanced funding was akin to placing an unfunded mandate on the States. The commenter stated that States are struggling to control costs and reduce budgets where possible and that removing the fraud control plan requirement would be helpful. The other commenter indicated that the fraud control plan was for Federal benefit, not for State benefit.

As a result of these comments, the Department is dropping its proposal to continue to require a fraud control plan although the availability of 75 percent funding no longer exists. The previous requirement for a fraud control plan in conjunction with 75 percent funding assisted FNS in ensuring that the enhanced funding was used for appropriate fraud control activities. FNS proposed maintaining the fraud control plan because of the importance of fraud detection and prevention to FSP management. However, based on comments, FNS has decided to defer consideration on the amount of information States should routinely provide FNS regarding State anti-fraud activity. FNS is currently revising all regulations governing the State Plan of Operation and will consider what, if any, specific information States should provide on organization structures, staffing, activities, and budget for fraud control as part of the overall revisions to regulations governing the State Plan of Operations. Therefore, this rule drops the requirement for a fraud control plan. Accordingly, the final rule revises 7 CFR 272.2 to eliminate the reference to a fraud control plan.

The proposed rule proposed to eliminate enhanced funding for automated data processing (ADP) development by reducing the funding rate for system development from either 75 or 63 percent to 50 percent in accordance with the Leland Act. We received one comment on this section.

The commenter stated that States are burdened when required to update their current ADP systems due to Federal rule changes or to develop an electronic benefit transfer (EBT) system. The commenter suggested that enhanced funding should be available for a particular window period so States can update their automated systems.

The reduction in the Federal reimbursement rate for ADP development is mandated in the Leland Act and does not involve Departmental discretion. Because the reimbursement rate is mandated by law, this final rule retains the new funding rate as proposed.

The proposed rule also proposed to eliminate section 274.12(k)(3) which states that enhanced funding for coupon issuance activities occurring on Indian Reservations and enhanced funding for the development of EBT systems would both be accommodated within the issuance cap for EBT systems. However, only enhanced funding for the development of EBT and other automated systems under 7 CFR 277.18 is eliminated. Enhanced funding for coupon issuance activities on Indian Reservations remains available under Section 16(a) of the Food Stamp Act and 7 CFR 281.9, and thus such enhanced funding for coupon issuance costs shall continue to be accommodated within the EBT issuance cap. In this final rule the Department is retaining a portion of the provision in § 274.12(k)(3) (redesignated as § 274.12(k)(2)). The portion that is being retained is the current wording that enhanced funding for coupon issuance activities that a State agency incurs on Indian Reservations shall still be accommodated within the EBT issuance cap. Only the reference in the current 7 CFR 274.12(k)(3) to enhanced funding for the development of EBT systems is being removed.

Prior to the elimination of enhanced funding there were different cost thresholds for prior FNS approval for systems funded with enhanced funding than for systems funded with regular 50 percent funding. The proposed rule proposed to apply the cost thresholds that were applicable to the regular funding requirements to all ADP systems. Thus, the proposed rule eliminated references to enhanced funding but retained in the proposed regulatory text the dollar thresholds under standard funding that were in effect at that time. After the publication of the proposed rule on which this rulemaking is based, the Department published on July 31, 1995, another proposed rule proposing increases in the cost thresholds upon which prior Federal approval is required for Federal financial participation in State ADP equipment acquisition. The final rule raising the cost thresholds for ADP systems was published June 28, 1996. Because the new cost thresholds are now in effect, the final rule drops the proposed text citing the old cost thresholds, thus retaining the current higher cost thresholds. The Department is modifying the proposed text for § 277.18(e)(1), which deletes the reference to enhanced funding, to reflect the new $5 million cost threshold for the submittal of an APD Update. The references to the standard funding rate are retained where necessary in the final text.

In the final rule the Department is also making a technical correction to Appendix A, paragraph b(1), which was inadvertently omitted from the proposed rule, to remove the reference to 63 percent ADP development funding in that paragraph.

The Department proposed eliminating enhanced funding for the Systematic Alien Verification for Entitlements (SAVE) Program by dropping the funding rate for SAVE activity from 100 percent to 50 percent funding in accordance with the Leland Act. We received no comments on this section. Because the reimbursement rate is mandated by law, the final rule retains the new funding rate as previously proposed.

The proposed rule announced the Department's proposed policy for reviewing and approving requests to delay the April 1, 1994 effective date for the elimination of enhanced funding for certain States which qualified for such an extension under the criteria provided in section 13971 of the Leland Act. For a full discussion of this issue, the reader is referred to the proposed rule.

As the proposed rule noted, FNS had advised States in October/November 1993 of the criteria for a delay of the effective date and the procedure for requesting such a delay if States believed they qualified. To allow adequate time for review, States were to submit their requests by December 31, 1993, but FNS indicated it would consider requests filed after that date. The proposed rule noted that it was the Department's intent that State agencies submit their requests for a delay of the effective date early, and not wait for the completion of the rulemaking process. Four State agencies received approval of a delay in March 1994. They were Arkansas, Texas, Montana, and North Dakota.

One State agency submitted a comment requesting a delay of the April 1, 1994 effective date, but did not submit a formal request demonstrating that it met the criteria for such a delay. The Department emphasizes that States were required to apply, and to demonstrate that they met the criteria in order to be granted a delay. The Department has no authority to grant a delay of the effective date except under the specific circumstances specified in the Leland Act as described in the proposed rule.

The Department notes that the elimination of enhanced funding was effective April 1, 1994 for all but the four approved States. The four approved States received enhanced funding through June 30, 1995, based on their legislative calendars. All States were notified by letter and by the proposed rule of the opportunity to apply for a delay. Further, the April 1, 1994 effective date has well passed. Therefore, the Department believes that the issue of granting delays is now moot and need not be addressed in regulatory text.

As stated in the proposed rule, with the reduction in the funding rate to 50 percent for fraud control, ADP development, and SAVE, these three activities now become eligible along with other costs funded at the 50 percent rate for the increased Federal reimbursement rate of up to 60 percent if the State agency achieves a low payment error rate as specified in § 277.4 and 275.23. The incentive funding for a low error rate is provided after the end of the Federal fiscal year.

Two State agencies commented on this policy. One was in favor of this policy as it rewards State agencies that achieve a low payment error rate. The other State agency pointed out that fraudulent applications make it difficult for State agencies to attain a low payment error rate. By denying enhanced funding to States with a demonstrated need for additional support, the State agency believed that such action will ensure that States with a disproportionate share of fraudulent applications will never attain a low payment error rate to qualify for enhanced funding. The State agency believed that moving the reimbursement rate back to 75 percent, rather than incentive funding for a low payment error rate, would assist States in combating food stamp fraud and help to ensure that benefits only go to the truly needy.

The reduction in the funding rate for fraud control is mandated by the Leland Act and the payment of enhanced incentive funding for a low payment error rate is mandated in Section 16(c) of the Act. Neither involves Departmental discretion. The enhanced funding is available as an incentive to encourage States to achieve a low payment error rate and is paid after the end of the fiscal year as a reward. The Department has no authority to pay either enhanced fraud funding or the incentive funding for a low payment error rate to States that have not attained a low payment error rate in order to help them to do so. Accordingly, the proposed regulatory text is adopted as final.

The proposed rule provided that, subject to the availability of funds, FNS would reimburse State agencies for an allowable expenditure only if the State agency files a claim with FNS for that expenditure within two years after the calendar quarter in which the State agency obligated the funds.

One State agency pointed out that a similar Department of Health and Human Services (DHHS) limitation was instituted as a result of legislation enacted by Congress. The State agency recommended that the Department seek an amendment to the Act.

Section 4(c) of the Act allows the Department to promulgate administrative rules that are necessary or appropriate for the effective administration of the FSP. As the proposed rule noted, in Fiscal Years (FYs) 1991 through 1993, FNS had received requests from State agencies for retroactive funding going back to FY 1981 even though the Federal record retention requirement for State agencies is 3 years. While the Department recognizes that State laws may require retention of records that exceed Federal requirements, the Department believes it is not efficient administration for State agencies to manage, store, and retain financial records well past the 3 years required by Federal regulations and in particular to be actively reviewing stale financial records more than 3 years old. This is especially the case because FNS pays 50 percent of State administrative costs. The intended effect of the proposed limitation on claiming costs is to direct State agency and Federal resources toward the present operation of the program. The Department believes State agencies have a responsibility to properly claim Federal funding on a timely basis.

The commenter noted that the deadline in the proposed rule was calculated based on the quarter in which the State agency obligated the funds, and suggested using another baseline such as date of payment, which is used by DHHS.

In the final rule the Department has based the deadline calculation on the quarter in which the cost was incurred by the State or local agency, whichever first incurred the cost. It is at that point that the cost should have been reported on the SF-269, Financial Status Report, for that report period.

One commenter suggested that the definition of the term “audit exception” which was provided in the preamble of the proposed rule be included in the regulatory text. The commenter noted that the deadline does not apply to an audit exception and suggested that the rule clarify what would happen if an audit were performed by non-Department Federal auditors or State or private auditors. The commenter also asked whether any procedures will be established to permit the State to provide such audits to Department audit staff in order to gain approval to claim additional costs.

In the final rule, the Department has included a definition of the term “audit exception” in § 277.11(d)(5)(ii) of the regulatory text. It has also clarified in the same paragraph that the term “audit” includes Federal and State-initiated audits. This includes audits performed by Department auditors, non-Department Federal auditors, State auditors, or private auditors as long as the audit complies with Department audit requirements in 7 CFR 277.17 and 7 CFR part 3015. It also specifies that the audit must have been started within 3 years of the date of submission of the final SF-269 report of the relevant fiscal year to which it applies. Once the audit is resolved, any claim for retroactive Federal funding arising from such an audit should be submitted promptly to FNS with a copy of the relevant audit findings. This procedure will supplement but not replace any other Federal reporting requirements to the cognizant agency for audits in § 277.17 and 7 CFR part 3015. Finally, the final rule makes minor modifications to the proposed wording in § 277.11(d)(4) to improve clarity. The change has no substantive effect.

At the time of the proposed rule and in accordance with 7 CFR 277.4 and 7 CFR 3015.82, State agencies used the SF-269, Financial Status Report, to report costs during the fiscal year as well as final obligations and expenditures in a final (or closeout) SF-269 due December 30 following the fiscal year. At that time, the Letter of Credit, which was the payment method, was closed for that fiscal year. After that, as the proposed rule noted, the SF-270 would be used to request funds for prior year expenditures. Thus, the proposed rule would have required that States use the Form SF-270, Request for Advance or Reimbursement, to request payment for prior year expenditures. OMB requires the use of the SF-270 when a State agency wants to adjust the program's financial status when the Letter of Credit is not used. However, reporting forms follow payment systems and subsequently FNS' payment system was changed.

7 CFR 3015.102 provides that Letters of Credit are to be used to pay Department recipients (i.e., State agencies) when all the following conditions exist:

(i) There is or will be a continuing relationship between the recipient and the USDA awarding agency for at least a 12 month period and the total amount of advances to be received within that period from the awarding agency is $120,000 or more per year.

(ii) The recipient has established or demonstrated to the USDA awarding agency the willingness and ability to establish procedures that will minimize the time elapsing between the transfer of funds from the Treasury and their disbursement by the recipient.

(iii) The recipient's financial management system meets the standards for fund control and accountability prescribed in 7 CFR 3015 subpart H.

After the proposed rule was issued, FNS in 1996 started using the Department of Treasury's ASAP payment system as a funding mechanism. This grantee-initiated payment system, which also uses the Letter of Credit as the payment vehicle, has allowed FNS to continue to pay by Letter of Credit well after the end of the fiscal year. It allowed FNS to streamline its payment process. In addition, the extension of the Letter of Credit system for prior years has allowed FNS to continue to use the SF-269 for prior year expenditures.

As a result of this payment system change, in February 1997 FNS issued revised procedures for post-close-out payments and adjustments in Agency Financial Management System procedure number 678 (AFMS-678). Under those procedures, starting in FY 1998, rather than use the SF-270, State agencies were to revise their “final” or close-out SF-269's to report the outlay of funds for prior FYs 1997 and 1996. State agencies may request funds for newly identified prior year expenses on a revised SF-269 for that year not more than quarterly. This change in the Letter of Credit system is gradually being phased in year by year. However, for FY 1995 and prior years, the SF-270 continues to be used until the funding fiscal year has been canceled because the Letter of Credit is no longer open for those years.

The change in reporting forms coupled with the use of the new system, ASAP, for prior years is significantly more efficient. The SF-270 process is a manual process that is not tied into State electronic reporting. Thus, it would have required more State resources to complete the paper SF-270 compared to the electronic SF-269. The continued use of the SF-269 after close-out will allow States to continue to use the stored electronic SF-269 form (and its data) to revise their SF-269 reports for prior years through FNS' State Cooperative Data Exchange (SCDEX) with minimal rekeying. Only data that has changed would need to be rekeyed for a revised report. Because the SF-269 data can be transmitted electronically to FNS, the use of the electronic form by States will reduce the processing time to make the funds available to the State agency. Finally, it means State agencies do not need to switch reporting forms after the end of the fiscal year but may continue to use the SF-269.

The Department notes that under 7 CFR 3015.1(b), Part 3015 supersedes and takes precedence over any individual agency regulations to the extent such regulations are inconsistent with the Department regulation. The proposed use of the SF-270 when the Letter of Credit system is operating would be inconsistent with Part 3015. Because Part 3015 is an existing Department rule which governs and takes precedence over the proposed agency rule, the agency's final rule is being changed to comply with the Department rule. Further, this change has been in effect since FY 1998 and affects only 53 State agencies. The Department believes seeking public comment on the continued use of the SF-269, which is based on a provision of the existing Department rule, would cause unnecessary delay which is contrary to the public interest.

As a result of these procedural changes and to conform to current practice, FNS has revised Section 277.11 in the final rule to drop the reference to the SF-270 and in its place to specify that States use the form specified by FNS to report prior year expenditures. This more general wording gives necessary flexibility to an area that may be subject to change over time as payment systems and electronic reporting procedures evolve.

In addition, because of the continued use of the SF-269 after the final or closeout SF-269 (which is due December 30 immediately following the fiscal year), it was necessary to add text to the regulatory language to make it clear that the audit must have been started within 3 years of the “ final ” (or closeout) SF-269 (which is due December 30 immediately following the end of the Federal fiscal year) to get reimbursement. A revision of the “final” SF-269 after the final or closeout SF-269 would not start a new 3-year audit clock.

The Department proposed to amend the current regulations to correspond to current practice which allows food stamp certification costs for Aid to Families with Dependent Children (AFDC) cases to be charged to the FSP. As the proposed rule noted, the current practice of charging the incremental cost of certifying AFDC households for food stamps to the FSP has been in effect since October 1, 1983, and is based on a 1983 Memorandum of Understanding between the Department and DHHS. Thus, the FSP is only picking up the incremental costs related to the certifying AFDC households for FSP benefits. The incremental cost is the cost for certification questions which are FSP specific. One State agency commented on this provision, agreeing with the change in wording to reflect current practice. The final rule retains the proposed wording as it reflects current practice.

However, since the proposed rule was issued, the Personal Responsibility and Work Opportunity Reconciliation Act (Pub.L. 104-193) replaced the AFDC program with a Temporary Assistance for Needy Families (TANF) block grant. This change is effective July 1, 1997, or sooner if a State agency's request is approved earlier by DHHS. This change does not materially affect the charging of the incremental costs from that proposed in the proposed rule. The final rule retains the proposed wording except for changing the reference from AFDC to TANF in the final rule.

The provisions in § 277.11(d) regarding time limits for State agencies to file claims to amend a prior expenditure report to request retroactive funding for costs previously incurred are effective October 1, 2000.

Pursuant to Section 13971 of the Leland Act, the reduction in FFP rates mandated by Section 13961 of the Leland Act was effective on April 1, 1994, except for those State agencies for which the Department has granted in writing a delay of the April 1, 1994 effective date.

The conforming amendments to FSP regulations in §§ 272.1, 272.2, 272.11, 274.12, 277.4, 277.9, 277.15, 277.18, 277.19, and Appendix A to Part 277 will be effective June 23, 2000.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 96-08-08, amendment 39-9574 (61 FR 18661, April 29, 1996), which is applicable to all Airbus Model A300 B2, A300 B2K, A300 B2-200, A300 B4, A300 B4-100, and A300 B4-200 series airplanes, was published in the Federal Register on December 21, 1999 (64 FR 71333). The action proposed to continue to require certain structural inspections and modifications. The action proposed to require that those inspections be accomplished on additional airplanes. The action also proposed to require new repetitive inspections for airplanes in certain configurations at revised thresholds and intervals.

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

One commenter suggests that the applicability of the proposed AD be revised to include Airbus Model A300C4-200 and A300F4-200 series airplanes. The FAA does not concur that the applicability should be revised to include these airplane models, since they are not type certificated in the U.S. No change is made to the final rule.

One commenter suggests that the proposed AD be revised to include a reference to a related French airworthiness directive. The commenter states that the proposed AD correctly refers to French airworthiness directive 90-222-116(B)R4, which references service bulletins for certain inspections also addressed in this proposed AD, but does not mention 93-154-149(B), which references service bulletins for the modifications addressed by this AD.

The FAA acknowledges that the modifications required by existing FAA AD 96-08-08 were also addressed in related French airworthiness directive 93-154-149(B), dated September 15, 1993. The FAA has no objection to including this reference in this final rule, which continues to require those modifications, and has revised the AD accordingly. However, although the FAA generally references the latest pertinent airworthiness directive issued by another airworthiness authority as an informational NOTE in the AD, this information is not intended to be an exhaustive list of all related mandatory continuing airworthiness information, and should not be considered as such.

To improve the readability of the AD, the FAA has added certain headings to the text of the AD.

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

There are approximately 13 airplanes of U.S. registry that will be affected by this AD.

The actions that are currently required by AD 96-08-08, and retained in this AD, take approximately 2 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the previously required actions on U.S. operators is estimated to be $120 per airplane, per inspection cycle.

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

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

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

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

The FAA has received reports indicating that cracking and buckling of the forward edge of the crew rest heat exchanger has been found on several airplanes. Investigation revealed that certain heat exchangers were manufactured with material that is too thin. On one airplane, the heat exchanger buckled and bulged enough to make contact with the rudder and elevator cables located below the heat exchanger. Such contact between the heat exchanger and the rudder and elevator control cables could eventually dislodge pieces of the heat exchanger or adjacent fasteners. Dislodged pieces or fasteners could cause a jam of the rudder or elevator control cables. This condition, if not corrected, could result in reduced controllability of the airplane.

The FAA has reviewed and approved Boeing Alert Service Bulletin 747-21A2412, dated January 20, 2000. The alert service bulletin describes procedures for repetitive general visual inspections to detect damage or deflection of the crew rest heat exchanger, and follow-on actions, if necessary. If damage or deflection is found, follow-on actions include replacement of the affected heat exchanger with a new heat exchanger, and measurement of the thickness of material of the discrepant heat exchanger. If the thickness of the material is within certain limits, the alert service bulletin specifies that the discrepant heat exchanger should be returned to Boeing.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design, this AD is being issued to detect and correct cracking or buckling of the crew rest heat exchanger, which could result jamming of the rudder or elevator control cables, and consequent reduced controllability of the airplane. This AD requires accomplishment of the actions specified in the alert service bulletin described previously, except as discussed below.

Operators should note that there is a typographical error in the Accomplishment Instructions on page 10 of the alert service bulletin. Item G. under the heading “Inspection and Replacement of the Heat Exchanger (All Airplanes)” reads, “If the material thickness is between 0.028—0.034 inches[,] send the damaged heat exchanger and your inspection results to Boeing.” The number “0.034” should read “0.038.” “NOTE 3” has been included in this AD for clarification of this point.

This is considered to be interim action until final action is identified, at which time the FAA may consider further rulemaking.

None of the airplanes affected by this action are on the U.S. Register. All airplanes included in the applicability of this rule currently are operated by non-U.S. operators under foreign registry; therefore, they are not directly affected by this AD action. However, the FAA considers that this rule is necessary to ensure that the unsafe condition is addressed in the event that any of these subject airplanes are imported and placed on the U.S. Register in the future.

Should an affected airplane be imported and placed on the U.S. Register in the future, it would require approximately 1 work hour to accomplish the required inspection, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this AD would be $60 per airplane, per inspection cycle.

Since this AD action does not affect any airplane that is currently on the U.S. register, it has no adverse economic impact and imposes no additional burden on any person. Therefore, prior notice and public procedures hereon are unnecessary and the amendment may be made effective in less than 30 days after publication in the Federal Register.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-75-AD.” The postcard will be date stamped and returned to the commenter.

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

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

The Federal Energy Regulatory Commission (the Commission) is updating its regulation at Part 388  1 governing fees for paper copies of records available in its Public Reference Room. The Commission is eliminating its existing rule that, as to documents from the Commission's Records and Management Information System (RIMS) which may be viewed electronically, requesters may obtain requests consisting of ten or fewer pages without charge. The Commission is also providing that the schedule of fees for finding and duplicating records from the Public Reference Room will be available on the Commission's Web site. 2

Section 388.109(a)(4) of the Commission's regulations currently states that “[t]he public may purchase hard copies of certain documents from the Commission's Records Management and Information System (RIMS). The fee is 15 cents per page. There will be no charge for requests consisting of ten or fewer pages.” RIMS is a database containing the indexes and images of documents submitted to and issued by the Commission since November 16, 1981. It consists of (a) an electronic database consisting of the scanned-in images of the majority of documents submitted to and issued by the Commission since November 1995 and (b) the majority of documents from 1981 until November 1995 which are available only on microform, a data storage system which includes microfilm and aperture cards. All RIMS documents designated as “public documents” are available to the general public, and the majority of RIMS public documents are accessible for viewing and printing through the Commission's Web site free of charge. This rule will eliminate the practice of providing, without charge, paper copies of ten or fewer pages from documents that are available electronically from RIMS.

Beginning in July 1994, the Commission began scanning images of selected documents into the RIMS electronic database, gradually phasing in additional documents. Since July, 1994, the Commission has accumulated a sizeable library of imaged documents. As of February 2000, RIMS contained 470,753 documents comprised of 7,945,632 pages. In addition, the Commission recently enhanced RIMS further to include an improved print capability which allows easier printing of large blocks of pages and higher quality output. Until April 1998, the general public could only obtain documents from RIMS by contacting or going to the Public Reference Room. Since that date the RIMS electronic database has been available through the Commission's Web site, and all of the documents scanned into the RIMS electronic database are now available for viewing and printing through that means. Users with computers who are able to access the Internet are able to view images and print images to their personal printers at no cost.

Before the Commission made access to the RIMS electronic database available through the Internet, the documents could not be viewed prior to being printed. The Commission's regulations, therefore, allowed individuals to request up to ten pages of a document to be printed from microform without charge to determine if the document, or a portion thereof, was what was actually needed by the requester. Now, however, in addition to having RIMS available in the Public Reference Room, the majority of documents requested from RIMS—namely, those available on the RIMS electronic database—can be viewed by the public on the Commission's Web site without charge. Images of scanned documents may now be previewed, and users can print scanned documents directly to their own printers. Alternatively, users still may come to the Public Reference Room to view images on publicly-available computers. Given that previewing of documents can now be done electronically, the Commission is eliminating the practice of printing ten or fewer pages for free for documents that are available for preview in the RIMS electronic database.

The elimination of the current procedure allowing requesters to obtain print requests of ten or fewer pages without charge will have a minimal effect on the public's ability to obtain public records from the Commission, since it will affect only requests which under the revised rule would cost at most $1.50 per request. Elimination of this procedure will also prevent requesters using the Public Reference Room from submitting multiple requests at the same time, each seeking portions of a document or documents, solely in order to avoid payment of fees.

Certain documents (from 1981 until approximately November 1995) are available only on microform. Because documents stored on microform cannot be viewed via the Internet, requesters of documents from RIMS that are only available on microform will not be charged for requests consisting of ten or fewer pages.

The fee schedule is available upon request from staff of the Public Reference Room. The Commission will also publish the fee schedule on the Commission's Web site.

The Regulatory Flexibility Act (RFA)  3 requires rulemakings to contain either a description and analysis of the effect that the Final Rule will have on small entities  4 or a certification that the rule will not have a significant economic impact on a substantial number of small entities.

This Final Rule eliminates a requester's ability to obtain from the Commission documents that can be previewed from RIMS without charge if the request consists of ten or fewer pages, and provides that the Public Reference Room will publish its fee schedule on the Commission's Web site. The majority of requesters of documents who will be affected by this Final Rule, both large and small entities, are already able to view and print documents from RIMS from the Commission's Web site without charge, and those requesters without Internet access are free to use the computers in the Public Reference Room without charge to preview RIMS documents. The Commission will continue not to charge requesters of documents only available from RIMS microform for requests consisting of ten or fewer pages.

Publishing the fee schedule on the Web site makes it more readily available to requesters and is consistent with the current practice of publishing the fee schedule of the contractor who provides photocopying and other services to the public in the Public Reference Room on the Commission's Web site. 5 These fee schedules are also available upon request from the staff of the Public Reference Room.

The Commission certifies that this rule will not have a significant economic impact on a substantial number of small entities.

Commission regulations require that an environmental assessment or an environmental impact statement be prepared for any Commission action that may have a significant adverse effect on the human environment. 6 No environmental consideration is necessary for the promulgation of a rule that is procedural, ministerial, or related to internal administrative and management actions. 7 The Final Rule changes are procedural in nature and do not substantially change the effect of the underlying legislation or regulations being amended. Accordingly, no environmental consideration is necessary.

Regulations promulgated by the Office of Management and Budget (OMB) require that OMB approve certain information collection requirements imposed by agency rule. 8 This Final Rule contains no information reporting requirements, and is not subject to these OMB regulations.

The Administrative Procedure Act (APA)  9 generally requires agencies to provide notice of proposed rules and opportunity of public comment thereon, but the notice and comment requirement does not apply to “rules of agency organization, procedure, or practice.”  10 This Final Rule does not substantially alter the right of members of the public to obtain documents. Therefore, this is a rule of agency organization, procedure or practice for which notice and comment is not required.

The provisions of 5 U.S.C. 801 regarding Congressional review of Final Rules do not apply to this Final Rule because the rule concerns agency procedure and practice. The Final Rule will not substantially affect the rights and obligations of non-agency parties. 11 Therefore, this Final Rule is effective June 23, 2000.

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

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

• CIPS provides access to the texts of formal documents issued by the Commission since November 14, 1994. CIPS can be accessed using the CIPS link or the Energy Information Online icon. The full text of this document will be available on CIPS in ASCII and WordPerfect 8.0 format for viewing, printing, and/or downloading.

• RIMS contains images of documents submitted to and issued by the Commission after November 16, 1981. Documents from November 1995 to present can be viewed and printed from FERC's Home Page using the RIMS link or the Energy Information Online icon. Descriptions of documents back to November 16, 1981, are also available from RIMS-on-the-Web; requests for copies of these and other older documents should be submitted to the Public Reference Room.

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

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

Confidential business information, Freedom of information

The interim regulations that are the subject of this correction were published in the Federal Register on Friday April 7, 2000 (65 FR 18866). Amendatory instruction 4 of those regulations inadvertently referred to § 210.5 rather than § 210.5(a). This correction makes clear that § 210.5(b) remains unchanged from the rule as published on April 9, 1999 (64 FR 17472).

In rule FR Doc. 00-8626 published on April 7, 2000 (65 FR 18866) make the following correction:

The AMTRAK Portal Bridge has a vertical clearance of 23 feet at mean high water and 28 feet at mean low water. The existing regulations for the bridge in 33 CFR 117.723(c) require the bridge need not be opened Monday through Friday, except federal holidays, from 7:20 a.m. to 9:20 a.m. and from 4:30 p.m. to 6:50 p.m. At all other times, openings may not be delayed for more than 10 minutes, unless the drawtender and the vessel operator communicating by radiotelephone, agree to a longer delay.

The bridge owner, AMTRAK, asked the Coast Guard to allow the bridge to remain closed from 7 a.m. on June 3, 2000 through 7 a.m. on June 4, 2000 and from 7 a.m. June 10, 2000 through 7 a.m. June 11, 2000. This deviation is necessary to facilitate repairs to the brakes at the bridge.

In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation is authorized under 33 CFR 117.35.

On January 7, 2000 the Coast Guard published a notice of proposed rulemaking (NPRM) entitled Termination of Regulated Navigation Area: Monongahela River, Mile 81.0 to 83.0 in the Federal Register (65 FR 005). The Coast Guard received no letters commenting on the proposed rule. No public hearing was requested, and none was held.

The regulated navigation area was established on November 29, 1991 to ensure the safety of vessel traffic and workers during the construction of Grays Landing Lock. The need for the Regulated Navigation Area no longer exists because all construction on Grays Landing Lock has been completed and the river's width is no longer restricted in this area. Therefore, since the safety concerns that necessitated the regulation no longer exist, this rule removes the regulation establishing this Regulated Navigation Area in § 165.819.

No comments were received.

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

The Coast Guard expects the economic impact of this rule to be minimal therefore a full regulatory evaluation is unnecessary. The impact on routine navigation is expected to be minimal.

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

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.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

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

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

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

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

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

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

As authorized by 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) was not published for this regulation. Under 5 U.S.C 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM and for making this rule effective less that 30 days after publication in the Federal Register . Due to the complex planning and coordination involved final details for the closure were not provided to the Coast Guard until April 30, 2000, making it impossible to publish a NPRM or a final rule 30 days in advance. Any delay in implementing this rule would be contrary to the public interest since immediate action is necessary to close this section of the waterway and protect the maritime public from the hazards associated with the handling, loading and transportation of major components containing class 7 hazardous waste from a nuclear power plant onto a barge.

Beginning May 22 and ending July 22, 2000, Stone and Webster, the decommissioning contractor, will load and transport four major components from the Maine Yankee Nuclear Plant to a barge in the Maine Yankee barge slip in Wiscasset, Maine. This regulation establishes a temporary safety zone within 200-yard radius around the southeast corner of the Maine Yankee Barge slip located at position 43°56′55″ N, 069°41′53″ W. This would effectively preclude entry into the cove between Bailey's Point and Foxbird Island and portions of the Eastern Shore of Bailey Cove. This rule is necessary to protect the maritime public from hazards associated with the loading of components of a nuclear power plant, which contain class 7 hazardous waste, onto a barge.

This temporary final 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. 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 10e of the regulatory policies and procedures of DOT is unnecessary. This conclusion is based on the fact that the proposal has no significant effect on shipping, and its impact on fishing is minimal as it removes a small portion (less than one square mile) of the available fishing grounds from active fishing.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), the Coast Guard must consider whether this proposal will have a significant economic impact on a substantial number of small entities. “Small entities” may include (1) Small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields and (2) governmental jurisdictions with populations of less than 50,000.

For the reasons addressed under the Regulatory Evaluation above, the Coast Guard expects the impact of this regulation to be minimal and certifies under section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) that this final rule will not have a significant economic impact on substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: The commercial fishing community intending to fish portions of Wiscasset restricted by the safety zone.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: it only affects a very small portion of the waterway and commercial fishing community will be able to utilize other areas of waterway for commercial purposes.

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

The Coast Guard has analyzed this rule under the principles and criteria contained in Executive Order 13132 and have determined that this rule does not have sufficient federalism 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 costs without the Federal government's having first provided the funds to pay those costs. This rule will not impose an Unfunded Mandate.

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

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

The Coast Guard has analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

The Coast Guard has considered the environmental impact of this regulation and concluded that, under Figure 2-1, paragraph 34(g) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation. A Categorical Exclusion Determination and an Environmental Analysis Checklist is available in the docket for inspection or copying.

It has been the practice of the United States Patent and Trademark Office (Office) to accept payment of fees for information products by credit card, but not to accept patent process fees or trademark process fees by credit card. The Office recently revised 37 CFR 1.23 to expressly permit payment of fees by credit card “in an electronically filed trademark application or electronic submission in a trademark application.” See Trademark Law Treaty Implementation Act Changes, Final Rule, 64 FR 48989, 48917 (September 8, 1999), 1226 Off. Gaz. Pat. Office 103, 120 (September 23, 1999) (TLTIA Final Rule). As explained in the TLTIA Final Rule:

The Office is now amending the rules of practice to permit payment of any patent process fee, trademark process fee, or information product fee by credit card, subject to actual collection of the fee. The Office will provide a Credit Card Payment Form (PTO-2038) for use when paying a patent process or trademark process fee (or the fee for an information product) by credit card. The Office will not require customers to use this form when paying a patent process or trademark process fee by credit card. If, however, a customer provides a credit card charge authorization in another form or document ( e.g ., a communication relating to the patent or trademark), the credit card information may become part of the record of an Office file that is open to public inspection. Information concerning fees in general is posted on the Office's Web site at http://www.uspto.gov, and information on completing the Credit Card Payment Form will be posted on the Office's Web site.

The Office will not include the Credit Card Payment Form (PTO-2038) among the records open to public inspection in the file of a patent, trademark registration, or other proceeding. The Credit Card Payment Form (PTO-2038) is the only form the Office uses to collect credit card information during a patent, trademark, or other proceeding. The Credit Card Payment Form (PTO-2038) is the only form the Office will not make available to the public as part of the file of a patent, trademark, or other proceeding. As discussed above, failure to use the Credit Card Payment Form (PTO-2038) when submitting a credit card payment may result in your credit card information becoming part of the record of an Office file that is open to public inspection. If the cardholder includes a credit card number on any form or document other than the Credit Card Payment Form, the Office will not be liable in the event that the credit card number becomes public knowledge.

35 U.S.C. 42(d) and § 1.26 (which concern refund of patent and trademark fees) also apply to requests for refund of fees paid by credit card. Any refund of a fee paid by credit card will be by a credit to the credit card account to which the fee was charged. The Office will not refund a fee paid by credit card by Treasury check, electronic funds transfer, or credit to a deposit account (§ 1.25).

Finally, any payment of a patent process or trademark process fee by credit card must be in writing ( see § 1.2), preferably on the Credit Card Payment Form (PTO-2038). If a Credit Card Payment Form or other document authorizing the Office to charge a patent process or trademark process fee to a credit card does not contain the information necessary to charge the fee to the credit card, the customer must submit a revised Credit Card Payment Form or document containing the necessary information. Office employees will not accept oral (telephonic) instructions to complete the Credit Card Payment Form or otherwise charge a patent process or trademark process fee (as opposed to information product or service fees) to a credit card.

Title 37 of the Code of Federal Regulations, Part 1, is amended as follows:

Section 1.21: Section 1.21(m) is amended to make the $50.00 fee for processing a check returned “unpaid” by a bank applicable to any payment refused or charged back by a financial institution. The burden of processing any payment refused or credit card transaction charged back by a financial institution is the same as the burden of processing a check returned “unpaid” by a bank. The phrase “payment refused * * * by a financial institution” includes a check returned “unpaid” by a bank but also applies to the refusal by a financial institution of a payment by other means.

Section 1.23: Section 1.23(a) is amended to add the phrase “national bank notes” in the first sentence. This phrase was inadvertently deleted in the TLTIA Final Rule.

Section 1.23(b) is amended by revising the first sentence to eliminate the restriction that the payment of money required for United States Patent and Trademark Office fees by credit card be limited to fees “in an electronically filed trademark application or electronic submission in a trademark application.”

The Office published a notice (Notice of Proposed Rulemaking) proposing changes to the rules of practice to implement payment of patent and trademark fees by credit card. See Changes to Permit Payment of Patent and Trademark Office Fees by Credit Card, Notice of Proposed Rulemaking, 64 FR 59701 (November 3, 1999), 1228 Off. Gaz. Pat. Office 163 (November 23, 1999). The Office received fifteen written comments in response to the Notice of Proposed Rulemaking. Most of the comments supported changing the rules of practice to permit payment of all patent and trademark fees by credit card. Other comments and the Office's responses to the comments follow.

Comment (1): One comment suggested that the Office revise § 1.23 to permit customers to designate their deposit account as overdraft protection for check and credit card payments. The comment further suggested that the charge in § 1.21(m) should be less for those customers designating their deposit account as overdraft protection for check and credit card payments.

Response: Section 1.25 currently permits customers to provide a general authorization to charge fees to a deposit account. Therefore, no change to § 1.23 is necessary to permit customers to authorize the charging of any fee deficiency ( e.g., due to a returned check or refused charge) to a deposit account. Since the Office's cost of processing the returned check (or refused charge) is not decreased because a customer has authorized the charging of the fee deficiency resulting from the returned check or refused charge to a deposit account, the Office is not providing a lower fee for processing a returned check or refused charge in such a situation. Nevertheless, customers may still wish to provide an authorization to charge fee deficiencies ( e.g., due to a returned check or refused charge) to a deposit account to avoid the adverse results of non-payment of a fee ( e.g., loss of a filing date in a trademark application or abandonment of a patent or trademark application).

Comment (2): One comment suggested that the Office permit use of direct bank debit cards.

Response: The Office currently does not accept payment by bank debit cards, since these cards usually require the use of a personal identification number (or PIN). The Office will add other methods of payment (including bank debit cards) as soon as the systems and procedures for implementing them have been developed.

Comment (3): Another comment suggested that the Office permit the use of a “re-chargeable” credit card ( i.e., a card having a pre-applied balance against which charges may be made).

Response: A “re-chargeable” credit card program would operate in a manner similar to the existing deposit account program. Thus, a “re-chargeable” credit card program in addition to the current deposit account program does not have sufficient benefit to justify the administrative burden of maintaining these two duplicative programs.

Comment (4): Several comments suggested that the Office permit use of an AMERICAN EXPRESS® card because it has no upper limit. Another comment suggested that the Office permit use of all major credit cards, including AMERICAN EXPRESS® cards and DINER'S CLUB® cards. Another comment suggested that if the Office intends to accept AMERICAN EXPRESS® cards, the language of § 1.23 must be changed since AMERICAN EXPRESS does not consider its card to be a credit card.

Response: The Office desires to maximize convenience to its customers and is committed to adding additional credit cards and other methods of payments as soon as the systems and procedures for implementing them have been developed. In the meantime, the Office currently accepts charges to the following credit cards: AMERICAN EXPRESS®, DISCOVER®, MASTER CARD®, and VISA®. The Office considers each of these cards to be a “credit card” within the meaning of § 1.23.

Comment (5): One comment suggested that the Office should retain the Credit Card Form (PTO-2038) in the file of the patent or trademark proceeding (simply redacting the credit card number) so that third parties may determine whether the proper fee was actually authorized and paid.

Response: The Office file of a patent or trademark proceeding in which a fee was paid by credit card will contain a printout from the Office's Revenue Accounting and Management (RAM) system of the fee authorized and paid. When a fee is paid by check in a patent or trademark proceeding, the Office file includes only a printout from the RAM system of the fee paid and an indication that it was paid by check. A copy of the check used to pay the fee is not retained in the file for review by third parties. There is no need to have a different practice for credit card payments.

Comment (6): One comment suggested that the proposed change to permit patent and trademark payments by credit card is an excellent idea, especially if the Office permits the Credit Card Form (PTO-2038) to be submitted by facsimile.

Response: Credit card payments by facsimile will be permitted except in situations in which facsimile submission of correspondence is not permitted in § 1.6(d). Customers will be responsible for transmitting the credit card form to the correct organization within the Office by use of the correct facsimile number.

Comment (7): One comment suggested that the Office should permit a general authorization to charge fees to a credit card, rather than requiring customers to specify an exact amount. Another comment suggested that the Office permit customers to specify a charge amount of “up to and including XX” (the top estimated fee due).

Response: The Office currently does not have systems and procedures in place to accept authorization to charge an unspecified amount to a credit card. However, the Office desires to maximize convenience to its customers and is looking into ways for customers to pay by credit card without specifying the exact dollar amount.

Comment (8): One comment suggested that if a customer uses his or her own form containing the same information as the Credit Card Form (PTO-2038), the Office should accept and treat such information with the same liability as with the Credit Card Form (PTO-2038).

Response: When a customer uses his or her own form containing the same information as the Credit Card Form (PTO-2038) in a patent or trademark proceeding, the Office will attempt to redact the credit card number (except for the last four digits) from the form before it is placed in the file of the patent or trademark proceeding. Nevertheless, the Office strongly encourages customers to use the Office's Credit Card Form (PTO-2038) when paying fees by credit card. The Office will not accept liability for release of credit card information when a customer chooses to use his or her own form rather than the Office's Credit Card Form (PTO-2038).

Comment (9): One comment suggested that the Office could avoid including credit card information in a file open to public inspection (as an alternative to the Credit Card Form (PTO-2038)) by assigning a number or other identifier to a credit card and permitting the customer/cardholder to charge fees to that credit card by reference to the pre-assigned number or identifier.

Response: The Office currently does not store credit card information within any financial systems or databases for access by fee-processing personnel. The Office desires to maximize convenience to its customers and is looking into ways to assign and maintain numbers or identifiers for each credit card number. The Office will implement such a practice as soon as the necessary systems and procedures have been developed.

Comment (10): One comment suggested that the fees charged by credit card institutions for use of a credit card should be borne solely by customers who pay fees by credit card. The comment specifically suggested that the Office impose a surcharge in excess of the given patent or trademark fee on all credit card payments.

Response: Merchant fees charged for credit card transactions are paid by the Department of the Treasury. Processing credit card transactions results in lower costs to the Federal Government when compared to processing payments made by checks. Therefore, there is no need to impose a surcharge for credit card transactions.

Comment (11): One comment suggested that the Office does not always properly expunge information that should not be part of a record open to public inspection, so the Office should inform the public of its expected compliance rate in another notice of proposed rulemaking before adopting a final rule change. Alternatively, the comment suggests that the Office should accept liability for any erroneous disclosure of credit card information included on the Credit Card Form (PTO-2038).

Response: In view of the overwhelming support for the proposed change to permit payment of patent and trademark fees by credit card (and for the prompt adoption of such change), the Office considers it to be contrary to the public interest to delay the adoption of this final rule. The incidental situations in which confidential information was inadvertently released to the public do not warrant delay particularly since use of a credit card is optional.

Pursuant to the authority at 5 U.S.C. 553(d)(1), the amendment to § 1.23 is excepted from the thirty-day advance publication requirement of 5 U.S.C. 553(d) because it relieves a restriction.

The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy, Small Business Administration, that the changes in this final rule will not have a significant impact on a substantial number of small entities (Regulatory Flexibility Act, 5 U.S.C. 605(b)). The Office did not previously permit patent or trademark fees (except in an electronically filed trademark application or electronic submission in a trademark application) to be paid by credit card. The changes in this final rule will permit small entities as well as non-small entities the option of paying any patent or trademark fee by credit card. Small entities as well as non-small entities will continue to have the option of paying any patent or trademark fee by check, treasury note, national bank note, money order, or charge to a deposit account. Based upon the number of small entities who pay fees to the Office each year and the percentage of fee payments that are by credit card (where currently permitted), the Office expects 16,000 small entities to pay a patent or trademark fee by credit card each year. Thus, the changes in this final rule will not have a significant economic impact on any business.

This rulemaking does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (August 4, 1999).

This rulemaking has been determined to be not significant for purposes of Executive Order 12866 (September 30, 1993).

This final rule involves information collection requirements which are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the Office has submitted an information collection package to OMB for its review and approval. The title, description, and respondent description for this information collection is shown below with an estimate of the annual reporting burdens. Included in the estimate is the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

OMB Number: 0651-0043.

Title: United States Patent and Trademark Office Fees.

Form Number: PTO-2038.

Type of Review: Approved through January of 2003.

Affected Public: Individuals or households, businesses or other for-profit, not-for-profit institutions, farms, state, local or tribal governments, and the Federal Government.

Estimated Number of Respondents: 100,000 responses per year.

Estimated Time Per Response: 12 minutes.

Estimated Total Annual Respondent Burden Hours: 20,000 hours per year.

Needs and Uses: Persons submitting fees to the Office need to provide information concerning the purpose for the fee so that the Office is able to: (1) apply the fee to the particular application, patent, trademark registration, or other proceeding, service or product; and (2) determine whether the person has submitted the fee(s) required by law or regulation. The Credit Card Form provides the public with a convenient manner of paying a patent application or service fee, trademark application or service fee, or information product fee by credit card.

Interested persons are requested to send comments regarding the burden estimate or any other aspects of the information requirements, including suggestions for reducing the burden, to Robert J. Spar, Director, Office of Patent Legal Administration, United States Patent and Trademark Office, Washington, D.C. 20231, or to the Office of Information and Regulatory Affairs of OMB, New Executive Office Building, 725 17th Street, N.W., Room 10235, Washington, D.C. 20503, Attention: Desk Officer for the United States Patent and Trademark Office.

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

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

The EPA is promulgating final approval of revisions to the Albuquerque CO maintenance plan. The original plan was approved in 1996 (61 FR 29970). In a document published December 20, 1999, the EPA published a direct final approval of revisions to the CO maintenance plan and related conformity budgets (64 FR 71027), with a companion proposed rule (64 FR 71086). The companion proposed rule was published in the event we received adverse comments, which we did. The direct final rule was withdrawn on February 14, 2000 (65 FR 7290). That document indicated that final action would be forthcoming.

The EPA also proposed approval of a Motor Vehicle Emissions Budget (MVEB) for 2010 for the CO maintenance area. That notice was published on February 29, 2000, beginning a 30 day public comment period (65 FR 10437). No comments were received on this proposed action.

Today's action is final approval and promulgation of both actions.

First, we are approving revisions to the CO maintenance plan's emission inventory for the nonattainment area. The following table summarizes the emission inventory for Albuquerque.

These MVEB's will be used for transportation conformity purposes, replacing the budgets in the original maintenance plan. The five year Transportation Improvement Program (TIP) and 20 year transportation plans for the Albuquerque region and corresponding emissions from on-road vehicles cannot surpass the above budgets.

This action concerns only approval of the revised maintenance plan and MVEB's. Since December of 1999, the Albuquerque area has been in a conformity lapse, during which time certain transportation projects cannot be approved, accepted, or funded. The EPA is making this action effective upon publication to facilitate the conformity process.

The EPA reminds all parties that this document does not end the conformity lapse. The EPA, FHWA, State, and local planning agencies are working to complete the conformity process. The final conformity determination will be made by the FHWA.

Under the Administrative Procedures Act (APA), 5 U.S.C. 553(d)(3), agency rule makings may take effect before 30 days after the date of publication in the Federal Register if an agency has good cause to mandate an earlier effective date. It's the EPA's position that approving the necessary budgets as soon as possible, in the interest of facilitating the end of the conformity lapse, is cause to support making this action taking effect on publication.

5. What Comments Did EPA Receive to the Direct Final Notice?

Several parties stated that the Albuquerque Environmental Health Department (AEHD) is inverting the conformity process by setting a MVEB budget to fit a transportation plan. One party stated that the AEHD elected to revise the maintenance plan budget when the transportation plans could not conform. The party further stated that there is no data to show that the increase in VMT being incorporated into the budget is due solely to the unexpected growth in population.

The Clean Air Act as Amended in 1990, hereafter referred to as “the Act,” does not prohibit that maintenance areas review and revise their maintenance plans. As long as areas demonstrate continued maintenance, areas may revise them at their discretion, in accordance with the requirements of the Act, EPA's rules, and applicable guidance. Many areas revise them to estimate, more accurately, emissions that have grown at a rate different than the rate assumed in the original maintenance plan. All maintenance plans are revised after eight years, extending them an additional ten years. The AEHD elected to revise several elements of the inventory to make it more accurate. All of the emissions categories were revised as a result of this review.

Similarly, the Act allows areas to revise their Motor Vehicle Emissions Budget, so long as the area demonstrates they will maintain the standard. The revision submitted to the EPA shows total emissions in the area will remain at or below the emissions quantified in the attainment year. This constitutes an acceptable demonstration of continued attainment of the CO standard. (See the Act section 110, see also the preamble to the conformity rule at 58 FR 62196 on how to revise the budget and see 40 CFR 93.118).

The party alleged that the AEHD incorporated inappropriate assumptions used in the transportation model into the mobile modeling used to support the SIP revision. The party objected to straight-line interpolation of VMT levels as an inappropriate technique to estimate emissions.

The EPA provided for interpolation as an acceptable method of estimating emissions for regulatory purposes in guidance documents for completing SIP's. Specifically, the EPA guided planning agencies to use interpolation to estimate emissions for projected inventories, where it would be too costly and time-consuming to generate analyses for the interim years within a specified time period. The EPA issued this guidance for VMT growth factors (Procedures for Preparing Emissions Projections, 1991, page 29), and speeds (Procedures for Emission Inventory Preparation, 1992, page 31), and therefore, emissions.

In the case of Albuquerque, the MPO projected VMT for 1995, 2000, 2005, and 2010 using their transportation model, and per EPA guidance, calibrated the model using Highway Performance Measurement System (HPMS)-based factors. Since the maintenance plan was required to begin in 1996 and conclude in 2006, the AEHD used interpolation to determine the appropriate emissions for interim years. This is acceptable under EPA guidance.

The EPA reviewed the other Mobile5a inputs that represent assumptions about local conditions. It is EPA's position that these assumptions are reasonable and represent the best information currently available.

The party stated that the AEHD incorrectly estimated the impact of Big-I construction on vehicle speeds during construction, and VMT on alternative routes due to construction.

The AEHD is not required to quantify and incorporate the impact of construction in their MVEB in the SIP, because the impact of such construction is considered temporary. Emission inventory guidance does not instruct areas to quantify mobile emissions at the level of discrete construction projects.

We would point out that we cannot make an exception for a violation of the standard that could be attributed to temporary traffic conditions related to construction. While the MVEB does not have to include these temporary emissions, we do support the efforts of the AEHD and other agencies to mitigate them during the construction phase to avoid possible violations.

The party alleged that the AEHD used the 2010 roadway network to calculate emissions for the 2006 projections.

The proposed revision does not use the 2010 road network as the basis for determining VMT and then emissions in 2006. The projections for 2006 were based on interpolation between the two years for which the AEHD conducted VMT and emissions analysis using the more direct method of estimation. This method used complete street inventories, as they are expected to be in 2005 and 2010. Interpolation between these years allocates growth in VMT and emissions to each year during the period being studied. This does not mean that the impact of all road improvements scheduled to take place between 2005 and 2010 are being used to calculate emissions in 2006. As mentioned in a previous response, this interpolation technique is acceptable under EPA guidance.

The party stated that the AEHD used travel demand management programs (TDM's) or transportation control measures (TCM's) to reduce VMT used to set the emissions budget, even though the TDM's and TCM's do not have designated sources of funding and are not in the federally approved SIP.

The AEHD did not use any TCM's or TDM's to calculate the base emission inventory, project future inventories, or set the corresponding MVEB's. The AEHD used VMT projections provided to them by the Middle Rio Grand Council of Governments, the authorized MPO in the area. In a letter dated March 26, 1997, the AEHD specifically requested that the MPO not use any VMT reduction programs in the analysis they were to submit. The City's revision package submitted to the EPA included a summary of the VMT calculation methodology written by the MPO, dated September 11, 1997. That summary stated that the MPO did not use any VMT mitigation programs in the VMT estimates that they were providing. These estimates were then used in the inventory process.

The party referred to measures used to mitigate VMT growth in the effort to meet the MVEB. Those measures were not in the SIP revision, but were incorporated into the conformity analysis, as permitted under the transportation conformity rule. The conformity analysis is under review by the EPA. After review and comment by the EPA, FHWA issues its determination on conformity.

The party alleged that population was attributed to areas that will not have road access until after 2020.

The EPA would remind the party that the action is for approval of the maintenance plan to 2006, and the MVEB to 2010. The EPA reviewed maps available to the general public (“tiger” maps generated on April 28, 2000, from http://www.census.gov) at the U.S. Census Bureau web site of the referenced areas, and found road access to these areas.

The party stated that the road improvements from the Big I project would induce changes in trip patterns, traffic patterns, and speed that were not adequately captured in the modeling.

The model used by the MPO is appropriate and able to represent these changes. It is EPA's position that the MPO followed appropriate guidance in using the model to project changes in VMT and speed that result from transportation system improvements, the kind of changes in VMT the model was designed to measure.

The party alleged that compliance with the Inspection and Maintenance (I/M) program and anti-tampering enforcement rates were too high. The party said that a 95 percent compliance rate was too high, and the AEHD should have used 90 percent compliance.

The AEHD based their assumption on the national default rate, 96 percent, for approved I/M programs. The AEHD reduced the compliance rate from 96 to 95 percent to be slightly more conservative than the national compliance factor. The EPA receives and reviews periodic summary reports for the program, and finds the assumption reasonable.

The party stated that the AEHD used national default fleet mix and national default mileage accrual rates, when they should have developed their own fleet mix and mileage rates from the I/M program.

Agencies using the Mobile model may use EPA's national default values for these model inputs (See Mobile 5 Users manual). Although the EPA acknowledges that data generated locally is likely to reflect local conditions more accurately, this is at the discretion of the planning agencies. EPA's default values are acceptable for areas that elect not to develop their own, until the EPA can update the model and related default values.

The party objected to setting urban and rural local road speeds to a constant 25 and 20 miles per hour.

The modeling does reflect that the MPO set traffic speed on all urban local roads to an average of 25 miles per hour, and traffic on rural local roads to average 20 miles per hour. An assumption had to be made because the HPMS does not provide data on local roads. For all other road categories, the model employs actual field data to calibrate speeds. The assumption of 20 and 25 miles per hour on local roads was reasonable, and resulted in higher emission factors than such factors for any other road class. The proportion of all traffic on local roads was about ten percent. Local planning agencies are left to make reasonable judgments to estimate speed on these roads. In EPA's opinion, these are reasonable assumptions.

The EPA further analyzed this issue by comparing the VMT and speed data used in the SIP to the data used in the transportation plans now under conformity review. The MPO used the same projected VMT and speed estimates for this SIP, and the corresponding transportation plan and TIP. Since the MPO used identical numbers for both analyses, the impact of the traffic speed assumption vis-a-vis another assumption is minimal.

The party alleges that the AEHD modeled lower speeds and lower emissions by using a speed enforcement program, without documentation to support including such a program.

The projected speeds used to compute the emissions in the SIP revision decreased slightly over time. The EPA reviewed the emission projections in detail and concluded that lower speeds are more a product of increased VMT. Speed estimates on such roadway segments are the product of the transportation model. As pointed out above, the Albuquerque MPO appropriately employed an endorsed model that, under an assumption of continued VMT growth, would induce lower speeds in future years.

The Party contends that the Albuquerque vehicle fleet is not as clean as the national average. The party also stated that the model runs did not differentiate the fleet mix by roadway class.

Under EPA guidance, the AEHD can rely on national default values for vehicle fleet mix and vehicle mileage accrual rates. When the model uses defaults for the mix and mileage rates, the fleet mix by roadway class also becomes an implicit default variable. (Mobile 5 Users Guide, sec. 2.2.2, and 2.2.3).

The Party contends that the goal for decreasing reliance on the Single Occupant Vehicle (SOV) was relaxed from the 2015 plan to the 2020 plan.

Beyond a demonstration of continued maintenance, the issue is not germane to this action. Local agencies have the discretion to elect how they will maintain the standard. The EPA encourages areas to take actions to reduce reliance on the SOV. However, AEHD's revision demonstrates continued attainment with credible analysis, which meets the requirements of the Act.

The Party contends that the 1.4 billion dollars needed to implement the 2020 Plan has not been secured, because the Regional Transit Authority was not granted taxing authority. The Party claims that a line item of $100 million dollars in the 2000 to 2005 plan to purchase busses was deleted, but remained in the first five years of the 2020 plan.

The comment is not germane to this SIP action, because transit improvements were not employed in generating the VMT projections used by the AEHD to project emissions for the inventory and MVEB. The issues of fiscal constraint are beyond the scope of this SIP approval action and should be addressed in the transportation conformity process.

The Party alleges that building additional road capacity produces more VMT, but that the model is inadequate to capture this. The party contends that the model predicts lower emissions as a result of road expansion, when the model should predict more emissions.

The MPO used an endorsed transportation model, currently the best tool available to planning agencies. All areas that employ models must show that their model predicts, with reasonable accuracy, the impact of transportation improvements. This process, called calibration and validation, was performed in order for the modeling results to be acceptable. The EPA encourages the party to bring their concerns into the conformity process through the established public participation process.

The Party states that they regularly commute by bicycle, and observes fewer bicycles on the road despite the increase in facilities. The party says this observation contradicts the assumption of the MPO that increased bicycle ridership will reduce VMT.

The assumption of increased bicycle ridership was not used to estimate VMT, and therefore did not affect emissions in the SIP MVEB.

The Party asked if recent ozone readings presage nonattainment of ozone, that would result through a greater allowance for CO emissions.

The AEHD is not required to demonstrate maintenance of the ozone standard in order to revise their CO maintenance plan in the CO SIP. The concept of conformity was created in the Act to insure that the growth of VMT and on-road emissions did not interfere with attainment and maintenance of national standards. Any actions that AEHD or EPA might take to continue ozone maintenance must be under the legal framework established for control of ozone precursors. Currently there is no monitoring data that indicate ozone violations. If evidence ever shows there are violations, the EPA can issue a SIP call for the area to submit an ozone SIP. An EPA SIP call and/or a designation to ozone nonattainment would, in fact, compel the area to perform conformity analysis for ozone precursors.

The EPA is acting on a revision to the CO SIP, which meets the requirements for such a revision.

The Party asked what would prevent the AEHD from asking for another revision to the MVEB, in three or four years?

The AEHD could request another revision to the MVEB at a later date. The AEHD must extend the initial maintenance plan an additional ten years before the initial maintenance plan expires in 2006. However, basin-wide emissions must remain below 389 tons per day as established in the maintenance plan.

The Party asks that the EPA issue a conditional approval, with the condition that the transportation model be improved. The Party also requested that approval be conditioned on a commitment from the MPO to a balanced transportation system.

The EPA's review and approval is based on whether the Albuquerque area can maintain the CO standard and prevent violations of the CO standard with a revised MVEB (see section 110 of the Act). It's EPA's opinion that AEHD successfully demonstrated that Albuquerque will continue to maintain the CO standard with a revised MVEB.

The EPA received no comments to that proposed rule.

Albuquerque must revise the maintenance plan again by 2004, to extend the maintenance plan an additional 10 years from the final year of the current plan, 2006. This will cover the years from 2006 to 2016. This may result in changes to the 2006, and 2010 budgets established today. Regardless, the area must remain below the total level of CO emissions established in the maintenance plan to demonstrate continued attainment of the standard.

The EPA is approving revisions to the Albuquerque/ Bernalillo County carbon monoxide (CO) State Implementation Plan (SIP). This action is a final approval of revisions to each of the categories of the CO emissions inventory, the basin-wide total of CO emissions for the area, and the CO Motor Vehicle Emissions Budgets for 1996, 1999, 2002, 2005, 2006, and 2010. The CO Motor Vehicle Emissions Budgets must be used for transportation conformity purposes once this approval is effective.

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

Executive 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) revokes and replaces Executive Order 12612, “Federalism,” and Executive Order 12875, “Enhancing the Intergovernmental Partnership.” Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. The 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 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 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 Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Executive Order 13045, entitled “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.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This final rule is not subject to Executive Order 13045 because it approves a State program.

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 rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

The Regulatory Flexibility Act, 5 U.S.C. 600 et seq. , generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rule making requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Act, preparation of a flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Act forbids EPA to base its actions concerning SIPs on such grounds. See Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The 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 can not take effect until 60 days after it is published in the Federal Register . This action is not a “major” rule as defined by 5 U.S.C. 804(2). This rule will be effective May 24, 2000.

Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 24, 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).

We are publishing these amendments without prior proposal because we view these amendments as noncontroversial and anticipate no adverse comment. However, in the “Proposed Rules” section of today's Federal Register publication, we are publishing a separate document that will serve as the proposal to these amendments if adverse comments are filed. These amendments will be effective on July 24, 2000, without further notice unless we receive adverse comment on the parallel proposal by June 23, 2000. If we receive such comments, we will publish a timely withdrawal in the Federal Register informing the public that these amendments will not take effect. We will address all public comments in a subsequent final amendment package based on the proposed amendments. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. If no comments are received, the public is advised that these amendments will be effective on July 24, 2000, and no further action will be taken on these amendments.

Entities regulated by this action are existing MWC units with the capacity to combust greater than 250 tons per day of municipal solid waste (MSW) (large MWC units) unless the unit is subject to a section 111(d)/129 State plan that has been approved by EPA and is currently in effect. Regulated categories and entities include the following North American Industrial Classification System (NAICS) codes and Standard Industrial Classification System (SIC) codes.

The foregoing table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by the MWC Federal plan. For specific applicability criteria, see 40 CFR 62.14100 and 62.14102.

Comments may be submitted electronically. Send electronic submittals to: “A-and-R-Docket@epamail.epa.gov”. Submit electronic comments in American Standard Code for Information Interchange (ASCII) format. Avoid the use of special characters and any form of encryption. Electronic comments on the proposed amendments to the Federal plan may be filed online at any Federal Depository Library. Comments and data will also be accepted on disks in WordPerfect® version 5.1 or 6.1 file format (or ASCII file format). Address all comments and data for the proposal, whether on paper or in electronic form, such as through e-mail or disk, to Docket No. A-97-45/ Category V-D.

For information regarding the implementation of the MWC Federal plan, contact the appropriate EPA Regional Office as shown in table 1. This table has been updated since published on November 12, 1998 (63 FR 63193).

The information presented in this preamble is organized as follows:

We are amending part 62 to reflect the receipt of negative declaration letters. A negative declaration letter is a letter from a State authority certifying that there are no designated facilities (MWC units with a capacity to combust greater than 250 tons per day of municipal solid waste) in the State. The negative declaration letter is submitted in lieu of a State plan. We are documenting the receipt of negative declarations by amending 40 CFR part 62, subparts C (Alaska), D (Arizona), E (Arkansas), G (Colorado), I (Delaware), J (District of Columbia), N (Idaho), S (Kentucky), T (Louisiana), Z (Mississippi), BB (Montana), DD (Nevada), GG (New Mexico), JJ (North Dakota), NN (Pennsylvania), QQ (South Dakota), SS (Texas), TT (Utah), XX (West Virginia), YY (Wisconsin), ZZ (Wyoming), BBB (Puerto Rico), and CCC (Virgin Islands).

We published in the Federal Register of November 12, 1998 (63 FR 63191) the final rule establishing a Federal plan to implement emission guidelines for large MWC units located in areas not covered by an approved and currently effective State plan. We are making the following technical amendments and updates to the MWC Federal plan.

We are amending table 1 of subpart FFF (40 CFR part 62) to add MWC units for which a State plan was approved and became effective since the final MWC Federal plan was published in November 1998. MWC units covered by the State plans for Alabama, Maine, Maryland, Oklahoma, Pennsylvania and Washington are added to table 1 of subpart FFF.

We are amending table 5 of subpart FFF (40 CFR part 62) by adding footnote e to clarify that in all cases for all large MWC units, final compliance with all emission limits including the mercury and dioxins/furans emission limits must be achieved no later than December 19, 2000. This footnote was inadvertently omitted from the final MWC Federal plan. The addition of this footnote makes table 5 consistent with the requirements of the Clean Air Act, the emission guidelines, and tables 4 and 6 of subpart FFF. Sections 129(b)(2) and (3) of the Clean Air Act require State and Federal plans to ensure that each unit subject to the emission guidelines is in compliance with all requirements of the guidelines not later than 5 years after the guidelines are promulgated. Section 60.39b(d) of the emission guidelines requires each unit subject to the emission guidelines to be in compliance with the mercury and dioxins/furans emission limits no later than 5 years after promulgation of the guidelines. The emission guidelines, which are implemented by either the Federal or a State plan, were promulgated on December 19, 1995, making the final compliance date for mercury and dioxins/furans for all large MWC units December 19, 2000. The emission guidelines require that the owner or operator of an affected facility that began construction, modification or reconstruction after June 26, 1987 achieve final compliance with the mercury and dioxins/furans emission limits within 1 year after promulgation of subpart FFF ( i.e., by November 12, 1999) or 1 year after permit issuance.

We are amending table 6 of subpart FFF (40 CFR part 62) by adding footnote c to clarify that the owner or operator of an affected facility that began construction, modification, or reconstruction after June 26, 1987 must achieve final compliance with the mercury and dioxins/furans emission limits within 1 year after promulgation of subpart FFF ( i.e. , by November 12, 1999) or 1 year after permit issuance. Permit issuance is issuance of a revised construction permit or revised operating permit, if a permit modification is required to retrofit controls. Consistent with § 60.39b(c)(5), we included the provision pertaining to permit modification in the Federal plan in recognition of the fact that some owners or operators of affected facilities would need to obtain a permit modification before they could retrofit controls. We never intended for this accommodation to be construed as relieving an owner or operator of the obligation to be in compliance with all emission limits by no later than 5 years after promulgation of the emission guidelines ( i.e., December 19, 2000). The addition of this footnote makes table 6 consistent with table 5 of subpart FFF and the emission guidelines. The emission guidelines (§ 60.39b(c)(5)) require MWC units that commenced construction, reconstruction, or modification after June 26, 1987 to achieve compliance with the mercury and dioxins/furans emission limits within 1 year after State plan approval (or permit modification).

The footnote also clarifies that in all cases for all large MWC units, final compliance must be achieved no later than December 19, 2000. (See explanation in Section II.B above.) This footnote was not originally included in the final MWC Federal plan. The addition of this footnote makes it clear that table 6 is consistent with the requirements of the Clean Air Act and the emission guidelines. Sections 129(b)(2) and (3) of the Clean Air Act require State and Federal plans to ensure that each unit subject to the emission guidelines is in compliance with all requirements of the guidelines not later than 5 years after the guidelines are promulgated. Section 60.39b(d) of the emission guidelines requires each unit subject to the emission guidelines to be in compliance with the mercury and dioxins/furans emission limits no later than 5 years after promulgation of the guidelines ( i.e., by December 19, 2000).

We are amending table 6 of subpart FFF (40 CFR part 62) by adding a site-specific compliance schedule and increments of progress for unit 3A at the New Hanover County Waste-to-Energy Conversion facility in Wilmington, North Carolina. Unit 3A at the New Hanover County MWC facility had not been identified as a large MWC unit (capacity greater than 250 tpd) when subpart FFF was promulgated in November 1998. Prior to November 1998, the State of North Carolina submitted a negative declaration letter to certify that there were no large MWC units in North Carolina. Subsequently, the State obtained new information and notified EPA that it believed that Unit 3A at the New Hanover County MWC facility might be a large MWC unit and thus subject to subpart FFF. We confirmed that Unit 3A at the New Hanover County MWC facility is a large unit, and thus subject to subpart FFF. The negative declaration letter is, therefore, no longer applicable. Unit 3A is larger than 250 tons per day (tpd) and is covered by subpart FFF.

Due to the confusion over the size of Unit 3A, the owner/operator of the New Hanover County MWC did not have the opportunity to submit a site-specific compliance schedule. In developing the promulgated Federal plan, EPA provided the owner or operator of a large MWC unit the opportunity to submit a site-specific compliance schedule. Unit 3A at the New Hanover County MWC facility is already equipped with an air pollution control system incorporating a spray dryer/fabric filter, and selective noncatalytic reduction. Subpart FFF will only require the addition of carbon injection (or some other mechanism for meeting the applicable dioxins/furans and mercury emission limits), upgrading the continuous emissions monitoring system, and other less extensive changes. For these reasons, we determined that it was appropriate to allow the owner/operator of the New Hanover County MWC facility to submit a site-specific schedule for Unit 3A. The owner/operator of the New Hanover County MWC facility has since submitted such a schedule and we are amending table 6 to add that site-specific schedule for unit 3A. The site-specific compliance schedule achieves final compliance with all applicable requirements no later than December 19, 2000, the same date as required for all other MWC units subject to subpart FFF.

The docket is an organized and complete file of all the information considered by EPA in the development of this rulemaking. The docket is a dynamic file, since material is added throughout the rulemaking development. The docketing system is intended to allow members of the public to identify and locate documents so that they can effectively participate in the rulemaking process. Along with the proposed and promulgated rule and EPA responses to significant comments, the contents of the docket will serve as the record in case of judicial review (see 42 U.S.C. 7607(d)(7)(A)). Docket numbers A-89-08 and A-90-45 contain the supporting information for the December 19, 1995 emission guidelines. Because the MWC Federal plan implements the emission guidelines, these dockets also contain the supporting information for the MWC Federal plan. Public comments received on the MWC Federal plan are included in docket number A-97-45.

The information collection requirements in the MWC Federal plan have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An Information Collection Request (ICR) document has been prepared by EPA (ICR No. 1847.01) and a copy may be obtained from Sandy Farmer by mail at the U.S. Environmental Protection Agency; Office of Environmental Information, Collection Strategies Division (2822); 1200 Pennsylvania Avenue, NW, Washington, DC 20460; by e-mail at “farmer.sandy@epa.gov”, or by calling (202) 260-2740. A copy may also be downloaded off the internet at “http://www.epa.gov/icr”. OMB approved ICR 1847.01 in December 1998 and the OMB approval number is #20600390.

Today's direct final rule will have no effect on the estimates of the information collection burden. The technical changes clarify requirements and do not impose additional requirements. Therefore, we have not revised the ICR.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must determine whether a regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector 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; or

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

Today's direct final rule includes only minor amendments. Therefore, we have determined that this action is not significant and OMB has waived review. OMB determined that the promulgated Federal plan was “not significant” under Executive Order 12866. The promulgated Federal plan simply implements the 1995 MWC emission guidelines (as amended in 1997) and does not result in any additional control requirements or impose any additional costs above those previously considered during promulgation of the 1995 MWC emission guidelines. The EPA considered the 1995 emission guidelines and standards to be significant and the rules were reviewed by OMB in 1995 ( see 60 FR 65405).

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 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 direct final rule does not significantly or uniquely affect the communities of Indian tribal governments. The Federal plan adopted on November 12, 1998 does not significantly or uniquely affect communities of Indian tribal governments. We believe that no large MWC units are located in Indian country. In addition, we have determined that the promulgated Federal plan does not include any new Federal mandates or additional requirements above those previously considered during promulgation of the 1995 MWC emission guidelines. (See the discussion above on Executive Order 12875 in this section.) Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this direct final rule.

The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601, et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally requires EPA to prepare a regulatory flexibility analysis of any rule subject to notice and comment under the Administrative Procedure Act or any other statute unless EPA certifies that the rule will not have a significant impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business in this industry with a gross annual revenue less than $6 million; (2) a small governmental jurisdiction that is a government of a city, county, town school district or special district or a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise that is independently owned and operated and not dominant in its field.

Today's action is not subject to the requirements of the RFA as modified by SBREFA because it only makes minor technical amendments to some of the rule's requirements and it does not impose any additional requirements. During the 1995 MWC emission guidelines rulemaking, EPA estimated that few, if any, small entities would be affected by the promulgated guidelines and standards, and therefore, a regulatory flexibility analysis was not required (see 60 FR 65413). The EPA has concluded that these amendments to the MWC Federal plan will not have a significant impact on a substantial number of small entities and a regulatory flexibility analysis is not required.

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 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

The EPA has determined that this direct final rule does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector in any 1 year. Therefore, the requirements of sections 202 and 205 of the UMRA do not apply to this action. The EPA has likewise determined that today's amendments to the rule do not include regulatory requirements that would significantly or uniquely affect small governments. Thus, today's action is not subject to the requirements of section 203 of the UMRA.

The Congressional Review Act, 5 U.S.C. 801, et seq. , as added by the SBREFA 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. The EPA will submit a report containing this rule, its amendments, 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 . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective July 24, 2000.

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 impractical. Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures, business practices) that are developed or adopted by voluntary consensus standard bodies. The NTTAA requires EPA to provide Congress, through OMB, explanations when EPA decides not to use available and applicable voluntary consensus standards.

Today's action does not amend or modify technical standards, therefore, the requirements of the NTTAA do not apply.

Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that EPA determines (1) is economically significant as defined under Executive Order 12866, and (2) for which the environmental health or safety risk addressed by the rule has 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.

Today's action is not subject to Executive Order 13045 because it is not an economically significant regulatory action as defined by Executive Order 12866. Further, EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the order has the potential to influence the regulation. This rule is based on technology performance and not on 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. The EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the EPA 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 EPA'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 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 clarifies the final compliance date, updates the status of which MWC units are affected by the Federal plan, and adds a site-specific compliance schedule for one MWC unit. These amendments would primarily affect private industry, and do not impose significant economic costs on State or local governments.

Although section 6 of Executive Order 13132 does not apply to these proposed amendments, EPA consulted with representatives of State and local governments during development of the Federal plan to enable them to provide meaningful and timely input (see 63 FR 63201, November 12, 1998).

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

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

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

2. In person . The Agency has established an official record for this action under docket control number OPP-301001. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2 (CM #2), 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

EPA issued a final rule, published in the Federal Register of October 9, 1998 ( 63 FR 54362) (FRL-6029-5), which announced that on its own initiative under section 408 of FFDCA, 21 U.S.C. 346a, as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) it established a time-limited tolerance for the combined residues of mancozeb and ETU in or on ginseng at 2.0 ppm, with an expiration date of December 31, 1999. EPA established the tolerance because section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of FIFRA. Such tolerances can be established without providing notice or period for public comment.

EPA received a request to extend the use of mancozeb on ginseng for this year's growing season due to continued disease pressure on the crop from leaf and stem blight. After having reviewed the submission, EPA concurs that emergency conditions exist and has determined that it is appropriate to re-establish the time-limited tolerance.

EPA assessed the potential risks presented by residues of mancozeb and ETU in or on ginseng. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and decided that the necessary tolerance under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. The data and other relevant material have been evaluated and discussed in the final rule of October 9, 1998 (63 FR 54362). Based on that data and information considered, the Agency reaffirms that re-establishment of the time-limited tolerance will continue to meet the requirements of section 408(l)(6). Therefore, the time-limited tolerance is extended for an additional 20-month period. EPA will publish a document in the Federal Register to remove the revoked tolerance from the Code of Federal Regulations (CFR). Although this tolerance will expire and is revoked on December 31, 2001, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on ginseng after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA and the application occurred prior to the revocation of the tolerance. EPA will take action to revoke this tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301001 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before July 24, 2000.

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

Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. C400, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.

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

EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov , or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW., Washington, DC 20460.

If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW., Washington, DC 20460.

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit III.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301001, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov . Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

This final rule re-establishes a time-limited tolerance under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any prior consultation as specified by Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 19, 1998); special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or require OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a FIFRA section 18 petition under FFDCA section 408, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4).

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

You may be affected by this action if you sell, distribute, manufacture, or use pesticides for agricultural applications, process food, distribute or sell food, or implement governmental pesticide regulations. Potentially affected categories and entities may include, but are not limited to:

On March 8, 1999, the Federal Maritime Commission published a final rule and interim final rule to add new regulations at 46 CFR part 515 to implement changes made by the Ocean Shipping Reform Act of 1998 (“OSRA”), Public Law 105-258, 112 Stat. 1902, to the Shipping Act of 1984 (“Shipping Act”), 46 U.S.C. app. 1701 et seq. , relating to ocean transportation intermediaries (“OTIs”). 64 FR 11156-11183. Section 515.23(b) sets forth the claim settlement procedure for claimants seeking to pursue a claim against an OTI. The Interpretive Rule seeks to clarify the Commission's intention with respect to this procedure, as there have been reported misunderstandings in the industry as to the responsibilities inherent in this requirement.

Section 515.23(b)(1) sets forth the claim settlement procedures and provides, in part, that:

In addition, the financial responsibility provider is allowed to evaluate the validity of the claim during the settlement process in § 515.23(b)(1). However, if the parties do not reach a settlement of the claim, the financial responsibility provider, in accordance with section 19 of the Shipping Act, 46 U.S.C. app. 1718 (1999), and 46 CFR 515.23(b)(2), must pay on a final judgment and may only inquire into the extent that the damages claimed arise from the transportation-related activities of the OTI, under section 3(17) of the Shipping Act, 46 U.S.C. app. 1702(17).

Furthermore, if settlement of the claim is not reached, the financial responsibility provider may not unilaterally reduce the amount awarded in a final court judgment; Congress has determined that, at that point, a financial responsibility provider must pay on a final judgment for damages arising from the transportation-related activities of the OTI, and the Commission cannot nullify that statutory requirement. However, the financial responsibility provider and the claimant are not precluded from mutually agreeing to compromise the amount awarded in a final judgment. In the event that the financial responsibility provider believes that a judgment against its OTI bond principal was obtained fraudulently, or that the claim underlying the judgment is itself fraudulent, the financial responsibility provider is not precluded from challenging a judgment if permitted in the jurisdiction where it was obtained.

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

This is a summary of the Commission's Order adopted December 9, 1999, and released December 17, 1999. The full text of this Order is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Room CY-A257, Washington, DC. The complete text also may be obtained through the World Wide Web, at http://www.fcc.gov/Bureaus/CommonCarrier/ Orders/fcc99-387.wp, or may be purchased from the Commission's copy contractor, International Transcription Services, Inc. (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

Bell Atlantic and SBC submitted comments on July 12, 1999 and CIX and BellSouth Corporation filed replies to the comments to the Commission's request for comment on its certification. In this present Order , the Commission promulgates no additional final rules, and our action does not affect the previous analysis.

1. In this Order, we address a petition for reconsideration or clarification of the Computer III Remand Order, CC Docket No. 95-20, FCC 99-387, filed by Commercial Internet eXchange Association (CIX).

2. The Commission concluded in that order that although the BOCs must continue to comply with their CEI obligations, they should no longer be required to file or obtain pre-approval of CEI plans and plan amendments before initiating or altering their intraLATA information services. Instead, we required the BOCs to “post on their publicly accessible Internet page, linked to and searchable from the BOCs main Internet page, their CEI plan for any new or altered intraLATA information service offering, and to notify the Common Carrier Bureau upon such posting.

3. CIX filed a petition for reconsideration or clarification of two aspects of two aspects of the Computer III Report and Order, 64 FR 14141 (3/24/99). CIX first asks that the Commission establish that incumbent LECs must disclose in advance and via their web sites the planned deployment of digital subscriber line access multiplexers (DSLAMs) on a wire-center basis, and provide adequate prior notice on the status of line conditioning for a given customer or group of customers. Information on the deployment of broadband telecommunications, CIX continues, should be available to all competing information services providers (ISPs), and should not be used as a means to favor the incumbent's affiliated ISP. CIX also asks that the Commission clarify that the BOCs are obligated to post a complete copy of all their CEI plans on their websites, so that all ISPs have ready information available concerning interconnection with the BOC's “last mile” network.

4. The Commission has reviewed the initial request made by CIX in its petition—that we clarify our network information disclosure rules to require incumbent local exchange carriers to provide information regarding DSLAMs and line conditioning to ISPs. CIX essentially asks the Commission to clarify that section 251(c)(5) of the Communications Act and the rules implementing that section require disclosure of such information. We decline to do so. The Commission did not raise this issue in the Further Notice of Proposed Rulemaking in these dockets. Thus, the CIX request for clarification with regard to information on deployment of DSLAMs and line conditioning is beyond the scope of this proceeding. Accordingly, we deny that request for clarification on reconsideration.

5. CIX next requests that the Commission clarify that the BOCs are obligated to post on their websites a complete copy of all their CEI plans—rather than merely a copy of “new or altered” plans. We grant this request. It was not our intention in the Computer III Report and Order to exclude from the CEI posting requirement the BOCs' existing plans. As CIX notes in its petition, it is important for all CEI plans to be available on the BOCs' websites, including those previously filed plans. Otherwise, it would be difficult for the ISPs to get information regarding plans filed with the Commission under the prior CEI regime. Moreover, we do not believe that requiring the BOCs to post all their plans and plan amendments—both old and new—is unduly burdensome, especially given the benefit of having all these plans in one, easily accessible place. Accordingly, we clarify that the BOCs must post all their existing and new CEI plans and plan amendments on their Internet websites and notify the Common Carrier Bureau at the time of the posting.

6. The petition for reconsideration and clarification filed by the Commercial Internet eXchange Association IS GRANTED IN PART and IS DENIED IN PART, to the extent discussed above.

Section 30123(e) of title 49, United States Code (U.S.C.) requires the Secretary of Transportation to prescribe a uniform system for grading motor vehicle tires to assist consumers in making informed choices when purchasing tires. In response to that congressional mandate, NHTSA established the Uniform Tire Quality Grading Standards (UTQGS) in 49 CFR 575.104.

The UTQGS require tire manufacturers and tire brand name owners to grade their tires with respect to the tires' relative performance with respect to treadwear, traction, and temperature resistance. Treadwear grades are shown by numbers, such as 100, 160, and 200, with the higher numbers indicating greater treadwear performance. The traction grades are indicated by AA, A, B, and C, with AA representing the highest performance characteristics and C the lowest. The temperature resistance grades are indicated by the letters A, B, and C, with A representing the best performance and C indicating the minimum level of performance necessary to comply with Federal motor vehicle safety standards.

The UTQGS provide that treadwear grades are developed first by running the tires being graded, called “candidate tires,” over a selected 400-mile segment of public highway outside San Angelo, Texas. After an 800-mile “break-in” run, the candidate tires are driven over the test course for a total of 6,400 miles in test convoys composed of 4 passenger cars and/or light trucks. Each driver remains in the same position within the convoy. The vehicles are regularly rotated among the 4 positions in the convoy as are the positions of the tires on the test vehicles so that each candidate tire gets equal time with each driver, each vehicle, and each wheel position.

Special tires known as “course monitoring tires” (CMT) are used as the control in grading candidate tires. CMTs are specially designed and built to American Society for Testing and Materials (ASTM) standard E1136 to have particularly narrow limits of variability. 1 Until the amendments to the UTQGS published in a final rule on September 9, 1996 (61 FR 4737), whenever the agency procured a new batch, or lot, of CMTs, we established a new base course wear rate (BCWR) for that lot. We established the BCWR, measured in mils per thousand miles, by running tires from the new lot of CMTs over the 6,400-mile test course, in the same manner as candidate tires, with tires from the previous batch of CMTs. We determined a course severity adjustment factor (CSAF) for the new CMTs by dividing the BCWR for the old CMTs by the average wear rate of the old CMTs in the test. The wear rate of the new CMTs was then multiplied by the CSAF to determine the adjusted wear rate (AWR) of the new CMTs. That value then became the BCWR for the new CMTs.

Once the BCWR for the new CMTs was established, the new CMTs were used to grade candidate tires. Upon completion of the 6,400-mile test, the BCWR was divided by the average wear rate of the CMTs to determine the CSAF for the candidate tires. That factor was then applied to the wear rates of the candidate tires to obtain the AWR of the candidate tires. That AWR was then extrapolated to the point of wearout (considered to be 1/16 th inch of remaining tread depth). The resultant value was then converted to the treadwear rating of the tire.

The BCWR was originally intended to provide a common baseline by which to grade candidate tires by relating all new CMTs to the original lot of CMTs. We noted, however, that the BCWRs of successive new lots of CMTs steadily declined over the years. The trend has been that every time a fresh CMT of the new lot was tested in the same convoy with an old CMT, the fresh CMT consistently experienced a lower wear rate than the old CMT. The first lot of CMTs that we procured in 1975 were commercially-available Goodyear Custom Steelguards that yielded a BCWR of 4.44. The lot of ASTM E-1136 CMTs that we procured in 1995, on the other hand, produced a BCWR of 1.34. Table I shows the consistent decline in wear rate for each new lot of CMTs.

In replacing CMTs from the original lot procured in 1975, we note that the greatest difference in the AWR between nominally identical CMTs of different ages was about 30 percent. This occurred in 1987 when the old CMTs had been stored for about 3 years. The least difference in the AWR between nominally identical CMTs of different ages was about 4 percent that occurred in the second 1992 replacement. At that time, the old CMTs had been stored less than a year. Table I also shows that the treadwear rate disadvantage of the aged CMTs at replacement varied considerably from a linear relationship with age. This could suggest that the rate may have been exacerbated by actual batch differences of the commercial tires used as CMTs prior to 1991.

The significance of the decrease in the BCWR rate is that as the BCWR decreased, the treadwear grades of candidate tires increased. Consequently, the newer treadwear grades have increased to the point that they are no longer a reliable indicator of actual treadwear performance when compared to tires tested with higher BCWRs.

To correct this problem, we froze the BCWR at 1.34 mils in the final rule of September 9, 1996 (61 FR 47437), believing that freezing the BCWR at that figure would significantly reduce, if not eliminate, any variation in the grading between lots. We also believed that the use of ASTM E1136 tires that are produced with strict quality control would also contribute to reduction of any lot-to-lot variations. We stated, however, that we had requested the assistance of the ASTM F9 committee in devising a better treadwear test and that we would request data in a future rulemaking on the effects of tire aging on treadwear performance and storage procedures to reduce aging.

On June 5, 1998, we published a Notice of Proposed Rulemaking (NPRM) proposing to revise the treadwear testing procedures of the UTQGS to ensure the consistency of treadwear grades from one year to the next.  2 To achieve that result, we proposed to revise the procedure for calculating the BCWR by directly comparing the wear rates of CMTs with the wear rates of the candidate tires. Specifically, we proposed to measure the wear rates of CMTs 4 times per year, then use the average wear rate from the last 4 quarterly CMT tests as a basis for the BCWR. We also proposed that CMTs used to determine the wear rate be no more than 6 months old at the commencement of the test and that the difference in production dates of the CMTs being tested be not greater than 3 months. If CMTs being tested were more than 6 months old, we proposed that the average wear rate be reduced by 10 percent.

We received 2 comments on the NPRM, one from the Rubber Manufacturers Association (RMA), and the other from Uniroyal Goodrich Tire Manufacturing (Uniroyal).

RMA opposed the proposals in the NPRM, stating that our action in freezing the BCWR at 1.34 in the final rule of September 9, 1996 was sufficient to solve the treadwear inflation problem. Uniroyal generally supported the agency's intent in trying to ensure the consistency of the treadwear grades from year to year, but believed that this can be accomplished more efficiently than by the procedures that we proposed.

Both opposed our proposal to require that CMTs be not more than 6 months old when tested to determine the BCWR, arguing that that requirement would increase the costs of production, shipping, and storage for all manufacturers with no additional benefit for consumers. Uniroyal, the sole current manufacturer of E-1136 tires, stated that having to test CMTs that are 6-months old and within 3 months' production dates of each other would mean that testers would specify the most recent CMTs rather than take a chance on reducing their wear rates by 10 percent. This would require that CMTs be produced on a quarterly basis. Uniroyal stated that E-1136 tires are already produced in extremely small quantities and that more frequent production would be logistically impossible. RMA stated that the complexities associated with coordination, production, shipping, storage, and testing of CMTs and candidate tires within a 6-month period is not realistic. Both commenters agreed that the cost and logistical problems of producing E-1136 tires so frequently and in such small quantities would increase the unit cost of such tires by a factor of 3 to 4 and could result in less lot-to-lot consistency.

Both commenters supported a requirement that CMTs be tested within 1 year after production. RMA stated that if the proposals in the NPRM are not withdrawn, it requested that no penalties be applied to tires tested within 1 year of production. RMA argued that the aging characteristics of CMTs and candidate tires would contribute to a “leveling effect” which, together with the logistical restrictions of production, shipping, and storage, would minimize any difference in tread life during the first year. RMA stated, however, that for CMTs older than 1 year, any penalty should be no more than 5 percent. Uniroyal recommended that E-1136 CMTs be utilized for testing up to 1 year after production, with no more than 3 months' difference in production dates between the tires tested.

a. Uniroyal suggested using a linear relationship to adjust for aging of CMTs rather the “step” function that the agency proposed. Uniroyal referred to NHTSA study DOT HS 808-701, Critical Evaluation of UTQG Treadwear Testing & Methodology, which found an aging effect of approximately 5 percent per year for cave-stored tires and about 10 percent for non-cave-stored tires. Thus, Uniroyal encouraged the continued use of cave storage for CMTs.

Uniroyal recommended that tires used in NHTSA's tests be used as soon as they are received from the cave and the BCWR calculated as follows:

(b) Since NHTSA showed in its study that CMTs that were not continually cave-stored aged at twice the rate of those that were, Uniroyal proposed the following calculation for the adjustment factor if the production date of the CMT is older than that of the candidate tire:

DOTTWK TST −

DOTWK CMT =Difference, in weeks, between candidate tire and CMT

AAF o=Age Adjustment Factor for tires stored at test site after leaving cave=0.10

If the candidate tire is equal to or older than the CMT tire, no adjustment is made.

c. NHTSA should measure the CMT wear rate at least 4 times per year and include CMTs approximately one year old in their measurements. The inclusion of older CMTs in these measurements would result in a long term record of the aging effect and verify (or not) the approximately 5 percent per year age effect reported in DOT HS 808-701.

For the past few years, NHTSA has been studying various ways to arrest the consistent decline in the BCWR that we believe has been the primary cause of the inflation that has plagued the treadwear grading system almost from the beginning. That treadwear grade inflation was the basis on which we froze the BCWR at 1.34 mils in the final rule of September 9, 1996 (61 FR at 47441), which became effective March 9, 1998. The elapsed time since then has not given us sufficient data on which to determine whether the freezing of the BCWR has had the desired effect of arresting the treadwear grade inflation altogether, although preliminary indications are that it has had a very positive effect on the problem. In addition to contributing to the arrest of the treadwear grade inflation, however, the procedures specified in this final rule are intended to provide CMT replacement procedures that would be valid in all circumstances. We could use these procedures, for example, if ASTM changed its design specifications of the E-1136 tires; if E-1136 tires became unavailable and we were required to substitute other tires for use as CMTs; or in the event of a significant change in the surface of the test road course. Finally, these procedures will enable us to test the assumption of batch uniformity of ASTM-specification tires.

NHTSA is persuaded by the comments of the RMA and Uniroyal that it is not logistically feasible to produce E-1136 tires as frequently and in such small lots as would be necessary to consistently provide CMTs that are less than 6 months old. We have historically procured about 200 CMTs per year, retaining 12 for our own use and providing the remainder to other testers. In making the CMT test runs 4 times per year, we will now consume 64 CMTs per year, but the other testers are expected to consume about the same number as before. Therefore, the increase in the number of CMTs consumed per year is relatively small and not enough to justify Uniroyal's having to make more production runs of CMTs than before, with the additional logistical problems of lot-to-lot consistency, storage, and shipping.

Because of Uniroyal's production and logistical constraints on the manufacture of E-1136 tires, we have decided that the most practical solution would be to require that CMTs used in establishing the BCWR be less than 1 year old, instead of not more than 6-months old as we proposed. Further, we will not require that the CMTs used in the testing have production dates within 3 months of each other, nor will we require the 10 percent adjustment for tires over the prescribed age since this could create a demand for newer tires that would disrupt Uniroyal's production schedule. We are, however, requiring that CMTs be cave-stored until used  3 and that, in addition to being not more than 1 year old, the CMTs must be used within 2 months after being removed from cave storage. The 2-month requirement is intended to minimize any degradation while in uncontrolled storage conditions. The aging of up to 1 year in the cave could result in a degradation of up to 5 percent, an amount that we have decided to accept under the circumstances as the best compromise available within the economic constraints of the CMT supply system.

Although the rate of treadwear degradation due to aging is not an exact science, our experience has been that tires stored outside the cave degrade at approximately 10 percent per year, while tires stored under the controlled climatic conditions of the cave degrade at a significantly lower rate, no more than a nominal 5 percent. The above computations that Uniroyal suggested would compensate for that possible 5 percent aging degradation, if meticulous records were kept of the amount of time each CMT spent in the cave and in uncontrolled storage and if our estimate of the aging effect were accurate. We believe that the proposed Uniroyal computation is too complicated in relation to the small increase in accuracy. Therefore, for the sake of simplicity and, as stated above, considering that the treadwear measurement is not a precision test, we are willing to accept the possibility of tire degradation of up to 5 percent, which might result in the slight overgrading of candidate tires. Accordingly, we adhere to the formula

In summary, this final rule revises the procedure for measuring the wear rate of CMTs by running them over the test course 4 times per year, then using the average wear rate from the last 4 quarterly CMT test runs as a basis for the BCWR. The CMTs used in the test runs must be not more than 1 year old at the commencement of the test and must be used within 2 months after being withdrawn from storage.

This final rule makes one additional change. NHTSA has been leasing a warehouse to store the CMTs for sale to other testers. Given the amendments made by this final rule, NHTSA need no longer store the CMTs for the testers. They can purchase tires directly from the manufacturer for less than what NHTSA was charging. Accordingly, we are amending 575.104(e)(1)(ii) to delete the sentence stating that CMTs are available from NHTSA.

This document was not reviewed under Executive Order 12866,

NHTSA has analyzed the impact of this rulemaking action and has determined that it is not “significant” under the DOT's regulatory policies and procedures. This action changes the calculation for determining the base course wear rate of course monitoring tires which is, in turn, used to determine the treadwear grade of candidate tires under the Uniform Tire Quality Grading Standards. This action does not impose any additional costs on motor vehicle or tire manufacturers, distributors, or dealers. Instead, it permits tire manufacturers greater flexibility in their testing programs and could result in slightly lower costs by permitting them to procure course monitoring tires directly from the manufacturer rather than through NHTSA, as has been the practice in the past. Specifically, NHTSA has been leasing a warehouse to store the CMTs for sale to other testers. We have charged them a markup on each tire to cover our storage and handling expenses. Given the amendments made by this final rule, NHTSA need no longer store the CMTs for the testers. They can purchase tires directly from the manufacturer for less than what NHTSA was charging, which also saves NHTSA the time, trouble, and expense of storage and handling. We estimate that this will save the tire companies approximately $24,000 per year. Accordingly, because the cost savings are minimal, the agency did not prepare a full regulatory evaluation.

The agency has considered the effects of this rulemaking action under the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. I hereby certify that this rulemaking action will not have a significant impact on a substantial number of small entities.

The following is the agency's statement providing the factual basis for the certification (5 U.S.C. 605(b)). The amendments proposed herein will primarily affect manufacturers of passenger car tires. The Small Business Administration (SBA) regulation at 13 CFR part 121 defines a small business in part as a business entity “which operates primarily within the United States” (13 CFR 121.105(a)).

SBA's size standards are organized according to Standard Industrial Classification (SIC) codes. SIC code No. 3711, Motor Vehicles and Passenger Car Bodies, has a small business size standard of 1,000 or fewer employees. SIC code No. 3714, Motor Vehicle Parts and Accessories, has a small business size standard of 750 or fewer employees.

The amendments in this rulemaking action merely change the testing procedure for and calculation of the treadwear grade under the Uniform Tire Quality Grading Standards. The purpose of this new procedure is to arrest the treadwear grade inflation that has been experienced over the past several years. The amendments will make it necessary for NHTSA to conduct additional testing to determine the base course wear rate from which treadwear grades are calculated by tire manufacturers. The amendments, however, will not impose any additional requirements or burdens on tire manufacturers, most of which do not qualify as small businesses under SBA guidelines. Thus, the new procedures will not result in any increase in costs for tire manufacturers, small businesses, or consumers. Accordingly, there will not be any significant impact on small businesses, small organizations, or small governmental units by the amendments in this final rule. Thus, the agency has not prepared a final regulatory flexibility analysis. Annual expenditures from this final rule will not exceed the $100 million threshold.

The agency has analyzed this rulemaking in accordance with the principles and criteria contained in Executive Order 13132 and has determined that it does not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The final rule has no substantial effects on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials.

NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act and has determined that this rulemaking action will not have any significant impact on the quality of the human environment.

In accordance with the Paperwork Reduction Act of 1980, Pub.L. 96-511, NHTSA states that there are no information collection requirements associated with this rulemaking action.

The amendments made by this final rule will not have any retroactive effect. Under 49 U.S.C. 30103(b), whenever a Federal motor vehicle safety standard is in effect, a state or political subdivision thereof may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle only if the standard is identical to the Federal standard. However, the United States government or a state or political subdivision of a state may prescribe a standard for a motor vehicle or motor vehicle equipment obtained for its own use that imposes a higher performance requirement than that required by the Federal standard. Section 30161 of Title 49, U.S. Code sets forth a procedure for judicial review of final rules establishing, amending or revoking Federal motor vehicle safety standards. A petition for reconsideration or other administrative proceedings is not required before parties may file suit in court.

The FMP was developed jointly by the Atlantic States Marine Fisheries Commission (Commission) and the Mid-Atlantic Fishery Management Council (Council) in consultation with the New England and South Atlantic Fishery Management Councils. The management units specified in the FMP include summer flounder ( Paralichthys dentatus ) in U.S. waters of the Atlantic Ocean from the southern border of North Carolina northward to the U.S./Canada border, and scup ( Stenotomus chrysops ) and black sea bass ( Centropristis striata ) in U.S. waters of the Atlantic Ocean from 35°13.3' N. latitude (the latitude of Cape Hatteras Light, NC) northward to the U.S./Canada border. Implementing regulations for these fisheries are found at 50 CFR part 648, subparts A, G (summer flounder), H (scup), and I (black sea bass).

Pursuant to §§ 648.100 (summer flounder), 648.120 (scup), and 648.140 (black sea bass), the Regional Administrator, Northeast Region, NMFS, (Regional Administrator) implements measures for the fishing year to assure that the target fishing mortality (F) or exploitation rate for each fishery, as specified in the FMP is not exceeded. The target F or exploitation rate and management measures are summarized below by species. Detailed background information regarding the development of the proposed specifications was provided in the proposed specifications for the 2000 summer flounder, scup and black sea bass fisheries (65 FR 4547, January 28, 2000), and is not repeated here. NMFS will publish a proposed and final rule for the 2000 recreational management measures for these fisheries in the Federal Register at a later date.

On April 25, 2000, during the last stages of review of this final rule, the United States Court of Appeals for the District of Columbia Circuit (Court) issued an opinion on a challenge to the 1999 summer flounder specifications by a number of environmental groups. The Court noted that the 1999 quota, when adopted, had only an 18-percent likelihood of meeting the conservation goals of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Court invalidated the 1999 quota and remanded the case to NMFS for further proceedings. The Court set a minimum standard for harvest quotas to comply with the Magnuson-Stevens Act, namely that quotas must have at least a 50-percent probability of achieving the target fishing mortality rate.

Given the timing of the opinion and the urgency of regulating the ongoing fishery that began in January, after careful consideration, NMFS has concluded that it must have some measures in place establishing quotas for these fisheries. Therefore, rather than leaving the fisheries unregulated while it addresses the Court's remand, NMFS is proceeding with publication of the rule as drafted at this time. In addition, the specifications for summer flounder are intimately linked to the specifications for the scup and black sea bass fisheries, which were not part of the litigation. All of these specifications must be in place immediately in order to manage effectively the recreational fishery, to monitor the state-by-state commercial quotas, and to restrict landings by Federal permit holders upon attainment of those quotas—measures necessary to control the overall mortality on the summer flounder stock.

NMFS considers it a matter of the highest urgency to address the remand of the Court and will work with its partners in the Council and the Commission. NMFS intends to revise the 2000 summer flounder quota by August 1, 2000, to a level with at least a 50-percent chance of not exceeding the F target. State fisheries agencies and fishery participants are hereby notified that the specifications for the 2000 commercial and recreational summer flounder fisheries will be revised accordingly. Participants are also reminded that any quota overages in the 2000 commercial summer flounder fishery will be deducted from 2001 quotas, as provided under the FMP.

The FMP for summer flounder specifies a target F for 2000 of the level of fishing that produces maximum yield per recruit (F MAX ). Best available data indicate that F MAX is currently equal to 0.26. The total allowable landings (TAL) are allocated to the commercial (60 percent) and the recreational (40 percent) sectors in the proportion required by the FMP. The commercial sector's quota is allocated to the coastal states based on percentage shares specified in the FMP, and those allocations are detailed in this document.

A summer flounder stock assessment was completed by the Northeast Fisheries Science Center's (NEFSC) Southern Demersal Working Group in the Spring of 1999 and reviewed by the Council's Scientific and Statistical Committee in July 1999. This assessment is summarized in the EA/RIR/IRFA. The assessment was the basis of the Summer Flounder Monitoring Committee's (Monitoring Committee) recommendation of a TAL of 16.815 million lb (7.627 million kg). The Council and Commission (hereinafter, referred to as “the Council”) reviewed this recommendation and did not adopt it. Instead, the Council recommended, and NMFS proposed, a 2000 TAL level of 18.518 million lb (8.4 million kg). Based on stochastic projection results, this TAL has a 25-percent probability of achieving ( i.e., not exceeding) the target F of 0.26 in 2000. NMFS notes that the Commission has measures in place to decrease discards of sublegal fish in the commercial fishery and reduce regulatory discards that occur as the result of landings limits in individual states. Specifically, the Commission has measures in place whereby 15 percent of each state's quota would be voluntarily set aside each year for vessels to land an incidental catch allowance (usually implemented as trip limits) after the directed fishery has closed. The intent of this voluntary incidental catch set-aside is to reduce discards by allowing fishermen to land a certain amount of summer flounder they catch incidentally after their state's fishery has closed, while trying to ensure that the state's overall quota is not exceeded. NMFS anticipates that these measures will improve the probability of not exceeding the target. Thus, this rule will implement the following summer flounder measures for 2000: (1) A TAL of 18.52 million lb (8.40 million kg); (2) a coastwide commercial quota of 11.11 million lb (5.039 million kg); and (3) a coastwide recreational harvest limit of 7.41 million lb (3.361 million kg).

The preliminary final commercial quotas by state for 2000 are presented in Table 1; the total quotas are divided into the recommended allocation between directed and incidental catch fisheries for purposes of illustration. These preliminary quotas are subject to downward adjustment dependant upon overages of a state's 1999 quota.

Section 648.100(d)(2) provides that all landings for sale in a state shall be applied against that state's annual commercial quota. Any landings in excess of the state's quota must be deducted from that state's annual quota for the following year. This document contains: (1) Final specifications and (2) associated preliminary adjustments to each state's 2000 quotas as a result of known 1999 overages. The adjustment in this document is preliminary because it is likely that additional data will be received from the states that would alter the figures, including late landings reported from either federally permitted dealers or state statistical agencies reporting landings by non-federally permitted dealers. This document utilizes preliminary 1999 landings data that have been provided to NMFS through December 31, 1999.

Based on dealer reports and other available information, NMFS has determined that the States of Maine, Massachusetts, New Jersey, Delaware, and Virginia exceeded their 1999 quotas. Thus far, the remaining States of New Hampshire, Rhode Island, Connecticut, New York, Maryland, and North Carolina are not known to have exceeded their 1999 quotas. The preliminary 1999 landings and resulting overages for all states are given in Table 2. The resulting adjusted 2000 commercial quota for each state is given in Table 3. In Table 4, the adjustment has been made to illustrate the voluntary incidental catch component of the commercial quota at 15 percent of the total, as recommended.