At the President's direction, OPM will implement a health insurance premium conversion plan for employees participating in the FEHB Program. The premium conversion plan is part of a “cafeteria plan” under Section 125 of the Internal Revenue Code.

The premium conversion plan will take effect on October 1, 2000. Under the plan, employees' FEHB premium withholdings are treated as a pre-tax salary reduction. Because premium conversion lowers employees' taxable income, it reduces their tax burden. The reduction in taxable income reduces the base for Federal income tax, Social Security and Medicare taxes, and, in most States and localities, State and local taxes based on income.

Employees in the Executive Branch of the Federal Government who are participating in the Program and whose pay is issued by an Executive Branch agency, will automatically have their salaries reduced and their health benefit premiums paid under the premium conversion plan. Also, individuals enrolled in the FEHB Program who are employed outside the Executive Branch, or whose pay is not issued by an agency of the Executive Branch, will have their salaries reduced and their FEHB premiums paid under our premium conversion plan if their employer, in coordination with their payroll office, agrees to offer participation in the plan. However, any individual enrolled in the FEHB Program who does not want to participate in premium conversion may waive participation, subject to certain limitations.

Premium conversion has no effect on: statutory pay provisions or the General Schedule; the amount of any employee's health insurance premium; or on the amount of the Government share towards the FEHB Program premium on behalf of any employee. Base pay for retirement, life insurance and Thrift Savings Plan purposes is unaffected.

To ensure that the premium conversion plan qualifies for pre-tax treatment of health insurance premiums, OPM is amending its allotment regulations at 5 CFR part 550, subpart C. Each employee participating in premium conversion will make an allotment to his or her employing agency in the amount of the employee share of the FEHB premium. The agency will then use that amount to pay the employee's FEHB premium. The allotment will be automatic unless the employee elects to waive premium conversion.

We are also amending the allotment regulations to make clear that except where there is an authority specific to Federal employees (i.e., a statute, Executive order, Presidential directive, or OPM regulations) agencies may not authorize allotments for the purpose of reducing taxable income. For example, a salary reduction for a transportation fringe benefit under 26 U.S.C. 132(f)(4) is another type of pre-tax allotment that is permitted by 5 U.S.C. 7905(b) and Executive Order 13150.

OPM is issuing a separate interim rule amending its FEHB regulations to establish the premium conversion program effective in October 2000. No FEHB premium may be allotted except as allowed under the premium conversion program. Therefore, no allotment of FEHB premiums is permitted until the first day of the first pay period beginning on or after October 1, 2000.

In accordance with section 553(b)(3)(B) of title 5 of the U.S. Code, I find that good cause exists for waiving the general notice of proposed rulemaking. An opportunity for public comment prior to issuing this rule is unnecessary and contrary to the public interest. In developing this regulation, OPM worked extensively with affected stakeholders. OPM followed the Internal Revenue Code to develop a plan document and regulations that comply with tax law and parallel the practices of private sector employers. It is necessary that payroll offices begin work on systems changes so that this benefit will be available at the start of Fiscal Year 2001—a logical time in terms of Federal agency budget and payroll administration.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation will only affect tax withholdings for Federal employees.

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

At the President's direction, OPM will implement a health insurance premium conversion plan for employees participating in the FEHB Program. The premium conversion plan is part of a “cafeteria plan” under Section 125 of the Internal Revenue Code. OPM will execute a separate plan document to comply with Section 125 requirements and will make that document available on OPM's website: www.opm.gov. OPM is also issuing separate instructions to personnel and payroll offices.

The premium conversion plan will take effect on October 1, 2000. Under the plan, employees' health benefit premium withholdings are treated as a pre-tax salary deduction. Because premium conversion lowers employees' taxable income, it reduces their tax burden. The reduction in taxable income reduces the base for Federal income tax, Social Security and Medicare taxes, and, in most States and localities, State and local taxes based on income.

While most Federal employees are currently not covered by a premium conversion plan, the Federal Judiciary, the United States Postal Service, and some smaller Executive Branch agencies with independent compensation-setting authority have already implemented their own premium conversion plans. Employees of those entities will not be covered by the premium conversion plan described here.

All other employees in the Executive Branch of the Federal Government who are participating in the FEHB Program, and whose pay is issued by an Executive Branch agency, will automatically have their salary reduced (through a Federal allotment) and their FEHB premiums paid under the premium conversion plan. Also, individuals enrolled in the FEHB Program who are employed outside the Executive Branch, or whose pay is not issued by an agency of the Executive Branch, will have their salaries reduced and their FEHB premiums paid under our premium conversion plan if their employer, in coordination with their payroll office, agrees to offer participation in the plan. However, any individual enrolled in the FEHB Program who does not want to participate in premium conversion may waive participation, subject to the limitations in these regulations.

Premium conversion has no effect on: statutory pay provisions or the General Schedule; the amount of any employee's health insurance premium; or the amount of the Government share towards the FEHB premium on behalf of any employee. Base pay for retirement, life insurance and Thrift Savings Plan purposes is unaffected.

To ensure that the premium conversion plan qualifies for pre-tax treatment of health insurance premiums, OPM is also amending its allotment regulations at 5 CFR part 550, subpart C in a separate interim rule issued simultaneously with this rule. Each employee participating in premium conversion will make an allotment to his or her employing agency in the amount of the employee share of the FEHB insurance premium. The agency will then use that amount to pay the employee's premium. The allotment will be automatic unless the employee elects to waive premium conversion.

In accordance with section 553(b)(3)(B) of title 5 of the U.S. Code, I find that good cause exists for waiving the general notice of proposed rulemaking. An opportunity for public comment prior to issuing this rule is unnecessary and contrary to the public interest. In developing this regulation, OPM worked extensively with affected stakeholders. OPM followed the Internal Revenue Code to develop a plan document and regulations that comply with tax law and parallel the practices of private sector employers. It is necessary that payroll offices begin work on systems changes so that this benefit will be available at the start of Fiscal Year 2001—a logical time in terms of Federal agency budget and payroll administration.

This regulation has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866, “Regulatory Planning and Review.” Because this regulation has an economic impact exceeding $100 million annually it is defined by that Executive Order as being “economically significant.” It is classified as a major regulation in accordance with the Congressional Review Act because of its economic impact.

In OPM's view, the benefits of this regulation substantially outweigh the costs. Under this regulation, Federal employees with health insurance through the FEHB Program will begin paying their insurance premiums with pre-tax dollars, similar to how millions of private sector employees currently pay their health insurance premiums. The benefits of this change in tax status are significant: the Federal Government will become a more competitive employer and the tax liability of Federal employees will decrease.

Costs of this regulation include a start-up cost in the first year to implement the program; a decrease in Medicare, Social Security and income taxes paid by Federal employees; and a decrease in Federal employer payments to the Medicare and Social Security Trust Funds. The benefits and costs of this regulation are described in more detail in the following sections.

In his 2001 Budget, the President directed OPM to implement health insurance premium conversion. Premium conversion will bring the Federal Government in line with private sector practices regarding employee payments of health insurance premiums. Over 60 million private sector employees with employment based health insurance pay their premiums with pre-tax dollars. This regulation will take advantage of current law to allow over 1.5 million Federal employees, representing more than 3 million lives including dependents, to have the same benefit as private sector workers. As a result, the Federal Government will become a more competitive employer and health insurance will become more affordable for Federal employees.

In order to implement the President's premium conversion directive, regulatory action is necessary. In developing this regulation, OPM considered various ways to put premium conversion into operation. OPM also hired a contractor with substantial experience in employee benefits tax compliance to write a plan document that conforms to IRS Section 125 rules.

OPM met with those Federal agencies that have already implemented a premium conversion plan: the U.S. Postal Service, the Federal Judiciary, and some small Executive Branch agencies with independent compensation-setting authority. It studied the range of implementation issues that these organizations encountered, from payroll system changes and educational outreach to complying with the tax code, and identified the key issues that OPM would need to address. OPM has developed these regulations by using the “best practices” of other employers in terms of premium conversion program development and implementation.

Over the last few decades, the U.S. labor market has become increasingly competitive. Unemployment rates have hovered at about 4 percent, the lowest rates since 1970. Labor force participation rates are at all time highs—67 percent in recent months, up from around 60 percent in 1970. Given these tight labor market conditions, the Federal Government, like all employers, must use every means possible to attract and retain high quality employees. Currently, the Federal Government is at a competitive disadvantage in the labor market because its employees pay their health insurance premiums with after-tax dollars. In the private sector, many employees pay their health insurance premiums with pre-tax dollars, resulting in reduced tax liabilities and greater take-home pay. This regulation will eliminate the Federal Government's competitive disadvantage in this area, giving it an additional tool to attract and retain high quality workers and increase employee satisfaction.

Another advantage of this regulation is that it lowers the tax liability of Federal employees. Under this regulation, Federal employees will enjoy the same benefit as private sector employees and no longer will pay income tax, Social Security tax or Medicare tax on their health insurance premium dollars. This tax cut increases the take-home pay of Federal workers; Federal workers enrolled in the FEHB Program can save over $430 per year on average.

The costs associated with this regulation are the start-up costs to implement the premium conversion program; the decrease in Medicare, Social Security, and income taxes paid by Federal employees; and the decrease in Federal employer payments to the Medicare and Social Security Trust Funds.

The start-up costs of this regulation will be incurred in the first year of the program as individual Federal Government Agencies update their payroll systems to accommodate premium conversion and as OPM and individual Agencies educate the Federal employee population, including benefits officers, about the new program. OPM estimates the start-up cost to be $3 million in 2001, with $2.5 million coming from Agency implementation costs and the remaining $.5 million from educational outreach programs such as information pamphlets for employees and benefits officers. The cost estimate is based on an assumption that each of the 164 discrete non-Postal payroll systems would incur $15,000 in spending on systems analysis, programming, testing, and overhead.

In Fiscal Year 2001, the tax benefit to Federal employees caused by premium conversion is estimated to be about $670 million; $550 million in Federal income taxes, $85 million in Social Security taxes, and $35 million in Medicare taxes. The decrease in Federal employer payments to the Medicare and Social Security Trust Funds is estimated to be $85 million and $35 million dollars respectively. Assuming that health insurance premiums will continue to increase at recent rates, the change in tax benefits and Federal employer payments from premium conversion is expected to grow at roughly a proportional rate in each subsequent year.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) (RFA) imposes certain requirements with respect to Federal rules that are subject to the notice and comment requirements of section 553(b) of the Administrative Procedure Act (5 U.S.C. 551 et seq. ) and which are likely to have a significant economic impact on a substantial number of small entities. Unless an agency determines that a rule is not likely to have a significant economic impact on a substantial number of small entities, the RFA requires that the agency present an initial regulatory flexibility analysis at the time of the publication of the rulemaking describing the impact of the rule on small entities and seeking public comment on such impact. Small entities include small businesses, organizations and governmental jurisdictions.

OPM has determined that this rule will not have a significant economic impact on a substantial number of small entities. The regulation does not impact small entities.

For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), as well as Executive Order 12875, this interim-final rule does not include any Federal mandate that may result in an expenditure in any one year by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more.

We have examined this rule in accordance with Executive Order 13132, Federalism, and have determine that this final rule will not have any negative impact on the rights, roles, and responsibilities of State, local or Tribal governments.

In a license transfer application filed on October 27, 1998, by Kansas Gas and Electric Company (KGE) and Kansas City Power and Light Company (KCP&L) (Applicants), Commission approval pursuant to 10 CFR 50.80 was sought of a transfer of the Applicants' possession-only interests in the operating license for the Wolf Creek Generating Station, Unit 1, to a new company, Westar Energy, Inc. Wolf Creek is jointly owned by the Applicants, each of which owns an undivided 47 percent interest. The remaining 6 percent interest is owned by Kansas Electric Power Cooperative, Inc. (KEPCo). The Applicants requested that the Commission amend the operating license for Wolf Creek pursuant to 10 CFR 50.90 by deleting KGE and KCPL as licensees and adding Westar Energy in their place. KEPCo opposed the transfer on antitrust grounds, claiming that the transfer would have anticompetitive effects and would result in “significant changes” in the competitive market. KEPCo petitioned the Commission to intervene in the transfer proceeding and requested a hearing, arguing that the Commission should conduct an antitrust review of the proposed transfer under section 105c of the Atomic Energy Act, 42, U.S.C. 2135(c). Applicants opposed the petition and request for a hearing.

By Memorandum and Order dated March 2, 1999, CLI-99-05, 49 NRC 199 (1999), the Commission indicated that although its staff historically has performed a “significant changes” review in connection with certain kinds of license transfers, it intended to consider in the Wolf Creek case whether to depart from that practice and “direct the NRC staff no longer to conduct significant changes reviews in license transfer cases, including the current case.” In deciding this matter, the Commission stated that it expected to consider a number of factors, including its statutory mandate, its expertise, and its resources. Accordingly, the Commission directed the Applicants and KEPCo to file briefs on the single question: “whether as a matter of law or policy the Commission may and should eliminate all antitrust reviews in connection with license transfers and therefore terminate this adjudicatory proceeding forthwith.” Id. at 200.

Because the issue of the Commission's authority to conduct antitrust reviews of license transfers is of interest to, and affects, more than only the parties directly involved in, or affected by, the proposed Wolf Creek transfer, the Commission in that case invited amicus curiae briefs from “any interested person or entity.” CLI-99-05, 49 NRC at 200, n.1. (Briefs on the issue subsequently were received from a number of nonparties.) In addition, widespread notice of the Commission's intent to decide this matter in the Wolf Creek proceeding was provided by publishing that order on the NRC's web site and in the Federal Register (64 FR 11069; March 8, 1999), and also by sending copies to organizations known to be active in or interested in the Commission's antitrust activities. Id.

After considering the arguments presented in the briefs, and based on a thorough de novo review of the scope of the Commission's antitrust authority, the Commission concluded that the structure, language, and history of the Atomic Energy Act do not support its prior practice of conducting antitrust reviews of post-operating license transfers. The Commission stated:

The Commission's decision in Wolf Creek was based on a thorough consideration of the documented purpose of Congress's grant of limited antitrust authority to the NRC's predecessor, the Atomic Energy Commission, the statutory framework of that authority, the carefully-crafted statutory language, and the legislative history of the antitrust amendments to the Atomic Energy Act. The Commission's Wolf Creek decision explained that, in eliminating the theretofore government monopoly over atomic energy, Congress wished to provide incentives for its further development for peaceful purposes but was concerned that the high costs of nuclear power plants could enable the large electric utilities to monopolize nuclear generating facilities to the anticompetitive harm of smaller utilities. Therefore, Congress amended the Atomic Energy Act to provide for an antitrust review in the prelicensing stages of the regulatory licensing process. Congress focused its grant of antitrust review authority on the two steps of the Commission's licensing process: The application for the facility's construction permit and the application for the facility's initial operating license. It is at these early stages of the facility's licensing that the Commission historically was believed by Congress to be in a unique position to remedy a situation inconsistent with the antitrust laws by providing ownership access and related bulk power services to smaller electric systems competitively disadvantaged by the planned operation of the nuclear facility. Congress emphasized that the Commission's review responsibilities were to be exercised at the anticipatory, prelicensing stages prior to the commitment of substantial licensee resources and at a time when the Commission's opportunity to fashion effective relief was at its maximum. See Wolf Creek at 446-448.

The Commission next focused on the structure and language of its antitrust review authority found exclusively in section 105 of the Atomic Energy Act, 42 U.S.C. 2135. Section 105c provides for a mandatory and complete antitrust review at the construction permit phase of the licensing process when all entities who might wish ownership access to the nuclear facility and who are in a position to raise antitrust concerns are able to seek an appropriate licensing remedy from the Commission prior to actual operation of the facility. The construction permit antitrust review contrasts markedly from the only other review authorized by the statute. Specifically, section 105c explicitly provides that the antitrust review provisions “shall not apply” to an application for an operating license unless “significant changes in the licensee's activities or proposed activities have occurred subsequent to the previous review * * * in connection with the construction permit for the facility.” Section 105c.(2). Following this more limited and conditional review prior to initial operation of the facility, Section 105 makes clear that traditional antitrust forums are available to consider asserted anticompetitive conduct of Commission licensees, which are not relieved of operation of the antitrust laws. Section 105a, b. Further, if any Commission licensee is found to have violated any antitrust law, the Commission has the authority to take any licensing action it deems necessary. Section 105a. See id. at 447-452.

After describing this statutory framework and structure, the Commission then closely examined the language of its statutory antitrust review authority. The Commission found that it focused on only two types of applications, namely those for a construction permit and those for an initial operating license, but not for other types of applications explicitly mentioned in Section 103 of the Atomic Energy Act, such as applications to “acquire” or “transfer” a license. Even if an application to transfer an operating license were considered an application for an operating license for the transferee, the Commission found that the specific “significant changes” review process mandated by Section 105 does not lend itself to an antitrust review of post-operating license transfer applications. The Commission noted that its past practice of conducting “significant changes” reviews of post-operating license transfer applications did not use the construction permit review as the benchmark for comparison as mandated by Section 105, but instead examined whether there were significant changes compared with the previous operating license review. Like the statutory framework, the statutory language was found to be inconsistent with authorization to conduct post-operating license antitrust reviews and certainly could not be found to support a required review at that time. See id. at 452-456.

Finally, the Commission reviewed the legislative history of the antitrust amendments. It found that the Joint Committee on Atomic Energy, in its authoritative report on the Commission's prelicensing antitrust authority, explicitly clarified the scope of the terms “license application” and “application for a license” in the language which was enacted as Section 105. The Commission stated:

In summary, the Commission concluded that neither the language of the Commission's statutory authority to conduct antitrust reviews nor its legislative history support any authority to perform antitrust reviews of post-operating license transfer applications and certainly cannot be interpreted to require such reviews.

The Commission's Wolf Creek decision is published in its entirety at 64 FR 33916, June 24, 1999, and in the NRC Issuances at 49 NRC 441 (1999).

Because of the Commission's past practice of conducting antitrust reviews of license transfer applications, including those at the post-operating license stage of the regulatory process, the Commission in the Wolf Creek case also closely examined its rules of practice to determine whether they required or warranted revision to conform to its decision in the Wolf Creek decision. The Commission concluded that, notwithstanding its past interpretation of its rules as being consistent with an antitrust review of all transfer applications, including those involving post-operating license transfers, the rules themselves do not explicitly mandate such reviews. Id. at 462, 467.

Indeed, after considering the various interpretations of the rules advanced by the parties and amici curiae in the Wolf Creek proceeding, the Commission concluded: “Not one comma of the Commission's current regulations need be changed in the wake of a cessation of such reviews, although because of the NRC's past practice of conducting such reviews, we have decided that clarification of our rules is warranted.” Id. at 467. Therefore, the Commission directed that the rules be clarified “by explicitly limiting which types of applications must include antitrust information,” Id. at 463, and that Regulatory Guide 9.3, “Information Needed by the AEC Regulatory Staff in Connection with Its Antitrust Review of Operating License Applications for Nuclear Power Plants,” and NUREG-1574, “Standard Review Plan on Antitrust Reviews,” also be clarified.

On November 3, 1999 (64 FR 59671), the Commission published for comment a proposed rule to clarify its regulations consistent with its Wolf Creek decision. Substantive and timely comments were received from (1) the law firm of Akin, Gump, Strauss, Hauer & Feld, on behalf of the FirstEnergy Nuclear Operating Company (FENOC), the licensed operator of the Perry, Davis-Besse, and Beaver Valley nuclear power plants, for the subsidiary owners of those facilities, namely Ohio Edison Company, The Cleveland Electric Illuminating Company, the Toledo Edison Company, and Pennsylvania Power Company, (2) the Nuclear Energy Institute (NEI), on behalf of the nuclear energy industry, (3) the law firm of ShawPittman on behalf of Western Resources, Inc., Kansas Gas and Electric Company, Wisconsin Electric Power Company, Public Service Electric and Gas Company, and Rochester Gas and Electric Corporation (ShawPittman Utilities), (4) Florida Power & Light Company (FPL), the owner and operator of the St. Lucie and Turkey Point nuclear power plants, (5) the law firm of Spiegel & McDiarmid, on behalf of the American Public Power Association, the City of Cleveland, Ohio, the Florida Municipal Power Agency, the City of Gainesville, Florida, Public Citizen, and the American Antitrust Institute (collectively APPA), and (6) Florida Power Corporation. In addition, late comments were received from (7) Jonathon M. Block on behalf of Citizens Awareness Network, Inc. (CAN).

All commenters, except for APPA and CAN, support the Commission's initiative, reflected in the proposed rule, to clarify its regulations regarding the submission of antitrust information so the rules are consistent with the Commission's limited antitrust review authority. All commenters, except for APPA and CAN, endorsed the adoption of the changes to the regulations exactly as proposed. There were no suggestions for different or additional changes. APPA and CAN did not suggest specific alternative rule changes other; they oppose the rule in its entirety.

FENOC emphasized that the Commission's antitrust authority in section 105 of the Atomic Energy Act is specific, not plenary, and that the Commission's Wolf Creek decision appropriately characterized the “progressively diminishing role” that Congress intended for the Commission on antitrust matters from the construction permit phase of licensing to the operating license stage, with no review authority granted for post-operating license transfers. FENOC stated that NRC regulations do not require any antitrust reviews in license transfer cases, and that any such review would be duplicative (“redundant and unnecessary”) in light of other express federal governmental antitrust authorities.

NEI believes that the Commission was correct in reconsidering its antitrust authority and that the structure, language and history of the Atomic Energy Act support the Commission's conclusion that antitrust reviews should not be conducted in operating license transfer cases. NEI stated that the approach taken by the Commission to eliminate any ambiguities in its regulations regarding antitrust reviews is sound and should be adopted. NEI also believes that the Commission should initiate a “separate effort” to develop guidelines for the disposition of existing antitrust license conditions in license transfer cases.

The ShawPittman Utilities support the Commission's proposed rule clarifying its antitrust authority and, based on both legal and sound public policy justifications, urged the Commission to adopt the revisions set forth in the proposed rule. The ShawPittman Utilities agree with the Commission that the Atomic Energy Act does not authorize the Commission to perform antitrust reviews of license transfer applications, and that such reviews, if authorized, would be “an inefficient, unnecessary, and duplicative use of the Commission's resources.”

FPL agrees with the Commission's Wolf Creek decision that its limited antitrust authority does not extend to operating license transfer applications and urges the Commission to issue a final rule as proposed. FPL further encouraged the Commission continue its efforts to seek legislation to divest itself from all antitrust authority. FPL commended the Commission for its willingness and open-minded approach to reconsider its antitrust authority and practices and believes that this will contribute to streamlining agency practices and will result in a more efficient NRC, which in turn will improve its mission to protect the public health and safety.

Florida Power Corporation endorses the comments on the proposed rule submitted by the Nuclear Energy Institute.

APPA believes that the Wolf Creek decision is at odds with a prior Commission antitrust decision, Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit No. 2), LBP-78-13, 7 NRC 583, aff'd, ALAB-475, 7 NRC 752 (1978) (Fermi), which held that an antitrust review is required when an applicant is added to a construction permit. APPA believes that there is difficulty interpreting the Atomic Energy Act's antitrust review provisions regarding post-operating license transfers but that the Commission's analysis in Wolf Creek is erroneous. APPA also believes that, even if the Commission's statutory analysis in Wolf Creek is correct, the Commission plainly would err if it eliminates antitrust filing requirements for license transfers involving existing antitrust license conditions and that there is no reasoned basis to eliminate antitrust filings in such circumstances. Finally, APPA believes that if the language of section 105c is sufficiently ambiguous to permit more than one interpretation, the Commission erred by concluding that, considering other federal antitrust authorities, its antitrust review authority is superfluous.

CAN believes that the Commission's proposed rule unlawfully purports to change the substance of the Atomic Energy Act and should be withdrawn in favor of seeking legislative changes from Congress. CAN believes that the purpose of the Commission's antitrust authority in section 105 of the Atomic Energy Act, in conjunction with the inalienability of licenses provided in section 184, is to prevent regulatory gaps in the approval of highly dangerous activities, and that the proposed rule would undermine that purpose. CAN mentions the possibility of multiplied dangers if licensees cannot meet financial obligations, cost cutting by nuclear power plant owners in a competitive environment, potentially serious accidents triggered by overtime patterns, and foreign ownership of nuclear power plants, as well as increased regulatory burdens on the NRC, resulting in an inability of the NRC to inspect large-scale licensees for health and safety violations. CAN asserts that the NRC has failed to evaluate the health and safety and national security consequences of the proposed rule and also has failed to evaluate the environmental impacts of the proposed rule, in violation of the National Environmental Policy Act.

The commenters can be divided into two categories: Those who support a final rule identical to the proposed rule and those who oppose the rule in its entirety and would have the Commission leave in place the current antitrust information reporting requirements (or at least leave them in place for transfers involving nuclear power plants with existing antitrust license conditions). Since no commenter suggested any alternative provisions or language to what was proposed by the Commission, the decision for the Commission is whether the comments opposed to the rule as proposed warrant withdrawal of the proposed rule (or leaving the current reporting requirement in place for transfers involving existing antitrust conditions). For the reasons explained below, the Commission does not believe its analysis of its statutory antitrust review authority is flawed or that, if it has authority but is not required to conduct antitrust reviews of post-operating license transfers, its reasons for discontinuing such reviews are unsound as a matter of law or policy. The Commission therefore agrees with the commenters who support the rule and disagrees with the comments opposing the rule, which are addressed in detail.

Comment: APPA asserts that the Commission's Wolf Creek decision on the limits of its antitrust review authority is wrong and at odds with a prior Commission decision involving the Fermi nuclear plant. See Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit No. 2), LBP-78-13, 7 NRC 583, aff'd, ALAB-475, 7 NRC 752 (1978) (Fermi). APPA states that Fermi “holds that antitrust review is required when an applicant is added to a construction permit. By departing from its Fermi analysis without explanation, the Commission also fails to construe the Atomic Energy Act in light of the express statutory purpose of promoting competition.” APPA comments at 3 (emphasis in original).

Response: The Commission was mindful of the Fermi decision when it decided the Wolf Creek case. See, e.g., Wolf Creek at 462 n.15. See also the November 3, 1999, proposed rule, 64 FR 59673. As noted in Wolf Creek, none of the Commission's prior adjudicatory decisions (nor any other Commission issuances) explicitly addressed the Commission's authority to conduct antitrust reviews of post-operating license transfers. Id. at 450 n.4. At most, the prior antitrust adjudicatory decisions reflect an assumption on the part of the Commission that it had such authority. In part, for that reason, the Commission carefully focused on its post-operating license antitrust review authority for the first time in Wolf Creek.

The Fermi case involved an application by Detroit Edison Company (the licensee) for an amendment to its construction permit for the Fermi nuclear plant to add the Northern Michigan Electric Cooperative, Inc. and the Wolverine Electric Cooperative, Inc. as minority co-owners. The licensee moved to dismiss on the grounds, inter alia, that the NRC's Licensing Board had no jurisdiction to conduct an antitrust review of such an application since a construction permit review already had been conducted and no further review was provided by section 105c unless there was a finding of significant changes at the operating license stage. The Licensing Board reasoned that the statutory language in section 105c “does not answer the question as to the effect of a proposed amendment to an original construction permit to add new co-owners.” Fermi, LBP-78-13, 7 NRC 583, 587 (emphasis added). The Board, relying on the Commission's South Texas decision, Houston Lighting and Power Company (South Texas Project, Unit Nos. 1 and 2), CLI-77-13, 5 NRC 1303 (1977), emphasized the importance of a “ ‘thorough’ and ‘in-depth’ antitrust review at the construction permit stage, so that ‘once an initial, full antitrust review has been performed, only ‘significant changes’ warrant reopening.” LBP-78-13, 7 NRC at 588 (emphasis added), quoting South Texas, 5 NRC at 1310, 1312, 1317. The Board concluded that the two cooperatives' application to become co-licensees was their initial application for a construction permit and therefore subject to the construction permit stage antitrust review.

It is clear beyond any question that the Fermi case did not involve or address in any respect the Commission's antitrust review authority over applications to transfer operating licenses, cases where there already had been a construction permit review and a significant changes review. Fermi involved not the post-operating license time frame but the pre-initial operating license, construction phase, where, as Wolf Creek made clear, Congress carefully focused the Commission's antitrust authority. Wolf Creek analyzed this limitation on the Commission's antitrust authority from the perspective of both the statutory language and its legislative history. The Board's holding in Fermi is consistent with the Wolf Creek decision.

A careful reading of APPA's comments suggests that not even APPA disagrees with this, and its comments are instructive as much for what they do not say as for what they do. APPA does not assert (as it reasonably could not) that Fermi addressed and resolved the Commission's post-operating license antitrust review authority, and that the Wolf Creek holding is contrary to that of Fermi. APPA says only that Wolf Creek departs from the Fermi “analysis” (APPA comments at 3) and “rationale” (APPA Comments at 17) without explanation. This refers to the Licensing Board's reasoning that the cooperatives' applications “constitute their “initial application for a construction permit.” LBP-78-13, 7 NRC at 588 (emphasis in original). APPA criticizes the Wolf Creek decision for departing from this rationale with no explanation. Extrapolating that rationale to post-operating license transfers, of course, would result in considering the prospective transferees as applicants for their initial operating licenses and thus subject to the Section 105c “significant changes” review, contrary to the decision in Wolf Creek.

There are two responses to this argument. First, the Commission did not fail to address this reasoning in its Wolf Creek decision. The Commission explicitly considered whether the language of section 105c could accommodate construing the post-operating license transfer application as an application for an operating license and found that it could not. See Wolf Creek at 454-56. So, while the Fermi Licensing Board's reasoning led it to a result for new construction permit licensees which was consistent with section 105's language and legislative history, similar reasoning was shown in Wolf Creek to be incompatible with the language and legislative history of section 105's operating license review provisions, and also was shown to be flawed as a practical matter and when measured against the Commission's past practices. Id. at 451-52, 454-59. Second, a rationale suitable to interpreting one provision of a statute—construction permit antitrust reviews—in a manner which is supported by the statutory language and its legislative history cannot be used to interpret another provision—post-operating license antitrust reviews—if it cannot be reconciled with the statutory language and Congressional intent. The Commission's Wolf Creek's decision explains why the rationale used in Fermi does not work for post-operating license transfers (actually a step removed from the initial operating license reviews for the facility contemplated by Congress).

One final comment in response to APPA's comment that Wolf Creek inexplicably departs from the Fermi decision. The Fermi Licensing Board's threshold ruling that it had jurisdiction to consider antitrust issues associated with the addition of new construction permit applicants was affirmed by the Commission's Appeal Board. The Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit No. 2), ALAB-475, 7 NRC 752, 755 n.7 (1978). (The Commission explicitly noted its agreement with this result in Wolf Creek at 362 n.15.) It is not clear, however, that the Appeal Board endorsed the Licensing Board's rationale that APPA urges the Commission now adopt. The Appeal Board in Fermi devoted only one footnote of its opinion to the issue of the Commission's antitrust review authority for the addition of new construction permit applicants and found it “sufficient simply to note our essential agreement with the decision on this point. ” Id. (emphasis added). What this means with respect to the Appeal Board's opinion of the Licensing Board's reasoning is and must remain a matter of speculation. It does suggest, however, something less than full agreement with everything the Licensing Board said on the issue and literally may reflect only “essential agreement” with the decision and little or no agreement with the rationale. Be that as it may, as explained above, the Commission addressed this rationale in its Wolf Creek decision and found it unsound for determining its antitrust review authority over post-operating license transfers.

APPA states that “there is a difficulty in interpreting the statute to require a ‘significant changes’ review” for post-operating license transfers, but the Commission erred in its analysis and its conclusion that the statute does not require such reviews. APPA Comments at 15. APPA offers this analysis:

First, as the Commission explained in Wolf Creek, the language of the statute, as well as its legislative history, undeniably focuses on certain applications for licenses for production or utilization facilities. See generally Wolf Creek at 448-59. For a given facility, the applications for which section 105c requires an antitrust review are applications for construction permits and applications for operating licenses. Post-operating license transfers are certainly not applications for a construction permit, so to be within the scope of the antitrust review requirements of section 105c, they must be deemed to be applications for a license to operate the facility. But section 105c(2) clearly states that the antitrust review required by paragraph (1) “shall not apply to an application for a license to operate a utilization or production facility for which a construction permit was issued under section 103 unless the Commission determines such review is advisable on the ground that significant changes in the licensee's activities or proposed activities have occurred subsequent to the previous review * * * under this subsection in connection with the construction permit for the facility.” APPA's alternative interpretation of this provision cannot be reconciled with its specific language. The heart of APPA's analysis is its characterization of the request for Commission approval of a post-operating license transfer as an application for an initial operating license by the transferee entity. Putting aside for a moment the fact that such approvals do not result in issuing an initial or any other type of operating license, but rather an amendment to a previously-issued operating license, if we consider such a request as seeking an initial operating license for the transferee, then we must look first to the language of section 105c(2) to determine whether an antitrust review is required. Since we are considering an application for an operating license, we are governed by the proviso, which, absent a determination of significant changes, clearly and unambiguously prohibits (“shall not”) a review of an application to operate a “ facility for which a construction permit was issued. ” Since the transferee's application is for an operating license for a facility for which a construction permit was issued, the plain language of the statute prohibits an antitrust review unless the Commission first determines that there are significant changes, which even APPA concedes as “obvious that there can be no significant changes review.” APPA Comments at 15. APPA's reasoning simply cannot be justified by the specific language in the statute.

Neither is APPA's analysis consistent with the legislative history in general, which emphasized the need to conduct the complete antitrust review early in the construction phase of the licensing process and a conditional operating license review only if there are “significant changes in the licensee's activities or proposed activities,” and that portion of the legislative history which explicitly addressed the limitation on the Commission's antitrust review authority to certain specified applications for a given facility.

Joint Committee Report at 29. Just as the language of the statute focuses on certain applications for a given facility, so too does this explanation of which types of applications for a given facility are within the statute's scope of review: “the initial application for a construction permit, the initial application for an operating license, or the initial application for a modification which would constitute a new or substantially different facility.” For a post-operating license transfer application to be included, it would have to be deemed “the initial application for an operating license” as that phrase is used in this explanation in the Joint Committee Report. But is it? It may appear to be included at first thought, but only if the last sentence of the Committee's explanation is ignored. The last sentence makes clear that “the initial” applications subject to antitrust review were those filed during the traditional, two-step licensing process eventually leading to the issuance of the initial operating license for the facility: “The phrases do not include, for purposes of triggering subsection 105 c, other applications which may be filed during the licensing process. ” (Emphasis added.) While APPA might argue that the post-operating license transfer application is an application filed during the licensing process because its review constitutes a “licensing action,” such a characterization clearly is not the two-step licensing process which Congress addressed when it provided the antitrust review authority contained in Section 105c and focused that authority on the antitrust situation which existed prior to initial operation of the facility. Post-operating license transfer applications certainly fall outside the two-step licensing process and, therefore, are not applications included in the statute or intended to be included by any explanation in the legislative history.

APPA's construction of the statute amounts to reading three types of applications into the scope of section 105c: (1) Applications for facility construction permits, (2) applications for facility operating licenses for which a construction permit antitrust review had been conducted, and, to use APPA's description, (3) “with respect to a new licensee, the application for transfer is properly viewed as not falling within the proviso of section 105c(2) at all . That is, such a transfer application is not an application for a license to operate a facility for which a construction permit was issued, because the applicant in question was never issued a construction permit.” It is this third type of application which APPA equates to a post-operating license transfer application in order to avoid the inherent problem it acknowledges exists in treating post-operating license transfer applications as type (2) applications subject to the requirement that “significant changes” be measured from the previous construction permit review. There are two fundamental problems with this construction. First, it literally makes no sense because it treats a post-operating license transfer application as “not an application for a license to operate a facility for which a construction permit was issued, because the applicant in question was never issued a construction permit.” (Emphasis added.) But under the two-step licensing process existing when the statute was passed, every facility issued an operating licenses is a “facility for which a construction permit was issued.” Second, this construction in inconsistent with the language of the statute. The statutory language in the section 105c(2) proviso links the issuance of the construction permit to the facility (“ facility for which a construction permit was issued), not to the applicant , as APPA's construction requires. And third, this construction would result in an unconditional, full-blown antitrust review perhaps even decades after initial operation of the facility, a prospect that is wholly unsupported by the legislative history, which specifically reflects Congress's rejection of a proposal for an unconditional operating license review even before initial operation of the facility. See Wolf Creek discussion at 457-58.

Finally, assuming we accept APPA's concession that “there is a difficulty in interpreting the statute,” the Commission's interpretation in Wolf Creek certainly is no less reasonable than APPA's has been shown above to be. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). In this regard, it is important to emphasize that the Commission's decision in Wolf Creek to no longer conduct antitrust reviews of post-operating license transfers rested on two alternative grounds, either one of which is sufficient to support that decision: First, the Commission's analysis of the relevant statutory provisions and their legislative history led it to conclude that the scope of its antitrust authority does not include post-operating license transfer reviews; second, even if its antitrust authority is concluded to be broad enough to include such reviews, no reasonable reading of the statute warrants a conclusion that such reviews are mandatory, and the Commission, therefore, has chosen, for the reasons stated in Wolf Creek, to not conduct such reviews as a matter of sound policy. See Wolf Creek at 463-65.

APPA's final argument that the Commission's Wolf Creek analysis is wrong involves the Commission's statement that, absent section 105, the Commission would have no antitrust authority. APPA Comments at 21. There is no need to argue this academic point of dicta in Wolf Creek, since the Commission was given very specific and limited antitrust authority in section 105. As noted in Wolf Creek, a statutory duty to act under certain specifically-defined circumstances does not include the discretion to act under different circumstances unless the statute warrants such a reading. Wolf Creek at 454, citing Railway Labor Executives' Association v. National Mediation Board , 29 F.3d 655, 671 (D.C. Cir. 1994) (en banc). For the reasons explained in Wolf Creek and herein, the Commission has concluded that its specific antitrust authority does not include antitrust reviews of post-operating license transfers. 1

Comment: APPA believes that, even if the Commission's Wolf Creek statutory analysis is correct for license transfers in general, the Commission would err if it eliminates antitrust filing requirements for license transfers where there are existing antitrust license conditions, since such conditions must be dispositioned in conjunction with the license transfer.

Response: It is true that there may be a number of post-operating license transfers that involve nuclear facilities whose (transferor) licensees are subject to antitrust license conditions imposed by the NRC as a result of the construction permit (or initial operating license) review. In such cases, consideration must be given to the appropriate disposition of the existing license conditions. This was addressed in the Wolf Creek decision. The Commission stated that it would entertain proposals by the parties as to the proper treatment of existing license conditions. Wolf Creek at 466. In fact, that is precisely what the Commission did in the Wolf Creek transfer case itself, although, because the parties reached a settlement, no decision was required by the Commission. The Commission continues to believe that this approach is workable and that retention of the reporting rule for all post-operating license transfer cases where there are existing antitrust conditions is unnecessary. For example, the proper disposition of existing antitrust conditions may be obvious and agreeable to all involved in some cases, or in other cases may be satisfactorily accomplished after considering submissions by the applicants and others much less burdensome than the full scope reporting urged by APPA. In other cases, such reporting might be unnecessary for some transfer applicants, or could be burdensome out of proportion to the benefits. While the possibility cannot be ruled out that the entirety of the information covered by the current rule may be useful or even necessary in some cases to achieve proper disposition of antitrust license conditions, that does not warrant a generally applicable rule that all transfer applicants must submit the full scope of information covered by the current rule. Even in cases where it is determined that the current scope of information—or even more—is necessary to dispose of existing antitrust conditions, the Commission is not powerless to obtain and make available the necessary information in the absence of the current rule. The Commission has ample power to require (on its own initiative or at the request of another) whatever information is deemed necessary or appropriate to carry out its responsibility to assure appropriate disposition of existing antitrust license conditions. See, e.g., Atomic Energy Act sections 161b, c, i, o and 182; 10 CFR 2.204, 50.54(f). The Commission need not retain what it considers at best to be an overly broad reporting requirement for the limited purpose of deciding the fate of existing antitrust conditions in certain post-operating license transfer cases. Indeed, in the only case of that nature that has occurred recently—the Wolf Creek case itself—the reporting requirement proved entirely unnecessary when the applicants agreed that the existing antitrust conditions should apply to the entire, post-transfer organization, as APPA has acknowledged (APPA Comments at 9).

Comment: Finally, APPA argues that even if the language of section 105c is sufficiently ambiguous to permit more than one interpretation, the Commission erred in concluding that its antitrust review authority would be superfluous.

Response: As was made clear in the Wolf Creek decision, the Commission has concluded that it has no authority to conduct antitrust reviews of post-operating license transfers. In the absence of statutory authority for such reviews, it is irrelevant whether such reviews would be largely duplicative of others. While the Commission does not believe the statute is sufficiently ambiguous to result in agency discretion to conduct such reviews, the Commission's Wolf Creek decision made clear that if the statute does permit such reviews, it does not mandate them, and therefore the Commission could cease performing them for the policy and practical reasons explained therein. See Wolf Creek at 463-65. Contrary to APPA's assertion that the Commission relied on statutory and regulatory developments which postdate the 1970 amendments to the Atomic Energy Act to reach its conclusion about the scope and intent of those amendments, APPA Comments at 18-19, the Commission considered those developments not in interpreting its statutory authority but rather only in partial support for what would be an appropriate policy decision to terminate antitrust reviews of post-operating license transfers if it had statutory authority to conduct them but was not required to do so. The Commission recognizes that APPA views the competitive and regulatory climate as being more hostile to the antitrust interests of it and its members. But as explained in Wolf Creek, id., there are other antitrust authorities and forums with far greater antitrust expertise than the Commission to address potential antitrust problems with proposed mergers and acquisitions of owners of nuclear power facilities.

Subsequent to the Wolf Creek decision and the publication of the proposed rule notice, the issue of multijurisdictional merger notification and review in the United States was addressed in the Final Report of the International Competition Policy Advisory Committee to the Attorney General and Assistant Attorney General for Antitrust (February 28, 2000) (ICPAC Report). As stated therein, “[t]he majority of Advisory Committee members believe that the overlapping review in the United States is more often than not a defect of the U.S. system and that a more rational or sensible approach would be to give exclusive federal jurisdiction to determine competition policy and the competitive consequences of mergers in federally regulated industries to the DOJ and FTC.” ICPAC Report at 143. In a discussion of the cost implications of multiple reviews remarkably applicable to those conducted of NRC licensees and applicants for post-operating license transfers, the ICPAC Report states:

For the similar reasons stated in Wolf Creek and in the proposed rule notice, the Commission has decided that its scarce resources should be focused on its core mission of protecting the public health, safety and environment and the common defense and security. This is not to say that the Commission would ignore those who stand to suffer antitrust injury as a result of an operating license transfer involving existing antitrust conditions. As the Commission made clear in Wolf Creek, they will be heard and their views fully considered. But retaining a generic, “one size fits all” reporting requirement is not the only way to fulfill that responsibility, and the Commission will fulfill that responsibility with other, more narrowly crafted means.

Comment: CAN believes that the Commission's proposed rule unlawfully changes the substance of the Atomic Energy Act and should be withdrawn in favor of the NRC's seeking legislative changes from Congress.

Response: The Commission has not changed the “substance” of the Atomic Energy Act but instead has sought to conform its rules and practices to the authority actually granted it by the Act. The very purpose of the Commission's careful consideration of its antitrust review authority, based on the views of the parties to the Wolf Creek case, the amicus briefs filed therein at the Commission's invitation, and the commenters in this rulemaking, is to ensure that its practices and rules will conform to the Act, not depart from it or “change” its substance. CAN provides no discussion or statutory analysis to support its position that the Commission's decision in the Wolf Creek case and this rulemaking are inconsistent with the antitrust authority actually granted by Congress in the Act. CAN merely asserts that the NRC is “attempting to alter a federal statute by agency rulemaking.” To the contrary, the Wolf Creek decision and this rulemaking will achieve adherence to the limited antitrust authority provided by the Act. While the Commission agrees with CAN that not acting in accordance with a clear statutory mandate would be a breach of its responsibility, the Commission is equally mindful that it also would be irresponsible to act beyond the scope of its statutory authority. That is precisely what the Commission decided in the Wolf Creek case about its past practice of performing antitrust reviews of post-operating license transfers, and why that practice must cease.

Comment: CAN asserts that the proposed rule would create regulatory gaps in the NRC's approval of highly dangerous activities, citing licensees' financial obligations, cost cutting by nuclear power plant owners in the competitive environment, potentially serious accidents triggered by overtime patterns, foreign ownership of nuclear power plants, and increased regulatory burdens on the NRC resulting in an inability to inspect large-scale licensees for health and safety violations.

Response: This rule will not result in any gaps in the Commission's regulation of its licensees to ensure adequate protection of the public health and safety. This rule, which is narrowly confined to relieving certain applicants of filing antitrust information, will not change one iota the Commission's review of proposed license transfers for all other purposes, such as operational safety, foreign ownership, financial qualifications, and for every other purpose that such reviews are conducted. Commission reviews and oversight in those and all other areas of Commission responsibility will continue unabated and are unaffected by this rule. Neither will this rule affect in any way the Commission's inspection capabilities or practices. In fact, by freeing up resources no longer utilized for unauthorized and unnecessary antitrust reviews, the Commission actually will be better able to perform its core mission of regulating to protect the public health, safety and environment. As far as the Commission's ability to inspect large-scale licensees, that too is unaffected by this narrow rule and, in any event, is being separately addressed as part of the Commission's oversight of the nuclear power industry's deregulation and consolidation. There simply is no basis to believe that this rule could result in any of the consequences identified by CAN.

Comment: CAN asserts that the NRC has failed to evaluate the health and safety and national security consequences of the proposed rule.

Response: This comment seems to be related to CAN's previous comment that this rule will result in gaps in the Commission's regulatory program to protect public health and safety and to review license transfers to ensure that the prohibition on foreign ownership of nuclear power plants is met. As explained above, there will be no such gaps and no health and safety or national security consequences of the rule.

Comment: CAN asserts that the NRC has failed to evaluate the environmental impacts of the proposed rule, in violation of NEPA.

Response: For the same reasons that this rule will have no impact on the Commission's public health and safety responsibilities, it will have no environmental impacts. The rule simply relieves some applicants of the need to submit antitrust information for a review which no longer will be conducted and in no way affects the Commission's environmental obligations or those of its licensees. The Commission has fully complied with the National Environmental Policy Act of 1969, as amended, (NEPA) in promulgating this rule. The proposed rule stated the Commission's determination that this rule, if adopted, falls within the categorical exclusions in 10 CFR 51.22(c)(1), (2) and (3)(i) and (iii) for which neither an Environmental Assessment nor an Environmental Impact Statement is required (64 FR 59671, 59674). No comments were received which disagreed with that determination. CAN's comments do not address that determination but simply assert that the Commission has failed to evaluate the environmental impacts of the rule in violation of NEPA. As stated below, the Commission adheres to that determination.

This final rule, which is identical to the proposed rule, makes clear that, consistent with the decision in the Wolf Creek case, no antitrust information is required to be submitted as part of any application for Commission approval of a post-operating license transfer. Because the current regulations do not clearly specify which types of applications are not subject to antitrust review, these clarifying amendments will bring the regulations into conformance with the Commission's limited statutory authority to conduct antitrust reviews and its decision that such reviews of post-operating license transfer applications are not authorized or, if authorized, are not required and not warranted. 2

Direct transfers of facility licenses which are proposed prior to the issuance of the initial operating license for the facility, however, are and continue to be subject to the Commission's antitrust review. 3 In order to make clear that the Commission's regulations do not require antitrust information as part of applications for post-operating license transfers, the amended regulations specify that antitrust information must be submitted only with applications for construction permits and “initial” operating licenses for the facility and applications for transfers of licenses prior to the issuance of the “initial” operating license. Thus, the word “initial” has been inserted to modify “operating license” in appropriate locations and the word “application” has been modified where necessary to make clear that the application must be for a construction permit or initial operating license. Appendix L to 10 CFR part 50, “Information Requested by the Attorney General for Antitrust Review [of] Facility License Applications,” similarly is amended and clarified and a new definition is added there to define “initial operation” to mean operation pursuant to the first operating license issued by the Commission for the facility.

The Presidential Memorandum dated June 1, 1998, entitled, “Plain Language in Government Writing,” directed that the government's writing be in plain language. This memorandum was published June 10, 1998 (63 FR 31883). In complying with this directive, editorial changes were made in the proposed revisions to improve the organization and readability of the existing language of paragraphs being revised. No comments were received on these types of changes and they are not discussed further in this notice.

The National Technology Transfer and Advancement Act of 1995, Pub. L. 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this final rule, the NRC is eliminating the submission of antitrust information in connection with post-operating license applications for transfers of facility operating licenses. This rule does not constitute the establishment of a standard that establishes generally-applicable requirements.

The Commission has determined under the National Environmental Policy Act (NEPA) of 1969, as amended, and the Commission's regulations in subpart A of 10 CFR part 51, that this rule falls within the categorical exclusions appearing at 10 CFR 51.22(c)(1), (2), and (3)(i) and (iii) for which neither an Environmental Assessment nor an Environmental Impact Statement is required.

This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing requirements were approved by the Office of Management and Budget, approval number 3150-0011.

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

These revisions to the regulations clarify that antitrust information is required to be submitted only in connection with applications for construction permits and initial operating licenses and not in connection with applications for post-operating license transfers. Therefore, to the extent that, in the past, antitrust information was submitted with applications for post-operating license transfers, these revisions will reduce the burden on such applicants by eliminating the submission of antitrust information and the costs associated with preparing and submitting that information. In short, the revisions will result in no additional burdens or costs on any applicants or licensees and will reduce burdens and costs on others. Clearly, because the revisions only affect when antitrust information need be submitted to the Commission, there will be no effect on the public health and safety or the common defense and security, and they will continue to be adequately protected. The cost savings to applicants resulting from these revisions justify taking this action.

To determine whether the amendments contained in this rule were appropriate, the Commission considered the following options:

This alternative was considered because the current rules are not explicitly inconsistent with the Commission's decision that antitrust reviews of post-operating license transfers are not authorized, or at least are not required and should be discontinued. Because the current rules have been interpreted to be consistent with the Commission's practice of conducting such reviews, however, in that they have been interpreted to require the submission of antitrust information with post-operating license transfer applications, the Commission concluded that clarification of the rules are appropriate. Therefore, the Commission determined that this alternative is not acceptable.

For the reasons explained above and in the Commission's Wolf Creek decision, the Commission decided that its rules could and should be made clearer that no antitrust information should be submitted with applications for post-operating license transfers because antitrust reviews of such applications are not authorized or, if authorized, should be discontinued as a matter of policy. Therefore, to make clear that there is no need to submit antitrust information in connection with post-operating license transfers, and because the revisions would result in cost savings to certain applicants, with no additional costs or burdens on anyone, this option was chosen.

In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission hereby certifies that this rule will not have a significant economic impact on a substantial number of small entities that are subject to the requirements of the rule. This rule affects only the licensing and operation of nuclear power plants. The entities that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810). Furthermore, this rule does not subject any entities to any additional requirements, nor does it require any additional information from any entity. Instead, the rule clarifies that certain information is not required to be submitted in connection with applications for post-operating license transfers.

The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this rule and a backfit analysis is not required because these amendments do not involve any provisions that would impose backfits as defined in 10 CFR 50.109. The rule does not constitute a backfit because it does not propose a change to or additions to requirements for existing structures, systems, components, procedures, organizations or designs associated with the construction or operation of a facility. Rather, this rule eliminates the need for certain applicants to submit antitrust information with their applications.

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

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 Short Brothers Model SD3-60 series airplanes was published in the Federal Register on May 19, 2000 (65 FR 31839). That action proposed to require affixing a label containing revised engine limitations on the ditching hatch, and revising the airplane flight manual to reflect the revised engine limitations.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that 15 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. Required parts will be provided by the manufacturer at no cost to the operators. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $900, or $60 per airplane.

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

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 Boeing Model 737-200, -300, -400, and -500 series airplanes was published in the Federal Register on May 10, 2000 (65 FR 30019). That action proposed to require replacement of existing door handle mounting hub assemblies with new, improved hub assemblies.

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

The commenters state no objections to the proposed rule.

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 1,575 airplanes of the affected design in the worldwide fleet. The FAA estimates that 632 airplanes of U.S. registry will be affected by this AD, that it will take approximately 12 work hours per airplane (3 work hours per door) to accomplish the required replacement, and that the average labor rate is $60 per work hour. Required parts will cost approximately $2,150 per airplane. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $1,813,840, or $2,870 per airplane.

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

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 Boeing Model 747 series airplanes equipped with General Electric Model CF6-45 or -50 series engines was published in the Federal Register on October 27, 1999 (64 FR 57802). That action proposed to require repetitive inspections and tests of the thrust reverser control and indication system, and corrective actions, if necessary. That action also proposed to require installation of a thrust reverser actuation system (TRAS) lock, repetitive functional tests of that installation, and repair, if necessary. Installation of the TRAS lock would terminate the repetitive inspections and certain tests.

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

One commenter supports the proposed rule.

One commenter requests that the interval for the repetitive inspections and tests required by paragraph (a) of the proposed rule be extended from 1,300 flight hours to 1,500 flight hours. The commenter states that Work Package I of Boeing Alert Service Bulletin 747-78A2160, dated May 4, 1995 [the service information referenced in paragraph (a) for accomplishment of the inspections and tests] has a repetitive interval of 1,500 flight hours, as specified in the service bulletin. The commenter adds that a 1,400-flight-hour-interval aligns with its “2A” check for the fleet, but the 1,300-flight-hour-interval will require additional downtime and place an undue burden on maintenance personnel. The commenter suggests, as another option, that the interval be changed to, “1,500 flight hours or 450 flight cycles, whichever occurs later.” Another commenter requests that the interval be changed to “1,300 flight hours or 450 flight cycles, whichever occurs later.” Both commenters state that the deterioration of the entire system is based on flight cycles, rather than flight hours.

The FAA partially concurs. The FAA does not concur with the commenters' requests to revise the repetitive inspection interval to add the option of flight cycles. The FAA agrees that deterioration of certain thrust reverser components is related to flight cycles because the thrust reversers are typically operated once per flight, causing wear of the components of the actuation system and the thrust reverser brake. However, deterioration of the majority of thrust reverser components is related to flight hours. For example, deterioration of wiring, seals, and proximity sensors and switches is more commonly due to damage due to vibration, temperature extremes, and exposure to moisture. Such factors are flight-hour dependent. Based on this flight hour dependency, the FAA has determined that the inspection interval will not be revised to add the option of flight cycles.

However, the FAA concurs with the commenters' request to extend the repetitive interval stated in the final rule to 1,500 flight hours. Based on discussions with the manufacturer, the FAA has determined that an extension of the interval for the repetitive inspections and tests required by paragraph (a) of the final rule will not have an adverse affect on fleet safety. Therefore, paragraph (a) of the final rule has been revised accordingly.

One commenter requests that the compliance time for accomplishment of the modification required by paragraph (d) of the proposed rule be extended from 36 months to 60 months in order to allow the modification to be accomplished during the time of its regularly scheduled “D” check. The commenter states that the major portion of the modification involves installation of wiring provisions, and this installation requires a downtime of 250 hours. Another commenter requests the compliance time be extended to 84 months in order to allow the modification to be accomplished during the time of its regularly scheduled “D” check. The commenter states that the proposed requirement to accomplish the complete modification within 36 months, including all service bulletins, would create added problems instead of solutions. The commenter notes that the complete modification would require approximately 1,850 man hours to accomplish, and requests the extension to 84 months so airplanes will not be removed from service.

The FAA partially concurs with the commenters' requests. The FAA concurs that the compliance time for accomplishment of the modification required by paragraph (d) of the final rule may be extended beyond 36 months. Based on information supplied by the commenters and the manufacturer, the FAA acknowledges that a compliance time of 48 months corresponds more closely to the operators' normal maintenance schedules. The FAA has determined that this extension will not adversely affect safety. However, the FAA has concluded that a compliance time of 48 months represents the maximum interval in which the affected airplanes could continue to operate without compromising safety. Paragraph (d) of the final rule has been revised to require accomplishment of the modification within 48 months after the effective date of this AD.

One commenter disagrees with the mandatory requirement to incorporate a TRAS lock as specified in paragraph (d) of the proposed rule. The commenter states that an equivalent level of safety is achieved by accomplishing the thrust reverser health checks at the intervals specified in Boeing Alert Service Bulletin 747-78A2160, dated May 4, 1995, including Notice of Status Change 747-78A2160 NSC 1, dated June 8, 1995. The commenter cites fleet statistics that Model 747 series airplanes have flown over 47,212,499 hours to date without any corresponding thrust reverser deployments that have impacted the safety of flight. The commenter further states that the events which triggered regulatory action happened due to thrust reverser deployment of a Model 767 series airplane having two engines and subsequent controllability problems. The commenter also states that there is insufficient documentation from the manufacturer for troubleshooting and correcting operational problems with the TRAS lock. Additionally, there were no adverse operational trends indicated that would impact safety of flight of the Model 747 series airplane; therefore, incorporation of the additional TRAS lock is not justified.

The FAA does not concur with the commenter's request. The FAA recognizes that in-flight thrust reverser deployments have occurred on Model 747 series airplanes in certain flight conditions with no significant airplane controllability problems being reported. However, the manufacturer has been unable to establish that acceptable airplane controllability would be achieved following such a deployment. The manufacturer acknowledges that, in the event of thrust reverser deployment during high-speed climb using high engine power, or during cruise, these airplanes may not be controllable.

Although the commenter states that there were no adverse operational trends that would impact safety of flight, the safety analyses performed by the manufacturer and reviewed by the FAA has not established that the risks for uncommanded thrust reverser deployment during critical flight conditions are low enough to prevent a thrust-reverser-related incident during the fleet operation of the Model 747 series airplane. This AD addresses an unsafe condition identified as deployment of a thrust reverser during flight, and requires the installation of an additional thrust reverser system locking feature to correct that unsafe condition. The periodic inspections and tests (thrust reverser health checks) contained in paragraphs (a) and (b) of this AD are a means of verifying proper operation of the thrust reverser components. The FAA has determined that the terminating action required by paragraph (d) of this AD is necessary because the repetitive inspections and tests do not provide an adequate level of safety for the remainder of the life of the fleet of Model 747 series airplanes. Regarding the insufficiency of documentation from the manufacturer, the FAA has been advised by the manufacturer that additional documentation is being developed. No change to the final rule is necessary in this regard.

One commenter does not fully agree with the repetitive inspection interval required by paragraph (e) of the proposed rule, “since limited data is available.” The commenter makes no specific request for a change to the proposed rule.

The FAA infers that the commenter is requesting an extension of the repetitive inspection interval for the functional test required by paragraph (e) of the final rule. The FAA does not concur with the commenter's request. In developing an appropriate repetitive interval for this action, the FAA considered not only the degree of urgency associated with addressing the subject unsafe condition, but accomplishment of the required repetitive functional test within an interval of time that parallels normal scheduled maintenance for the majority of affected operators. However, under the provisions of paragraph (h) of the final rule, the FAA may approve requests for adjustments to the compliance time if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety. No change to the final rule is necessary in this regard.

One commenter asserts that the proposed rule underestimates the work hours required to accomplish the proposed installation of the TRAS lock. The commenter states that, based upon feedback from operators that have installed the TRAS lock, approximately 1,850 work hours per airplane is needed for accomplishment of the installation; these hours include all pre-requisite service bulletins. The commenter also notes that it uses third party labor and does not agree that $60 per work hour is the industry average labor rate. The commenter estimates that $100 per work hour is more realistic. Using these figures, the commenter estimates its costs for the proposed installation as $185,000 per airplane, or $4,070,000 for its entire fleet. The commenter adds that it would take an additional 40 work hours per airplane to accomplish the proposed repetitive inspections and tests of the overpressure shutoff valve electrical connectors, the flexible shafts, the directional pilot valves, and the microswitch packs, which equates to $4,000 per airplane. The proposed rule estimates 11 work hours for accomplishment of these repetitive inspections and tests.

The FAA infers that the commenter is requesting that the cost impact information in the final rule be revised to reflect the estimate derived from operator feedback. The FAA does not concur with the commenter's request. The cost impact information in AD rulemaking actions describes only the “direct” costs of the specific actions required by this AD. The number of work hours necessary to accomplish the required actions was provided to the FAA by the manufacturer based on the best data available to date. This number represents the time necessary to perform only the actions actually required by this AD. The FAA recognizes that, in accomplishing the requirements of any AD, operators may incur “incidental” costs in addition to the “direct” costs. The cost analysis in AD rulemaking actions, however, typically does not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions. Because incidental costs may vary significantly from operator to operator, they are almost impossible to calculate. Therefore, no change to the final rule is necessary.

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

There are approximately 138 airplanes of the affected design in the worldwide fleet. The FAA estimates that 27 airplanes of U.S. registry will be affected by this AD.

It will take approximately 12 work hours per airplane to accomplish the inspections and tests of the thrust reverser stow/deploy switches, the bullnose seals, and the airmotor brakes, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of these repetitive inspections and tests required by this AD on U.S. operators is estimated to be $19,440, or $720 per airplane, per inspection and test cycle.

It will take approximately 11 work hours per airplane to accomplish the inspections and tests of the overpressure shutoff valve electrical connectors, the flexible shafts, the directional pilot valves, and the microswitch packs, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of these repetitive inspections and tests required by this AD on U.S. operators is estimated to be $17,820, or $660 per airplane, per inspection and test cycle.

It will take approximately 791 work hours per airplane to accomplish the installation of TRAS locks, at an average labor rate of $60 per work hour. Required parts will be provided at no cost by the airplane manufacturer. Based on these figures, the cost impact of the installation required by this AD on U.S. operators is estimated to be $1,281,420, or $47,460 per airplane.

This cost impact figure does not reflect the cost of the modifications described in the service bulletins listed in paragraph I.K.1.h. of Boeing Service Bulletin 747-78-2150, Revision 1, that are required to be accomplished prior to, or concurrently with, the installation of the TRAS lock. (The cost impact figure does reflect the cost of the modifications described in the service bulletins listed in paragraph I.K.1.j. of the service bulletin that are also required to be accomplished prior to, or concurrently with, the installation of the TRAS lock.) Since some operators may have accomplished certain modifications on some or all of the airplanes in its fleet, while other operators may not have accomplished any of the modifications on any of the airplanes in its fleet, the FAA is unable to provide a reasonable estimate of the cost of accomplishing the terminating actions described in the service bulletins listed in paragraph I.K.1.h. of Boeing Service Bulletin 747-78-2150.

It will take approximately 4 work hours per airplane to accomplish the functional test of the TRAS lock, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the repetitive functional tests required by this AD on U.S. operators is estimated to be $6,480, or $240 per airplane, per test cycle.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 96-07-01, amendment 39-9549 (61 FR 12015, March 25, 1996), which is applicable to certain McDonnell Douglas Model DC-10-10, -15, -30, and -40 series airplanes, and KC-10A (military) airplanes, was published as a supplemental notice of proposed rulemaking (NPRM) in the Federal Register on April 11, 2000 (65 FR 19350). The action proposed to continue to require repetitive inspections to detect any failure of the attachment fasteners located in the banjo No. 4 fitting of the vertical stabilizer, a one-time inspection to detect cracking of the flanges and bolt holes of the banjo No. 4 fitting, and repair or replacement of the attachment fasteners with new, improved fasteners. The action also proposed to add a new one-time inspection to determine whether certain fasteners are installed in the banjo No. 4 fitting of the vertical stabilizer, and follow-on actions, if necessary.

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

Two commenters support the proposed AD.

One commenter requests that the FAA further clarify the requirements of paragraph (b)(2) of the proposed AD. Specifically, the commenter requests that, for airplanes that have repairs previously installed in accordance with paragraph (c)(3)(i) of the proposed AD, the requirement to accomplish an eddy current surface inspection of the forward and aft flanges be removed. The commenter states that paragraph (c)(3)(i) of the proposed AD requires the actions specified in paragraph (b) of the proposed AD to be accomplished on any fastener hole that has part number (P/N) S4931917-8Y fasteners installed. Paragraph (b) of the proposed AD requires an eddy current surface inspection to detect cracking of the forward and aft flanges of the banjo No. 4 fitting. The commenter contends that some airplanes will have repairs previously installed in accordance with paragraph (b)(2) of the proposed AD. Such repairs would prevent accomplishment of the eddy current inspection required by paragraph (b) of the proposed AD.

The FAA concurs. The FAA finds that, for airplanes on which the repair required by paragraph (b)(2) of the AD has been accomplished prior to the effective date of this AD, it is not possible to accomplish the eddy current surface inspection to detect cracking of the forward and aft flanges required by paragraph (b) of the AD. However, it is possible to accomplish the eddy current bolt hole inspection of the bolt holes of the banjo No. 4 fitting required by paragraph (b) of the AD. The FAA also finds that it is not likely that cracking would develop in the repaired area between December 17, 1992 (the issue date of McDonnell Douglas Service Bulletin 55-23, which is referenced in the AD as a source of service information), and April 24, 1996 (the effective date of AD 96-07-01 for accomplishing the inspection of the flanges), and during the compliance time [ i.e., within 5 years after April 24, 1996, or within 1,500 landings from the inspection required by paragraph (c)(3) of this AD] for accomplishing the installation of P/N S4931917-8Y Hi-Lok fasteners. Therefore, the FAA has revised paragraph (c)(3)(i)(B) of the final rule to provide an exception for the subject airplanes for accomplishing the requirements of paragraph (b) of the AD. A new paragraph (d) has also been added to the final rule.

On May 9, 2000 ( i.e., after issuance of the supplemental NPRM), the FAA issued a Type Certificate (TC) for McDonnell Douglas Model MD-10-10F and MD-10-30F series airplanes. Model MD-10 series airplanes are Model DC-10 series airplanes that have been modified with an Advanced cockpit. The banjo No. 4 fitting installed on Model MD-10-10F and MD-10-30F series airplanes (before or after the modifications necessary to meet the type design of a Model MD-10 series airplane) are identical to those on the affected Model DC-10-10, -15, -30, and -40 series airplanes, and KC-10A (military) airplanes. Therefore, all of these airplanes may be subject to the same unsafe condition. In addition, the manufacturer's fuselage number and factory serial number are not changed during the conversion from a Model DC-10 to Model MD-10. The FAA finds that Model DC-10-10F and MD-10-30F series airplanes were not specifically identified by model in the applicability of the supplemental NPRM; however, they were identified by manufacturer's fuselage numbers in McDonnell Douglas DC-10 Service Bulletin 55-23, Revision 1, dated December 17, 1993 (which was referenced in the applicability statement of the AD for determining the specific affected airplanes). Therefore, the FAA has revised the applicability throughout the final rule to include Model MD-10-10F and MD-10-30F series airplanes.

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

There are approximately 420 Model DC-10-10, -15, -30, and -40 series airplanes,Model MD-10-10F and MD-10-30F series airplanes, and KC-10A (military) airplanes of the affected design in the worldwide fleet. The FAA estimates that 242 airplanes of U.S. registry will be affected by this AD.

Since the issuance of AD 96-07-01, the manufacturer has revised its estimate of the work hours necessary to perform the actions that are currently required by that AD. McDonnell Douglas Service Bulletin DC10-55-023, Revision 03, reflects the manufacturer's revised estimates; and the cost information, below, also has been revised to refer to the new estimates.

The visual inspection that is currently required by AD 96-07-01, and retained in this AD, takes approximately 1 work hour per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the visual inspection currently required by that AD on U.S. operators is estimated to be $14,520, or $60 per airplane, per inspection cycle.

The eddy current inspection that is currently required by AD 96-07-01, and retained in this AD, takes approximately 4 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the eddy current inspection currently required by that AD on U.S. operators is estimated to be $58,080, or $240 per airplane.

The replacement of the 12 attachment fasteners of the banjo No. 4 fitting that is currently required by AD 96-07-01, and retained in this AD, takes approximately 14 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts cost approximately $250 per airplane. Based on these figures, the cost impact of the replacement currently required by that AD on U.S. operators is estimated to be $263,780, or $1,090 per airplane.

The new inspection that is required by this AD action will take approximately 1 work hour per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the inspection required by this AD on U.S. operators is estimated to be $14,520, or $60 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.

Should an operator that has already completed the replacement of the attachment fasteners of the banjo No. 4 fitting in accordance with AD 96-07-01 be required to repeat the replacement, it will take approximately 14 additional work hours, at an average labor rate of $60 per work hour. Additional parts will cost $150 per airplane. Based on these figures, the cost impact of any necessary repetition of the replacement is estimated to be $990 per airplane.

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

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A 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 Boeing Model 747 series airplanes was published in the Federal Register on January 5, 2000 (65 FR 401). That action proposed to require replacement of any brake system accumulator that has aluminum end caps with an accumulator that has stainless steel end caps.

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

One commenter supports the proposed rule.

One commenter, the airplane manufacturer, requests that the FAA revise paragraph (b) of the proposed rule (the “Spares” paragraph) to reference the supplier's part numbers for the brake system accumulator that correspond to the airplane manufacturer's part numbers listed in paragraph (b) of the proposed rule. The commenter states that including the supplier's part numbers in this AD will assist operators in identifying affected parts. The FAA concurs with the commenter's request, and has revised paragraph (b) of this final rule to reference the applicable supplier's part numbers that correspond to the airplane manufacturer's part numbers.

Three commenters request that the FAA extend the compliance time for the actions in paragraph (a) of the proposed rule. The FAA proposed a compliance time of 3,000 flight hours after the effective date of this AD. The commenters' suggestions for extending the compliance time range from 10 months to 2 years or 6,000 flight hours. One commenter's justification for its request is the number of affected airplanes (estimated at 70 airplanes), the lead-time for modification kits (estimated at 10 months), and the lead-time for new parts (estimated at 4 months). Another commenter notes that the lead-time for new accumulators or modifications parts is 90 days for the initial production order; however, it will take two years to produce the quantity of new accumulators or modifications kits that will be necessary to accomplish the proposed replacement throughout the fleet. Another commenter states that the proposed actions are appropriate for accomplishment in a hangar environment and, with the proposed compliance time of 3,000 flight hours, special maintenance visits would be necessary to accomplish the proposed actions within that compliance time. That commenter suggests that a compliance time of 18 months would allow the proposed actions to be accomplished at a ``C''-check for most affected airplanes.

The FAA concurs that the compliance time for accomplishment of the replacement described in this AD may be extended somewhat, and that accomplishment of the required actions during a “C”-check is appropriate. In developing an appropriate compliance time for this AD, the FAA considered not only the degree of urgency associated with addressing the subject unsafe condition, but the availability of required parts and the normal intervals for operators' “C”-checks (as stated in Maintenance Review Board documents). The FAA has determined that 6,000 flight hours represents an appropriate interval of time wherein an ample number of required parts will be available for modification of the U.S. fleet, and wherein operators will be able to accomplish the replacement during a “C”-check. The FAA also finds that such a compliance time will not adversely affect the safety of the affected airplanes. Paragraph (a) of this final rule has been revised accordingly.

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

There are approximately 1,217 Model 747 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 324 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per accumulator (airplanes may have three, four, or five accumulators of various types) to accomplish the required actions, and that the average labor rate is $60 per work hour. Required parts will cost approximately between $7,650 and $13,418 per airplane (depending on the number and type of affected accumulators). Based on these figures, the cost impact of the AD on U.S. operators is estimated to be between $7,830 and $13,718 per airplane.

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

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain McDonnell Douglas MD-11 series airplanes was published in the Federal Register on November 22, 1999 (64 FR 63764). That action proposed to require replacement of the upper and lower reading lights in the forward crew rest area with a redesigned light fixture.

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

One commenter states that it is not affected by the proposed rule.

One commenter recommends that the proposed AD require a smoke detection system for the forward crew rest compartment, since there will still be conditions existing that could cause a fire which could clearly be a hazard to flight safety. The commenter further states that the FAA should require a smoke detection system in any area where there are combustible materials and ignition sources, to ensure that any fire event is rapidly communicated to the crew.

The FAA does not concur with the commenter's suggestion. The final rule requires replacement of the upper and lower reading lights of the affected crew rest area with a redesigned light fixture to preclude a possible flammable condition as stated previously in the preamble. In addition, due to the current design of the forward crew rest area and its close proximity to the cockpit, the flight crew would detect smoke or fire in the forward crew rest compartment. Therefore, no change to the final rule is necessary in this regard.

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 71 airplanes of the affected design in the worldwide fleet. The FAA estimates that 14 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required replacement, and that the average labor rate is $60 per work hour. Required parts will cost approximately $238 per airplane. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $4,172, or $298 per airplane.

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

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

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

On December 18, 1996, DEA published a Notice of Proposed Rulemaking (NPRM) in the Federal Register (61 FR 66637) entitled Establishment of Freight Forwarding Facilities for DEA Distributor Registrants. The NPRM was published in response to requests by registrants within the controlled substances distribution industry that registrant-operated freight forwarding facilities be exempted from the registration requirement. (Currently there is no provision in the regulations that would allow the storage and distribution of controlled substances from such a location without a DEA registration.) Following discussion with registrants and trade association representatives within the affected industries, DEA determined that such a waiver could be provided to registrants within the controlled substances distribution industry, pursuant to 21 U.S.C. 822(d), subject to certain requirements with respect to the activity conducted, security, and recordkeeping.

The NPRM proposed to define freight forwarding facility as a separate facility operated by a DEA distributor registrant through which sealed, packaged controlled substances, in unmarked ( i.e., without indication of the contents) containers, are stored for less than 24 hours while being routed to the ultimate DEA registrant consignee. The proposed definition specifically excluded a facility through which controlled substance returns are processed. Freight forwarding facilities would be granted a waiver from the registration requirement, provided that the registrant operating the facility gave required notice to DEA of the intent to operate such a facility and DEA issued no objection.

With respect to security, the NPRM proposed that during temporary storage at the facility, all Schedule II-V controlled substances must be under constant observation by designated responsible individuals in a segregated area, or, if not under constant observation, stored in a caged and alarmed area that meets the requirements set forth in Title 21, Code of Federal Regulations (CFR), Section 1301.72(b). Proposed recordkeeping consisted of the requirement that the registrant maintain records documenting the transfer of the controlled substances from the long-distance conveyance to the local conveyance, reflecting the date, time of transfer, the number of cartons, crates, drums, or other packages in which commercial containers of controlled substances were shipped and authorized signatures for each transfer.

Six comments were received in response to the NPRM: three from DEA pharmacy registrants, two from trade associations representing the affected industries, and one from a state regulatory agency. While the comments expressed general support for the changes, concerns were raised regarding each specific facet of the proposed rule. With regard to several of the matters, DEA adopted changes suggested by the commenters to make the rule more flexible and the waiver from registration for a freight forwarding facility more broadly available.

Four commenters objected to the proposed requirement that a freight forwarding facility be for the exclusive use of the named DEA distributor registrant, precluding its use by another DEA registrant. The commenters suggested that the new regulations allow multiple registrants to utilize a single freight forwarding facility. Two of the four commenters addressed the issue in terms of multiple registrants of the same company, while the other two addressed the use of a single freight forwarding facility by multiple unrelated registrants. Another commenter questioned whether it would be possible for a non-DEA registrant to lease space at a freight forwarding facility to more than one DEA registered distributor.

The proposal to exempt a freight forwarding facility from the DEA registration requirement was based upon the facility being an extension of a specific distributing registrant, thus simplifying the issue of responsibility for any diversion or lack of compliance with the regulations at the facility. However, taking such a simplified approach does limit use of the facility to only that one distributing registrant.

DEA acknowledges the comments that limiting the definition to such as extent, while simplifying the issue of responsibility under the law and regulations, could result in complex, inefficient, and duplicative efforts for a company that operates multiple distributing registrations. The company would be required to maintain and operate a separate freight forwarding facility for each registered distributing location. Therefore, the proposal is being amended to allow a corporate entity that maintains multiple distributing registrations the ability to operate a single freight forwarding facility for shipments in transit from any of its registered distributing locations. Such a provision remains consistent with the existing framework of DEA's requirements because the controlled substances remain in the custody and control of the corporate entity who maintains both the freight forwarding facility and the various registrations with DEA. That corporate entity is responsible for ensuring that the laws and regulations are adhered to and for the safekeeping of the controlled substances transiting the facility. The ultimate responsibility for compliance would, of course, rest with the DEA registered location making the shipment, should there be any violations or thefts or losses of controlled substances from the shipment.

The exemption of a freight forwarding facility is based on the premise that Company A ships controlled substances to its customers utilizing an in-transit location owned or leased by Company A. In this instance the controlled substances remain the legal responsibility of Company A until they are actually received by the customers. If, on the other hand, Company A were to ship controlled substances to its customers utilizing a freight forwarding facility which is owned by Company B, the custody and control of the shipment, as well as the legal responsibility, shifts from Company A to Company B at the freight forwarding facility. DEA is waiving the registration requirement only with respect to freight forwarding facilities operated by the distributing registrant; a transfer of custody, control, and legal responsibility of controlled substances between two different companies remains subject to the registration requirements set forth in 21 U.S.C. 822 and may only occur between registered locations of the two companies. Additionally, all applicable records, reports, and security required for controlled drug transactions would continue to apply to such transactions.

With respect to the question of whether a non-registrant could lease space at a freight forwarding facility to more than one DEA registrant, it should be noted that the definition of a freight forwarding facility refers to a facility operated by the company that maintains one or more distributing registrations with DEA. It is expected that the facility will be under the full direction and control of that company and will be staffed by employees of that company. Therefore, the sharing of the same freight forwarding facility by more than one company would not be possible. However, this does not preclude different companies from operating separate freight forwarding facilities within a single building, provided that each is maintained as a physically separate facility from the others.

One commenter suggested that registrants other than distributors may wish to operate a freight forwarding facility. DEA recognizes that, in addition to distributors, there are other registrants ( i.e. manufacturers and importers) who are authorized to distribute controlled substances under their registration. Therefore, DEA is amending the proposal to include controlled substances distributors, manufacturers, and importers.

Four commenters expressed concerns with the proposed requirement that controlled substance storage at a freight forwarding facility be limited to less than 24 hours. Questions were raised about dealing with emergency circumstances (bad weather, natural disaster, and other unforeseen circumstances) that may require the temporary storage of controlled substances at the freight forwarding facility for more than the allowable 24 hour time limit. One commenter suggested that a plan for unforeseen emergencies be submitted at the time of application.

One of the factors in DEA's decision to establish the waiver of the registration requirement for freight forwarding facilities was that in the normal course of freight forwarding activities, shipments of controlled substances will transit a facility with minimal delay. As one commenter noted, “* * * Product arrives at the facility via the long distance conveyance and is transferred to the appropriate short distance conveyance, typically within a matter of 2 hours or less * * *” However, recognizing that there are a variety of factors, such as bad weather, mechanical breakdowns, scheduling errors, etc., that may interfere with the timely transit of shipments through the facility, DEA included in the definition of a freight forwarding facility the provision that controlled substances may be stored for less than 24 hours. DEA expects that any registrant operating a freight forwarding facility will ensure that any controlled substances transiting the facility will remain there for less than 24 hours.

DEA does recognize that there may be emergency circumstances that may temporarily prevent full compliance with the regulations.

In such a case, the registrant operating the facility must take the necessary steps to safeguard the controlled substances and effect a return to normal operations as quickly as possible. Additionally, the registrant must notify the local DEA office of the circumstances and what actions are being taken to address the situation. DEA will not penalize a registrant for non-compliance with the requirements in such emergency circumstances, provided the registrant has taken appropriate steps to safeguard the controlled substances and to return to normal operations as soon as possible.

With respect to what constitutes emergency circumstances, DEA wishes to note that the commenters included in their description of emergency circumstances such events as late delivery before a holiday weekend and inclement weather. These are not, in and of themselves, emergency circumstances that would warrant allowing the storage of controlled substances at a freight forwarding location in excess of the 24 hour time limit. Certainly unpredictable circumstances that are entirely beyond a registrant's control (fire, earthquake, flash flood, tornado, etc.) would be emergency events that may require storage for 24 hours or more. However, where an event can be predicted or anticipated (winter storm, hurricane, mechanical breakdowns, labor disturbances, etc.), DEA expects that a registrant will have in place contingency plans (rescheduling or re-routing shipments, emergency backup transportation or labor arrangements, etc.) to try to insure that controlled substances are not stored at the facility for 24 hours or more.

DEA is not going to attempt to define in these regulations what would constitute an emergency. Any attempt to do so would inevitably fall short of its intended purpose. There are simply too many variables that could influence whether an event would, or would not, qualify as an emergency. Each event will have to be looked at individually, not only in terms of what has occurred, but also in terms of what efforts the registrant had taken prior to the event to anticipate and prevent any disruption of operations and what efforts are taken following the event to safeguard the controlled substances and return to normal operations. Registrants should approach this issue from the perspective of taking all possible steps to anticipate unusual events and ensure that these events do not prevent compliance with the regulations.

Two commenters objected to the proposed security requirement that controlled substances be stored in accordance with 21 CFR 1301.72(b) whenever they are not under continuous observation by designated individuals.

DEA believes that in the normal course of freight forwarding activities, shipments of controlled substances will transit a facility with minimal delay and there would be no need for the distributing registrant to implement specific physical security measures to guard against losses since the loading/unloading areas would be continuously attended and under the general observation of employees. However, when circumstances arise requiring temporary storage of controlled substances, the distributing registrant must either maintain continuous observation of the controlled substances or implement physical security measures that meet the requirements of 21 CFR 1301.72(b) in order to guard against losses.

As an alternative to continuous observation of controlled substances, two commenters suggested a “lock down” of the facility.

DEA believes that a distributing registrant who has the ability to “lock down” a freight forwarding facility equipped with the appropriate alarm system or kept under constant visual surveillance by security patrols would, in effect, secure the controlled substances in a manner equivalent to the security requirements stated in 21 CFR 1301.72(b)(3), thus satisfying the requirement in the new 21 CFR 1301.77(a)(2).

Two commenters noted that controlled substance containers are required to be unmarked, this making identification of those containers in a large shipment extremely difficult, if not impossible, and requiring that the entire facility be subject to the security requirements of 21 CFR 1301.72(b) or that all containers in the facility be kept under constant observation. One commenter suggested that discrete marking or coding of the containers of controlled substances should be allowed.

In evaluating these comments, the presumption exists that all containers transiting a freight forwarding facility have a certain amount of controlled substances in them. As noted earlier in this document, DEA believes that specific security measures should not be necessary in the normal course of operations since the loading/unloading areas would be continuously attended and under the general observation of employees. It is only when circumstances require the temporary (less than 24 hours) storage of these containers that they must be maintained in a segregated area of the facility under continuous observation in order to prevent access by unauthorized individuals ( i.e. maintenance personnel, non-employee service personnel). Whether continuous observation is performed by an authorized employee of the facility or by contracted security personnel is the responsibility of the distributing registrant. If there is not continuous observation of these containers, the distributing registrant would be required to have the appropriate physical security measures in place that are consistent with the requirements of 21 CFR 1301.72(b).

With respect to the issue of discrete marking or coding of containers of controlled substances, the intent of unmarked containers is to prevent the identification of those that contain controlled substances, thus helping to prevent diversion of the controlled substances. As the commenters noted, the identification of such containers in a large shipment would be extremely difficult, if not impossible. The act of segregating, during temporary storage, only the marked or coded containers would defeat this basic security measure by specifically identifying the containers with controlled substances, making them easier targets for diversion. Under the circumstances, DEA will hold with the requirement that the controlled substances be in unmarked containers.

Four commenters suggested that DEA allow a person the ability to store controlled substance records for freight forwarding facilities at a central location.

A distributing registrant who operates a freight forwarding facility must maintain complete records of controlled substance activity including a clearly defined audit trail for all controlled substances transferred through the facility. Records of controlled substances must contain the dates, times of transfer, authorized signatures and the number of cartons, crates, drums or other packages in which commercial containers of controlled substances are shipped. This will enable the distributing registrant to trace the flow of controlled substances from the long distance conveyance through the freight forwarding facility to the local conveyance or from the long distance conveyance directly to the local conveyance.

Records are required to be maintained at the freight forwarding facility, however, a distributing registrant may request central recordkeeping authority with the initial facility exemption request. Approval of this request will be granted as part of the approval of the waiver by DEA. Subsequent requests for maintaining records at a central location would be handled in accordance with 21 CFR 1304.04.

One commenter suggested that controlled substance returns should be allowed to transit a freight forwarding facility.

The NPRM prohibited the use of a freight forwarding facility for handling the transit of controlled substance returns due to concerns that the custody and control of the controlled substance returns would be transferred from the registered customer at a non-registered location. DEA is amending its proposal to allow controlled substance returns within a single corporate structure to be routed through the corporate owned or operated freight forwarding facility only when the distributing registrant provides the same transfer, storage, security, and recordkeeping controls as outlined in this regulation for controlled substance distributions through a freight forwarding facility. In other words, a distributing registrant may pick up a pre-authorized customer return in the same manner it makes deliveries. DEA is amending Section 1307.12 of the regulations to acknowledge the fact that a person may return controlled substances to a supplier either directly or through a freight forwarding facility provided that the return is pre-arranged and the returning registrant delivers the controlled substance(s) directly to an agent on employee of the receiving registrant. DEA is also making a technical correction in this section to the U.S. Code citation which should read “21 U.S.C. 822(c)” rather than “21 U.S.C. 823(c)”.

In order to accept transfer of controlled substance returns, a distributing registrant must have received advance notification from the customer of its intent to return controlled substances. Controlled substance returns can only be transferred from a customer to an authorized representative of a distributing registrant in sealed, packaged, unmarked containers. The transfer of controlled substance returns from the customer to the authorized representative must be properly documented by both parties to the transaction so that there is an ability to track the flow of the returns from the customer back through the freight forwarding facility to the distributing registrant. Controlled substance returns cannot be shipped by a customer directly to a freight forwarding facility nor can controlled substance returns be distributed from the freight forwarding facility to any other registrant except the original seller since the freight forwarding facility is a non-registered entity. Further, returns must transit the freight forwarding facility in less than 24 hours.

The distributing registrant is to submit, along with the required notification requesting exemption from registration for a freight forwarding facility, specific procedures for the processing of controlled substance returns.

Three commenters suggested that a denial of an application(s) should be communicated to the applicant.

DEA has addressed this issue by indicating in the final regulations that written approval or disapproval will be provided to the distributing registrant within thirty days after confirmed receipt of the notice of intent to operate a freight forwarding facility. If a request to operate a facility is disapproved, the reasons for disapproving the request will be provided in writing to the requesting registrant.

Two commenters suggested that facilities operating under current agreements with the DEA should be grandfathered.

With the publication of this final rule, a person who is operating or desiring to operate a freight forwarding facility is required to notify DEA of both the location(s) of the facility and the registrant(s) who will utilize the facility and fully abide by the regulations set forth in this publication. Those freight forwarding facilities currently operating pursuant to Memoranda of Understanding (MOU) with the DEA must initiate the approval process within thirty days of the effective date of this final rule. Failure to initiate the approval process within the specified time period will void the existing MOU.

One commenter questioned whether DEA would coordinate with the appropriate State authorities regarding freight forwarding facilities. The waiver of the registration requirement by DEA does not imply similar exemption at the state level. The appropriate state agency should be contacted by the requesting registrant prior to obtaining authorization from the DEA to determine whether state licensure is required. Notice regarding whether state licensure is, or is not, required should be provided to DEA as part of the request to operate a freight forwarding facility. DEA will coordinate with the appropriate state authorities to ensure that freight forwarding operations within their states are in full compliance with state requirements.

Under these final regulations, a distributing registrant ( i.e., a distributor, manufacturer, and/or importer) may establish a freight forwarding facility through which the distributing registrant may transfer controlled substances in the course of delivery to customers. If the distributing registrant maintains multiple registrations as a distributor, manufacturer, and/or importer, all of those registered locations may transfer controlled substances through the facility. The distributing registrant and the freight forwarding facility must be part of the same corporate entity; a distributing registrant from a different corporate entity may not transfer controlled substances through the facility.

The registration requirement for a freight forwarding facility will be waived provided that the distributing registrant submits proper notice to DEA of their intent to operate the facility.

Controlled substances that are being transferred through a freight forwarding facility may be stored in the facility for less than 24 hours. During storage, containers with controlled substances must be kept under continuous observation by designated individuals or maintained in a secured area that meets the present requirements for storage of Schedule III through V controlled substances. ‘Locking down’ a facility that also has a monitored alarm system or is subject to continuous monitoring by security personnel is consistent with the security requirements under 21 CFR 1301.72(b)(3) and 1301.77(a)(2).

If controlled substances are stored in the facility for 24 hours or more, then the facility does not meet the definition of freight forwarding facility and does not qualify for waiver of the registration requirement.

Records are required to be maintained by the distributing registrant at the freight forwarding facility regarding the transfer of controlled substances through the facility. The records must reflect the date; time of transfer; number of cartons, crates, drums, or other packages in which controlled substances are shipped; and authorized signatures for each transfer. The records may be maintained centrally, provided that the registrant operating the facility has been approved to maintain central records. In addition, each shipment should contain the usual documentation of controlled substances in the shipment, i.e., invoices, packing slips, etc.

Customer returns may be transferred through a freight forwarding facility, provided that the returns are pre-authorized, the official transfer from the customer to the distributor takes place upon pick-up at the customer's registered location, and the returns are treated in the same manner as distributions to customers through the facility.

These final regulations represent the best possible provisions that could be established while remaining consistent with the requirements of the CSA. Certain other provisions were considered in the establishment of these regulations, such as inter-company freight forwarding; however, the difficulties associated with the assignment of responsibility under the law and regulations that such activities would present, prevents their adoption.

This final rule contains a new information collection requirement, Notice of Intent to Operate a Freight Forwarding Facility, that has been reviewed and approved by OMB and assigned the OMB approval number 1117-0035.

The Drug Enforcement Administration makes every effort to write clearly. If you have suggestions as to how to improve the clarity of this regulation, call or write Patricia M. Good, Chief, Liaison and Policy Section, Office of Diversion Control, Drug Enforcement Administration, Washington, D.C. 20537, Telephone (202) 307-7297.

The Deputy Assistant Administrator, Office of Diversion Control has reviewed this rule in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)) and certifies that it will not have a significant economic impact on a substantial number of small entities. This final rule provides an alternative system that may allow certain person(s) authorized to distribute controlled substances a more efficient means of delivering controlled substances. In fact, the regulated industry has represented that this procedure will benefit the industry by allowing it to lower costs associated with shipping controlled substances.

This final rule has been drafted and reviewed in accordance with Executive Order 12866, § 1(b), Principles of Regulation. The Deputy Assistant Administrator, Office of Diversion Control, has determined that this rule is not a significant regulatory action under Executive Order 12866, § 3(f), Regulatory Planning and Review, and accordingly this rule has not been reviewed by the Office of Management and Budget. This regulation provides an exemption for freight forwarding facilities operated by a person from certain requirements of the CSA, thus allowing them a more efficient and cost effective means of doing business.

This action has been analyzed in accordance with the principles and criteria in Executive Order 13132 and it has been determined that the final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

This rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and 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 Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 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.

It should be noted that due to earlier amendments to the regulations, certain section designations in the NPRM have changed. The appropriate adjustments have been made in the final rule to reflect the new section designations.

On December 21, 1998, a notice of proposed rulemaking (REG-113694-98) was published in the Federal Register (63 FR 70356) regarding the “cash-out limit” under sections 411(a)(7), 411(a)(11), and 417(e)(1) of the Internal Revenue Code. That same day, temporary and final regulations (TD 8794) were published in the Federal Register (63 FR 70335) which amended the Income Tax Regulations and the Employment Tax Regulations (26 CFR parts 1 and 31) relating to the increase in the cash-out limit enacted by section 1071 of the Taxpayer Relief Act of 1997, Public Law 105-34, 111 Stat. 788 (1997) (TRA '97). The text of the temporary regulations served as a portion of the text of the proposed regulations. Very few comments were submitted on the proposed regulations; no hearing was requested or held. After consideration of the comments, these final regulations adopt the provisions of the proposed regulations.

The temporary regulations made several changes to the cash-out rules under sections 411(a)(7), 411(a)(11), and 417(e)(1). In accordance with section 1071 of TRA '97, the temporary regulations increased the cash-out limit from $3,500 to $5,000. Thus, a qualified plan can generally distribute vested accrued benefits valued at $5,000 or less without participant or spousal consent. The temporary regulations also provided that, for purposes of section 411(a)(7)(B)(i), an involuntary distribution of an employee's vested accrued benefit valued at $5,000 or less could be treated as made due to termination of the employee's participation if the distribution could have been made at termination of participation but for the fact that the benefit was then valued at more than $3,500. Finally, the temporary regulations amended § 1.411(a)-11(c)(3) to eliminate the “lookback rule” for distributions other than those made pursuant to an optional form of benefit under which at least one scheduled periodic distribution remained payable. Prior to this amendment, the lookback rule in § 1.411(a)-11(c)(3) provided that the present value of a vested accrued benefit was deemed to exceed the cash-out limit if it had exceeded the cash-out limit at the time of any previous distribution. The temporary regulations did not change the parallel lookback rule under § 1.417(e)-1(b)(2)(i).

The proposed regulations generally included the provisions of the temporary regulations, but they also proposed the complete removal (on a prospective basis) of the lookback rule under both §§ 1.411(a)-11(c)(3) and 1.417(e)-1(b)(2)(i). Thus, under the proposed regulations, the lookback rule would be eliminated both for plans subject to the spousal-consent provisions of sections 401(a)(11) and 417 and for plans not subject to those provisions. Under this removal of the lookback rule, a participant's vested accrued benefit valued at $5,000 or less could be distributed without consent even if the benefit had been valued at more than $5,000 at the time of a previous distribution. However, in accordance with section 417(e)(1), the proposed regulations also provided that, in the case of plans subject to sections 401(a)(11) and 417, consent would be required after the annuity starting date for the immediate distribution of the present value of an accrued benefit being distributed in any form, including a qualified joint and survivor annuity or a qualified preretirement survivor annuity, regardless of the amount of that present value.

Very few comments were received on the proposed regulations. One commentator inquired whether a cash-out could be made of a benefit presently valued at $4,500 that had been valued at $4,000 upon termination of the employee's employment more than two years earlier. As indicated in the preamble to the final and temporary regulations published with the proposed regulations, that benefit could be cashed out.

Another commentator indicated support for the content of the proposed regulations but expressed concern about the rule, derived from section 417(e)(1), prohibiting a cashout after the annuity starting date of a benefit being distributed in any form by a plan subject to sections 401(a)(11) and 417. The commentator observed that, under section 417(f)(2)(A), the annuity starting date for a benefit payable upon termination of employment in non-annuity form could be the date of termination. The commentator argued that the rule in the proposed regulations prohibiting a cashout after the annuity starting date could be read to preclude a cashout of a non-annuity benefit payable at termination, regardless of the present value of that benefit. To address this, the commentator urged the IRS and Treasury to redefine “annuity starting date” such that a cashout would be permitted as long as a benefit remains immediately distributable (that is, until the later of normal retirement age or age 62).

The provision in the proposed regulations prohibits a cashout after the annuity starting date of a benefit “being distributed in any form.” The rule does not apply to any benefit that is not yet “being distributed”—that is, to any benefit with respect to which no payment has been made. If the present value of a benefit payable on or after termination of employment does not exceed the cashout limit, the rule of section 417(e)(1), as set forth in the proposed regulations, would not prohibit a cashout prior to the date on which a payment is first made (disregarding, obviously, the cashout payment itself). Thus, no change has been made to the regulations on this point.

Another commentator objected to the complete elimination of the lookback rule under the proposed regulations. The commentator cited three reasons for its opposition: first, that an amount distributed in a hardship or other type of distribution remains part of a participant's benefit; second, that a participant could manipulate a distribution in order to evade the spousal-consent requirements; and, third, that permitting cash-outs after a hardship or other distribution is contrary to the policy of discouraging non-retirement distributions.

In contrast, a comment received prior to the issuance of the proposed regulations noted problems faced by plan administrators due to the lookback rule. The commentator noted, for example, that if a plan provides for hardship distributions, the plan administrator must review its records to determine the value of the participant's benefits at the time of any prior distribution. The commentator added that this can be particularly difficult and costly where plans sponsored by other employers have merged into the plan. The commentator further stated that the cash-out provisions are designed to allow plans to reduce their administrative costs by making lump sum payments to participants with small benefits and that the lookback rule is contrary to that design because the rule (1) makes it more costly for administrators to determine whether the provisions apply and (2) can prevent a plan from relying on the provisions in many cases where the value of the participant's current benefit is well below $5,000.

After consideration of the comments, the IRS and Treasury have decided to adopt the regulation eliminating the lookback rule as proposed. The IRS and Treasury believe that the statutory cash-out provisions represent a balancing of the interests of participants in maintaining their benefits in qualified plans with the reasonable administrative needs of plan sponsors and administrators. The lookback rule prevents plans from cashing out a benefit currently valued below the cash-out limit simply because it had been valued above the cash-out limit at the time of an earlier distribution. This creates disparity in the treatment of benefits of equivalent value and requires plans to incur additional recordkeeping and other administrative costs.

The IRS and Treasury note that removal of the lookback rule is unlikely to present significant opportunities for participants to evade the spousal-consent rules. In the case of any plan subject to the spousal-consent provisions of sections 401(a)(11) and 417, a distribution that draws a participant's accrued benefit from a value above the cash-out limit to a value at or below the cash-out limit will itself require spousal consent. Furthermore, these final regulations strengthen the spousal-consent rules by clarifying that a plan subject to sections 401(a)(11) and 417 may not distribute a benefit after the annuity starting date without consent. This prohibition on cash-outs after the annuity starting date, which is statutory in source, applies without regard to the value of the benefit at the annuity starting date and without regard to the distribution form.

Finally, the IRS and Treasury note that concerns about non-retirement distributions of benefits are mitigated by the availability of rollovers. In almost all cases, an amount distributed from a qualified plan in a cash-out distribution will be an eligible rollover distribution that can be paid directly (or indirectly, through a 60-day rollover) to another qualified retirement plan or individual retirement arrangement.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulation does not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding these regulations was submitted to the Small Business Administration for comment on its impact on small business.

The principal author of these regulations is Robert M. Walsh, Office of the Associate Chief Counsel (Employee Benefits and Exempt Organizations). However, other personnel from the IRS and Treasury Department participated in their development.

This rule has been issued to delegate settlement authority and is a matter solely related to the division of responsibility within the Department of Justice. It relates to matters of agency policy, management, or personnel, and is therefore exempt from the usual requirements of prior notice and comment, and a 30-day delay in the effective date. See 5 U.S.C. 553(a)(2), (b)(A).

This rule falls within a category of actions that the Office of Management and Budget (OMB) has determined not to constitute “significant regulatory actions” under section 3(f) of Executive Order 12866 and, accordingly, was not reviewed by OMB.

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 13132 the Department of Justice has determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

The Attorney General, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this regulation and, by approving it, certifies that this regulation will not have a significant economic impact upon a substantial number of small entities. This rule pertains to delegations of authority within the Department of Justice and does not affect the Department of Justice's overall authority to act on tort claims.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 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 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000 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.

We try to write clearly. If you can suggest how to improve the clarity of these regulations, call or write Larry R. Parkinson at the address and telephone number given above.

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

We are approving Consent Order No. 50253 (effective September 28, 1998) signed by John M. Daniels for Dennis H. Treacy, Director of the Department of Environmental Quality of the Commonwealth of Virginia and Mr. John Masaschi, Vice President, Industrial Wood Products, Georgia-Pacific Corporation, as a SIP revision. The consent order was submitted, as a SIP revision, to EPA on February 3, 1999. The consent order provides a revised opacity limit for the two drier zone stacks from the drier located at the Jarratt Softboard Plant located in Jarratt, Virginia. The revised limit allows for a higher opacity limit; however, mass emission rates are not being changed.

We are approving a revised opacity limit for a process at a GP Softboard plant. The plant manufactures softboard used in construction. Manufacturing begins with refining wood chips from pine and hardwood to produce wood fiber. Wax is added to the fiber to give it water resistance and then asphalt slurry is added as a binder. A continuous ribbon of wet mat is formed and conveyed through a press to remove water. The mat is then cut and placed into the drier. Dried mats are then re-sawn to construction dimensions. Particulate emissions from the drier are emitted from two drier zone stacks and nine roof vents. The revised opacity limit applies to emissions from drier zone stack #1 and drier zone stack #2 only.

The new limit is contained in the consent agreement which states “GP shall not exceed 50% opacity from the Softboard drier zone stacks one and two except for one six-minute period in any one hour of not more than 60% opacity * * *” Although the language of the Commonwealth's consent order provides that the source may also have an exemption from the opacity limit during startup, shutdown and malfunction, the Commonwealth of Virginia has not included these provisions as part of its SIP revision request. Therefore, the portion of the text of Provision 1 of Section E of Consent Order No. 50253 which reads “* * * and during periods of start-up, shutdown and malfunction.” are not being approved or incorporated into the Virginia SIP. GP must conduct quarterly visible emission evaluations of drier zone stacks #1 and #2. Stack tests must be performed on drier zone stacks #1 and #2 every two years. GP must provide stack tests results to VADEQ in addition to maintaining visible emission records.

The drier zone stacks #1 and #2 are currently subject to Virginia Regulations 9 VAC 5-40-80 Standard for Visible Emissions which provides for visible emissions up to 20% opacity except for one six-minute period in any one hour of not more than 60% opacity. The mass emission limit for the drier is found in 9 VAC 5-40-260. This regulation provides for a mass particulate limit based on the process weight rate which varies depending on how much softboard is being processed.

Virginia provided information on emissions from the drier vents and the stacks along with opacity readings. Stack testing and visible emissions readings were performed in July 1997 and September 1997. Stack test data indicates that the drier is within its allowable emission limit while visible emissions data indicates that one of the drier zone stacks is out of compliance with the 20% opacity limit. The average opacity observed during July testing was 38% with some individual 15 second readings as high as 55%. The average opacity during the September testing was 50%.

The revised opacity limit will allow darker smoke to be emitted from specific stacks at the facility, then does the current SIP. No mass emission limits are being revised and the revised opacity limit is protective of the existing mass emission limit.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties asserting either the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) That are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1997, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. * * *” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1997 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, state audit privilege or immunity law.

We are approving, through direct final rulemaking, Consent Order No. 50253, except as noted above, submitted by the Commonwealth of Virginia as a SIP revision on February 3, 1999. The revision consists of a revised opacity limit for drier zone stack #1 and #2 located at the Georgia-Pacific softboard facility in Jarratt, VA.

We are publishing this action without prior proposal because we view this as a noncontroversial revision and anticipate no adverse comments. However, in a separate document in the “Proposed Rules” section of today's Federal Register , we are publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on September 18, 2000 without further notice unless we receive adverse comment by August 18, 2000. Should we receive such comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting on this action must do so at this time.

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties (5 U.S.C. 804(3)). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability that only effects the Georgia-Pacific Corporation Softboard plant located in Jarratt, VA.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 18, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action related to the Georgia-Pacific Corporation Softboard plant located in Jarratt, VA may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On May 5, 1998 the Maryland Department of the Environment (MDE) submitted a revision to its SIP for the Washington, DC area. The revision consists of an amended plan to achieve a 15% reduction from 1990 base year levels in volatile organic compound (VOC) emissions. Maryland's original 15% plan for the Maryland portion of the Washington, DC area was conditionally approved on September 23, 1997 (62 FR 49611). Maryland's revisions to its 15% plan were made to satisfy the conditions imposed in the September 23, 1997 conditional approval.

The Washington, DC ozone nonattainment area consists of the District of Columbia, five counties in Northern Virginia and Calvert, Charles, Frederick, Montgomery, and Prince George's Counties in Maryland.

Virginia, Maryland and the District all must demonstrate reasonable further progress for the Washington, DC nonattainment area. The Commonwealth of Virginia, State of Maryland and the District of Columbia in conjunction with municipal planning organizations collaborated on a coordinated 15% plan for the entire Washington, DC area (regional 15% plan). This was done under the auspices of the regional air quality planning committee, the Metropolitan Washington Air Quality Committee (MWAQC), and with the assistance of the local municipal planning organization, the Metropolitan Washington Council of Governments (MWCOG), to ensure coordination of air quality and transportation planning. Although the plan was developed by a regional approach, each jurisdiction is required to submit the 15% plan to EPA for approval as a revision to its SIP.

Because the reasonable further progress requirements such as the 15% plan affect transportation improvement plans, municipal planning organizations have historically been heavily involved in air quality planning in the Washington, DC area. As explained in further detail below, the regional 15% plan determined the regional target level, regional projections of growth and finally the total amount of creditable reductions required under the reasonable further progress requirement in the entire Washington, DC area. Maryland, Virginia and the District agreed to apportion this total amount of required creditable reductions among the three jurisdictions. EPA is taking action today only on Maryland's revised 15% plan submittal for the Washington, DC area. This rulemaking is being taken to convert the September 23, 1997 conditional approval of Maryland's 15% plan for the Washington, DC area to a full approval based upon EPA's determination that Maryland has fulfilled the conditions imposed in the conditional approval.

The baseline from which states must determine the required reductions for 15% planning is the 1990 base year emission inventory. The inventory is broken down into several emissions source categories: stationary point, area, on-road mobile sources, and off-road mobile sources. The base year inventory includes emissions of all sources within the nonattainment area and certain large point sources within twenty-five miles of the boundary. A subset of the 1990 base year inventory is the 1990 rate-of-progress (ROP) inventory which includes only anthropogenic (man-made) emissions actually within the nonattainment area boundaries. EPA approved this base year inventory SIP revision for the entire Washington, DC area on July 8, 1998 (63 FR 36854).

EPA has interpreted the Act to require that reasonable further progress towards attainment of the ozone standard must be obtained after offsetting any growth expected to occur over that period. Therefore, to meet the 15% reasonable further progress requirement, a state must enact measures achieving sufficient emissions reductions to offset projected growth in VOC emissions, in addition to a 15% reduction of VOC emissions. For a detailed description of the growth methodologies used by the State, please refer to EPA's conditional approval of Maryland's 15% plan (62 FR 49611, September 23, 1997) and the Technical Support Document (TSD) for that action.

The one area of concern relating to growth projections in the original 15% plan was that of the point source inventory. Condition 1 of the September 23, 1997 (62 FR 49611) conditional approval required that Maryland revise its plan to properly account for growth in point sources between 1990 and 1996. EPA's analysis of the revised 15% plan supports removal of this condition, since Maryland used the appropriate methodology in reappraising its point source inventory growth between 1990 and 1996.

EPA here notes that the revised 15% plan has a point source inventory number that differs from Maryland's SIP approved inventory—5.3 tons per day (tpd) in the revised 15% plan submittal versus 5.5 tpd in the approved inventory. EPA is not revising the SIP approved inventory by this action. The 5.3 tpd number is acceptable for use in the revised 15% plan, since the discrepancy serves to lower the 15% plan's target level, thus making the plan's VOC reductions more restrictive than required if one were to use the approved inventory numbers. EPA is approving the State of Maryland's 1990-1996 emissions growth projections in this revised 15% plan.

Condition 2 of EPA's conditional approval of the original 15% plan required Maryland to meet the conditions EPA imposed in its October 31, 1996 conditional approval of Maryland's enhanced motor vehicle inspection and maintenance (I/M) program. Maryland was also required to remodel the I/M benefits claimed in the 15% plan using the following two EPA guidance memoranda: “Date by which States Need to Achieve all the Reductions Needed for the 15 Percent Plan from I/M and Guidance for Recalculation,” from John Seitz and Margo Oge dated August 13, 1996, and “Modeling 15% VOC Reductions from   I/M in 1999—Supplemental Guidance,” from Gay MacGregor and Sally Shaver dated December 23, 1996.

Maryland has remedied condition 2 imposed on its original 15% plan. On October 29, 1999 (64 FR 58340), EPA published a direct final rule converting its October 31, 1996 conditional approval of the Maryland Enhanced I/M SIP revision to a full approval. This was done because EPA determined that all of the conditions of the October 31, 1996 conditional approval of the enhanced  I/M SIP had been satisfied by the State of Maryland. Further, EPA has determined that Maryland has appropriately remodeled the I/M benefits of the program, and that there are no adverse affects on the 15% plan due to this remodeling.

As part of the conditional approval of its original 15% plan, Maryland was required to remodel to determine affirmatively the creditable reductions from reformulated gasoline (RFG) and the Tier 1 FMVCP in accordance with EPA guidance. Maryland was required to remodel the benefits of enhanced   I/M, RFG and Tier 1 under the revised plan. This remodeling demonstration was to compare the mobile source target level in 1999 versus the target level for mobile sources which was created for the original plan.

EPA concurs with the remodeling demonstration submitted as part of the revised 15% plan, and with the revised mobile source target level calculation. Maryland's portion of the corrected target level is 178.6 tpd.

The regional 15% plan calculates a target level of emissions to meet the 15% reasonable further progress requirement over the entire nonattainment area. The regional 15% plan contains a projection of emissions growth from 1990 to 1996 and, in effect, apportions among Maryland, Virginia and the District of Columbia (the three jurisdictions) the amount of creditable emission reductions that each jurisdiction must achieve in order for the entire nonattainment area to achieve a 15% reduction in VOC emissions net of growth. Each jurisdiction then adopted the regional plan, which identified the amount of creditable emission reductions which that jurisdiction must achieve for the regional plan to get a 15% reduction accounting for any growth. The regional plan calculated the “target level” of 1996 VOC emissions, in accordance with applicable EPA guidance.

EPA has interpreted section 182(b) of the Act to require that the base year VOC emission inventory be adjusted to account for reductions in VOC emissions that would have occurred from the pre-1990 FMVCP and RVP programs. To meet EPA's applicable guidance on this requirement, the regional plan contains a calculation of the reductions occurring between 1990 and 1996 from the pre-1990 Tier 0 FMVCP and RVP programs and the result of subtracting these reductions from the 1990 ROP inventory. The net result of this calculation yielded the “1990 base year inventory adjusted to 1996”.

Maryland's 15% plan relies upon reductions from Maryland's revised, enhanced I/M program to achieve the required 15% level as soon after November 15, 1996 as practicable, but not later than 1999. Under EPA's applicable guidance for 15% plans that rely upon reductions from enhanced I/M after 1996, the target level must also take into account the effects of the pre-1990 Tier 0 FMVCP on 1990 emissions due to turnover in vehicles between 1996 and 1999. Therefore, to meet EPA's applicable guidance for this requirement, Maryland's 15% plan contains a calculation of the non-creditable reductions from the pre-1990 Tier 0 FMVCP and RVP programs between 1990 and 1999 and the result of subtracting these reductions from the 1990 ROP inventory. The result of this calculation yielded the “1990 base year inventory adjusted to 1999.” Maryland's 15% plan clearly identifies the difference between the “1990 base year inventory adjusted to 1996” and “1990 base year inventory adjusted to 1999” as the “fleet turnover correction” (FTC) necessary to meet EPA's guidance.

In its plan, Maryland calculates a “base” 1996 VOC target level as 85% of the “1990 adjusted base year inventory for 1996.” In accordance with EPA's guidance discussed in the preceding paragraph, Maryland subtracts the FTC from the “base” 1996 VOC target level to yield a “final” 1996 VOC target level for the 15% plan. In Table 1 below, we have provided a summary of the calculations for the 1996 VOC target level for the entire Washington, DC area.

The emission reductions required to meet the 15% reasonable further progress requirement equals the difference between the projected 1996 emissions under the current control strategy (the 1996 uncontrolled emissions) and the target level. This amount of emission reductions reflects a 15% reduction from the adjusted base year inventory and any reductions necessary to offset emissions growth projected to occur between 1990 and 1996. The Washington, DC area's regional VOC target level is 384.8 tpd. EPA has determined that this regional target level and emission reduction needed for the Washington, DC area have been properly calculated in accordance with EPA guidance.

The three Washington, DC area jurisdictions have agreed to apportion the amount of emisson reductions needed for the entire area to achieve the 15% reduction among themselves. This apportionment is also shown in Table 1 above. Maryland's share is 57.5 tpd.

The final condition for full approval of the 15 % plan was for Maryland to demonstrate, using appropriate documentation methodologies and credit calculations, that it had satisfied the 15 % plan requirement for the Washington, DC area. As part of the revised 15% plan, recalculations to the inventory, target level and 15 % reduction amounts were adjusted. Under the new plan, Maryland's portion of the 15% plan requirement increased from 56.4 tpd to 57.5 tpd.

EPA agrees with the credit calculation methodology used in the revised plan to justify this number. As demonstrated in Chapter 5 of the revised plan SIP submittal, appropriate assumptions and calculation methodologies were employed, as per EPA guidance, in calculating the new figures. EPA therefore concurs that Maryland must achieve at least 57.5 tpd in creditable emission reductions to demonstrate that Maryland has met its 15% VOC reduction requirement for the Washington, DC area.

EPA believes that Maryland's revised plan has made all the necessary corrections to establish the creditability of sufficient control measures to met the 15% VOC reduction requirement. Maryland has demonstrated there are sufficient creditable measures in the revised 15% plan to achieve at least 60.1 tpd of reductions. This 60.1 tpd reduction results from either rules promulgated by EPA or measures contained in the approved Maryland SIP.

Table 2 below summarizes the creditable measures from Maryland's 15% plan for the Washington, DC area.

As is the case with any 15% plan, Maryland's 15% plan for the Washington, DC area contains a budget for VOC emissions from on-road mobile sources. By approving Maryland's 15% plan, EPA is granting a de facto approval of the budget in this plan. However, EPA wishes to clarify that the budget in Maryland's 15% plan will not be the applicable budget for any future conformity determinations because there are budgets for the Washington, DC area that apply in 1999 and all subsequent years. To verify which budgets apply in the Washington, DC area, please contact the EPA Regional office listed in the ADDRESSES section above or consult EPA's “Adequacy Review of SIP Submissions for Conformity” web page at http://www.epa.gov/oms/transp/conform/adequacy.htm.

EPA's review of this material indicates that Maryland's revised 15% plan SIP revision meets the requirements of the Act and applicable EPA guidance. EPA is therefore converting its conditional approval of Maryland's 15% plan to a full approval.

EPA is converting its conditional approval of Maryland 15% plan to a full approval by this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to convert the conditional approval to a full approval should adverse or critical comments be filed. This rule will be effective September 18, 2000 without further notice unless the Agency receives adverse comments by August 18, 2000. If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on the proposed rule. Only parties interested in commenting on this action should do so at this time. If no such comments are received, the public is advised that this rule will be effective on September 18, 2000 and no further action will be taken on the proposed rule.

EPA is converting its conditional approval of Maryland's 15% plan for its portion of the Metropolitan Washington, DC ozone nonattainment area to a full approval based upon the evaluation of the SIP revision submittal made by Maryland on May 5, 1998 consisting of its revised 15% plan.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 18, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action converting EPA's conditional approval of Maryland's 15% plan for Metropolitan Washington, DC ozone nonattainment area to a full approval may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

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

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

2. In person. The Agency has established an official record for this action under docket control number OPP-301016. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

In the Federal Register of March 16, 2000 (65 FR 14278) (FRL-6494-9), EPA issued a notice pursuant to section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act (FQPA) (Public Law 104-170) announcing the filing of a pesticide tolerance petition by Rohn and Haas Company, 100 Independence Mall West, Philadelphia, PA 19106-2399. This notice included a summary of the petition prepared by the petitioner. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR 180.1001(c) and (e) be amended by establishing an exemption from the requirement of a tolerance for residues of butyl acrylate-vinyl acetate-acrylic acid copolymer (CAS Reg. No. 65405-40-5).

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

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers that should present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b). The following exclusion criteria for identifying these low risk polymers are described in 40 CFR 723.250(d).

1. The polymer, butyl acrylate-vinyl acetate-acrylic acid copolymer, is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.

2. The polymer does contain as an integral part of its composition the atomic elements carbon, hydrogen, and oxygen.

3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).

4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.

5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.

6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 daltons.

Additionally, the polymer, butyl acrylate-vinyl acetate-acrylic acid copolymer, also meets as required the following exemption criteria specified in 40 CFR 723.250(e).

7. The polymer's number average MW of 18,000 daltons is greater than or equal to 10,000 daltons. The polymer contains less than 2% oligomeric material below MW 500 and less than 5% oligomeric material below MW 1,000.

Thus, butyl acrylate-vinyl acetate-acrylic acid copolymer meets all the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the above criteria, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to butyl acrylate-vinyl acetate-acrylic acid copolymer.

For the purposes of assessing potential exposure under this exemption, EPA considered that butyl acrylate-vinyl acetate-acrylic acid copolymer could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MW of butyl acrylate-vinyl acetate-acrylic acid copolymer is 18,000 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since butyl acrylate-vinyl acetate-acrylic acid copolymer conforms to the criteria that identify a low risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. Since the Agency has determined that there is a reasonable certainty that no harm will result from aggregate exposure to butyl acrylate-vinyl acetate-acrylic acid copolymer a tolerance is not necessary.

Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance or tolerance exemption, the Agency consider “available information” concerning the cumulative effects of a particular chemical's residues and “other substances that have a common mechanism of toxicity.” The Agency has not made any conclusions as to whether or not butyl acrylate-vinyl acetate-acrylic acid copolymer share a common mechanism of toxicity with any other chemicals. However, butyl acrylate-vinyl acetate-acrylic acid copolymer conforms to the criteria that identify a low risk polymer. Due to the expected lack of toxicity based on the above conformance, the Agency has determined that a cumulative risk assessment is not necessary.

Based on the conformance to the criteria used to identify a low risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population from aggregate exposure to residues of butyl acrylate-vinyl acetate-acrylic acid copolymer.

FFDCA section 408 provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of butyl acrylate-vinyl acetate-acrylic acid copolymer, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.

There is no available evidence that butyl acrylate-vinyl acetate-acrylic acid copolymer is an endocrine disruptor.

There are no existing exemptions from a tolerance.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

The Agency is not aware of any country requiring a tolerance for butyl acrylate-vinyl acetate-acrylic acid copolymer nor have any CODEX Maximum Residue Levels been established for any food crops at this time.

Accordingly, EPA finds that exempting butyl acrylate-vinyl acetate-acrylic acid copolymer from the requirement of a tolerance will be safe.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301016 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before September 18, 2000.

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

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

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

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

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

3. Copies for the Docket. In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VIII.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301016, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov . Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

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

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

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

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

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

2. In person . The Agency has established an official record for this action under docket control number OPP-301020. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

EPA issued a final rule, published in the Federal Register of May 23, 1997 (62 FR 28355) (FRL-5718-5), which announced that on its own initiative under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) it established time-limited tolerances for the combined residues of pendimethalin and its metabolites in or on fresh mint hay and mint oil at 0.1 ppm and 5.0 ppm, respectively, with an expiration date of May 31, 1998. EPA established these tolerances because section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Such tolerances can be established without providing notice or period for public comment.

EPA received a request to extend the use of pendimethalin on mint for this year's growing season due to the continued emergency situation for Idaho, Oregon, South Dakota, Utah, and Washington mint growers. Due to the potential spread of Verticillium wilt by tillage equipment, mechanical control of kochia and redroot pigweed is no longer considered a viable option. The continuous use of terbacil in past years has resulted in development of resistance to this chemical in kochia and pigweed, resulting in inadequate control of this pest by registered alternatives. After having reviewed the submission, EPA concurs that emergency conditions exist. EPA has authorized under FIFRA section 18 the use of pendimethalin on mint for control of kochia and redroot pigweed in the states listed above.

EPA assessed the potential risks presented by residues of pendimethalin in or on mint commodities. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and decided that the necessary tolerances under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. The data and other relevant material have been evaluated and discussed in the final rule of May 23, 1997 (62 FR 28355). Based on that data and information considered, the Agency reaffirms that re-establishment of the time-limited tolerances will continue to meet the requirements of section 408(l)(6). Therefore, the time-limited tolerances are extended for an additional 19-month period. EPA will publish a document in the Federal Register to remove the revoked tolerances from the Code of Federal Regulations (CFR). Although these tolerances will expire and are revoked on December 31, 2001, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerances remaining in or on fresh mint hay and mint oil after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA and the application occurred prior to the revocation of the tolerances. EPA will take action to revoke these tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301020 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before September 18, 2000.

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

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

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

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

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

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit III.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301020, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov . Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

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

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

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

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

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

2. In person . The Agency has established an official record for this action under docket control number OPP-301012. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

EPA issued a final rule, published in the Federal Register of January 29, 1999 (64 FR 4572) (FRL-6050-6), which announced that on its own initiative under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) it established a time-limited tolerance for the combined residues of azoxystrobin or methyl (E)-2-[2-[6-(-cyanophenoxy)pyrimidin-4-yloxy]phenyl]-3- and its metabolites in or on strawberries at 10.0 ppm, soybean forage at 0.2 ppm, soybean hay at 1.0 ppm, soybean hulls at 2.0 ppm, soybean meal at 0.3 ppm, soybean oil at 2.0 ppm, soybean seed at 0.1 ppm, soybean silage at 2.0 ppm, and sugar beet roots at 0.05 ppm, sugar beet, molasses at 0.70 ppm, and sugar beet, pulp, dried at 1.0 ppm, and sugar beet refined sugar at 0.70 ppm with an expiration date of December 30, 2001. EPA established these tolerances because section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Such tolerances can be established without providing notice or period for public comment.

EPA received a request to extend the use of azoxystrobin or methyl (E)-2-[2-[6-(-cyanophenoxy)pyrimidin-4-yloxy]phenyl]-3- on strawberries for this year's growing season because the Florida Department of Agriculture and Consumer Services requested an emergency exemption on September 28, 1998, for the control of anthracnose on strawberries. Anthracnose adversely affect the plants in a variety of ways. It can cause plant losses (crown rot, root rot, anthracnose of the stolon and petiole, but rot, and leaf spots) and fruit losses (anthracnose fruit rot and flower blight). There are several fungicides currently labeled for use on Florida grown strawberries. These include:Ridomil, Rovral, Captan, Sulfur, Aliette, Copper, Benlate, and Topsin. Of all these products, only two have demonstrated efficacy toward anthracnose: Benlalte and Captan. An experiment conducted by the University of Florida demonstrates the lack of efficacy of both products last season. Thus, both products have only limited utility against anthracnose.

The two factors that have brought about this emergency condition include variety shift and lack of efficacy of previously effective fungicides. No single variety has all the desirable characteristics. Among these desirable characteristics important to Florida growers are: season-long production, early and late production, disease resistance, insect and mite resistance, etc. After having reviewed the submission, EPA concurs that emergency conditions exist. EPA has authorized under FIFRA section 18 the use of azoxystrobin or methyl (E)-2-[2-[6-(-cyanophenoxy)pyrimidin-4-yloxy]phenyl]-3- on strawberries for control of anthracnose disease in strawberries.

EPA also received requests to extend the use of azoxystrobin or methyl (E)-2-[2-[6-(-cyanophenoxy)pyrimidin-4-yloxy]phenyl]-3- on soybean, and sugar beets for this year's growing season because the Minnesota Department of Agriculture requested an emergency exemption in April of 1998, for the control of cercospora leafspots on sugar beets. The registered alternative fungicides benomyl, thiabendazole thiophanate methyl, triphenyltin hydroxide, EBDCs (Mancozeb and Meneb), and copper hydroxide for controlling cercospora leaf spots do not control the disease effectively because of resistance and/or tolerance in the pathogen. Moderately resistant cultivars of sugar beet are available, but their yield potentials are lower than the susceptible. Cultural practices are not very effective in managing the disease. During 1998, the disease severity is expected to be higher and yield losses significant due to mild winter temperature (El Nino effects).

Minnesota also claims that triphenyl tin hydroxide (TPTH) is still used in controlling the disease, but it is significantly less effective than in the past.

In August 1998, the Arkansas Department of Agriculture also requested an emergency exemption for the control of aerial blight on soybeans. The disease is particularly aggressive in years of above-normal night temperatures, high humidity, and frequent rainfall. Conditions in 1998, have been near perfect for development of sheath blight of rice, with night temperatures in the 78-82 range and oppressively high relative humidity within crop canopies. Rainfall in northeast Arkansas has also contributed to the problem. Soybean has just entered the most susceptible flowering and early pod formation stages and aerial blight has become exceptionally aggressive as weather conditions continue to favor its development. Damage to soybean yield is through destruction of foliage, and to a greater extent-flowers, pods and seeds. Yield losses in some Arkansas field in the past have been estimated as high as 50%, however, this is a very rare occurrence most years.

EPA assessed the potential risks presented by residues of azoxystrobin or methyl (E)-2-[2-[6-(-cyanophenoxy)pyrimidin-4-yloxy]phenyl]-3- in or on strawberries,soybeans, and sugar beets. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and decided that the necessary tolerance under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. The data and other relevant material have been evaluated and discussed in the final rule of January 29, 1999 (64 FR 4572) for strawberries, and November 25, 1998 (63 FR 65078) (FRL-6045-4) for soybeans, and sugar beets. Based on that data and information considered, the Agency reaffirms that extension of the time-limited tolerance will continue to meet the requirements of section 408(l)(6). Therefore, the time-limited tolerance is extended for an additional 18-month period. EPA will publish a document in the Federal Register to remove the revoked tolerance from the Code of Federal Regulations (CFR). Although this tolerance will expire and is revoked on December 30, 2001, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on strawberries, soybeans, and sugar beets after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA and the application occurred prior to the revocation of the tolerance. EPA will take action to revoke this tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301012 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before September 18, 2000.

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

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

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

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

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

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit III.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301012, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

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

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

This is a summary of the Commission's Order on Reconsideration adopted May 15, 2000, and released June 19, 2000. The full text of this Order is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street SW, Room CY-A257, Washington, DC. The complete text also may be obtained through the World Wide Web, at http://www.fcc.gov/Bureaus/CommonCarrier/Orders/fcc00-173.wp, or may be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street NW, Washington, DC 20036.

In this present Order, the Commission promulgates no additional final rules, and our action does not affect the previous analysis.

1. BellSouth Corporation (BellSouth), AT&T Corp. (AT&T), and Sprint Communications Company (Sprint) filed petitions for reconsideration and/or clarification of the Commission's order denying BellSouth's application for authority to provide in-region, interLATA services in the state of Louisiana pursuant to section 271 of the Communications Act of 1934, as amended (Act). For the reasons discussed below, we deny these petitions.

2. With respect to the issues on which reconsideration is sought, no petitioner raises arguments that would cause us to change our decision to deny BellSouth's application to provide long distance service in the state of Louisiana. Section 271's statutory framework requires the Commission to evaluate complex issues arising in the relevant state's local telecommunications market as it transitions to competitive market conditions. In this context, the Commission frequently relies upon its specialized judgment and expertise to render informed decisions and predictions about market conditions. Having done so in this case, the Commission finds that the petitioners have not raised any new facts or arguments that warrant reconsideration of the Second BellSouth Louisiana Order. Therefore, there is no reason to reconsider our initial analysis.

3. As to the range of issues for which the petitioners seek further guidance for future section 271 applications, we believe that we have provided sufficient guidance on the requirements of section 271. The Second BellSouth Louisiana Order followed four prior orders addressing section 271 applications, including a prior application by BellSouth for Louisiana. Each of these orders informed parties of the requirements of section 271. Moreover, the Commission recently approved Bell Atlantic's section 271 application to provide long distance services in New York. In the order approving that application, the Commission included a comprehensive recitation of the requirements for in-region, interLATA entry under section 271.

4. The petitions for reconsideration and/or clarification filed in the captioned docket are Denied .

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

The 2000 TAC of Pacific ocean perch for the Central Regulatory Area was established as 9,240 metric tons (mt) in the Final 2000 Harvest Specifications of Groundfish for the GOA (65 FR 8298, February 18, 2000). See § 679.20(c) (3)(ii).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2000 TAC for Pacific ocean perch in the Central Regulatory Area will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 8,240 mt, and is setting aside the remaining 1000 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch in the Central Regulatory Area of the GOA.

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

This action responds to the best available information recently obtained from the fishery. It must be implemented immediately to prevent overharvesting the 2000 TAC of Pacific ocean perch for the Central Regulatory Area of the GOA. A delay in the effective date is impracticable and contrary to the public interest. Further delay would only result in overharvest. NMFS finds for good cause that the implementation of this action should not be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

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

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

The 2000 TAC of Pacific ocean perch for the West Yakutat District was established as 840 metric tons (mt) in the Final 2000 Harvest Specifications of Groundfish for the GOA (65 FR 8298, February 18, 2000). See § 679.20(c)(3)(ii).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2000 TAC for Pacific ocean perch in the West Yakutat District will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 790 mt, and is setting aside the remaining 50 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pelagic shelf rockfish in the West Yakutat District of the GOA.

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

This action responds to the best available information recently obtained from the fishery. It must be implemented immediately to prevent overharvesting the 2000 TAC of Pacific ocean perch for the West Yakutat District of the GOA. A delay in the effective date is impracticable and contrary to the public interest. Further delay would only result in overharvest. NMFS finds for good cause that the implementation of this action should not be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

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

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

The 2000 TAC of Pacific ocean perch for the Central Aleutian District was established as 3,247 metric tons (mt) in the Final 2000 Harvest Specifications of Groundfish for the BSAI (65 FR 8282, February 18, 2000). See § 679.20(c)(3)(iii).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2000 TAC for Pacific ocean perch in the Central Aleutian District will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,947 mt, and is setting aside the remaining 300 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch in the Central Aleutian District of the BSAI.

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

This action responds to the best available information recently obtained from the fishery. It must be implemented immediately to prevent overharvesting the 2000 TAC of Pacific ocean perch for the Central Aleutian District of the BSAI. A delay in the effective date is impracticable and contrary to the public interest. Further delay would only result in overharvest. NMFS finds for good cause that the implementation of this action should not be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

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

This document contains corrections to the interim final rule for the extension of the expiration dates of emergency interim rules to implement the American Fisheries Act. The extension of the effective date of an interim final rule provides inshore pollock cooperatives with allocations of pollock for the second half of the 2000 fishing year and maintains sideboard restrictions to protect participants in other Alaska fisheries from negative impacts as a result of fishery cooperatives formed under the AFA.

In the interim final rule, Fisheries of the Exclusive Economic Zone Off Alaska, Emergency Interim Rules to Implement the American Fisheries Act: Extension of Expiration Dates, published on June 23, 2000 (65 FR 39107), FR Doc. 00-15857,corrections are made as follows:

1. In the document, Emergency Interim Rules to Implement the American Fisheries Act: Extension of Expiration Dates, published on June 23, 2000 (65 FR 39107), FR DOC 00-15857, on page 39109, mathematical errors were made in Table 1. Table 1 is corrected to read as follows: