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

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

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

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

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

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

No official crop estimate was available at the time of the committees' meetings because the nectarine and peach trees were dormant. The committees recommended a crop estimate at their meetings in early spring. Preliminary estimates indicate that the 2000 crop will be slightly larger in size with characteristics similar to the 1999 crop which totaled 20,405,000 boxes of nectarines and 20,460,000 boxes of peaches. The 2000 crop is estimated to be 22,000,000 boxes of nectarines and 21,000,000 boxes of peaches.

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

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

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

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

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

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

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

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

This rule also continues in effect a conforming change to § 917.150 that changed the word “but” to “and,” making the language in this section similar to that in § 916.115.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Grand Sun nectarine variety had 1999 shipments of 2,939 packages, but was not recommended for removal from variety-specific size requirements because the variety is expected to increase in commercial significance during the 2000 season. Inclement weather, including the cool spring and frost damage, is considered to be a factor in the decreased production during the 1999 season. However, in the interim final rule, this variety was inadvertently omitted from paragraph (a)(3) of § 916.356. This rule corrects that omission. This rule also corrects the name of the variety from “Gran Sun” to “Grand Sun.”

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

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

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

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

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

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

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

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

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

In paragraph (a) (6) of § 917.459, this action corrects the name of the peach variety “Prima Gattie” to “Prima Gattie 8”, and the variety “Yukon King” to “Autumn Snow” These corrections are based on the comment received.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

However, as previously stated, nectarines and peaches under the orders have to meet certain requirements set forth in the standards issued under the Agricultural Marketing Act of 1946 (7 U.S.C. 1621 through 1627). Standards issued under the Agricultural Marketing Act of 1946 are otherwise voluntary.

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

An interim final rule concerning this action was published in Federal Register on March 22, 2000 (65 FR 15205). Copies of the rule were mailed to all committee members and handlers by the committee staff on March 22, 2000. Finally, the rule was made available through the Internet by the Office of the Federal Register. A 60-day comment period ending May 22, 2000, was provided to allow interested persons to respond to the proposal. One comment was received during the comment period in response to the proposal.

The commenter submitted several clarifications to the interim final rule. One clarification dealt with the inadvertent omission of the “Grand Sun” nectarine variety from the variety specific size designations in paragraph (a)(3) of § 916.356. The clarification also noted that the interim final rule listed the variety as “Gran Sun.” As noted earlier, these corrections relative to the Grand Sun nectarine variety have been made.

The commenter also requested name corrections for two peach varieties. According to the commenter, the name “Prima Gattie” should be corrected to read “Prima Gattie 8,” and the name “Yukon King” should be corrected to read “Autumn Snow.”

Accordingly, appropriate changes are made based upon the comment received.

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

After consideration of all relevant material presented, the information and recommendations submitted by the committees, and other information, it is found that finalizing the interim final rule, with appropriate changes, as published in the Federal Register (65 FR 15205, March 22, 2000) will tend to effectuate the declared policy of the Act.

It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register (5 U.S.C. 553) because: (1) Handlers are already shipping nectarines and peaches from the 2000 crop; (2) handlers are already aware of this rule, which was unanimously recommended at a public meeting; and (3) a 60-day comment period was provided for in the interim final rule.

Currently, the regulations at 8 CFR 292.3 require the Service to investigate complaints filed regarding the conduct of attorneys and representatives (referred to in the final rule as practitioners) practicing before both the Service and EOIR. If the investigation establishes, to the satisfaction of the Service, that disciplinary proceedings should be instituted, the General Counsel of the Service serves a copy of the written charges upon the attorney or representative and upon the Office of the Chief Immigration Judge. The present procedure provides for the government to be represented by a Service attorney in disciplinary proceedings before an Immigration Judge. The decision of the Immigration Judge may be appealed to the Board of Immigration Appeals (Board) by either party.

On January 20, 1998, the Service and EOIR published a proposed rule in the Federal Register (63 FR 2901) amending parts 3 and 292 of the rules and procedures governing professional conduct for practitioners who appear before EOIR, which includes the Board and the Immigration Courts, as well as the rules and procedures governing professional conduct for practitioners who conduct business before the Service. The proposed rule included various grounds of discipline and procedures for hearings and appeals, which, although somewhat more sophisticated, were in many ways similar to the approach of the current regulations. The proposed rule was neither written on a clean slate nor did it propose to institute a new form of professional discipline; in fact, it was merely intended to clarify and improve the existing procedures and, in particular, to remove the Service from the enforcement role with respect to professional misconduct occurring before the Board and the Immigration Courts. The proposed rule did contain a new procedure for adjudicating disciplinary complaints. The proposed process included a hearing by an adjudicating official appointed by the Director of EOIR and a report by that adjudicating official to a three-member Disciplinary Committee appointed by the Deputy Attorney General.

This final rule retains the Service's investigative and prosecutorial responsibilities only in disciplinary proceedings for those practitioners who conduct business before the Service as an adjudicative body, e.g. , in asylum proceedings, adjustment interviews, and visa petition cases, but transfers these same investigative and prosecutorial responsibilities to EOIR for practitioners appearing before the Board and the Immigration Courts. This change allows each agency to maintain separate jurisdictions over practitioners based upon which agency they appear before, while permitting both agencies to utilize the same hearing and appeal process. This change will result in a fair and consistent application of the rules.

In response to the proposed rulemaking, EOIR and the Service received 491 comments. Identical form letters from South Florida practitioners totaled 130, with 17 additional individual letters from the same region. These letters account for approximately 30% of the total comments received. Another 277 names were signed to one petition-style letter prepared by the national office of the American Immigration Lawyers Association (AILA), accounting for approximately 57% of the total comments received. Some of the public comments were supportive; one in particular recounted the detrimental effect that one practitioner's negligence had on two unsuspecting immigrants. Many others, however, were opposed to any rule that would regulate practitioners' professional conduct. EOIR and the Service gave full consideration to each and every public comment submitted during the comment period. We first submit some general authorities and then address the concerns expressed in the comments in the following passages.

In exercising its plenary powers over immigration, Congress has granted express authority to the Attorney General to “establish such regulations * * * as (s)he deems necessary for carrying out (her) authority” under the laws relating to the immigration and naturalization of aliens. 8 U.S.C. 1103(a)(3). Congress also provided that aliens in immigration proceedings “shall have the privilege of being represented (at no expense to the government) by such counsel, authorized to practice in such proceedings, as he shall choose.” 8 U.S.C. 1362 (emphasis added). In so doing, Congress vested implied authority with the Attorney General to prescribe standards of conduct and rules of procedure that are applicable to practitioners who appear before the Board, the Immigration Courts, and the Service.

In the proposed rule, EOIR and the Service noted that the primary purpose of prescribing rules and setting standards for determining who may practice before the Board, the Immigration Courts, and the Service, and for adopting procedures for disciplining those practitioners who fail to conform to such standards, includes the protection of the public, the preservation of the integrity of the Immigration Courts, and the maintenance of high professional standards. EOIR and the Service are committed to these important public interest objectives through the fair and efficient administration of this final rule.

While most practitioners adequately represent their clients in immigration matters, a small minority of practitioners do not meet the minimum standards set forth in this rule and an even smaller minority may take unfair advantage of the very clients they have promised to help. Others have engaged in conduct that has rendered them unfit to practice law, as determined by the state courts which originally licensed them to practice. The practitioners who should not, and in fact cannot, be permitted to continue to practice before EOIR and the Service are the practitioners who will primarily be affected by this rule.

A chief concern of many commenters was that this rule would have a chilling effect on an immigration practitioner's ability to advocate zealously for his or her client, suggesting that both the First Amendment right to freedom of speech and the Sixth Amendment right to counsel were implicated by such a rule. A similar majority argued that it is not the function of EOIR or the Service to control the conduct of attorneys who have been admitted to the practice of law by state courts. Many commenters expressed concern that sanctions imposed pursuant to this rule could cut off a practitioner's livelihood or jeopardize his or her professional reputation, although some acknowledged a need to protect clients from unscrupulous immigration practitioners, citing incompetent and/or unethical conduct by practitioners. One commenter was particularly concerned with protecting non-profit agencies from the burdens of potentially higher professional liability policies, more staff training, and better case-screening procedures.

Several commenters suggested that EOIR and the Service pattern the proposed disciplinary rule after the disciplinary process applicable to representatives who appear before Administrative Law Judges in the Social Security Administration (SSA) and the Internal Revenue Service (IRS). Under such advisement, EOIR and the Service consulted SSA and IRS regulations in drafting this disciplinary rule and adopted many of the provisions promulgated by those agencies.

The following paragraphs provide a section-by-section summary of the comments received, followed by the Department's response. Many of the comments were lengthy and we have attempted to summarize the commenters' views as accurately as possible. We have responded to all of the relevant issues raised in the comments and have highlighted where revisions have been made to the proposed rule. Please note that section numbering in the final rule has been revised.

Comments. Some commenters suggested that an inherent conflict exists given that adjudicating officials and the Disciplinary Committee have a connection to EOIR that taints the entire disciplinary process. Comments regarding the composition of the Disciplinary Committee included the following: The composition of the Committee is vague; the pool of possible members should be specified with term limits; no qualifications for the Committee have been specified; the Committee should be independent of the Department; the Committee should include a non-lawyer; the Committee should include a member of the private bar; and the EOIR representative should not serve on the Committee if he or she is also the complainant in a particular case. Several commenters also suggested that an Immigration Judge should not serve as the adjudicating official in a case where he or she is also the complainant, an Immigration Judge should not serve as the adjudicating official in any case involving a practitioner who regularly appears before him or her, and the disciplinary hearing should be conducted by an Administrative Law Judge (ALJ) pursuant to the Administrative Procedure Act (APA).

Other commenters assumed that Immigration Judges would be prejudiced against aliens while favoring the government and, therefore, would not be fair adjudicating officials. Some commenters noted that the rule provides no guidelines for appointing adjudicating officials and no opportunity to submit briefs or arguments to the Disciplinary Committee.

Response. Although some commenters concluded that the connection between adjudicating officials and EOIR taints the disciplinary process, there was no specific suggestion of how such a connection causes conflict or unfairness. Moreover, there is little merit to the argument of inherent conflict, since the Board and Immigration Judges are all part of the Department and yet act independently in fairly adjudicating the nation's immigration laws. A connection between EOIR and the proposed disciplinary process is not inherently unfair nor does it create an inherent conflict. Precedent for such a process exists within the disciplinary system used by the Social Security Administration, which uses its own ALJs as hearing officers and its own Appeals Council as a reviewing panel.

However, EOIR and the Service have revised several of the provisions in this section in response to the comments that we received. The rule has been revised to provide that an Immigration Judge shall not serve as the adjudicating official in cases where he or she is also the complainant in a case (§ 3.106(a)(1)(i)). Also, an Immigration Judge shall not serve as the adjudicating official in any case involving a practitioner who regularly appears before him or her (§ 3.106(a)(1)(i)). In the final rule, the Chief Immigration Judge will appoint the adjudicating official in most cases (§ 3.106(a)(1)(i)).

More significantly, in light of the comments received, EOIR and the Service have, in the final rule, replaced the proposed Disciplinary Committee with the Board in all respects. Since the Board already has the authority to implement the existing disciplinary system under § 3.1(d)(3), and to hear appeals of disciplinary sanctions under § 292.3(b)(1)(vi), revising the final rule to have appeals go to the Board results in no change in the Board's current (and long-standing) role.

We have identified a number of reasons for retaining the Board as the appellate body for disciplinary decisions made by adjudicating officials. First, the Board provides practitioners subject to these proceedings with an established appeal process. All of the procedural practices concerning briefing schedules, transcripts, motions, and oral arguments will be consistent for both immigration proceedings and disciplinary proceedings. Most practitioners know the Board's appeal procedures and will be familiar with them when appealing any disciplinary decision. Second, the Board has the immigration expertise which may prove critical where a practitioner's conduct is intricately intertwined with the legal issues in an underlying immigration case. Third, the Board, unlike the Disciplinary Committee, has the ability to publish precedent decisions, thereby providing practitioners and the public with authoritative interpretations of the regulations. Fourth, it is logical for the Board to exercise ultimate control over practitioners who appear before EOIR, and also consistent with state court practice of having the highest appellate level oversee the ultimate discipline of practitioners. Finally, the Board is structured to hear cases on a regular, consistent basis and has the support resources (attorney staff, paralegals, clerks) to fully staff a disciplinary system.

By retaining the Board's review authority, we anticipate the issuance of timely decisions by members possessing the requisite legal and procedural expertise, as well as adjudicatory experience. This assumption is based on the fact that the Board has reviewed disciplinary cases on appeal throughout the existence of the current disciplinary program. Some of the comments to the proposed rule raised opposition to the “in-house” nature of the Disciplinary Committee. However, given that the Board is an established independent adjudicator within the Department, the revised appeal structure should dispel any concerns about an “in-house” review.

One commenter suggested disciplinary hearings should be conducted pursuant to the Administrative Procedure Act (APA) (codified at 5 U.S.C. 551 et seq. ), which primarily regulates the processes of rulemaking and adjudication by agencies with substantial independent authority in the exercise of specific functions. Determining whether the APA applies to disciplinary proceedings conducted under this rule requires careful consideration of several factors.

As stated above, Congress has granted authority to the Attorney General to set standards for determining who may practice before the Board, the Immigration Courts, and the Service, and to prescribe rules of procedure for disciplining those who fail to conform to such standards. An agency with the power to admit practitioners has the authority to disbar or discipline them for professional misconduct.

Also, since deportation proceedings are not subject to the APA, see Marcello v. Bonds, 349 U.S. 302, 309 (1955) (Administrative Procedure Act is not applicable to deportation proceedings under the Immigration and Nationality Act); Castillo-Villagra v. INS, 972 F.2d 1017, 1025 (9th Cir. 1992) (Immigration and Nationality Act, rather than Administrative Procedure Act, controls exclusively in deportation proceeding), disciplinary proceedings pursuant to 8 U.S.C. 1362 historically have not been conducted under the APA, see Herman v. Dulles, 205 F.2d 715, 717 (D.C. Cir. 1953) (existing powers of administrative agencies to control practice by counsel who appear before them are not changed by the Administrative Procedure Act, citing Attorney General's Manual on the Administrative Procedure Act, 1947, p.66). Furthermore, no statutory provision exists which requires the adjudication of such disciplinary proceedings under the APA. See United States v. Independent Bulk Transport, Inc., 480 F. Supp. 474, 477 (S.D.N.Y. 1979) (provisions of APA apply only if another statute requires that they be utilized); see also Amalgamated Meat Cutters and Butcher Workmen v. Connally, 337 F. Supp. 737, 761-62 (D. D.C.1971).

Moreover, this rule provides ample protections for practitioners subject to discipline, analogous to procedures provided in the APA and consistent with the delineated public interest objectives of the Department. Such protections include timely notice of hearings and the opportunity to be heard with respect to the charges lodged.

In addition, subjecting disciplinary proceedings to the strictures of the APA is unnecessary, and it would also be impractical and burdensome given that Immigration Judges (who comprise the largest pool of potential adjudicating officials) do not adjudicate cases pursuant to the APA. Finally, as stated in the supplementary information to the proposed rule, practitioners subject to discipline may avail themselves of judicial review pursuant to 28 U.S.C. 1331 upon issuance of a final administrative order.

Therefore, in light of the above considerations and in order to maintain consistency with, among other things, the current disciplinary rule, Board disciplinary decisions that have been upheld by the Federal courts, and established Immigration Court practices, the Department has determined that disciplinary hearings will be conducted in the same manner as immigration proceedings.

The proposed rule contained no provision for briefs to be submitted or oral arguments to be heard before the Disciplinary Committee. However, now that the rule retains the Board as the appellate body in disciplinary proceedings, the regulations that govern oral argument ( see 8 CFR 3.1(e)) and the submission of briefs on appeal ( see 8 CFR 3.3(c)) are incorporated by reference in the final rule.

Comments. Several commenters suggested that an immediate suspension provision could create an unfair and prejudicial result based on “a skeletal complaint filed by a disgruntled client.” The commenters expressed concern that a practitioner could be suspended based on mere allegations of misconduct. This presumption is incorrect, as explained below. Others felt that a criminal conviction or state bar disciplinary action should be “final” before an administrative decision is rendered; otherwise “a practitioner will have been deprived of his or her livelihood during that period” should the conviction or disciplinary action be overturned or vacated.

Response: The disciplinary rule provides that a practitioner may be subject to immediate suspension and a summary proceeding based only upon either (i) disbarment, suspension, or resignation with an admission of misconduct as found by a state or Federal court or (ii) a conviction for a serious crime. The language in this provision is similar to that found in the Rules for Disciplinary Enforcement for the United States Court of Appeals for the District of Columbia Circuit, the District of Columbia Court of Appeals' Rules Governing the Bar, and the California Rules of Professional Conduct.

The immediate suspension provision, therefore, is designed to protect the public from practitioners who have a criminal conviction, are no longer in “good standing” as set forth in 8 CFR 1.1(f), or who have otherwise forfeited or encumbered their law license. Such misconduct does not arise from “a skeletal complaint filed by a disgruntled client.” Rather, based upon facts proven by the requisite high standard of proof (“clear and convincing evidence” in most disciplinary matters and “beyond a reasonable doubt” in criminal matters) and applicable law, a state or Federal court has already made a determination that the practitioner has engaged in serious misconduct. As amplified in the final rule, such a determination, as evidenced by a certified copy of a court record or order, brings “title deeds of high respect” and must be accorded great deference.

Furthermore, a rule that would permit a practitioner who has been criminally convicted of a serious crime to continue to practice before the Board, the Immigration Courts, or the Service pending all appeals of the underlying matter would expose the court's proceedings to the intervention of disqualified, unfit practitioners and subject clients to unnecessary risk. However, recognizing that a practitioner may seek to appeal such a conviction during the period of his immediate suspension, the rule has been amended so that no final administrative disciplinary order may be entered until all direct appeals of the underlying conviction have been exhausted. Additionally, the final rule provides that the Board may set aside an immediate suspension order “when it appears in the interest of justice to do so.”

The final rule provides an attorney with an opportunity to rebut the presumed validity of the underlying disciplinary order in a summary proceeding by demonstrating that: (1) The underlying disciplinary proceeding was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; (2) there was such an infirmity of proof establishing the attorney's professional misconduct as to give rise to the clear conviction that the adjudicating official could not, consistent with his or her duty, accept as final the conclusion on that subject; or (3) the imposition of discipline by the adjudicating official would result in grave injustice. The proposed rule denied an attorney admitted in only one jurisdiction the opportunity to rebut the presumption of professional misconduct. This provision has been eliminated in the final rule. This procedure comports in part with, among other jurisdictions, the United States Supreme Court's practice in imposing reciprocal discipline.

Additionally, the proposed rule made the rebuttable presumption safeguards available to practitioners in summary proceedings premised on either reciprocal discipline for professional misconduct or conviction of a serious crime. However, consistent with the practice of state bars, we have limited the rebuttable presumption safeguards so that they apply in reciprocal discipline matters only, rather than extend them to criminal conviction matters, and amended the rule accordingly. Thus, upon filing a certified copy of a court record evidencing a criminal conviction in a summary proceeding based thereon, the only issue to be determined shall be the nature of the discipline to be imposed. Under the final rule, absent extraordinary circumstances, practitioners will be prevented from launching collateral attacks on criminal convictions in a summary proceeding.

General Comments. Several commenters suggested that the rules for sanctions are too vague and do not contain the level of detail, specificity, and explanation provided by the American Bar Association Model Rules of Professional Conduct (ABA Model Rules). However, others agreed that since the rule closely tracks the ABA Model Rules and that those rules are undergoing revision, this Federal rule should undergo the same revision. Still other commenters suggested that EOIR and the Service use the IRS disciplinary rules as a guide.

Commenters suggested that the rule be expanded to allow for disciplining lawyers who assist in the unauthorized practice of law, e.g., attorneys who sign their names to forms prepared by non-lawyers without any attorney input or oversight. Some commenters went on to suggest that the rule should reach beyond disciplining lawyers only and expand to discipline visa consultants and notarios who engage in the unauthorized practice of immigration law, such that any fee collected by a notario would be considered “excessively gross” and any application, petition, or brief prepared by a notario would be considered negligence per se.

Response. As stated in the supplementary information to the proposed rule, the revised grounds for disciplinary sanctions include language, wherever possible, that is similar, if not identical to, the ABA Model Rules. EOIR and the Service gave serious consideration to the suggestion that a ground for disciplinary sanctions that addresses the problem of the unauthorized practice of law be included in the final rule. The difficulty in addressing this problem involves a jurisdictional issue. The jurisdiction of this rule is limited to practitioners, i.e., attorneys, accredited representatives, and other persons described in 8 CFR 292.1(a). It cannot reach to persons who are not within one of these categories, such as visa consultants or notarios, because the statutory language at 8 U.S.C. 1362, which establishes the framework for the attorney discipline process, refers only to counsel “authorized to practice in (removal and appeal) proceedings.” However, in response to the comments, EOIR and the Service have added an additional ground for discipline in the final rule which renders a practitioner subject to discipline if he or she assists a non-practitioner in the performance of any activity that constitutes the unauthorized practice of law.

Comments. Many commenters expressed concerns that EOIR and the Service would be “second-guessing the amount of work attorneys dedicate to their cases or the fees they charge.” They stated that fees depend on many subjective factors and further concluded that only private practitioners have the experience to know how to appropriately set fees. Other commenters pointed out that since fees are negotiated with a client up front, the client has the option to go to a different attorney if he or she finds that the fees are too high. Some commenters noted that making a determination of what is “grossly excessive” will require probing into confidential client information, while others inquired as to how much weight will be given to the different factors used in determining what is “grossly excessive.” While some commenters concluded that state bar associations generally do not involve themselves in financial arrangements between lawyers and clients, others suggested that federal regulation is unnecessary because state bar associations can review fee disputes. Still others suggested this was a means by which EOIR and the Service would punish a practitioner who has been successful in defending an immigration client.

Response. It is important to note that the primary purpose of this provision is to protect clients, not to interfere with attorney-client fee arrangements. The “grossly excessive fees” standard, which exists in the current rule and was retained in the proposed rule, is higher than the “reasonable fees” measure set out under the ABA Model Rules. The “grossly excessive” standard is similar to the “unconscionable” standard used by the IRS in its regulations. See 31 CFR 10.28.

Unlike the general provision in the existing regulation, the provision in the final rule enumerates factors to be considered in determining if a fee is grossly excessive that are virtually identical to those found in the ABA Model Rules. These factors include: The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the practitioner; the fee customarily charged in the locality for similar legal services; the amount involved and the results obtained; the time limitations imposed by the client or by the circumstances; the nature and length of the professional relationship with the client; and the experience, reputation, and ability of the practitioner or practitioners performing the services. As other jurisdictions have done, a balancing test may be crafted based upon the various factors in deciding whether a practitioner has violated the rule. These factors will improve the fair assessment of fees by providing practitioners with notice of the variables to be used in determining if a fee is grossly excessive. Investigating allegations of grossly excessive fees may require probing into confidential client information where absolutely necessary, and then only with the client's permission.

It is important to note that this rule is not designed to set fee schedules or arbitrate fee disputes between practitioners and their clients. Neither EOIR nor the Service intends to engage in “second-guessing” negotiated fee arrangements. Expert jurists in immigration law who command higher fees for their services than other immigration practitioners would not be in violation of the regulations based solely on their fee. However, we are aware of instances in which practitioners have preyed on unsuspecting clients by charging them exorbitant fees for handling relatively routine immigration matters, or worse yet, have charged clients for services that were never rendered at all. Protecting clients from practitioners who charge such grossly excessive fees is the purpose of this provision.

Comment. One commenter suggested that expanding the rule to include “attempt to bribe” as well as bribery was unnecessary and that proving “attempt to bribe” would be difficult and should not be included in the rule.

Response. This basic language is in the current rule. Moreover, it would be inadvisable to limit this rule to only those persons who successfully bribe an individual, but not include those who engage in conduct that constitutes an attempt to bribe. The act of attempted bribery is as serious as the act of bribery itself and certainly compromises the integrity of the practitioner who engages in such behavior. Therefore, we did not adopt this suggestion. It should be noted that the SSA regulations also have a similar provision which prohibits any “attempt to influence, directly or indirectly, the outcome of a decision, determination or other administrative action by offering or granting a loan, gift, entertainment or anything of value to a presiding official, Agency employee or witness who is or may reasonably be expected to be involved in the administrative decisionmaking process.” 20 CFR 404.1740(c)(6).

Comments. Several commenters stated that this provision is too vague and that the Department should provide more guidance. Another commenter suggested that a ground for discipline should be included to deal with preparation of documents, pleadings, papers, etc., that are false and misleading and are prepared by attorneys who fail to disclose their names and addresses as preparers.

Response. The language in this provision closely resembles the language in the current regulation, combined with language from ABA Model Rule 3.3. The language in the rule would not preclude pursuing a practitioner who prepares false or misleading unsigned documents, although the ability to prove who prepared such documents might be difficult. Immigration Judges across the country have indicated that the filing of false or fraudulent documents is a growing problem. This problem includes the submission of once valid documents that have been altered ( e.g., foreign birth certificates), falsely created documents ( e.g., visas or letters from religious or political groups), and valid documents that contain false information ( e.g., asylum applications). This provision as written is broad enough to deal with these types of fraud. It should be noted that the SSA regulations have a similar provision which states that an individual may not “(k)nowingly make or present, or participate in the making or presentation of, false or misleading oral or written statements, assertions, or representations about a material fact or law.” 20 CFR 404.1740(c)(3).

Comment. One commenter suggested that the language in the rule concerning solicitation may conflict with state bar solicitation regulations already in place, creating difficulties for practitioners who may wish to advertise in more than one area.

Response. The language in this provision closely resembles the language in ABA Model Rule 7.3 and in the IRS regulations at 31 CFR 10.30. This provision is designed to deal with a growing number of instances that have been brought to our attention concerning the use of “runners” in and around the Immigration Courts. These persons are not authorized to practice immigration law themselves but approach potential clients on behalf of individuals who are licensed professionals. As noted in the Comment to ABA Model Rule 7.3:

Comments. Many commenters registered their objections to this provision. They argued that subjecting practitioners to discipline based upon the concept of “obnoxious behavior” would result in practitioners being unable to represent or defend their clients zealously and would require them to be subdued or “nice” in order not to offend EOIR or the Service. As one commenter put it: “(O)ne person's obnoxious behavior is another person's zealous representation.” Another commenter feared that “(a) practitioner could be disciplined if, in the opinion of the Disciplinary Committee, he talks too fast or too slow, uses his hands too much when speaking, or has some nervous habit.”

Still another commenter concluded that the threat of discipline based on this ground would impair the attorney/client relationship because practitioners would be afraid to advocate zealously on behalf of their clients for fear that such representation would be perceived as obnoxious. Some commenters suggested that it would be impossible for EOIR and the Service to apply this rule in a consistent and fair manner, while others noted that state bars already deal with “contumelious” or “obnoxious” conduct of practitioners. Several commenters concluded that such a disciplinary ground would lead to frivolous complaints and unnecessary litigation.

Response: Nothing in this provision is intended to impinge upon a practitioner's zealous representation of his or her client. However, even zealous representation does not entitle a practitioner to engage in contumelious or obnoxious conduct. Any suggestion that this provision will be used, as one commenter suggests, if a practitioner “talks too fast or too slow, uses his hands too much when speaking, or has some nervous habit” is without basis. Behavior disciplined under this provision will be necessarily extreme and without any acceptable premise.

This provision is in the current rule and is retained in the final rule. This provision is included primarily to address the type of conduct that would rise to the level of contempt in a court of general jurisdiction. IRS regulations contain a similar provision for contemptuous conduct. See 31 CFR 10.51(i). Until recently, Immigration Judges have not had the authority to issue contempt citations for the type of behavior described in this provision. The only alternative for a judge was to file a disciplinary complaint with the Service. Immigration Judges were recently given contempt authority in section 304 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208 (IIRIRA), 8 U.S.C. 1229a(b)(1); however, this authority will be exercised only after the Department issues regulations. It is expected that the contempt regulations, once published, will provide that a practitioner can be disciplined under the Professional Conduct Rules when the practitioner has been sanctioned for contemptuous conduct by an Immigration Judge pursuant to 8 U.S.C. 1229a(b)(1). A finding of contempt will become a prerequisite to the imposition of disciplinary action pursuant to this subsection. Therefore, the current language will be retained in the final rule, pending amendment by the contempt regulations, which will be published in the near future.

Comments. Some commenters found the definition of “serious crime” to be overly broad. While some commenters argued that a practitioner might lose his or her livelihood for committing a minor offense, others concluded that the conviction that forms the basis for disciplinary action might have no bearing on the practitioner's ability to practice immigration law. Several commenters found the retroactivity aspect of this provision to be unfair, as well as the notion that a practitioner who has filed a timely appeal from a criminal conviction or state disciplinary finding would still be subject to discipline under the rule. Several commenters pointed out that practitioners in each state will be held to different standards of conduct because the definitions of crimes vary from state to state.

Response: The definition of “serious crime” is taken from the Rules of Disciplinary Enforcement for the United States Court of Appeals for the District of Columbia. A “serious crime” as defined in the rule includes “any felony.” Any practitioner who has been convicted of a felony has seriously undermined his professional integrity and reputation and, as a result, has jeopardized his ability to continue to represent aliens before the Board, the Immigration Courts, and the Service. Lesser offenses included within the definition of a “serious crime” are offenses that involve moral turpitude, such as fraud, bribery, extortion, deceit, theft, misappropriation, and false swearing. A conviction for any of these crimes calls into question a practitioner's ability to perform his or her duties in a manner which upholds the integrity of the profession.

Moreover, the magnitude of interests to be affected by the decisions of EOIR and/or the Service requires that those who represent individuals before either agency be persons whose qualities as practitioners will secure proper service to their clients and assist in the discharge of important agency duties. Additionally, there is no requirement in the authorities or by practice that an incident for which the disciplinary authority seeks to bring charges must relate to a proceeding or pending proceedings.

One commenter noted that the regulation requiring a practitioner to notify EOIR of any conviction for a serious crime is prospective while the actual ground for disciplinary action based on a conviction for a serious crime may be retroactive. Convictions for serious crimes—whether they occur before or after the effective date of the final rule—call into question a practitioner's fitness to represent aliens. A rule that would limit the criminal conviction ground to only those practitioners convicted after the effective date of the rule would substantially hamper the Department's goals of protecting the public and preserving the integrity of immigration proceedings. Therefore, § 3.102(h), which is consistent with the prior rule, has not been amended because applying this section only to convictions that occur after the effective date of the rule would undermine the Department's goals.

Several commenters raised a question with regard to the practitioner who has appealed his or her conviction, stating that such a person should not be subject to discipline during pendency of an appeal. We agree. Therefore, we have added language in §§ 3.103(b) and 292.3(c)(2) that prevents imposition of final discipline arising out of a criminal conviction until direct appeals of the underlying conviction have been exhausted. Notwithstanding, we note that given the grave nature of criminal proceedings and any resulting conviction or plea, a practitioner may be subject to an interim order of suspension under the regulations pending the outcome of any such appeal.

Once again, the primary objective of this rule is to protect the public and preserve the integrity of adjudicative immigration processes. Any practitioner who has been convicted of a serious crime should be held accountable for his or her actions, including loss of the privilege to practice before the Board, the Immigration Courts, and the Service.

Comment. One commenter suggested that the element of intent be added to the rule.

Response: In response to this comment, we have revised this ground by adding the element of intent.

Comments. Some commenters expressed concern that, under this provision, practitioners might be inhibited from putting forth an unpopular or unorthodox interpretation of the law; an attorney could make a losing argument for ten years before the Board and then may prevail in the eleventh year. It was suggested that an attorney's job is to advocate the “good points” of the law as well as to challenge the “wrong” side of rules and decisions. Others feared retribution for taking actions disagreeable to EOIR or the Service. Several commenters believed that the rule should include a requirement that a practitioner zealously represent his or her client.

Response: Sanctions for frivolous behavior are required in section 545 of the Immigration Act of 1990 (8 U.S.C. 1230(b)(6)). This provision implements the statutory language and has previously been included at 8 CFR 292.3(a)(15). The language in this provision is closely patterned after the language in Rule 11 of the Federal Rules of Civil Procedure (FRCP). Precautions are provided to allow for both advocacy grounded in fact or warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law. Whereas the IRS regulations define frivolous as “patently improper,” the language in the final rule reflects a more specific set of standards and does not interfere with the zealous advocacy of a practitioner.

Comments. One commenter suggested that “[t]here should be a limit of one year on the period of time following the alleged fact for a complaint to be brought.” One commenter concluded that this provision would inhibit the zealous representation of immigrants; another commenter went so far as to conclude that the fear of disciplinary action “will keep practitioners from telling their clients of the mistakes they have made and instead of fixing the mistakes, they would let them be.” Another commenter suggested that such a provision may prevent one practitioner from filing a motion to reopen based on ineffective assistance of counsel because the other practitioner could lose his or her livelihood. Others concluded that since the ABA Model Rules do not make malpractice a disciplinary offense, neither should the final rule, given that clients already have the remedy of suing a practitioner for legal malpractice. Several commenters believed that the final rule goes against the traditional rules of professional conduct, while others felt that the state bar disciplinary process is adequate.

Response: The comment concerning the time period within which a complaint can be filed based on an ineffective assistance of counsel claim suggests that the time period be limited to one year from the alleged misconduct, rather than five years as provided in the rule. However, because a finding of ineffective assistance of counsel must be made by the Board or the Immigration Court before such a complaint would be considered, and since many cases take longer than one year to adjudicate fully, a longer period of time is required in order to protect the complaining alien. Also, a shorter period of time might unfairly discourage or prevent an alien from bringing a complaint against his or her former attorney or accredited representative. However, in order to strike a balance on this point, the Department has amended the rule to require that a complaint based on this ground be filed within one year of the finding of ineffective assistance of counsel made by the Board or the Immigration Court.

It is worrisome to believe that a practitioner would risk a client's case, and possibly his client's ability to remain in this country, and not resolve a potential problem by choosing instead to remain idle in order to protect himself from an ineffective assistance of counsel claim that would survive only if due process had been denied as a result of the practitioner's conduct, i.e., where the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case. See Matter of Lozada, 19 I&N Dec. 637, 638 (1988); see also Ramirez-Durazo v. INS, 794 F.2d 491, 499-500 (9th Cir. 1986). Also, one must show that he was prejudiced by his representative's performance. See Mohsseni Behbahani v. INS, 796 F.2d 249, 251 (9th Cir. 1986).

Therefore, it is unlikely that a practitioner who has “made a mistake” in a client's case would allow such a mistake to languish when he could still resolve the problem without prejudice to the client and, in all probability, no longer be subject to an ineffective assistance of counsel claim. As is mentioned throughout the supplementary information in the proposed rule, these regulations are intended to preserve the fairness and integrity of the adjudicative process, secure proper service to aliens subject to proceedings before the Immigration Courts and the Service, and ensure minimal qualification standards for practitioners.

Regarding the commenter who suggested that malpractice claims should suffice as a remedy, it is certainly true that a client may sue a practitioner for malpractice in such instances. However, speculation about the availability of such a legal remedy should not preclude EOIR or the Service from pursuing disciplinary action. While malpractice lawsuits may result in monetary compensation for a particular client, they do little to protect other clients from the same fate.

Comment. One commenter felt the phrase “repeatedly fails to appear” was too vague.

Response: This provision does not define the number of occasions that will amount to “repeated” failures to appear. Such a definition is not included in the rule because choosing an arbitrary number would hamper the ability to utilize prosecutorial discretion when considering a practitioner's explanation for his or her absences. In 1998, the Social Security Administration published a final rule entitled “Standards of Conduct for Claimant Representatives,” see 63 FR 41404 (1998), which includes a provision similar to the provision in the proposed rule regarding repeated absences from scheduled hearings. It notes that “such conduct adversely affects claimants, diminishes the ability of the Agency to operate efficiently and harms other applicants by disrupting schedules and work flow.” Id. at 41406. For the same reasons, EOIR and the Service have added a similar provision in the rule, with the addition of a “good cause” element.

Comment. Several commenters suggested that this rule address the unauthorized practice of law issue. See General Comments above.

Response. In response to the comments, EOIR and the Service have added an additional ground for discipline in the final rule which renders a practitioner subject to discipline if he or she assists a non-practitioner in the performance of any activity that constitutes the unauthorized practice of law. This ground is a necessary addition to the rule in order to protect the public from the mistakes of untrained and unqualified individuals, as well as the schemes of unscrupulous immigration practitioners, and reflects the concerns of a number of commenters.

Comments. A large number of commenters were concerned that the disciplinary process may be used to intimidate, retaliate, or otherwise harass practitioners who are successful in advocating against the government in immigration proceedings. One commenter suggested that this rule might be used to “intimidate and control any lawyer who might be so bold as to file a motion to recuse a judge (or) seek to enter an objection upon the record.” The fact that the Department components (EOIR and the Service) investigate disciplinary cases and issue Notices of Intent to Discipline prompted some commenters to raise due process and conflict of interest issues. One commenter suggested that in order to “move cases along,” Immigration Judges will resort to the disciplinary process and effectively chill aggressive representation. Another commenter concluded that this rule is a way for EOIR to ensure that “as many non-citizens as possible be deported by taking the lawyers out of the equation.”

One commenter suggested that the Notice of Intent to Discipline be served by personal service and that the practitioner should be notified of any complaint and be given an opportunity to respond before any charging document is issued. Several commenters wanted to see the government hire an independent entity to investigate complaints lodged against private practitioners by government employees; others felt that the government should hire separate counsel to conduct independent investigations.

Response: Most, if not all, of the commenters failed to recognize that the current disciplinary system is structured so that the Service (the prosecuting party in an adversarial immigration proceeding) is the party bringing the disciplinary action before EOIR (the adjudicating body). This structure has led to revisions in this rule which, in many cases, transfers responsibility for issuing charging documents from the Service to EOIR. The only cases in which the Service still retains responsibility for issuing charging documents concern situations where the Service serves as the adjudicating body ( i.e., adjustment of status cases, asylum cases, and some visa petition cases, among others, but not in matters before an Immigration Judge or the Board). This transition of the disciplinary system from the Service to EOIR is being made specifically to eliminate the appearance of any bias or conflict of interest. The Office of the General Counsel of EOIR or the Office of the General Counsel of the Service, not Immigration Judges or Service trial attorneys, is responsible for conducting preliminary inquiries and issuing charging documents. While the comments reflect some practitioners' reluctance to be regulated, there is simply no basis for the conclusion that this disciplinary process is biased against practitioners.

The primary purpose of this rule is to protect vulnerable aliens from unscrupulous immigration practitioners and from those who have engaged in conduct that raises questions about their fitness to practice law. Rather than demonstrating an overabundance of zeal, some practitioners fail to represent their clients at all. Numerous complaints have been reported about practitioners who fail to appear or to file essential documents or evidence on behalf of their clients. The Board adjudicates numerous motions to reopen filed before it based on such claims of ineffective assistance of counsel. The rule will provide an effective means to address the mounting instances of practitioners' failure to represent their clients. Many immigration practitioners have had the experience of trying to salvage the case of a client who was harmed by a previous representative's inaction. Often a state bar does not have the expertise to evaluate or prosecute such cases of misconduct. The disciplinary rules will provide an effective means to address such problems.

Concerning the request that the practitioner be notified of any complaints lodged against him or her, the preliminary inquiry will, in most cases, afford the practitioner an opportunity to discuss the complaint with an investigator. However, if a complaint is clearly frivolous or without merit, it is possible that the practitioner may not be contacted if it is determined that no action will be taken against him or her. Additionally, during the preliminary inquiry phase of a disciplinary proceeding, EOIR and the practitioner may reach a resolution or settlement prior to the issuance of a Notice of Intent to Discipline. Once the preliminary inquiry is completed, and if no such resolution has been reached, a Notice of Intent to Discipline will then be issued. It should be noted that the Notice of Intent to Discipline will be served by personal service, as defined in 8 CFR 103.5a.

Comments. One commenter stated that 15 days is an insufficient time period in which to file a motion to set aside an order of default for failure to file an answer or for failure to appear at a disciplinary hearing. Some commenters thought that a practitioner should be allowed to file motions at any time after an order is issued, or at least within 180 days of issuance. One commenter thought that the provision that requires a practitioner to prove a negative ( i.e., failure to appear due to exceptional circumstances) is unfair when the burden of proof is placed on the practitioner.

Response: It should be noted that section 6103 of the California Rules of Professional Conduct provides that if the accused does not appear at the time appointed to answer the accusation without sufficient cause, “the court may proceed and determine the accusation in his absence.” Moreover, IRS disciplinary regulations provide that an attorney's “(f)ailure to file an answer within the time prescribed. * * * shall constitute an admission of the allegations of the complaint and a waiver of hearing, and the Examiner may make his decision by default without a hearing or further procedure.” 31 CFR 10.58(c). Furthermore, it is common practice in state bar disciplinary proceedings to allow both for default and expedited time frames when an attorney fails to file an answer or fails to appear before a disciplinary hearing panel. In response to the suggestions that the time period be expanded for the filing of motions to set aside, EOIR and the Service balanced the practitioner's due process rights against the primary goals of this regulation, including the protection of the public, and concluded that the time period set forth in the final rule is fair.

Comments. Most commenters complained that the rule provides no opportunity for the practitioner to present a written or oral argument to the Disciplinary Committee. The remaining commenters complained that there is no appeal from the decision of the Disciplinary Committee.

Response: As stated above, the proposed Disciplinary Committee has been replaced by the Board in all respects regarding this rule. All of the established appeal procedures in immigration cases, including the submission of written briefs and requests for oral arguments, now apply also to disciplinary cases on appeal to the Board. A practitioner who wishes to obtain judicial review of the Board's decision can do so in Federal district court pursuant to28 U.S.C.1331.

Comment. One commenter suggested that the rule be amended to require all orders of public discipline to be reported to the ABA National Lawyer Regulatory Data Bank and to all jurisdictions in which the disciplined attorney is admitted.

Response: We have incorporated into the final rule a provision for referrals of public discipline to the ABA National Lawyer Regulatory Data Bank and to every jurisdiction in which the disciplined attorney is admitted.

Comments. One commenter believed that the requirement that a “practitioner has the burden of proving that he or she possesses the moral and professional qualifications to be reinstated by clear, convincing, and unequivocal evidence” is too ambiguous and does not protect the public. Another commenter concluded that it is too difficult to quantify moral qualifications, while another suggested that the rule should provide for a hearing during which the practitioner must show that he or she is rehabilitated and no longer poses a risk to the public, the Board, the Immigration Courts, and the Service.

Response: The language in this provision is taken directly from the Rules of Disciplinary Enforcement for the United States Court of Appeals for the District of Columbia Circuit. However, we have adopted the suggestion on providing a reinstatement hearing by amending the rule to give the Board discretion to hold a hearing if the practitioner meets all of the reinstatement requirements.

Comments. There were some generalized concerns that these provisions do not sufficiently protect a practitioner's privacy, especially with regard to disclosures made to law enforcement authorities, complainants, and witnesses.

Response: These provisions are patterned after the Rules of Procedure of the State Bar of California. The presumption in the provisions is one of confidentiality, not disclosure. Exceptions to confidentiality are based on “protection of the public when the necessity for disclosing information outweighs the necessity for preserving confidentiality,” and include, but are not limited to, limited disclosures necessary to conduct preliminary inquiries.

Comments . Many commenters expressed their concern that the proposed rule applies only to private immigration practitioners and not to Immigration Judges and/or Service trial attorneys. Since Immigration Judges and Service trial attorneys are subject to the disciplinary system which is overseen by the Department's Office of Professional Responsibility (OPR), a system which regulates all Department attorneys, many commenters stated that having two different systems is unfair and suggested this was a denial of Equal Protection. Still other commenters concluded that the rule will hamper legal advocacy and that the “major purpose of the rule is to intimidate private attorneys out of practice” and “to deny aliens their statutory right to representation.”

Response: Congress has broadly empowered the Attorney General pursuant to 8 U.S.C. 1103, to “establish such regulations * * * and perform such other acts as she deems necessary for carrying out her authority” under the provisions of the Immigration and Nationality Act. Congress delegated its plenary power over immigration matters in order to advance, among other purposes, the public interest in deciding whether to admit or exclude aliens.

Consistent with Congress's sweeping grant of authority to the Attorney General in immigration matters, “in any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from such removal proceedings, the person concerned shall have the privilege of being represented * * * by such counsel, authorized to practice in such proceedings , as he shall choose” (emphasis added). 8 U.S.C. 1362. Such statutory authority, which serves as a primary basis for this disciplinary regulation, refers exclusively to counsel for individuals subject to such proceedings, not to Immigration Judges or attorneys for the government.

The Supreme Court has held that “where the empowering provision of a statute states simply that the agency may ‘make * * * such rules and regulations as may be necessary to carry out the provisions of (an) act,’ * * * the validity of a regulation promulgated thereunder will be sustained so long as it is ‘reasonably related to the purposes of the enabling legislation.' ” Thorpe v. Housing Authority of the City of Durham , 393 U.S. 268, 280-81 (1969). The general authority upon which we rely herein to impose disciplinary sanctions properly gives heed to Congress' enabling language and public interest purposes. Moreover, we view the need to safeguard adjudicative processes, fairly decide cases, and protect the public through implementation of this disciplinary regulation as consonant with Congress's public interest intent. Contrary to the assertion that such regulations will hamper counsel in rendering legal assistance to aliens, we believe that these rules will strengthen the effectiveness of representation and provide fairer adjudications.

As one court stated in reference to the foregoing express grants of authority from Congress, “an agency empowered to prescribe its own rules has the implied power to determine who can practice before it.” Koden v. United States Dep't of Justice , 564 F.2d 228, 234 (7th Cir. 1977). In that case, the Seventh Circuit held that the authority bestowed on the Attorney General is more than adequate to empower, expressly or impliedly, an agency to set disciplinary standards applicable to representatives. The Koden court upheld a disciplinary regulation substantially similar to this one that had existed for over 25 years (at the time of the court's decision) and applied only to private immigration practitioners.

Additionally, since 1975, OPR has had responsibility for investigating allegations of misconduct against any of the Department's lawyers, which today number over 9,000 individuals, including Immigration Judges and Service trial attorneys, where such allegations relate to the exercise of their authority to investigate, litigate, adjudicate, or provide legal services. See 28 CFR 0.39. Such employees are also subject to the jurisdiction of the Department's Office of Inspector General. Among other rules, regulations, and orders, Department attorneys must abide by the standards of conduct applicable to executive branch employees and the Department's supplemental standards of conduct. See 5 CFR part 2635 et seq. ; 5 CFR part 3801 et seq.

Such comprehensive standards and procedures, under the auspices of OPR and the Office of Inspector General, are equally, if not more, rigorous than those provided in this rule. They provide separate means for seeking discipline of Immigration Judges and Department attorneys.

It should also be noted that on October 21, 1998, Congress amended Chapter 31 of Title 28 of the United States Code by adding section 530B in Public Law 105-277. This amendment, which went into effect on April 19, 1999, subjects Department attorneys to state laws and rules, and local federal court rules, governing attorneys in each state where such attorneys engage in their duties, to the same extent and in the same manner as other attorneys in that state. See 64 FR 19273 (1999) (Interim Rule on Ethical Standards for Attorneys for the Government).

Comment . One commenter pointed out that the rule uses the term “practitioner” whereas the current rule uses the terms “attorney” and “representative.”

Response: Use of the new term “practitioner” in the proposed rule is simply for convenience when referring to both attorneys, as defined in 8 CFR 1.1(f), and representatives, as defined in 8 CFR 1.1(j).

Comments . Many commenters expressed concerns over the two parallel proceedings outlined in the proposed rule. They felt that the jurisdiction between EOIR and the Service is unclear, that the two systems are not necessary, that practitioners will have to be familiar with the professional conduct requirements of two agencies, and that two separate complaints could result in two punishments. Another commenter thought that the Board and Immigration Judges already have “plenary power to sanction attorneys.”

Response: Some commenters have characterized this rule as two parallel disciplinary systems with the potential for two disciplinary actions for the same misconduct. This notion is incorrect; only one disciplinary system exists and the delineations of authority are clear under the regulation. If a complaint concerns a practitioner's conduct before the Service in its adjudicative capacity ( i.e. , adjustment of status cases, asylum cases, visa petition cases), then the complaint should be filed with the Service, which will conduct a preliminary inquiry. If, however, the basis of the complaint concerns a practitioner's conduct before EOIR ( i.e. , the Board or the Immigration Courts), then the complaint should be filed with EOIR, which will conduct a preliminary inquiry. EOIR's jurisdiction to investigate and prosecute disciplinary cases will not extend to cases over which the Service has adjudicatory authority and, likewise, the Service's jurisdiction to investigate and prosecute disciplinary cases will not extend to cases over which EOIR has adjudicatory authority.

Between EOIR and the Service, there remains an expectation of cooperation and communication in instances where it is unclear which agency should take responsibility for investigating a complaint, i.e., if a complaint alleges misconduct that occurred before both agencies. Each agency is required to serve a copy of a Notice of Intent to Discipline on the other agency. Moreover, each agency may submit a written request to the adjudicating official asking that any discipline imposed upon a practitioner that restricts his or her authority to practice before one agency also apply to his or her authority to practice before the other agency. This will avoid the situation in which a practitioner could be forced to go through two separate disciplinary hearings for the same misconduct. It also gives the adjudicating official the discretion to prohibit a practitioner from continuing to practice before one agency pending suspension or exclusion from the other. Without this provision, for example, a practitioner who appears before EOIR and who has been suspended for assisting others in the unauthorized practice of law could continue to practice before the Service unless and until the Service conducted its own separate proceeding.

Contrary to one commenter's suggestion, the Board and Immigration Judges do not have “plenary power to sanction attorneys.” Until the contempt rule is final (see discussion above), the revised set of grounds as set forth in this disciplinary regulation is the only means by which the Board and Immigration Judges may seek to remedy related professional misconduct.

Comments . Some commenters felt that there should be a right to discovery while others felt that the Federal Rules of Evidence (FRE) and/or the Federal Rules of Civil Procedure (FRCP) should be used in disciplinary proceedings. One commenter asked under what circumstances costs would be assessed to the practitioner. Another commenter requested that hearings be held in the practitioner's city of practice and that a hearing should be set automatically, regardless of whether a hearing has been requested or the practitioner has failed to file an answer to the Notice of Intent to Discipline. One commenter suggested that the hearing should be closed to the public. Others suggested that the 30-day time period to file an answer be extended to 60 days. Some commenters would like to see the Disciplinary Committee establish rules of procedure. Other commenters opined that the complaining party must have standing to bring a complaint, e.g., the complainant must be an “aggrieved party” who can show harm or damage. One commenter questioned how ongoing cases would be handled under the new rule.

Response: Disciplinary proceedings are designed to be conducted under the same procedures which govern deportation and removal hearings in Immigration Courts, practices which are familiar to both adjudicating officials and practitioners. The proposed rule required the Director of EOIR not only to appoint the adjudicating official, but also to designate the time and place of the hearing. After further review, however, this provision has been amended in several respects.

First, the final rule now gives the Chief Immigration Judge the authority to appoint an Immigration Judge as the adjudicating official. At the request of the Chief Immigration Judge or in the interest of efficiency, however, the Director of EOIR may appoint an Administrative Law Judge as an adjudicating official. Second, the adjudicating official will designate the time and place of the hearing. This amendment was added to give the adjudicating official more control over the scheduling of the hearing. Third, the rule has been amended to require the adjudicating official to designate the place of the hearing “with due regard to the location of the practitioner's practice or residence, the convenience of witnesses, and any other relevant factors.” Although it is most likely that the adjudicating official will select a site for the hearing which is convenient for the practitioner, this amendment does not require that such a selection be made since there may be other important factors which might dictate that another site is preferable. For example, it is reasonable to predict that disciplinary proceedings will most likely be held in one of EOIR's Immigration Courts, where such hearings are presently held, so that proper administrative support, such as clerks and interpreters, are available. Selection of such a hearing site might require the practitioner to travel to that location.

Finally, the final rule has eliminated the terms “Assistant Chief Immigration Judge” and “Board Member” as persons who may be appointed as adjudicating officials. The term “Assistant Chief Immigration Judge” was deleted because it was determined to be unnecessary, since the term “Immigration Judge” is deemed to include “Assistant Chief Immigration Judge.” The term “Board Member” was deleted since, under the final rule, the Board is now the appellate reviewing body for disciplinary appeals, thereby eliminating the possibility that Board Members could be appointed as adjudicating officials.

The rule requires the practitioner to request a hearing if he or she so desires, but does not make such a hearing mandatory. There may be reasons why a practitioner may not want a hearing, e.g. , the practitioner intends to settle the case, does not want publicity, or does not wish to expend the time and money necessary to prepare for a hearing. To give the practitioner the option of having a hearing gives him or her more control over the progression of the case. Further, the rule does not allow for a hearing for a practitioner who fails to file an answer to a Notice of Intent to Discipline.

One commenter suggested that all hearings be closed. However, the prevailing procedure among state bars mandates that disciplinary hearings be open to the public once a charging document has been filed. The public has a right to know what transpires in such cases, and the notion of conducting disciplinary hearings behind closed doors may foster ignorance and raise doubts as to the nature of the proceedings. It should be noted that there are two exceptions in the rule to a public hearing. These include limitations of the physical facilities and/or the need to protect witnesses, parties, or the public interest.

Another commenter suggested the time period to file an answer should be extended from 30 to 60 days. In order for disciplinary actions to be most effective, it is imperative that cases be resolved in a timely manner. To provide a practitioner with 30 days to file an answer is reasonable.

Another commenter stated that a complaining party must have standing and must be an “aggrieved party” who can show harm or damage. However, there is no reason to limit the ability of anyone to file a complaint. The degree to which a complainant has been harmed will go to the merits of the case itself, but should not preclude an individual from filing a complaint. Moreover, it is anticipated that complaints may come from adjudicators, Service personnel, aliens, or practitioners themselves, all of whom may have first-hand knowledge of practitioner misconduct.

One commenter questioned when costs might be assessed against the practitioner. Assessment of costs is not available in Immigration Court or at the Board, and benefits such as the use of interpreters have not previously been charged against a party. In an effort to keep disciplinary proceedings procedurally similar to Immigration Court practice, the agency has decided not to assess costs in disciplinary proceedings. Therefore, the provision concerning costs has been deleted in the final rule.

With regard to ongoing cases in which a charging document has been issued and filed with the Office of the Chief Immigration Judge prior to the effective date of these regulations, such matters will proceed to a final disposition under the previous regulations.

Comments . Many commenters said that it is inappropriate for federal agencies to unilaterally impose a national disciplinary scheme where states should have sole jurisdiction and, further, that federal regulations concerning discipline will cause confusion and uncertainty with regard to state rules. Others objected that the rule subjects practitioners to being disciplined twice for the same conduct—once by the federal government and once by the state bar. Others believed that this rule is an unnecessary and impermissible intrusion into the state law licensure process and “to bar a lawyer from practice before an agency is unheard of.”

Response: In response to the comments that claim that this regulation is an “impermissible intrusion into the state law licensure process” and that it is “inappropriate for federal agencies to unilaterally impose a national disciplinary scheme where states should have sole jurisdiction,” we refer commenters to the U.S. Supreme Court decision in Sperry v. Florida , 373 U.S. 379 (1963). In that case, the state of Florida sought to enjoin a non-attorney registered to practice before the United States Patent Office from preparing and prosecuting patent applications in Florida because he was not a member of the Florida Bar. The Supreme Court held that the federal government has preemptive powers over states' legislative and judicial authorities when acting under valid federal regulations. As noted above in the supplementary information, EOIR and the Service maintain that under the broad rulemaking authority of the Attorney General and the federal government's preemptive powers, EOIR and the Service have the authority (and indeed, have had the authority since these regulations were first adopted more than 45 years ago) to promulgate disciplinary regulations on a nationwide basis governing the privilege of appearing as an attorney or representative before the Board, the Immigration Courts, and the Service.

The commenters also claim that this regulation is unnecessary in light of the 51 state bar disciplinary agencies (including the District of Columbia) which regulate attorney conduct. The American Bar Association (ABA) suggested that EOIR and the Service establish a system by which complaints about attorneys alleged to have engaged in misconduct be referred to state disciplinary authorities, and by which such disciplinary authorities then would notify the agencies about sanctioned lawyers. Since the ABA submitted almost identical comments regarding the EOIR/Service rule and the Social Security Administration's (SSA's) recently published rule on its disciplinary system ( see 63 FR 41404 (1998)), it appears that the organization is expressing its general objection to federal oversight of the professional conduct of those who appear before federal agencies.

In response to such comments, it should be noted that immigration hearings are held in approximately 50 Immigration Courts located in 23 different states and territories. Moreover, attorneys often represent aliens in jurisdictions other than those in which they are licensed to practice law. It is imperative that EOIR and the Service administer a uniform disciplinary system among the respective Immigration Courts. For the reasons explained in SSA's supplementary information to their disciplinary rule, EOIR and the Service should not be expected or required to apply numerous local rules, or local interpretations of the rules, to problems that require national uniformity. Applying local rules or local interpretations in lieu of a national standard would leave immigration attorneys in one state subject to discipline, while possibly exempting immigration attorneys in another state. EOIR and the Service do not believe that it would benefit the Board, the Immigration Courts, the Service, the public, or attorneys to promote inconsistency in regulating the conduct of practitioners, who all practice before the same forum.

Similar to the SSA program, practice before EOIR and the Service is not limited to attorneys, but includes non-attorneys who may not be subject to state bar rules. EOIR and the Service believe that all practitioners, attorneys and non-attorneys alike, must be held to uniform standards of professional conduct in immigration proceedings. Without this regulation, non-attorneys may not be accountable to any disciplinary authority.

EOIR and the Service anticipate working closely with the various state bars when investigating disciplinary complaints. Referrals to state bars may be appropriate when a complaint does not allege a violation of the federal regulations but may allege a violation of state bar rules or regulations. Cooperation between the federal government and the 51 state bar disciplinary authorities will optimize resources and minimize duplication of investigations. In general, state bars have not been resistant to the Federal government's efforts to assist in protecting the public by scrutinizing the professional conduct of attorneys. Moreover, immigration law is a very complex area and this program may assist state bars with investigating allegations of misconduct against immigration attorneys.

After publication of the proposed rule, the vast majority of comments were from attorneys who opposed the idea of any Federal government regulations of professional conduct. However, as we have tried to emphasize in this final rule, the Department's imperatives, including preserving the integrity of the Board, the Immigration Courts, and the Service, ensuring the important and proper discharge of statutory duties under the immigration laws of the United States, and safeguarding a vulnerable client population, support continuing and improving the reasonable and fair regulation of such conduct.

One comment in particular exemplified the peril of susceptible clients, and was submitted by immigrant twin brothers who are law students. After fleeing the former Yugoslavia, they arrived in the United States with the hope of starting a new life. They feared for their lives in their country and applied for political asylum so they would not have to return to their country to face persecution and possibly death. They retained an immigration attorney to help them file the necessary applications. After appearing before an Immigration Judge, the brothers were given a deadline to file their asylum applications with the court, and a hearing date was set. The attorney assured the brothers that the applications had been filed before the deadline and that they did not need to show up for any further hearings before the Immigration Judge.

During the ensuing months, the attorney continued to pressure the brothers for additional legal fees, telling them he needed to file more paperwork. He told them to expect to receive their permanent resident cards in the mail. After numerous attempts to contact the attorney over the next several years, the brothers finally went to the Immigration Court to find out the status of their case. Much to their surprise, they learned that their case had been dismissed after the Immigration Judge and the Board considered their requests for asylum to be abandoned when no applications had been submitted by the deadline. The brothers then contacted their attorney who told them that he had never received anything from the Immigration Court or the Service.

Eventually, they hired a new attorney who helped them correct the mistakes of the former attorney by filing a motion to reopen based on ineffective assistance of counsel. The brothers wrote: “The immigration problem which faces this great nation of ours is caused by many of the immigration attorneys who misrepresent their clients who often do not speak (the) English language and do not understand immigration law. * * * The proposed rule is a rule which needs to be used in practice. It needs to be enacted in order to deter the misconduct of attorneys who practice immigration law. These attorneys like our former attorney are taking advantage of the most vulnerable group of people in our society. Your office would serve a great deal in this process by properly investigating, and determining which complaints have merit. * * * This rule makes good on a pledge by the Attorney General to deter the bad conduct of immigration attorneys. Hopefully, this letter will inform you that (the) rule is needed and wanted by not only immigrants like us but also future legal professionals.”

In accordance with 5 U.S.C. 605(b), the Attorney General certifies that this rule affects only those practitioners who practice immigration law before EOIR and the Service. Approximately 5000 immigration and 400 accredited representatives will be subject to this rule. This rule will not have a significant adverse economic impact on a substantial number of small entities because the rule is similar in substance to the existing regulatory process and will affect only those practitioners who have committed serious crimes or who have lost their license to practice law or otherwise engaged in professional misconduct. Therefore, this rule does not have a significant economic impact on a substantial number of small entities.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review”, section 1(b), Principles of Regulation. The Department of Justice has determined that this rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), and accordingly this rule has not been reviewed by the Office of Management and Budget.

This regulation 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. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

We try to write clearly. If you can suggest how to improve the clarity of these regulations, call or write Charles Adkins-Blanch, Acting General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2400, Falls Church, Virginia, 22041, telephone (703) 305-0470.

Scrapie is a degenerative and eventually fatal disease affecting the central nervous systems of sheep and goats. To control the spread of scrapie within the United States, the Animal and Plant Health Inspection Service (APHIS), U.S. Department of Agriculture (USDA), administers regulations at 9 CFR part 79, which restrict the interstate movement of certain sheep and goats. APHIS also administers the Voluntary Scrapie Flock Certification Program (the VSFCP), described in the regulations at 9 CFR part 54.

On December 17, 1999, we published in the Federal Register (64 FR 70608-70610, Docket No. 99-067-1) a proposal to amend 9 CFR parts 54 and 79 to add a definition of the term scrapie control pilot project and to allow the Administrator to waive specified requirements of parts 54 and 79 for flocks participating in scrapie control pilot projects. The purpose of the proposal was to enhance the ability of APHIS to work with flock owners to develop pilot projects for scrapie control that may involve using techniques and procedures different from those contained in the current regulations.

We solicited comments concerning our proposal for 30 days ending January 18, 2000. We received seven comments by that date. They were from a State government, an association representing veterinarians, two associations representing the U.S. sheep industry, and three individual sheep producers. Six commenters generally supported the proposed rule, but several suggested changes to improve it. One commenter opposed the proposed rule. Several of the commenters also raised issues outside the scope of the proposed rule. All issues raised by the comments pertinent to the proposed rule are discussed below by topic.

The comment opposed to the proposed rule stated that pilot projects, by lessening restrictions, could result in the movement of sheep that were potentially infected with scrapie, spreading the disease and delaying its eradication. This commenter stated that sheep allowed movement by the pilot projects would be quarantined or destroyed under the previous regulations. Another commenter urged APHIS to be conservative in its approval of pilot projects to guard against projects that may actually contribute to the spread of scrapie.

We are not making any change in response to these comments. Historically, scrapie control has not been successful in part because producers of sheep with valuable genetic lines were often left with few alternatives other than flock depopulation. This was discouraging and often influenced producers not to report scrapie. The pilot projects will allow us to evaluate methods that may provide alternatives to flock depopulation while minimizing the spread of disease. It is essential to use pilot projects to evaluate different tests and control methods. It is our belief that these projects will assist us in adjusting our control and eradication programs to be more effective and acceptable to producers and will, therefore, accelerate, not delay, progress toward the eradication of scrapie. Each pilot project will have restrictions on the movement of sheep in the project that are commensurate with the risk that the sheep might spread scrapie, and these movement restrictions and other precautions in pilot project design should prevent the spread of scrapie as a result of the pilot projects.

The definition proposed for the term scrapie control pilot project was “A pilot project authorized by the Administrator in writing, designed to perform research or test or improve program procedures for scrapie control. In addition to APHIS, participants may include State animal health agencies, flock owners, and other parties as necessary.” Two commenters suggested that pilot projects could contribute to the eradication as well as the control of scrapie, and noted that eventual eradication of the disease is an important goal of scrapie programs and should be stressed. We agree.

One commenter questioned including “designed to perform research” in the definition, in light of the fact that research is not a primary APHIS mission and that other agencies have research as their primary mission.

While it is not the mission of APHIS to conduct pure research, APHIS has historically conducted projects that have examined the practicality of implementing new testing techniques and control strategies. The scrapie pilot project initiative expands our role in this effort as a means to enhance scrapie control with the goal of eventual eradication. This effort also will allow flocks and animals to be kept alive for use by other entities whose sole mission is to conduct research. However, we agree that by encouraging pilot projects, APHIS will not be directly conducting research, but instead facilitating research by other parties.

In response to the above comments, we are changing the definition of scrapie control pilot project to read “A pilot project authorized by the Administrator in writing, designed to test or improve program procedures or to facilitate research, in order to control and eradicate scrapie. In addition to APHIS, participants may include State animal health agencies, flock owners, and other parties as necessary.”

One commenter stated that animals from flocks in a pilot project should be allowed to move intrastate or interstate only with permission from State animal health officials, and should be required to be individually identified with official identification.

We are not making any change in response to this comment. As our goal is to control and eventually eradicate scrapie, movement of sheep from flocks participating in the pilot project will be done in accordance with pilot project designs that minimize the risk of scrapie spread and ensure that these animals will be monitored after movement from the flock of origin. State animal health officials will be involved in establishing and approving pilot projects, including the terms under which animals from pilot projects may be moved. Individual animal identification will be used whenever it is necessary to allow continued monitoring of animals after they have been moved from a pilot project flock.

One commenter noted the statement in the economic analysis section of the proposed rule that “APHIS expects to engage in scrapie pilot projects over approximately the next 5 years.” He commented that 5 years is not long enough to fully evaluate the role of genetics in scrapie resistance and how knowledge of genetics can assist control efforts.

That time estimate was only an approximation, and we agree that it may take longer. Also, followup monitoring of animals involved in pilot projects may occur for much longer. For instance, we intend to continue monitoring high risk animals from pilot projects throughout their lifetimes and to conduct necropsies of each high risk animal and examine it for any evidence of scrapie.

Two commenters questioned the statement in the economic analysis that the proposed rule would affect “no more than 75 sheep flocks containing approximately 3,400 sheep that may be engaged in pilot projects in any given year.” The number 75 was not meant to be a limit on the total number of pilot project flocks but was our projection of the number of flocks that may participate based on the number of infected and source flocks known to exist in the United States. The actual number will depend upon the amount of Federal funding available. Additional participation may be permitted if some costs are borne by States or producers.

One commenter stated that premises contamination studies are vitally needed to gain better understanding of the degree to which contaminated premises might spread scrapie and the effectiveness of decontamination techniques for premises. We agree, and APHIS has asked the Agricultural Research Service, USDA, to conduct such studies.

One commenter suggested that animals in pilot projects should be awarded a flock status under the Voluntary Scrapie Flock Certification Program that would allow them to be eligible for export in order to minimize adverse financial impacts on their owners. We did not make any change in response to this comment. The intent of the pilot project is to evaluate the effectiveness of certain tests, procedures, and alternative methods, not to certify animals for export. Animals in pilot projects are not necessarily in the same category, in terms of risk of scrapie or demonstrated freedom from scrapie, with animals in any of the flock categories established by the Voluntary Scrapie Flock Certification Program. The pilot projects may eventually lead to methods that enhance our ability to certify animals for export, but there is no basis at this stage for certifying animals in pilot projects for export.

Therefore, for the reasons given in the proposed rule and in this final rule, we are adopting the proposed rule as a final rule, with the changes discussed above.

This is a substantive rule that relieves restrictions and, pursuant to the provisions of 5 U.S.C. 553, may be made effective less than 30 days after publication in the Federal Register .

Immediate implementation of this rule is necessary to provide relief to those persons involved in scrapie pilot projects who are adversely affected by restrictions we no longer find warranted. Making this rule effective immediately will allow participating sheep producers and others in the marketing chain to move and sell animals during this year's slaughter season. Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be effective upon publication in the Federal Register .

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

This rule will allow the Administrator to exempt sheep and goat flocks participating in scrapie control pilot projects from certain requirements of the regulations. Because APHIS resources will allow us to develop and administer only a limited number of pilot projects, this rule is unlikely to affect more than 75 sheep flocks containing approximately 3,400 sheep that may be engaged in pilot projects in any given year. It could affect substantially fewer if owners of flocks eligible for pilot projects decline to participate. APHIS expects to engage in scrapie pilot projects over approximately the next 5 years. Based on current plans for pilot projects, this rule will probably affect no more than 20 flocks the first year. The primary effects on these flock owners should be beneficial, in that animal testing and genotyping under the pilot projects would allow them to keep animals that would otherwise have to be destroyed under the regulations. All flock owners should eventually accrue long-term benefits from the control or eradication of scrapie in the form of reduced loss of animals from the disease and opening of additional international markets.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

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

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are in conflict with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to General Electric Company Models CF6-80C2A1/A2/A3/A5/A5F/A8/D1F turbofan engines was published in the Federal Register on February 23, 2000 (65 FR 8892). That action proposed to require initial and repetitive visual inspections of left hand and right hand aft engine mount link assemblies for separations, cracks and spherical bearing race migration and replacement of cracked or separated parts prior to further flight.

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

Although one comment agrees with the technical content of the AD, concern was expressed because the economic analysis within the NPRM indicates that the cost to replace link assemblies is approximately $7,000 per engine, while the service bulletin indicates the cost is $9,718 per engine. The comment suggests that the FAA should change its economic analysis to match the cost quoted in the Service Bulletin. The FAA does not agree. The FAA started with the new part costs cited in the service bulletin, but took into account that some useful life had been realized from the existing parts. The $7,000 per engine cost to replace link assemblies quoted in the NPRM represents the cost of the lost life of existing, installed links.

Another comment requests that the length of the grace period permitted to remove migrated links that are not cracked, be tied to the extent of bearing migration. The FAA does not agree. Bearing migration results from a failed or undersized bearing race swage lip. There is no data available to quantify the rate of migration once the retention feature is overcome. Once migration begins, there is no data to indicate that it will not progress until contact is made with the boss of the turbine rear frame clevis. Therefore, the analysis assumed the worst case condition ( i.e. maximum migration) for calculating the reduction in useful life. The 75-cycle allowance for replacement of migrated, but not cracked links, is considered conservative, but reasonable.

One comment requests that the FAA change the requirement to replace aft engine mount link assemblies with improved aft engine mount link assemblies by deleting the requirement that link assemblies be replaced prior to the engine accumulating 29,000 cycles since new. The comment stated that link assemblies are sometimes installed new on engines that have already accumulated a considerable number of cycles and that the link assemblies are inspected themselves. Therefore, replacement of link assemblies should not be tied to engine cycles. The FAA does not agree. Links are expected to be replaced “at the next engine shop visit.” However, since the current link assemblies are not life-limited and not routinely tracked, the 29,000 cycles since new (CSN) limit was added as an absolute limit. Operators may apply for an Alternate Method of Compliance (AMOC) for link assemblies installed on engines that will exceed the 29,000 CSN limit prior to their next scheduled engine shop visit provided sufficient records of link assembly CSN data are available to show that the links will not exceed 29,000 CSN.

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 as proposed.

There are approximately 975 engines of the affected design in the worldwide fleet. The FAA estimates that 323 engines installed on aircraft of US registry will be affected by this AD. The cost to replace link assemblies is approximately $7,000. The FAA estimates that it will take approximately 0.5 work hours per engine to accomplish each of an average of two interim inspections prior to next engine shop visit and that the average labor rate is $60 per work hour. Based on these figures, the total cost impact of the AD on US operators is estimated to be $2,280,380.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain McDonnell Douglas Model DC-8 series airplanes that have been converted from a passenger to a cargo-carrying (“freighter”) configuration, was published in the Federal Register on April 17, 2000 (65 FR 20390). That action proposed to require a revision to the Airplane Flight Manual Supplement (AFMS) to ensure that the main deck cargo door is closed, latched, and locked; inspection of the door wire bundle to detect discrepancies and repair or replacement of discrepant parts. That action also proposed to require, among other actions, modification of the hydraulic and indication systems of the main deck cargo door, and installation of a means to prevent pressurization to an unsafe level if the main deck cargo door is not closed, latched, and locked.

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

The commenter supports the proposed rule.

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

There are approximately 15 Model DC-8 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 11 airplanes of U.S. registry will be affected by this AD.

It will take approximately 1 work hour per airplane to accomplish the general visual inspections, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the general visual inspections required by this AD on U.S. operators is estimated to be $660, or $60 per airplane, per inspection cycle.

It will take approximately 1 work hour per airplane to accomplish the AFMS revision and installation of associated placards, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the AFMS revision and installation of associated placards required by this AD on U.S. operators is estimated to be $660, or $60 per airplane.

The FAA estimates that it will take approximately 210 work hours per airplane to accomplish the modification required by paragraph (c) of the AD, at an average labor rate of $60 per work hour. The FAA also estimates that required parts will cost approximately $45,000 per airplane. Based on these figures, the cost impact of this modification required by this AD on U.S. operators is estimated to be $633,600, or $57,600 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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 Departmento de Aviacao Civil (DAC), which is the airworthiness authority for Brazil, recently notified the FAA that an unsafe condition may exist on certain EMBRAER Model EMB-135 and EMB-145 series airplanes. The DAC advises that activation of the precooler differential pressure switches may cause inappropriate automatic shutoff of the engine bleed valve on airplanes on which EMBRAER Service Bulletin No. 145-36-0017, dated March 28, 2000, or the production equivalent, has been accomplished. The inappropriate shutoff is due to incorrect operation of the precooler differential pressure switch and may result in the flight crew being unable to restart a failed engine using cross-bleed from the other engine. Automatic shutoff of the engine bleed valve could also occur during single-bleed operation of the anti-ice system, resulting in possible failure of the anti-ice system.

EMBRAER has issued Alert Service Bulletin No. 145-36-A018, dated April 14, 2000, which describes procedures for disconnection of the electrical connector from precooler differential pressure switches in the left and right engine pylons. The DAC classified this alert service bulletin as mandatory and issued Brazilian airworthiness directive 2000-04-01R1, dated May 3, 2000, in order to ensure the continued airworthiness of these airplanes in Brazil.

These airplane models are manufactured in Brazil and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD is being issued to prevent incorrect operation of the precooler differential pressure switches, which could result in automatic shutoff of the engine bleed valve, and consequent inability to restart a failed engine using cross-bleed from the other engine or possible failure of the anti-ice system. This AD will also ensure that the flight crew is advised of the procedures necessary to restart an engine in flight using the auxiliary power unit (APU). This AD requires revising the Limitations section of the FAA-approved Airplane Flight Manual (AFM) to prohibit departure without the APU operating and single-bleed operation in icing conditions. This AD also requires revising the Abnormal Procedures section of the AFM to replace the existing “Engine Airstart” instructions with revised instructions that clarify proper procedures for restarting an engine using the APU. This AD also requires accomplishment of the actions specified in the alert service bulletin described previously. Following accomplishment of the actions specified in the alert service bulletin, the revision to the Limitations section of the AFM described previously may be removed.

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

Operators should note that, within 24 hours after the effective date of this AD, this AD requires revising the Limitations and Abnormal Procedures sections of the AFM as described previously. This AD also requires, within 100 flight hours after the effective date of this AD, accomplishment of the actions specified in EMBRAER Alert Service Bulletin No. 145-36-A018. The Brazilian airworthiness directive states that dispatch with the APU inoperative is prohibited immediately upon receipt of their Emergency AD until the accomplishment of the actions in the alert service bulletin. The Brazilian airworthiness directive further provides some guidance for engine starting assisted by the APU, but does not provide the full details of this restart procedure. The FAA finds that the revision of the Limitations section described previously is necessary to mitigate the effects of incorrect operation of the precooler differential pressure switches until the switches are disconnected. The FAA finds that replacement of the existing “Engine Airstart” procedure in the “Abnormal Procedures” section of the AFM is necessary to ensure that the procedure is clear and that the flight crew is properly advised of how to restart a failed engine using the APU.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an 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.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification ( e.g., reasons or data) for each request.

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-208-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.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

In Title 30 of the Code of Federal Regulations, parts 700-end, revised as of July 1, 1999, on page 168, in the second column of §750.25(d), the last line of the table was inadvertently omitted and should read as follows:

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing an NPRM.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Publication of a notice of proposed rulemaking and delay of effective date would be contrary to public interest because immediate action is necessary to protect the maritime public and other persons from the hazards associated with fireworks displays. We had insufficient time to publish a Notice of Proposed Rulemaking because we did not receive adequate advance notice of this event.

This temporary rule is necessary to ensure the safety of the maritime community during setup, loading and firing operations of fireworks in conjunction with the City of Port Clinton Fireworks. Entry into the safety zone without permission of the Captain of the Port is prohibited.

The Captain of the Port may be contacted via Coast Guard Station Toledo on VHF-FM Channel 16.

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 this rule 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). This finding is based on the historical lack of vessel traffic at this time of year.

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.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for less than one day when vessel traffic can pass safely around the safety zone.

In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), assistance to small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process is available upon request. 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 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 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.lC, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing an NPRM.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Publication of a notice of proposed rulemaking and delay of effective date would be contrary to public interest because immediate action is necessary to protect the maritime public and other persons from the hazards associated with fireworks displays. We had insufficient time to publish a Notice of Proposed Rulemaking because the event sponsor did not provide us with adequate advance notice of this event.

This temporary rule is necessary to ensure the safety of the maritime community during setup, loading and firing operations of fireworks in conjunction with the Red, White and Blues Bang fireworks display. Entry into the safety zone without permission of the Captain of the Port is prohibited.

The Captain of the Port may be contacted via Coast Guard Station Toledo on VHF-FM Channel 16.

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 this rule under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT)(44 FR 11040, February 26, l979). This finding is based on the historical lack of vessel traffic at this time of year.

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. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for less than one day when vessel traffic can pass safely around the safety zone.

In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), assistance to small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process is available upon request. 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 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 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 M16475.1C, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES .

Although this rule is being published as a temporary final rule without prior notice, an opportunity for public comment is nevertheless desirable to ensure the rule is both reasonable and workable. Accordingly, we encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD01-00-166), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(8), the Coast Guard finds that good cause exists for not publishing an NPRM. We were not notified of the event with sufficient time to publish an NPRM, allow for comments, and publish a final rule in sufficient time to allow notice to the public.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . This is a locally supported event with minimal impact on the waterways and the zones are only in affect for a short duration.

The Amistad Historical Society is sponsoring a voyage of the sailing vessel Amistad from New London Harbor to NewHaven Harbor. On July 14, 2000, the Amistad and participating vessels will transit from New London Harbor via Long Island Sound to New Haven. The Amistad will arrive in New Haven Harbor on July 15, 2000 and will transit to a berth at Long Wharf Pier.

The Coast Guard will establish a safety zone in New Haven Harbor on July 15, 2000, to protect the maritime public and participating vessels from possible hazards to navigation caused by the arrival of the sailing vessel AMISTAD on July 15, 2000. The safety zone includes all waters of New Haven Harbor within the boundaries of the marked channel from the Hew Haven Harbor entrance buoy to the I-95 Quinnipiac River Bridge. This safety zone is effective from 10:00 a.m. until 4:00 p.m. on July 15, 2000.

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

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

Although this regulation prevents traffic from transiting New Haven Harbor during the event, the effect of this regulation will not be significant for the following reasons: the limited duration that the safety zone will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, facsimile, marine information broadcast, local area committee meetings, and New Haven area newspapers. Mariners will be able to adjust their plans accordingly base on the extensive advance information. Additionally, this safety zone has been narrowly tailored to impose the least impact on maritime interests yet provide the level of safety deemed necessary.

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 would not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit through portions of Long Island Sound and New Haven Harbor during various times of July 15, 2000. Although these regulations apply to a substantial portion of New Haven Harbor, designated areas for viewing the Amistad arrival are being established to allow for maximum use of the waterways by vessels that usually operate in the affected areas. New Haven Harbor will be closed to commercial traffic during the Amistad arrival parade. Before the effective period, the Coast Guard would make notifications to the public via mailings, facsimiles, the Local Notice to Mariners and the use of the sponsor's Internet site. In addition, the sponsoring organization, Amistad Historical society, is planning to provide notification of the event via local newspapers, pamphlets and television and radio broadcasts.

If, however, you think that your business or organization qualifies as a small entity and that this proposed rule will have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

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

We have analyzed this 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 costs. This rule would not impose an unfunded mandate.

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

We considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph 34(g), of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES .

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing an NPRM.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Publication of a notice of proposed rulemaking and delay of effective date would be contrary to public interest because immediate action is necessary to protect the maritime public and other persons from the hazards associated with fireworks displays. We had insufficient time to publish a Notice of Proposed Rulemaking because we did not receive adequate advance notice of this event.

This temporary rule is necessary to ensure the safety of the maritime community during setup, loading and firing operations of fireworks in conjunction with the City of Huron river fest. Entry into the safety zone without permission of the Captain of the Port is prohibited. The Captain of the Port may be contacted via Coast Guard Station Toledo on VHF-FM Channel 16.

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 this rule 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). This finding is based on the historical lack of vessel traffic at this time of year.

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.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for less than one day when vessel traffic can pass safely around the safety zone.

In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), assistance to small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process is available upon request. 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 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 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.lC, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES .

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing an NPRM.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Publication of a notice of proposed rulemaking and delay of effective date would be contrary to public interest because immediate action is necessary to protect the maritime public and other persons from the hazards associated with fireworks displays. We had insufficient time to publish a Notice of Proposed Rulemaking because we did not receive adequate advance notice of this event.

This temporary rule is necessary to ensure the safety of the maritime community during setup, loading and firing operations of fireworks in conjunction with the City of Toledo Fireworks. Entry into the safety zone without permission of the Captain of the Port is prohibited.

The Captain of the Port may be contacted via Coast Guard Station Toledo on VHF-FM Channel 16.

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 this rule 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). This finding is based on the historical lack of vessel traffic at this time of year.

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.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for less than one day when vessel traffic can pass safely around the safety zone.

In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), assistance to small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process is available upon request. 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 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 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.lC, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES .

The Assassination Records Review Board was established by the John F. Kennedy Assassination Records Collection Act of 1992 (106 Stat. 3443). At the termination of the Review Board on September 30, 1998, its records were transferred to the Archivist of the United States. NARA continues to maintain and supplement the collection under the provisions of the Act. NARA is, therefore, the successor in function to this defunct independent agency.

The Review Board issued regulations at 36 CFR chapter XIV providing guidance on the Act (part 1400) on June 28, 1995. In this final rule we are transferring those regulations without substantive change to a new 36 CFR part 1290 in new subchapter H. Agencies continue to identify records that may qualify as assassination records and need to have this guidance available.

Other Review Board regulations implementing Government in the Sunshine Act, FOIA, and the Privacy Act for the Board's own operations (parts 1405, 1410, and 1415) are withdrawn from the Code of Federal Regulations as unnecessary. The Board's records were transferred to NARA and are now subject to NARA regulations.

This rule is effective upon publication for “good cause” as permitted by the Administrative Procedure Act (5 U.S.C. 553(d)(3)). If the rule is not effective before July 1, 2000, the regulations of the defunct Review Board in 36 CFR ch. XIV will continue to appear in the print and electronic copies of title 36. NARA believes that delaying the effective date for 30 days is unnecessary as this rule represents a minor technical amendment and there is no substantive impact on the public or Federal agencies.

This rule is not a significant regulatory action for the purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget. This rule does not have federalism implications and is not a major rule under 5 U.S.C. 801. As required by the Regulatory Flexibility Act, it is hereby certified that this rule will not have a significant impact on a substantial number of small entities.

EPA published a SIP for Kansas that included revising and renumbering regulatory definitions, streamlining opacity requirements, expanding testing of gasoline delivery vehicles, and methods for calculating actual emissions. In the January 11, 2000, rule, FR DOC 00-27 (65 FR 1545) on page 1545, in the third column under the heading “D. Method for Determining Actual Emissions,” correct the reference “K.A.R. 28-19-20” to read “K.A.R. 28-19-210.”

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedures are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is such good cause for making today's rule final without prior proposal and opportunity for comment because we are merely correcting an incorrect citation in a previous action. Thus, notice and public procedure are unnecessary.

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

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

The Congressional Review Act (CRA), 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. As stated previously, we made such a good cause finding, including the reasons therefore and established an effective date of June 27, 2000. We will submit a report containing this rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This correction to the Kansas SIP table is not a “major rule” as defined by 5 U.S.C. 804 et seq. (2).

You may be affected by this action if you manufacture, process, or otherwise use phosphoric acid. Potentially affected categories and entities may include, but are not limited to:

This table 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. To determine whether your facility would be affected by this action, you should carefully examine the applicability criteria in part 372, subpart B of Title 40 of the Code of Federal Regulations (CFR). If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding “FOR FURTHER INFORMATION CONTACT” section.

1. Electronically. You may obtain electronic copies of this document from the EPA internet Home Page at http:// www.epa.gov/. 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/. Information concerning this notice is also available on EPA's Web site at http://www.epa.gov/tri.

2. In person. The Agency has established an official record for this action under docket control number OPPTS-400056A. The official record consists of the documents specifically referenced in this action, any public comments received during an applicable comment period, and other information related to this action, including any information claimed as confidential business information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period, is available for inspection in the TSCA Nonconfidential Information Center, North East Mall Rm. B-607, Waterside Mall, 401 M St., SW., Washington, DC. The Center is open from noon to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number of the Center is (202) 260-7099.

EPA is finalizing this action under EPCRA section 313(d)(3) and (e)(1)(A). 42 U.S.C. 11023.

Section 313 of EPCRA requires certain facilities that manufacture, process, or otherwise use listed toxic chemicals in amounts above reporting threshold levels to report their environmental releases and other waste management of such chemicals annually. Beginning with the 1991 reporting year, such facilities must also report pollution prevention and recycling data for such chemicals, pursuant to section 6607 of PPA, 42 U.S.C. 13106. EPCRA section 313 established an initial list of toxic chemicals that was comprised of more than 300 chemicals and 20 chemical categories. Phosphoric acid was included on the initial list of chemicals and chemical categories.

EPCRA section 313(d) authorizes EPA to add chemicals to or delete chemicals from the list and sets forth criteria for these actions. Under EPCRA section 313(e)(1), any person may petition EPA to add chemicals to or delete chemicals from the list. EPA has added and deleted chemicals from the original statutory list.

EPCRA section 313(d)(2) states that EPA may add a chemical to the list if any of the listing criteria are met. Therefore, to add a chemical, EPA must demonstrate that at least one criterion is met, but need not determine whether any other criterion is met. Conversely, to remove a chemical from the list, EPA must demonstrate that none of the criteria are met. The EPCRA section 313(d)(2) criteria are:

EPA refers to the section 313(d)(2)(A) criterion as the “acute human health effects criterion,” the section 313(d)(2)(B) criterion as the “chronic human health effects criterion,” and the section 313(d)(2)(C) criterion as the “environmental effects criterion.”

EPA issued a statement of petition policy and guidance in the Federal Register of February 4, 1987 (52 FR 3479) to provide guidance regarding the recommended content and format for submitting petitions. EPA has issued a statement clarifying its interpretations of the section 313(d)(2) and (3) criteria for adding and deleting chemicals from the section 313 toxic chemical list (59 FR 61432, November 30, 1994) (FRL-4922-2).

On November 9, 1990, TFI filed a petition with EPA to delist phosphoric acid from the EPCRA section 313 list of toxic chemicals. Congress had included phosphoric acid on the list when it enacted EPCRA section 313 in 1986. In the petition, TFI argued that EPA should delete phosphoric acid because it did not meet any of the three listing criteria in EPCRA section 313(d)(2): The acute human health effects criterion, the chronic human health effects criterion, or the environmental effects criterion.

On January 23, 1998, EPA denied TFI's petition, finding that phosphoric acid met the environmental effects listing criterion at EPCRA section 313(d)(2)(C), which provides that EPA may add or decline to delete a chemical if it “is known to cause or reasonably can be anticipated to cause, because of its toxicity . . . a significant adverse effect on the environment of sufficient seriousness . . . to warrant reporting” (63 FR 3566) (FRL-5762-2) (Ref. 1). EPA based the denial, among other things, upon phosphoric acid's potential to cause eutrophication when released into certain water bodies.

On April 29, 1998, TFI challenged EPA's denial of its petition in the United States District Court for the District of Columbia. The Fertilizer Institute v. Browner , No. 98—1067 (D.D.C.). In its challenge, TFI argued that phosphoric acid did not meet the environmental effects listing criterion because it was not toxic. TFI did not dispute that releases of phosphoric acid can cause eutrophication. It argued, however, that the eutrophication did not result “because of” phosphoric acid's toxicity, but “because of” its nutrient value. TFI also argued that phosphoric acid was not toxic because its effects were indirect and that EPA's interpretation of EPCRA section 313(d)(2)(C) read the term “toxicity” out of the statute.

EPA disagreed and argued, among other things, that: (1) Many chemicals that are nutrients are also toxic; (2) the number of steps between exposure and effect does not determine whether something is toxic; and (3) it was not reading “toxicity” out of the statute because there were situations in which a chemical could cause a significant adverse effect upon the environment for reasons other than any inherent toxicity.

The Court ruled in TFI's favor, granting TFI's motion for summary judgment on the toxicity issue and reversing EPA's denial of TFI's petition to delete phosphoric acid from the EPCRA section 313 toxic chemical list (Ref. 2). Notwithstanding its ruling, the Court agreed that phosphoric acid “can reasonably be anticipated to cause . . . a significant adverse effect on the environment” and that a listing decision under EPCRA section 313 could be based upon toxic effects that manifest indirectly. The Court, however, found that the “significant adverse effect” that phosphoric acid causes is not “because of its toxicity,” but because of its nutrient value. The government did not appeal the Court's decision.

As a result of the Court's ruling, EPA proposed to delist phosphoric acid from the reporting requirements under EPCRA section 313 and section 6607 of the PPA on December 7, 1999 (64 FR 68311)(FRL-6397-3).

Based on available information, EPA cannot find that phosphoric acid meets the acute effects criterion at EPCRA section 313(d)(2)(A). Like many other acids, phosphoric acid may cause irritation and corrosive effects. The Poison Index states that “Phosphoric acid causes irritation of eyes, skin, and respiratory tract. When ingested it can produce nausea, vomiting, abdominal pain, bloody diarrhea, acidosis, shock and irritation or burns of the oropharyngeal mucosa esophagus and stomach” (Ref. 3). As with other corrosive or caustic materials, the extent of damage generally is determined by the acidity of the solution and the duration of contact. Phosphoric acid is weaker than the other strong mineral acids. Likewise, phosphoric acid is not expected to exist beyond facility site boundaries at a pH that will cause acute effects (Ref. 3). Thus, EPA has determined that it does not meet the EPCRA section 313(d)(2)(A) acute effects criterion.

Based on available information, EPA cannot find that phosphoric acid can reasonably be anticipated to cause a chronic human health effect. EPA has not found phosphoric acid to cause heritable genetic effects or developmental or reproductive toxicity in humans (Ref. 4). EPA has not found any information in the available literature with which to evaluate the potential for phosphoric acid to cause carcinogenic or neurotoxic effects (Ref. 3). Several studies suggest that phosphoric acid may cause nephrocalcinosis in rats when administered in relatively high doses (Ref. 3). However, the doses that may cause such effects are somewhat uncertain since, even on diets without added phosphate, rats may have some isolated areas of renal calcification and the composition of the diet (e.g., the amount of calcium, acid-base balance, and vitamin D) can influence the appearance of the effects. EPA, therefore, does not believe that, at this time, there is sufficient information to conclude that phosphoric acid meets the EPCRA section 313(d)(2)(B) criterion.

As discussed in EPA's original denial of TFI's petition (63 FR 3566), phosphoric acid, as a source of phosphates, causes eutrophication (Ref. 5). Eutrophication is the nutrient enrichment of waters resulting in stimulation of an array of undesirable symptomatic changes in the aquatic ecosystem. Therefore, phosphoric acid can reasonably be anticipated to cause significant adverse effects on the environment.

Phosphoric acid, as well as other phosphates, has the potential to cause increased algal growth leading to eutrophication in the aquatic environment (Ref. 5). Eutrophication may result when excessive phosphates enter into an aquatic ecosystem in the presence of sunlight and nitrogen. The phosphate ion is a plant nutrient and it can be a major limiting factor for plant growth in freshwater environments. When levels of phosphate are limited, plant growth is controlled. In excess, however, phosphate from phosphoric acid can cause extreme algal blooms. Toxic effects result from oxygen depletion as the algae die and decay. Toxic effects have also been related to the release of decay products or direct excretion of toxic substances from sources such as blue-green algae. In addition, phosphates in aquatic environments may encourage the growth of introduced plants to the detriment of native plants and thereby change plant distribution (Refs. 5 and 6).

EPA requested comments on its proposal to delete phosphoric acid from the EPCRA section 313 list of toxic chemicals. Specifically, EPA requested comment on whether phosphoric acid produces any toxic effects that meet the EPCRA section 313(d)(2)(A), (B), or (C) listing criteria. Such effects could include acute and chronic human health effects or environmental effects. Additional hazard information on phosphoric acid can be found in EPA's original petition denial (63 FR 3566).

EPA received 29 comments in response to the December 7, 1999 proposal to delete phosphoric acid from the EPCRA section 313 list of toxic chemicals (64 FR 68311). All of the comments that EPA received were in support of the delisting proposal. As a result and because no commenter raised issues that call into question the basis for the Agency's proposal, EPA does not consider the comments significant and is not otherwise responding to them.

EPA has authority to delete a chemical from the EPCRA section 313 list of chemicals only if it fails to meet any of the EPCRA section 313(d)(2) criteria: the acute human health effects criterion (313(d)(2)(A)), the chronic human health effects criterion (313(d)(2)(B)), or the environmental effects criterion (313(d)(2)(C)). EPA's original denial of the petition to delist phosphoric acid was based on the finding that phosphoric acid met the EPCRA section 313(d)(2)(C) criterion for listing. The Court in Fertilizer Institute although recognizing that phosphoric acid can cause adverse effects on the environment, found that the effects do not occur because of phosphoric acid's toxicity. Therefore, according to the Court, phosphoric acid does not satisfy the EPCRA section 313(d)(2)(C) criterion. EPA scientists agree that phosphoric acid releases can and do cause significant adverse effects on the environment. However, in keeping with the Court's decision, EPA proposed to remove phosphoric acid from the EPCRA section 313 list of toxic chemicals. The comments received on the proposal did not provide any information that demonstrates, consistent with the Court's decision, that phosphoric acid “(causes) or can reasonably be anticipated to cause, because of (1) its toxicity. . ., a significant adverse effect on the environment.” Therefore, EPA is going forward with the delisting of phosphoric acid.

This action becomes effective June 27, 2000. Thus, the last year in which facilities had to file a Toxics Release Inventory (TRI) report for phosphoric acid was 1999, covering releases and other activities that occurred in 1998.

EPCRA section 313(d)(4) provides that “[a]ny revision” to the section 313 list of toxic chemicals shall take effect on a delayed basis. EPA interprets this delayed effective date provision to apply only to actions that add chemicals to the section 313 list. For deletions, EPA may, in its discretion, make such actions immediately effective. An immediate effective date is authorized, in these circumstances, under 5 U.S.C. section 553(d)(I) because a deletion from the section 313 list relieves a regulatory restriction.

EPA believes that where the Agency has determined, as it has with this chemical, that a chemical should not be included on the section 313 list of toxic chemicals, no purpose is served by requiring facilities to collect data or file TRI reports for that chemical, or therefore, by leaving that chemical on the section 313 list for any additional period of time. This construction of section 313(d)(4) is consistent with previous rules deleting chemicals from the section 313 list. For further discussion of the rationale for immediate effective dates for EPCRA section 313 delistings, see 59 FR 33205 (June 28, 1994).

1. Phosphoric Acid; Toxic Chemical Release Reporting; Community Right-to-Know; Denial of Petition, 63 FR 3566, January 23, 1998.

2. The Fertilizer Institute v. Browner , No. 98-1067, Slip op. (D.D.C. April 15, 1999).

3. USEPA, OPPT. Memorandum from Janette Houk, Ph.D., Hazard Integrator, Chemical Review and Evaluation Branch, Health and Environmental Review Division. Re: Petition to Delist Phosphoric Acid. (February 14, 1990).

4. USEPA, OPPT. Memorandum from Michael C. Cimino, Ph.D., Biologist, Toxic Effects Section, Toxic Effects Branch, Health and Environmental Review Division. Re: Mutagenicity Review of Delist Petition for Phosphoric Acid. (February 9, 1990).

5. USEPA, OPPT. Memorandum from Ossi Meyn, Environmental Effects Branch, Health and Environmental Review Division. Re: Petition to Delist Phosphoric Acid—Ecological Hazard. (February 27, 1990).

6. USEPA. South Florida Ecosystem Assessment. Monitoring for Adaptive Management: Implications for Ecosystem Restoration. (Interim Report). December 1996. EPA 904-R-96-008.

This action, which deletes a chemical from the list of chemicals subject to reporting under EPCRA section 313 and PPA section 6607, eliminates an existing requirement to report and does not contain any new or modified requirements. As such, this action does not require review by the Office of Management and Budget (OMB) under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993), because OMB has determined that the complete elimination of an existing requirement is not a “significant regulatory action” subject to review by OMB under E.O. 12866.

Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), the Agency hereby certifies that this final rule will not have a significant impact on a substantial number of small entities. This determination is based on the fact that the complete elimination of the existing requirement will also eliminate the corresponding burden and costs associated with that requirement. This action will not, therefore, result in any adverse economic impacts on the facilities subject to reporting under EPCRA section 313, regardless of the size of the facility.

The deletion of this chemical from the EPCRA section 313 toxic chemical list will reduce the overall reporting and recordkeeping burden estimate provided for the TRI program, but this action does not require any review or approval by OMB under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. EPA will determine the total TRI burden associated with the chemical being deleted, and will complete the required Information Collection Worksheet to adjust the total TRI burden estimate approved by OMB.

The reporting and recordkeeping burdens associated with TRI are approved by OMB under OMB No. 2070-0093 (Form R, EPA ICR No. 1363) and under OMB No. 2070-0145 (Form A, EPA ICR No. 1704). The current public reporting burden for TRI is estimated to average 52.1 hours for a Form R submitter and 34.6 hours for a Form A submitter. These estimates include the time needed for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control number for this information collection appears above. In addition, the OMB control number for EPA's regulations, after initial display in the final rule, are displayed on the collection instruments and are also listed in 40 CFR part 9.

Since this action involves the elimination of an existing requirement, it does not impose any enforceable duty, contain any unfunded mandate, or otherwise have any affect on small governments as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, it is not subject to the requirement for prior consultation with Indian tribal governments as specified in Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 19, 1998). Nor will this action 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).

Pursuant to Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994), the Agency must consider environmental justice related issues with regard to the potential impacts of this action on environmental and health conditions in low-income populations and minority populations. The Agency has determined that deleting this chemical from the EPCRA section 313 toxic chemical list, which would eliminate the availability of the TRI information on this chemical that is made available to communities through the TRI Community Right-to-Know program, will not result in environmental justice related issues.

Pursuant to Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), if an action is economically significant under Executive Order 12866, the Agency must, to the extent permitted by law and consistent with the Agency's mission, identify and assess the environmental health risks and safety risks that may disproportionately affect children. Since this action is not economically significant under Executive Order 12866, this action is not subject to Executive Order 13045.

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

This action does not involve technical standards, nor did EPA consider the use of any voluntary consensus standards. In general, EPCRA does not prescribe technical standards to be used for threshold determinations or completion of EPCRA section 313 reports. EPCRA section 313(g)(2) states that “In order to provide the information required under this section, the owner or operator of a facility may use readily available data (including monitoring data) collected pursuant to other provisions of law, or, where such data are not readily available, reasonable estimates of the amounts involved. Nothing in this section requires the monitoring or measurement of the quantities, concentration, or frequency of any toxic chemical released into the environment beyond that monitoring and measurement required under other provisions of law or regulation.”

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 the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Since 1980, each individual U.S. citizen who enters the USMMA and each student at a State maritime academy who receives Federal student incentive payments is required pursuant to statute (46 U.S.C. app. 1295b(e) and 1295c(g)) to sign an agreement committing: (A) To complete the course of instruction at the relevant academy, unless the individual is separated by such institution; (B) to fulfill the requirements for a license as an officer in the merchant marine of the United States on or before the date of graduation from the USMMA or, if a student incentive payment recipient, to take the examination for a license as an officer in the merchant marine of the United States on or before the date of graduation and to fulfill the requirements for such a license not later than 3 months after the date of graduation from a State maritime academy; (C) to maintain a license as an officer in the merchant marine of the United States for at least 6 years following the date of graduation from the relevant academy; (D) to apply for an appointment as, to accept if tendered an appointment as, and to serve as a commissioned officer in the United States Naval Reserve (including the Merchant Marine Reserve, United States Naval Reserve), the United States Coast Guard Reserve, or any other Reserve unit of an armed force of the United States, for at least 6 years following the date of graduation from the relevant academy; (E) to serve the foreign and domestic commerce and the national defense of the United States for at least 5 years following the date of graduation from the USMMA or for at least 3 years following the date of graduation from a State maritime academy; and (F) to report to the Maritime Administrator on the compliance by the individual. If the official designated by the Maritime Administrator determines that the individual has breached the service obligation contract, denies a request for a deferment of the service obligation, or denies a request for a waiver of the service obligation contract, the individual may seek review of that determination(s).

Previously, review of said determination(s) was to be made by a panel composed of a representative of MARAD and representatives from the Department of the Navy, the National Oceanic and Atmospheric Administration, and the United States Coast Guard. There was no standing panel and, when requested in writing by the individual, the panel was to be convened on an ad hoc basis. These revisions would remove the panel as the reviewing authority and provide for direct appeal to the Maritime Administrator, the head of MARAD. These revisions are designed to streamline the process of reaching a final agency decision and allow for timely review of the decisions of the designated official. It also recognizes that the fundamental concerns involved in breach determinations and waiver and deferment decisions are central to the statutory purposes of the authority and responsibility of MARAD to operate the USMMA and administer the program for incentive payments to students at State maritime academies. These programmatic concerns do not necessarily involve areas of concern to organizations, such as NOAA and the United States Coast Guard, currently designated to sit on the panel.

We published an NPRM on April 10, 2000 (65 FR 18957) providing the public with notice and an opportunity to comment on the proposed changes to the review and appeals process. We received no comments and are promulgating these final rules as proposed.

This final rule has been reviewed under Executive Order 12866, and it has been determined that this is not a significant regulatory action. This final rule is not likely to result in an annual effect on the economy of $100 million or more.

This final rule is also not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034; February 26, 1979). The costs and benefits associated with this rulemaking are considered to be so minimal that no further analysis is necessary. Because the economic impact, if any, should be minimal, further regulatory evaluation is not necessary. These amendments are intended only to simplify and clarify the procedural requirements for appeals of determinations concerning breaches of service obligations, deferments, and waivers.

We analyzed this final rule in accordance with the principles and criteria contained in E.O. 13132 (“Federalism”) and have determined that it does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. These regulations have 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. Therefore, consultation with State and local officials was not necessary.

The Maritime Administration does not believe that this final rule will significantly or uniquely affect the communities of Indian tribal governments when analyzed under the principles and criteria contained in Executive Order 13084 (“Consultation and Coordination with Indian Tribal Governments”). Therefore, the funding and consultation requirements of this Executive Order would not apply. No comments were received from affected persons, including Indian tribal governments, as to its potential impact.

The Maritime Administration certifies that this final rule will not have a significant economic impact on a substantial number of small entities. This final rule only sets forth new procedural rules for students and graduates of the USMMA or State maritime academies to appeal determinations regarding breaches of service obligations, deferments, and waivers.

We have analyzed this final rule for purposes of compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) and have concluded that under the categorical exclusions provision in section 4.05 of Maritime Administrative Order (“MAO”) 600-1, “Procedures for Considering Environmental Impacts,” 50 FR 11606 (March 22, 1985), the preparation of an Environmental Assessment, and an Environmental Impact Statement, or a Finding of No Significant Impact for this final rule is not required. This final rule involves administrative and procedural regulations that have no environmental impact.

This final rule does not impose an unfunded mandate under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $100 million or more, in the aggregate, to any of the following: State, local, or Native American tribal governments, or the private sector. This final rule is the least burdensome alternative that achieves the objective of the rule.

This final rule contains information collection requirements covered by OMB approval number 2133-0150, under 5 CFR part 1320, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number is contained in the heading of this document to cross-reference this action with the Unified Agenda.

This document addresses implementing Congress' goal of giving small businesses, as well as other entities, who lack the financial resources for participation in auctions, the opportunity to participate in the provision of spectrum-based services. Also, this document is consistent with the Communications Act's mandate to identify and eliminate market entry barriers for entrepreneurs and small businesses in the provisions and ownership of telecommunications services. This document also clarifies aspects of the construction requirements for 220 MHz licensees as set out in the Commission's rules, as well as, disposes of two Petitions for Reconsideration of the Fifth Report and Order, 63 FR 49291 (September 15, 1998).

2. This Memorandum Opinion and Order was released on May 30, 2000, and is available for inspection and copying during normal business hours in the FCC Reference Center, 445 Twelfth Street, SW., Washington, DC. The complete text may be purchased from the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, NW., Washington, DC 20036 / (202) 857-3800. This Memorandum Opinion and Order is also available via the Internet at http://www.fcc.gov/Bureaus/Wireless/Orders/2000/.

3. The Regulatory Flexibility Act of 1980, as amended, 1 requires that a final regulatory flexibility analysis be prepared for notice-and-comment rulemaking proceedings, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. 2 We certify that the rule change adopted in this Memorandum Opinion and Order will not have a significant economic impact on a substantial number of small entities because it does not effect any substantive policy change, but only restores language that was previously inadvertently deleted from the Commission's rules.

4. The Commission will send a copy of this Memorandum Opinion and Order, including a copy of the Supplemental Final Regulatory Flexibility Certification, in a report to Congress pursuant to SBREFA, see 5 U.S.C. 801(a)(1)(A). In addition, the Memorandum Opinion and Order and this certification will be sent to the Chief Counsel for Advocacy of the Small Business Administration, and will be published in the Federal Register . See 5 U.S.C. 605(b).

5. Pursuant to section 4(i) of the Communications Act, 47 U.S.C. 154(i), and section 1.108 of the Commission's rules, the Memorandum Opinion and Order in this proceeding released on March 29, 2000, FCC 00-102, IS VACATED.

6. Pursuant to sections 4(i), 303(g), 303(r), 332(a)(2), and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(g), 303(r), 332(a)(2), and 405, the Petition for Reconsideration filed by Rand McNally & Company on October 13, 1998, is dismissed, and the Petition for Reconsideration filed on October 15, 1998, by Intek Global Corporation IS GRANTED to the extent stated herein and otherwise denied .

7. The rule adopted shall become effective August 28, 2000. This action is taken pursuant to sections 4(i) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i) and 303(r).

8. The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this Memorandum Opinion and Order, including the Supplemental Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

The MMPA gives the Secretaries of Commerce and Interior broad authority to issue and implement regulations related to the conservation or taking of marine mammals. In some cases (e.g., regulating subsistence harvest by Alaskan Natives), the MMPA requires a hearing on the record as provided in section 103(d) of the MMPA. The Endangered Species Act (ESA) also requires a formal rulemaking hearing before the Secretaries of Commerce or Interior can limit the subsistence take of threatened or endangered species of fish or wildlife by Alaska Natives. These ESA formal rulemaking provisions cross-reference section 103(d) of the MMPA, 16 U.S.C. 1539(e)(4).

Prior to 1995, the rules of practice and procedure for hearings conducted pursuant to section 103(d) of the MMPA were codified at 50 CFR 216.71. In 1995, NMFS removed these rules as part of an effort to simplify the Code of Federal Regulations. Such hearings had not been convened for more than 15 years, and NMFS did not anticipate using the rules in the foreseeable future.

NMFS now anticipates conducting formal rulemaking to promulgate regulations governing the subsistence harvest of certain marine mammals by Alaska Natives. NMFS is reinstating the rules of practice and procedure that were removed in 1995. This final rule reinstates these rules as they appeared prior to 1995 with only minor technical corrections to incorporate current terminology, such as Assistant Administrator for Fisheries rather than Director, NMFS.

This final rule establishes agency rules of practice and procedure. Under section 553(b)(3)(A) of the Administrative Procedure Act (APA), prior notice and opportunity for comment is not required for the promulgation of agency rules of practice and procedure. Under section 553(d) of the APA, only substantive rules require publication 30 days prior to their effective date. This final rule is effective upon publication.

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

This final rule is not subject to review under Executive Order 12866.

The promulgation of regulations establishing rules of practice and procedure in this instance is categorically excluded by NOAA Administrative Order 216-6 from the requirement to prepare an environmental assessment or an environmental impact statement under the National Environmental Policy Act.

This final rule does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act of 1980.

This final rule does not contain policies with federalism implications sufficient to warrant preparation of a federalism assessment under E.O. 13132.

NMFS manages the domestic groundfish fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands management area (BSAI) and Gulf of Alaska (GOA) according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area and the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMPs). The North Pacific Fishery Management Council (Council) prepared the FMPs under the authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing the U.S. groundfish fisheries and implementing the FMPs appear at 50 CFR part 679.

Regulations at § 679.21(f) implement a vessel incentive program to reduce halibut and red king crab bycatch rates in the groundfish trawl fisheries. Under the incentive program, operators of trawl vessels may not exceed Pacific halibut bycatch rate standards specified for the BSAI and GOA midwater pollock and “other trawl” fisheries, and the BSAI yellowfin sole and “bottom pollock” fisheries. Vessel operators also may not exceed red king crab bycatch standards specified for the BSAI yellowfin sole and “other trawl” fisheries in Bycatch Limitation Zone 1 (defined in § 679.2). The fisheries included under the incentive program are defined in regulations at § 679.21(f)(2).

Regulations at § 679.21(f)(3) require that halibut and red king crab bycatch rate standards for each fishery included under the incentive program be published in the Federal Register . The standards are in effect for specified seasons within the 6-month periods of January 1 through June 30, and July 1 through December 31. For purposes of calculating vessel bycatch rates under the incentive program, 2000 fishing months were specified in the Federal Register on December 28, 1999 (64 FR 72572).

NMFS published halibut and red king crab bycatch rate standards for the first half of 2000 in the Federal Register (64 FR 72572, December 28, 1999). As required by § 679.21(f)(3) and (4), the Administrator of the Alaska Region, NMFS (Regional Administrator), has established the bycatch rate standards for the second half of 2000 (July 1 through December 31). The Council endorsed these standards at its April 2000 meeting and are set out in Table 1. As required by § 679.21(f)(4), bycatch rate standards are based on the following information:

(A) Previous years' average observed bycatch rates;

(B) Immediately preceding season's average observed bycatch rates;

(C) The bycatch allowances and associated fishery closures specified under § 679.21(d) and (e);

(D) Anticipated groundfish harvests;

(E) Anticipated seasonal distribution of fishing effort for groundfish; and

(F) Other information and criteria deemed relevant by the Regional Administrator.

The halibut bycatch rate standards for the 2000 trawl fisheries are unchanged from those implemented in 1999. The Regional Administrator based standards for the second half of 2000 on anticipated seasonal fishing effort for groundfish species on 1996-1999 halibut bycatch rates observed in the trawl fisheries included under the incentive program.

With the exception of the BSAI yellowfin sole fishery, these bycatch rate standards generally reflect the average halibut bycatch rates observed in the BSAI and GOA trawl fisheries. At times, quarterly bycatch rates have exceeded the bycatch rate standards, but these situations usually represent limited fishing effort (e.g., GOA other trawl fisheries in the 2 nd and 4 th quarters). The BSAI yellowfin sole fishery has experienced undesirably high bycatch rates that NMFS and the Council expect to reduce through existing incentives. NMFS anticipates that the formation of American Fisheries Act (AFA) cooperatives should help participating vessels maintain overall bycatch rates of halibut in the yellowfin sole fishery at a minimal level so that the amount of groundfish harvested may be optimized under the AFA PSC sideboard provisions. In determining these bycatch rate standards, the Regional Administrator considered the annual and seasonal bycatch specifications for the BSAI and GOA trawl fisheries (65 FR 8282, February 18, 2000, and 65 FR 8298, February 18, 2000, respectively). He further recognized that directed fishing for Pacific cod for the inshore component in the Western and Central Regulatory Areas of the GOA is closed for the remainder of the year. The GOA shallow-water and deep-water trawl fishery species complexes are open. In the Bering Sea, the rockfish and rock sole/flathead sole/other flatfish fishery categories will open or reopen on July 4 when seasonal apportionments of halibut bycatch allowances specified for these fisheries become available. The BSAI Pacific cod trawl fishery is closed for the remainder of the year for catcher vessels and is open for catcher processors. The BSAI yellowfin sole fishery is ongoing, and no closure has yet been projected due to crab or halibut bycatch. The Regional Administrator also considered the June 10 opening date of the 2000 Bering Sea pollock ‘C/D’ season (§ 679.23(e)(2)) and the Gulf of Alaska ‘C’ and ‘D’ season pollock fisheries (§ 679.23(d)(2)). The halibut bycatch rate standards for the BSAI yellowfin sole and “bottom pollock” trawl fisheries are each set at 5 kilograms (kg) of halibut per metric ton (mt) of groundfish. The halibut bycatch rate standard for the BSAI and GOA midwater pollock fisheries (1 kg of halibut/mt of groundfish) is higher than the bycatch rates normally experienced by vessels participating in these fisheries. This standard is intended to encourage vessel operators to maintain off-bottom trawl operations and limit further bycatch of halibut in the pollock fishery. A bycatch rate standard of 30 kg halibut/mt of groundfish is established for the BSAI “other trawl” fishery. This standard has remained unchanged since 1992. A bycatch rate standard of 40 kg of halibut/mt of groundfish is established for the GOA “other trawl” fishery, which is unchanged since 1994. The considerations that support these bycatch rate standards for the “other trawl” fisheries are unchanged from previous years and are discussed in the Federal Register publications of 1995 bycatch rate standards (60 FR 2905, January 12, 1995, and 60 FR 27425, May 24, 1995). Observer data collected from the 1999 GOA “other trawl” fishery show average third and fourth quarter halibut bycatch rates of 18 and 69 kg of halibut/mt of groundfish, respectively. The first quarter rate from 2000 was 23 kg of halibut/mt of groundfish. Observer data from the 1999 BSAI “other trawl” fishery show third and fourth quarter halibut bycatch rates of 6 and 9 kg of halibut/mt of groundfish. The first quarter rate from the 2000 BSAI “other trawl” fishery was 8 kg of halibut/mt of groundfish.

The red king crab bycatch rate standard for the yellowfin sole and “other trawl” fisheries in Zone 1 of the Bering Sea subarea is 2.5 crab/mt of groundfish during the second half of 2000. This standard has remained unchanged since 1992. Through April 8, 2000, the rock sole/flathead sole/other flatfish fishery category had taken 76 percent of its annual red king crab bycatch allowance including the Red King Crab Savings Subarea bycatch limit. The Pacific cod and yellowfin sole fisheries have taken only 33 percent and 12 percent, respectively, of their bycatch allowances. The Regional Administrator anticipates that the non-pelagic trawl gear closure of the red king crab savings area in Zone 1 will continue to result in low red king crab bycatch rates for the remainder of the year and is maintaining the 2.5 red king crab/mt of groundfish bycatch rate standard.

The Regional Administrator has determined that the bycatch rate standards set forth in Table 1 for the 2 nd half of 2000 are appropriately based on the information and considerations necessary for such determinations under § 679.21(f). These bycatch rate standards may be revised and published in the Federal Register when deemed appropriate by the Regional Administrator, pending his consideration of the information set forth at § 679.21(f)(4).

This action is taken under 50 CFR 679.21(f) and is exempt from review under E.O. 12866.