The Asian longhorned beetle (ALB) (Anoplophora glabripennis), an insect native to China, Japan, Korea, and the Isle of Hainan, is a destructive pest of hardwood trees. It is known to attack healthy maple, horse chestnut, birch, poplar, willow, elm, and locust trees. It may also attack other species of hardwood trees. In addition, nursery stock, logs, green lumber, firewood, stumps, roots, branches, and debris of a half an inch or more in diameter are subject to infestation. The beetle bores into the heartwood of a host tree, eventually killing it. Immature beetles bore into tree trunks and branches causing heavy sap flow from wounds and sawdust accumulation at tree bases. They feed on, and over-winter in, the interiors of trees. Adult beetles emerge in the spring and summer months from round holes approximately three-eighths of an inch in diameter (about the size of a dime) that they bore through the trunks of trees. After emerging, adult beetles feed for 2 to 3 days and then mate. Adult females then lay eggs in oviposition sites that they make on the branches of trees. A new generation of ALB is produced each year. If this pest moves into the hardwood forests of the United States, the nursery, maple syrup, and forest products industries could experience severe economic losses. In addition, urban and forest ALB infestations will result in environmental damage, aesthetic deterioration, and a reduction in public enjoyment of recreational spaces.

The Asian longhorned beetle regulations (7 CFR 301.51-1 through 301.51-9, referred to below as the regulations) restrict the interstate movement of regulated articles from quarantined areas to prevent the artificial spread of ALB to noninfested areas of the United States. Portions of New York City and Nassau and Suffolk Counties in the State of New York and portions of the State of Illinois are already designated as quarantined areas.

Recent surveys conducted by inspectors of State, county, and city agencies and by inspectors of the Animal and Plant Health Inspection Service (APHIS) have revealed that infestations of ALB have occurred outside the quarantined areas in New York City and in Nassau and Suffolk Counties, NY. Officials of the U.S. Department of Agriculture and officials of State, county, and city agencies in New York are conducting an intensive survey and eradication program in the infested areas. The State of New York has quarantined the infested areas and is restricting the intrastate movement of regulated articles from the quarantined area to prevent the artificial spread of ALB within the State. However, Federal regulations are necessary to restrict the interstate movement of regulated articles from the quarantined area to prevent the artificial spread of ALB to other States and Canada.

The regulations in § 301.51-3(a) provide that the Administrator of APHIS will list as a quarantined area each State, or each portion of a State, in which ALB has been found by an inspector, in which the Administrator has reason to believe that ALB is present, or that the Administrator considers necessary to regulate because of its inseparability for quarantine enforcement purposes from localities where ALB has been found.

Less than an entire State will be quarantined only if (1) the Administrator determines that the State has adopted and is enforcing restrictions on the interstate movement of regulated articles; and (2) the designation of less than an entire State as a quarantined area will be adequate to prevent the artificial spread of ALB.

In accordance with these criteria and the recent ALB findings described above, we are amending § 301.51-3(c) by expanding the quarantined areas in the city of New York and in Nassau and Suffolk Counties, NY. The expanded and new quarantined areas are described in the rule portion of this document.

The Administrator of the Animal and Plant Health Inspection Service has determined that an emergency exists that warrants publication of this interim rule without prior opportunity for public comment. Immediate action is necessary to prevent the ALB from spreading to noninfested areas of the United States.

Because prior notice and other public procedures with respect to this action are impracticable and contrary to the public interest under these conditions, we find good cause under 5 U.S.C. 553 to make this action effective less than 30 days after publication. We will consider comments that are received within 60 days of publication of this rule in the Federal Register. After the comment period closes, we will publish another document in the Federal Register. The document will include a discussion of any comments we receive and any amendments we are making to the rule as a result of the comments.

This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review process required under Executive Order 12866.

This emergency situation makes compliance with section 603 and timely compliance with section 604 of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) impracticable. We are currently assessing the potential economic effects of this action on small entities. Based on that assessment, we will either certify that the rule will not have a significant economic impact on a substantial number of small entities or publish a final regulatory flexibility analysis.

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

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

An environmental assessment and finding of no significant impact have been prepared for this on-going program. The environmental assessment concludes that expanding the Federal quarantine for ALB will not have a significant impact on the quality of the human environment. Based on the finding of no significant impact, the Administrator of the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared.

The environmental assessment and finding of no significant impact were prepared in accordance with: (1) The National Environmental Policy Act of 1969, as amended (NEPA) (42 U.S.C. 4321 et seq. ), (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).

Copies of the environmental assessment and finding of no significant impact are available for public inspection at USDA, room 1141, South Building, 14th Street and Independence Avenue, SW., Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, except holidays. Persons wishing to inspect copies are requested to call ahead on (202) 690-2817 to facilitate entry into the reading room. In addition, copies may be obtained by writing to the individual listed under FOR FURTHER INFORMATION CONTACT , by calling the Plant Protection and Quarantine fax service at (301) 734-3560 and requesting document number 0023, or by visiting the following Internet site: http://www.aphis.usda.gov/ppd/ead/ppqdocs.html.

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

This final rule is issued under Marketing Order No. 920, as amended (7 CFR part 920), regulating the handling of kiwifruit grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

This final rule is also issued under section 8e of the Act, which provides that whenever certain specified commodities, including kiwifruit, are regulated under a Federal marketing order, imports of these commodities into the United States are prohibited unless they meet the same or comparable grade, size, quality, or maturity requirements as those in effect for the domestically produced commodities.

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

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

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

There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of import regulations issued under section 8e of the Act.

Under the terms of the order, fresh market shipments of California kiwifruit are required to be inspected and are subject to grade, size, maturity, pack and container requirements. Current requirements include specifications that such shipments be at least Size 45, grade at least KAC No. 1 quality, and contain a minimum of 6.5 percent soluble solids.

The order authorizes under § 920.52(a)(1) the establishment of minimum maturity requirements. Section 920.302(a)(3) of the rules and regulations outlines the minimum maturity requirements for fresh shipments of California kiwifruit and specifies that kiwifruit shall have a minimum of 6.5 percent soluble solids at the time of inspection.

Maturity is generally determined on the basis of total solids or soluble solids content. Kiwifruit can ripen on or off the vine and typically contains between 5 and 8 percent starch at harvest. This starch hydrolyzes into sugars during ripening. Kiwifruit continues to ripen while stored in refrigerated facilities and may reach 16.2 percent soluble solids when completely ripe.

In the 1980's, the minimum maturity requirements were established at 6.5 percent soluble solids for both the domestic and import regulations. This minimum soluble solids level was established because research showed that the majority of fruit harvested at 6.5 percent soluble solids ripened to a 13.5-14 percent soluble solids level or higher, and stored well. Also, consumer taste tests showed that fruit containing at least 13.5 percent soluble solids were more acceptable than fruit containing lower levels of soluble solids. These regulations benefited growers, handlers, consumers, and importers as improvements were seen in the quality of fruit shipped to the market place, domestic and export sales, and grower returns.

Since that time a number of factors have changed: (1) Research conducted during the 1990's has shown that fruit harvested at 6.2 percent soluble solids and handled properly has the potential to ripen to 12.6 percent soluble solids or higher, (2) recent consumer taste tests have shown that fruit containing at least 12.6 percent soluble solids has a high level of acceptability, and (3) the majority of the kiwifruit producing countries are now utilizing 6.2 percent soluble solids as their guideline for minimum maturity.

The six countries exporting kiwifruit to the United States are New Zealand, Chile, Greece, France, Italy, and Canada. New Zealand has a mandatory maturity standard of 6.2 percent soluble solids. Chile, Greece, France, Italy, and Canada utilize a voluntary 6.2 percent soluble solids guideline for minimum maturity.

The Committee, at its May 2, 2000, meeting, unanimously recommended relaxing the minimum maturity requirements to 6.2 percent soluble solids because of the above-mentioned factors and because this relaxation is expected to reduce handler inspection costs, increase grower returns, and enable handlers and importers to compete more effectively in the marketplace.

Section 8e of the Act provides that when certain domestically produced commodities, including kiwifruit, are regulated under a Federal order, imports of that commodity must meet the same or comparable grade, size, quality, and maturity requirements. Since this rule relaxes the minimum maturity requirement under the domestic handling regulations, a corresponding change to the import regulation must also be considered.

Minimum grade, size, quality, and maturity requirements for kiwifruit imported into the United States are currently in effect under § 944.550 (7 CFR 944.550). The minimum maturity requirement is covered in paragraph (a) of § 944.550. Paragraph (a) of § 944.550 states that the importation into the United States of any kiwifruit is prohibited unless such kiwifruit meets all the requirements of a U.S. No. 1 grade as defined in the United States Standards for Grades of Kiwifruit (7 CFR 51.2335 through 51.2340) (Standards), except that the kiwifruit shall be “not badly misshapen”, and an additional tolerance of 7 percent is provided for “badly misshapen” fruit. The Standards define “Mature” to mean that the fruit has reached the stage of development which will ensure the proper completion of the ripening process. The Standards further specify that the minimum average soluble solids, unless otherwise specified, shall be not less than 6.5 percent.

The relaxation in the minimum maturity requirement for importers of kiwifruit will also have a beneficial impact. This rule relaxes the minimum maturity requirement for imported kiwifruit from 6.5 percent soluble solids to 6.2 percent soluble solids. The majority of the kiwifruit producing countries now are utilizing a 6.2 percent soluble solids level as their guideline for minimum maturity. Thus, importers will be able to utilize one minimum maturity standard for shipments of kiwifruit.

The metric equivalent of the minimum sizes currently specified is also added to paragraph (a) of § 944.550.

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

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

There are approximately 56 handlers of California kiwifruit who are subject to regulation under the order and about 400 kiwifruit producers in the regulated area. There are approximately 50 importers of kiwifruit. Small agricultural service firms which include kiwifruit handlers and importers, have been defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts are less than $5,000,000, and small agricultural producers are defined as those whose annual receipts are less than $500,000. Fifty-six handlers and fifty importers have annual receipts of less than $5,000,000, excluding receipts from other sources. Three hundred ninety producers have annual sales less than $500,000, excluding receipts from any other sources. Therefore, a majority of the kiwifruit handlers, importers, and producers may be classified as small entities.

This rule relaxes the minimum maturity requirements specified in § 920.302(a)(3) (7 CFR part 920) of the order's regulations and in § 944.550 (7 CFR 944.550) for imported kiwifruit. These sections, respectively, allow handlers and importers to ship kiwifruit which meets the minimum maturity requirement of 6.5 percent soluble solids. Relaxation of the minimum maturity requirements to 6.2 percent soluble solids is expected to reduce handler inspection costs, increase grower returns, and enable handlers and importers to compete more effectively in the marketplace. Authority for this action is provided in § 920.52 (a)(1) of the order, and section 8e of the Act.

Regarding the impact of this action on affected entities, relaxing the minimum maturity requirement to 6.2 percent soluble solids is expected to benefit handlers and importers. Handlers and importers will be able to utilize one minimum maturity standard for the majority of shipments of kiwifruit. The majority of the kiwifruit producing countries now utilize 6.2 percent soluble solids as their guideline for minimum maturity. Importers have not experienced problems meeting the minimum maturity requirement of 6.5 percent soluble solids. Therefore, it is expected that importers will not have any difficulty meeting the relaxed minimum maturity requirement of 6.2 percent soluble solids.

Imports account for 67 percent of domestic shipments and enter the United States between the months of March and August. Recent yearly data indicate that imports during the months of September through March are negligible. New Zealand, Chile, and Italy were the principal sources of imported fruit during the 1999-2000 (August 1-July 31) season, and accounted for 98 percent of the total import shipments, with the remaining imports being supplied by France, Greece, and Canada. Chile has been the largest exporter of kiwifruit to the United States since 1993. Chile shipped approximately 8 million tray equivalents (about 7 pounds of fruit per tray) into the U.S. market during the 1999-2000 season, representing over 56 percent of total market share. New Zealand shipped approximately 3 million tray equivalents; Italy shipped approximately 1 million tray equivalents; and Greece, France, and Canada had combined shipments of approximately 200,500 tray equivalents. The amount of imported kiwifruit is expected to increase during the 2000-2001 season. Italy is expected to have a bumper crop and the U.S. tariff restrictions on imports from New Zealand were lifted in August 1999.

The Committee believes that lowering the minimum maturity requirements to 6.2 percent soluble solids will benefit large and small entities equally. Handlers and importers will be able to maximize shipments of early-season kiwifruit. The shipment of early-season kiwifruit is expected to result in increased grower returns, as such fruit normally commands a higher price than fruit harvested later in the season.

The amount of fruit harvested for the early market is dependent upon market conditions, the storability of fruit, and the overall size and quality of the crop. Since such information is not yet available, the Committee was not able to estimate the amount of fruit that will be shipped during the early season, nor estimate the amount of increased grower returns.

Additionally, recent consumer taste tests have shown that fruit containing at least 12.6 percent soluble solids has a high level of acceptability. Research conducted during the 1990's also has shown that fruit with 6.2 percent soluble solids and that is handled properly has the potential to ripen to 12.6 percent soluble solids. Relaxing the minimum maturity requirement should make more kiwifruit available to consumers early in the season.

In the past, some early season fruit failed to meet minimum maturity requirements at the time of inspection. Handlers had the option of re-conditioning the fruit or placing it into cold storage to ripen. After the soluble solids content was high enough to meet the minimum maturity requirements, the fruit was reinspected and the handler was billed for the original inspection and the reinspection. Relaxing the minimum maturity requirement to a 6.2 percent soluble solids level is expected to provide incentives for proper harvesting and handling of early fruit and to result in lower inspection costs. Thus, both large and small handlers should be able to benefit in the marketplace.

The Committee expressed concern that lowering the minimum maturity requirements to 6.2 percent soluble solids might result in a larger quantity of undersized fruit. However, the Committee expects growers to voluntarily test for minimum maturity and size before harvesting a field to limit harvesting unacceptable fruit.

Other alternatives have been suggested regarding the minimum maturity requirements, but will not adequately address the problem. The first alternative was to leave the regulation unchanged. However, this alternative will not address the changes in marketing conditions and in consumer acceptance of fruit with a lower level of soluble solids.

Another alternative considered was to regulate the current minimum maturity at the time of harvest. The Committee also considered utilizing the New Zealand “Kiwi Start” program which also tests for minimum maturity in the field at the time of harvest. These alternatives were not considered viable. The regulation of growers is not authorized under the Act.

Consideration was given to removing the 6.5 percent soluble solids minimum maturity requirement from the order and adding it to the California State Code of Regulations. This option was not acceptable to the Committee because of concerns regarding layers of regulation implementation, time, expenses, imports, and enforcement.

Another alternative discussed was to eliminate the minimum maturity requirement from the order. It was determined that there is still a need to have a maturity testing system in place to prevent the immature fruit from entering the market. Thus, this alternative was not adopted.

Utilizing a different testing method was also considered. Utilization of a dry weight test (total solids test) versus the currently used refractometer to measure maturity was discussed. This suggestion was not adopted because the test will be hard to implement, burdensome, and costly to the industry.

Finally, another alternative presented in the meeting was to increase the minimum maturity requirement. This alternative was not acceptable because it fails to recognize the recent findings that consumers find fruit with lower soluble solids acceptable.

This final rule relaxes the minimum maturity requirements under the kiwifruit marketing order and the import regulation. Accordingly, this action will not impose any additional reporting or recordkeeping requirements on either small or large kiwifruit handlers and importers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

As noted in the initial regulatory flexibility analysis, the Department has not identified any relevant Federal rules that duplicate, overlap or conflict with this final rule.

Further, the Committee's meeting was widely publicized throughout the kiwifruit industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the May 2, 2000, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue. Finally, interested persons were invited to submit information on the regulatory and informational impacts of this action on small businesses. No such comments were received.

A proposed rule concerning this action was published in the Federal Register on July 31, 2000 (65 FR 46658). Interested persons were invited to submit written comments until August 30, 2000. Copies of the rule were mailed or sent via facsimile to all known interested parties. Finally, the rule was made available through the Internet by the Office of the Federal Register.

One comment was received during the comment period in response to the proposal. The commenter, representing the European Community, supports the relaxation of the minimum maturity standard to 6.2 percent soluble solids, as it will simplify commerce. The European Community also urged the United States to incorporate relevant international standards of the Economic Commission for Europe of the UN (UN/ECE) and of the Organization for Economic Co-operation and Development (OECD) into our regulations, including the U.S. Standards for Grades of Kiwifruit (7 CFR 51.2335 to 51.2340). These requests are outside the scope of this rulemaking action. However, these suggestions will be reviewed for further appropriate action in connection with this program.

Accordingly, no changes will be made to the rule as proposed, based on the comments received.

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

In accordance with section 8e of the Act, the United States Trade Representative has concurred with the issuance of this final rule.

After consideration of all relevant matter presented, including the information and recommendation submitted by the Board and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register (5 U.S.C. 553) because: (1) This rule should be in effect promptly because the 2000-2001 harvest in California is expected to begin soon; (2) these changes were unanimously recommended by the Committee and interested persons had an opportunity to provide input; (3) handlers are aware of this change which was recommended at a public meeting; and (4) a 30-day comment period was provided for in the proposed rule, and the comment received supported the reduced maturity requirement.

There are multiple references to Section 202 of the Energy Reorganization Act of 1974, in NRC regulations at 10 CFR 2.4, 30.4, 40.4, 50.2, 50.11, 70.4, and 70.11. These references are inconsistent in that some cite Section 202, while others describe provisions of Section 202 in a footnote. Those references that describe Section 202 are also incomplete because they do not reflect amendments to Section 202. Because of the inconsistency and incompleteness of the references to Section 202, and to avoid repeated changes to the regulations to reflect any amendments of Section 202, the NRC is amending the regulations to cite Section 202, rather than include text of Section 202 in a footnote.

The NRC is also making other minor conforming changes to its regulations: deletion of 10 CFR 1.35, “Office for Analysis and Evaluation of Operational Data” because that office has been abolished; correction of a typographical error in 10 CFR 19.32 by substituting “Title VII” for “Title VI;” and deletion in 10 CFR 51.22(c)(1) of the reference to Part 0 because of the repeal of that part.

Because these amendments involve either matters of agency organization or minor conforming changes to existing regulations, the NRC has determined that notice and comment under the Administrative Procedure Act 5 U.S.C. 553(b) (A) and (B) is unnecessary and that good cause exists to dispense with such notice and comment. For these reasons, good cause also exists to dispense with the usual 30-day delay in the effective date. Therefore, the amendments are effective upon their publication in the Federal Register .

The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22 (c) (1) and (2). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule.

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 numbers 3150-0044, -0017, -0020, -0011, -0021, and -0009.

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.

A regulatory analysis has not been prepared for this final rule because the final rule makes minor conforming changes to the regulations that reference Section 202 of the Energy Reorganization Act, and makes other minor changes to the regulations.

The NRC has determined that these amendments do not involve any provisions which would impose backfits as defined in 10 CFR 50.109(a)(1); therefore, a backfit analysis need not be prepared.

This amendment to 14 CFR part 71 revises the Class D Airspace at Robert Gray Army Airfield (RGAAF), TX and revokes the Class D Airspace at Hood AAF, TX. Two Class D Airspace areas (RGAAF), TX and HAAf, TX) describe the same airspace. This redundancy is unnecessary. The intended effect of this proposal is to provide adequate controlled airspace for aircraft operating in the vicinity of RGAAF, TX, and HAAF, TX.

Class D airspace designations are published in Paragraph 5000 of FAA Order 7400.9G, dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designations listed in this document will be published subsequently in the order.

The FAA anticipates that this regulation will not result in adverse or negative comment and therefore is issuing it as a direct final rule. A substantial number of previous opportunities provided to the public to comment on substantially identical actions have resulted in negligible adverse comments or objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2000-ASW-18.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein 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, it is determined that this final rule will not have federalism implications under Executive Order 13132.

Further, the FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments and only involves an established body of technical regulations that require frequent and routine amendments to keep them operationally current. Therefore, I certify that this regulation (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) if promulgated, 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. Since this rule involves routine matters that will only affect air traffic procedures and air navigation, it does not warrant preparation of a Regulatory Flexibility Analysis because the anticipated impact is so minimal.

This amendment to 14 CFR part 71 revises the Class E airspace at Tulsa, OK. The development of a VOR or GPS SIAP, at William R. Pogue Municipal Airport, Sand Springs, OK, has made this rule necessary. This action is intended to provide adequate controlled airspace extending upward from 700 feet or more above the surface for IFR operations to William R. Pogue Municipal Airport, Sand Springs, OK.

Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.9G, dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the order.

The FAA anticipates that this regulation will not result in adverse or negative comment and therefore is issuing it as a direct final rule. A substantial number of previous opportunities provided to the public to comment on substantially identical actions have resulted in negligible adverse comments or objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register, and a notice of proposed rulemaking may be published with a new comment period.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2000-ASW-15.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein 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, it is determined that this final rule will not have federalism implications under Executive Order 13132.

Further, the FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments and only involves an established body of technical regulations that require frequent and routine amendments to keep them operationally current. Therefore, I certify that this regulation (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) if promulgated, 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. Since this rule involves routine matters that will only affect air traffic procedures and air navigation, it does not warrant preparation of a Regulatory Flexibility Analysis because the anticipated impact is so minimal.

This amendment to 14 CFR part 71 revises the Class E airspace at Fayetteville, AR. The decomissioning of the MLS at Drake Field, Fayetteville, AR has made this rule necessary. This action is intended to provide adequate controlled airspace extending upward from 700 feet or more above the surface for Instrument Flight Rules (IFR) operations in the vicinity of Fayetteville, AR.

Class E airspace designations are published in Paragraphs 6004 and 6005 of FAA Order 7400.9G, dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the order.

The FAA anticipates that this regulation will not result in adverse or negative comment and therefore is issuing it as a direct final rule. A substantial number of previous opportunities provided to the public to comment on substantially identical actions have resulted in negligible adverse comments or objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2000-ASW-17.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein 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, it is determined that this final rule will not have federalism implications under Executive Order 13132.

Further, the FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments and only involves an established body of technical regulations that require frequent and routine amendments to keep them operationally current. Therefore, I certify that this regulation (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) if promulgated, 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. Since this rule involves routine matters that will only affect air traffic procedures and air navigation, it does not warrant preparation of a Regulatory Flexibility Analysis because the anticipated impact is so minimal.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. This rule is being promulgated without an NPRM due to the short time frame allowed between the submission of the request by the County of San Joaquin and the date of the maintenance. Additionally, extensive preliminary coordination with the waterway users was done and no negative impacts are expected. No negative comments were received and alternative navigational routes are available via Little Connection Slough or King Island Cut. The drawspan will be able to open if necessary, in the event of an emergency. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . This rule should be made effective in less than 30 days due to the short time frame allowed between the submission of the request by the County of San Joaquin and the date of the maintenance.

On June 5, 2000, the County of San Joaquin requested a temporary change to the operation of the Eight Mile Road Drawbridge over Honker Cut, mile 0.3, San Joaquin County, California to allow for maintenance, cleaning and painting. The drawspan provides 4 feet vertical clearance above flood stage when in the closed-to-navigation position. Navigation on the waterway consists of both commercial and recreational watercraft. Presently, the draw is required to open on signal if at least twelve hours advance notice is provided. The County requested the drawbridge be permitted to remain closed to navigation from September 5 until December 21, 2000. During this time the bridge will be enclosed with scaffolding and containment tarps while cleaning and painting operations are performed. This temporary drawbridge operation amendment has been coordinated with the waterway users. No objections to the proposed rule were raised.

This temporary rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. It has not been reviewed by the Office of Management and Budget under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). We expect the economic impact of this temporary rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. This is because the average number of requests for opening the drawspan are seven per year and alternate navigational routes are available.

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

Due to the small number of requests to open the bridge per year and the availability of alternative routes, the Coast Guard expects the impact of this action to be minimal. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b), that this action will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so they can better evaluate its effects on them and participate in the rulemaking process. Any individual who qualifies or, believes they qualify as a small entity, requiring assistance with the provisions of this rule, may contact David H. Sulouff, Chief, Bridge Section, Eleventh Coast Guard District, Building 50-6, Coast Guard Island, Alameda, CA 94501-5100, telephone 510-437-3516.

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

We have analyzed this rule under the principles and criteria contained in Executive Order 13132, and have determined this rule does not have implications for federalism under that Order.

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

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

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

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

The Coast Guard considered the environmental impact of this temporary rule and concluded that under Chapter 2.B.2 and Figure 2-1, 32(e) of Commandant Instruction M16475.1C, this temporary rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES .

The information presented in this preamble is organized as follows:

EPA is publishing this regulation under the authority of sections 2002, 3001, 3002, 3003, 3006, 3010, and 7004 of the Solid Waste Disposal Act of 1970, as amended by the Resource Conservation and Recovery Act, as amended (42 U.S.C. 6912, 6921, 6922, 6923, 6926, 6930, 6937, 6938, and 6974).

The Final Project Agreement (FPA) sets forth the intentions of EPA, VTDEC, and the IBM Essex Junction, VT facility with regard to a project developed under Project XL, an EPA initiative to allow regulated entities to achieve better environmental results with limited regulatory flexibility. The regulation, along with the FPA, will facilitate implementation of the project. Project XL—“eXcellence and Leadership”— was announced on March 16, 1995, as a central part of the National Performance Review and the Agency's effort to reinvent environmental protection. See 60 FR 27282 (May 23, 1995). Project XL provides a limited number of private and public regulated entities an opportunity to develop their own pilot projects to request regulatory flexibility that will result in environmental protection that is superior to what would be achieved through compliance with current and reasonably-anticipated future regulations. These efforts are crucial to EPA's ability to test new strategies that reduce regulatory burden and promote economic growth while achieving better environmental and public health protection. EPA intends to evaluate the results of this and other Project XL projects to determine which specific elements of the project(s), if any, should be more broadly applied to other regulated entities for the benefit of both the economy and the environment.

Under Project XL, participants in four categories—facilities, industry sectors, governmental agencies and communities—are offered the flexibility to develop common sense, cost-effective strategies that will replace or modify specific regulatory requirements, on the condition that they produce and demonstrate superior environmental performance.

The XL program is intended to encourage EPA to experiment with potentially promising regulatory approaches, both to assess whether they provide benefits at the specific facility affected, and whether they should be considered for wider application. Such pilot projects allow EPA to proceed more quickly than would be possible when undertaking changes on a nationwide basis. As part of this experimentation, EPA may try out approaches or legal interpretations that depart from, or are even inconsistent with, longstanding Agency practice, so long as those interpretations are within the broad range of discretion enjoyed by the Agency in interpreting the statutes that it implements. EPA may also modify rules, on a site-specific basis, that represent one of several possible policy approaches within a more general statutory directive, so long as the alternative being used is permissible under the statute.

Adoption of such alternative approaches or interpretations in the context of a given XL project does not, however, signal EPA's willingness to adopt that interpretation as a general matter, or even in the context of other XL projects. It would be inconsistent with the forward-looking nature of these pilot projects to adopt such innovative approaches prematurely on a widespread basis without first determining whether they are viable in practice and successful in the particular projects that embody them. Furthermore, as EPA indicated in announcing the XL program, EPA expects to adopt only a limited number of carefully selected projects. These pilot projects are not intended to be a means for piecemeal revision of entire programs. Depending on the results in these projects, EPA may or may not be willing to consider adopting the alternative interpretation again, either generally or for other specific facilities.

EPA believes that adopting alternative policy approaches and interpretations, on a limited, site-specific basis and in connection with a carefully selected pilot project, is consistent with the expectations of Congress about EPA's role in implementing the environmental statutes (provided that the Agency acts within the discretion allowed by the statute). Congress' recognition that there is a need for experimentation and research, as well as ongoing re-evaluation of environmental programs, is reflected in a variety of statutory provisions, such as section 8001 of RCRA.

To participate in Project XL, applicants must develop alternative environmental performance objectives pursuant to eight criteria: Superior environmental performance; cost savings and paperwork reduction; local stakeholder involvement and support; test of an innovative strategy; transferability; feasibility; identification of monitoring, reporting and evaluation methods; and avoidance of shifting risk burden. The XL projects must have the full support of the affected Federal, State, local and tribal agencies to be selected.

For more information about the XL criteria, readers should refer to the two descriptive documents published in the Federal Register (60 FR 27282, May 23, 1995 and 62 FR 19872, April 23, 1997), and the December 1, 1995 “Principles for Development of Project XL Final Project Agreements” document. For further discussion as to how the IBM Vermont XL project addresses the XL criteria, readers should refer to the Final Project Agreement available from the EPA RCRA docket, the U.S. EPA New England library, or the Project XL web page (see ADDRESSES section of today's preamble).

The Project XL program is compartmentalized into four basic developmental phases: The initial pre-proposal phase where the project sponsor comes up with an innovative concept that they would like EPA to consider as an XL pilot project; the second phase where the project sponsor works with EPA and interested stakeholders in developing an XL proposal; the third phase where EPA, local regulatory agencies, and other interested stakeholders review the XL proposal; and the fourth phase where the project sponsor works with EPA, local regulatory agencies, and interested stakeholders in developing a Final Project Agreement and legal mechanism. After promulgation of the final rule (or other legal mechanism) for the XL pilot, and after the Final Project Agreement has been signed by all designated parties, the XL pilot project proceeds onto implementation and evaluation.

The Final Project Agreement (FPA) is a written voluntary agreement between the project sponsor and regulatory agencies. The FPA contains a detailed description of the pilot project. It addresses the eight Project XL criteria, and the expectation of the Agency that the XL project will meet those criteria. The FPA identifies performance goals and indicators that the project is yielding the expected environmental benefits, and specifically addresses the manner in which the project is expected to produce superior environmental benefits. The FPA also discusses the administration of the FPA, including dispute resolution and termination. The FPA for this XL project is available for review in the docket for today's action, and also is available on the world wide web at http://www.epa.gov/projectxl/.

Today's rule will facilitate implementation of the FPA (the document that embodies EPA's intent to implement this project) that has been developed by EPA, the Vermont Department of Environmental Conservation (VTDEC), the IBM Essex Junction, VT facility, and other stakeholders. Today's rule, will not be effective in Vermont until the State has made conforming changes to its hazardous waste program.

This rule will apply only to the IBM Essex Junction, VT facility. Further, the regulatory modification only affects the copper metallization plating process (and the wastes generated by that process) that is the focus of this XL project; wastes resulting from any other operations at the facility are not affected by this rule.

IBM does not believe the innovative copper metallization process it uses should be included among those electroplating operations that result in a wastewater treatment sludge that is specifically listed as a hazardous waste (F006), and that the regulatory controls (with associated increases in costs) provide no benefit to the environment.

Under the current RCRA regulatory framework, the generator of a waste is responsible for determining whether the waste is hazardous (see 40 CFR 262.11). There are two ways that a waste is determined to be hazardous; either the waste exhibits a characteristic of a hazardous waste as defined in 40 CFR 261.21, 261.22, 261.23, and 261.24, or the Agency has identified and specifically listed it as a hazardous waste in 40 CFR 261.31, 261.32, and 261.33. The wastewater treatment sludge that is the focus of this XL project typically does not exhibit a characteristic of hazardous waste; however, it does meet the narrative listing description for F006, generally described as wastewater treatment sludge from electroplating operations. In promulgating the hazardous waste listings, EPA presented the basis for the listings in 40 CFR part 261, appendix VII ( e.g., the basis for the F006 listing is the presence of cadmium, hexavalent chromium, nickel, and cyanide (complexed) in high enough concentrations to present a risk to human health and the environment if the waste is mismanaged). However, the hazardous waste listings are implemented based on their narrative descriptions, not by a waste-specific assessment of the hazardous constituents the wastes contain (such an assessment is how the “toxicity characteristic” is implemented pursuant to 40 CFR 261.24). To address those wastes that meet the narrative description of a listed hazardous waste but which the generator believes are nonhazardous, RCRA regulations provide a mechanism for the generator to petition the Agency for a determination that the wastes generated at their facility should not be regulated as hazardous ( i.e., a “delisting” pursuant to 40 CFR 260.22).

On May 19, 1980, EPA promulgated the F006 hazardous waste listing, thereby designating wastewater treatment sludges from electroplating operations to be a RCRA hazardous waste (see 45 FR 33084). This wastestream is typically generated through the chemical treatment (e.g., lime precipitation) of wastewaters generated by plating operations to precipitate out certain toxic metals. These wastewaters are typically made up of spent plating/coating solutions and rinsewaters (from the rinsing of parts after being plated). As discussed in more detail in the background document supporting the listing of electroplating wastewater treatment sludge (F006), Electroplating and Metal Finishing Operations (pages 105-143) (available in the docket for this project), the Agency noted that while there are many various plating processes covered by the listing, they all generally involve hazardous constituents of concern at concentration levels requiring regulatory oversight to ensure that the management and disposal of such sludges will not result in damages to the environment or otherwise present a risk to human health and the environment. The metal constituents found to be commonly used in electroplating operations include cadmium, lead, chromium (in hexavalent form), copper, nickel, zinc, gold and silver. Cyanides, strong acids and strong bases are also used extensively in the general types of plating operations intended to be included in the listing description. As stated earlier, the specific constituents of concern cited as the basis for listing such wastewater treatment sludges as hazardous wastes were cadmium, hexavalent chromium, nickel, and cyanide (complexed) (see 40 CFR part 261, appendix VII).

While the actual composition of the electroplating-generated wastewater treatment sludges may vary due to the specific sequence of processing operations (commonly, more than one processing step is involved in a plating operation), in general, the sludges would be expected to contain significant concentrations of toxic metals, and possibly complexed cyanides in high concentrations if the cyanides are not properly isolated in the wastewater treatment process. Thus, the approach to this hazardous waste listing was one where the constituents typically used in the “up-stream” production process were, in part, the basis of the hazardous waste listing applicable to the residuals from wastewater treatment (typically alkaline precipitation of the heavy metals).

The Agency noted in the May 19, 1980 rulemaking that several plating operations were found to not contain significant concentrations of toxic metals or cyanides, such that the sludges resulting from the treatment of the wastewaters resulting from such operations would not be expected to pose a risk to human health and the environment. These operations were accordingly identified and specifically excluded from the F006 listing description: (1) sulfuric acid anodizing of aluminum, (2) tin plating on carbon steel, (3) zinc plating (segregated basis) on carbon steel, (4) aluminum or zinc-aluminum plating on carbon steel, (5) cleaning/stripping associated with tin, zinc and aluminum plating on carbon steel, and (6) chemical etching and milling of aluminum. (see 40 CFR 261.31).

Accordingly, the chemical make-up of the materials used in the plating operation was a major consideration in whether the wastewater treatment sludge would be designated a hazardous waste. Other factors that may impact the concentration levels of hazardous constituents in the wastewater treatment sludge are the type and shape of the article being plated, how much of the plating solution is carried over into the rinsewater, and the actual plating process being used.

Since the IBM facility has many complicated manufacturing processes, a review of the basic steps in semiconductor manufacturing relevant to the metallization process which is the subject of this XL project may be useful. In general, the surface of a silicon wafer is cleaned and passivated (i.e., coated to provide an insulating layer) with a very thin silicon oxide layer. An organic photoresist is applied to the wafer and a circuit pattern is exposed onto the resist by shining light onto the wafer through a mask. The exposed photoresist is washed away, while the remainder is hardened to protect the insulating layer. After this is completed, the wafer is treated with inorganic liquids and gases to create the doped circuits which provide the semiconductor function. The hardened resist is then removed with organic solvents. At certain points in the process, metallization techniques are used to electronically connect the stacked layers of the semiconductor device. (The copper metallization process which is the basis for this XL project serves this purpose.) Wafer cleaning and rinsing steps, using mixtures of inorganic acids, oxidizers, and deionized water, occur after many of the process steps. This process cycle is repeated until a fully functional memory or logic device has been produced. After the circuits are built on the wafer, minute amounts of metal are deposited onto the wafer to produce the connections which marry the semiconductor to a module or circuit board for use in a computer. Finally, the wafer is sliced into individual chips for testing and placement onto substrates or modules for use in computer systems.

The new copper metallization process IBM has introduced, which is the subject of this XL project, serves to provide the interconnection of the device circuits, electronically connecting the stacked layers of the semiconductor device. In designing the process, IBM worked with the manufacturers of the plating solutions and the manufacturer of the plating tool (which holds the wafer) to minimize waste and increase efficiency. The metallization process uses this specialized tool to bring only one side of the wafer into contact with the copper plating solution and applies an electrical current to plate the copper onto the wafer surface. Once the metallization process is complete, the wafer is rinsed with sulfuric acid over the plating bath to keep as much plating solution as possible in the bath (thus minimizing the amount of plating solution that is carried over into the rinsewaters). After the sulfuric acid rinse, the wafer is then rinsed with deionized water, and deionized water and sulfuric acid, in a pre-defined sequence, with the resulting rinsewaters being sent through the facility's wastewater treatment system.

For each wafer produced, approximately 3.5 grams of plating solution (containing approximately 0.065 grams of copper) is carried over to the rinsewaters. The volume of water used in the rinsing ranges from 0.5 to 0.7 gallons per wafer. Present projections show that copper mass and rinsewater volume will increase from approximately 110 grams/day and 1000-2000 gallons/day, respectively in the second quarter of 1999 to 180 grams/day and 2000-3000 gallons/day when the process is fully deployed in 2002. 1

Also, the plating unit includes a 40-gallon reservoir for the plating solution that constantly filters and regenerates the solution. The goal in designing and operating this reservoir is to achieve an infinite bath life for the solution. However, it is currently necessary to replace a portion of the used plating solution in the reservoir with new solution. Currently, IBM drums the spent plating solution from the reservoir and sends the material for appropriate off-site management. IBM does not currently, nor plan to in the future, send the spent plating solution from the reservoir through the wastewater treatment system. Thus, the only plating solution that is or will be sent through the facility's wastewater treatment system is the relatively small amount that is carried over to the rinsewaters.

According to tests conducted by IBM, the plating solution currently being used by the facility does not contain any of the hazardous metal constituents and cyanides which were the focus of the original hazardous waste listing for wastewater treatment sludges from electroplating operations (and thus, these constituents would not be expected to be in the wastewater treatment sludge unless they are introduced from some other production process).

IBM reported other significant environmental benefits of converting to the copper metallization process that should be considered. The copper metallization process replaced an aluminum chemical vapor deposition process that required the vaporization of aluminum for deposit on the wafer. The use of the vapor deposition process entailed cleaning steps that used perfluorinated compounds (PFCs), which are global warming gases. By replacing a majority of the aluminum connections with copper, a significant reduction in global warming gases will be realized simply by minimizing the number of cleaning steps that use PFCs. It should also be noted that while such vapor deposition processes (and subsequent cleaning steps) are still required in other aspects of the semiconductor manufacturing process, IBM has developed an alternative cleaning method that uses dilute nitrogen trifluoride (NF 3 ) instead of PFCs, wherever appropriate. NF 3 has significantly less impact on global warming than PFCs. 2 The Agency recognizes this significant environmental benefit although it is not closely associated with the regulatory flexibility being sought by IBM.

IBM also reported that the new copper metallization process is much more energy efficient (30 to 40% less energy) than the aluminum chemical vapor deposition process it replaces. Similarly, the semiconductor chip produced by the copper metallization process is approximately 25% more energy-efficient than the chip it replaces. IBM expects this type of metallization process (or processes very similar) to become more common in the semiconductor manufacturing industry.

The aluminum chemical vapor deposition process which the copper metallization process replaces was dry and generated no wastewater or sludge that was subject to RCRA. From the time the copper metallization process was first introduced in 1996 until April of 1998, the copper metallization rinsewaters were collected and drummed for off-site disposal, keeping these wastewaters separate from the on-site wastewater treatment system. However, beginning in May 1998, the volume of rinsewater generated (approximately 250 gallons/day) became large enough to make it necessary to introduce the plating rinsewaters into the wastewater treatment system by commingling them with other wastewater streams generated on-site.

Even though the contribution of wastewaters from the copper metallization process to the total volume of wastewater being treated to generate the sludge is minimal (the volume of rinsewaters from the plating operation expected to be generated when the plating process is at full production is 1600 gallons/day, compared with an estimated 5,000,000 gallons/day volume of other on-site wastewaters), the sludge generated by the treatment of the commingled wastewaters is regulated as F006 because it meets the narrative listing description (i.e., wastewater treatment sludges from an electroplating operation).

Consequently, IBM's reported annual hazardous waste generation increased from 2.14 million pounds to 5.78 million pounds (1999 totals) and their waste management costs increased by $3,500 per year. Regarding IBM's waste management costs, the State of Vermont has deferred the hazardous waste tax that would normally apply to the generation of an F006 waste (approximately $225,000/year). 3

While the increased waste management costs (as well as the associated recordkeeping and paperwork burdens) are relatively insignificant to the facility, they nevertheless represent increased costs for no net environmental benefit.

IBM's position is that they have adopted a more energy-and resource-efficient metallization process that employs a plating solution that is significantly different from the plating solutions used when the Agency promulgated the F006 listing, and therefore should not be subject to the F006 listing. This process has been specifically designed to minimize the use of the plating solution while maximizing the use of the copper metal in the solution, and minimizing the amount of solution that is carried over into the rinsewater. Because this metallization process does not contribute hazardous constituents to the wastewater treatment sludge, IBM sought to have its copper metallization process exempted from the F006 hazardous waste listing. Therefore, rather than pursue a delisting of the wastewater treatment sludge under 40 CFR 260.22, IBM has opted to work with the Agency, VTDEC, and interested stakeholders to develop and implement a pilot project under Project XL that will evaluate whether the copper metallization process should be included in the plating operations that result in F006 listed hazardous wastes. The Agency agrees with IBM that this XL project has a somewhat different aspect to it (i.e., the focus on the innovative production process that generates the wastewaters that, in turn, are treated to generate the listed sludge), such that the delisting approach is not the most suitable. A delisting approach would look strictly at the waste being delisted (as well as how it is managed), which in this situation is the result of treating large volumes of wastewaters from a variety of production processes (including wastewaters contributed by the innovative copper metallization process) and would not adequately reflect the specific environmental impacts associated with the innovative production process. It is the innovative production process that causes the wastewater treatment sludge to be designated a hazardous waste.

To implement this XL project, the Agency is promulgating in today's notice a site-specific exemption in 40 CFR 261.4(b) (i.e., “Solid wastes which are not hazardous wastes”) for the copper metallization process at the IBM Vermont facility from the F006 hazardous waste listing description. The Agency considered a modification to the F006 listing description in the table in 40 CFR 261.31(a), adding the copper metallization process at the IBM Vermont facility to the list of plating operations that are not intended to be subject to the listing. However, because the exemption will have a number of conditions that the IBM facility must follow to ensure that this XL project is protective of human health and the environment throughout the term of the project and to provide the information and data the Agency will use to consider whether the regulatory exemption should be incorporated into the national program, the Agency prefered placing the exemption language in 40 CFR 261.4(b). Regardless of where EPA chose to place the exemption language in the regulations (§ 261.31(a) or § 261.4(b)), the legal effect of the exemption is the same. EPA expects that should the exemption of the copper metallization process from the F006 listing be incorporated into the national program, EPA would then modify the listing description in 40 CFR 261.31(a).

The Agency agrees with IBM that this XL project has merit and has the potential to yield significant environmental benefits should this exemption be adopted on a national basis. Project XL offers the opportunity for the Agency to test its belief that this innovative process should be encouraged as one that is environmentally superior to existing technologies and to consider the appropriate regulatory status of the wastes from this technology before it is adopted by similar manufacturing facilities.

Further, this XL project offered EPA the opportunity to test a different approach to re-evaluating whether a specific wastestream is appropriately subject to regulatory controls as a listed waste. The existing mechanism for removing a waste from a listing on a site-specific basis is through a “delisting” petition under 40 CFR 260.22. However, the delisting approach is not the most suitable for the situation at the IBM Vermont facility because the scope of the listing itself is at issue. If IBM submitted a delisting petition, EPA would evaluate the hazardous nature of the entire wastewater treatment sludge (which is the wastestream that actually carries the F006 listing) rather than only that portion which is contributed by the copper metallization process. EPA generally prefers a delisting approach in most circumstances (it is, generally, a better approach for determining the hazardous nature of the actual waste material and whether the waste should be removed from the hazardous waste management program). In this instance, however, because the Agency wants to test whether IBM's copper metallization process should be included within the scope of the F006 listing, the Agency believed an evaluation of the “production side” of the sequence of operations that resulted in the wastewater treatment sludge is more useful. Specifically, because the wastewater treatment sludge is considered hazardous due to an “upstream” production unit meeting the narrative description of an electroplating operation, the Agency believed it was more appropriate to evaluate the upstream production unit to determine whether the hazardous waste listing on the “downstream” wastewater treatment sludge is warranted. Therefore, the Agency focused on the key parameters on the production side (in this case, the innovative design and operation of the copper metallization process) to make a determination of the regulatory status of the materials generated on the waste management side (in this case, the wastewater treatment sludge). This XL project therefore represents an opportunity for EPA to explore a different approach to determining whether a waste (in this case, one resulting from an innovative process) should continue to be subject to a hazardous waste listing. In other words, this approach may be considered another “tool” for the Agency to use in “fine tuning” the hazardous waste listings so that the narrative description of a listed waste appropriately delineates between those wastes that pose a risk to human health and the environment from those wastes (which arguably are generated by very similar processes) that do not pose such a risk. If, in fact, the absence of hazardous constituents of concern in the plating solution is determinative of whether the wastewater treatment sludge is hazardous (or whether any “hazard” in the sludge stems from the plating operation), this may become the key determining factor in similar requests for regulatory exemptions. Alternatively, if the Agency determines that the amount of plating solution that is carried over into the rinsewater (with focus on the shape of the parts being plated as well as the actual plating process) is the determining factor, this variable may be accounted for in future rulemakings that address the F006 hazardous waste listing.

Because this is an innovative and highly efficient plating technology that also does not use the hazardous constituents common in most electroplating operations, EPA agrees with IBM's expectation that more semiconductor manufacturing facilities will seek to adopt this process (or ones very similar). The Agency agrees that if there is no adverse effect on the wastewater treatment sludge from the use of this metallization process, then regulating the sludge as a hazardous waste based solely on the fact that the metallization process continues to meet the narrative listing description of an electroplating operation may be imposing regulatory controls unnecessarily.

Further, the Agency believes that this innovative metallization process is environmentally superior to the old process it replaces, i.e., the aluminum chemical vapor deposition process. Not only is the metallization process 30 to 40% more energy efficient than the old process and the chips produced approximately 25% more energy efficient, there are also environmental benefits realized by discontinuing the use of the old process. While the metallization process generates a wastewater stream (and subsequent sludge from the treatment of that wastewater) that was not inherent to the aluminum chemical vapor deposition process, the old vapor deposition process entailed a cleaning step that used perfluorinated compounds (PFCs), which are global warming gases. The aluminum chemical vapor deposition process basically uses vaporized metal (in this case, aluminum) that is then deposited on the wafer, all of which occurs in “chambers.” The vaporized metal also gets deposited on the insides of these chambers, which must periodically be cleaned of this metal coating. Thus, by replacing the old process with the metallization process,10,000 metric tons of carbon equivalent (MTCE) of global warming gases will not be emitted to the air. However, it should be noted that, due to the nature of the materials and components involved in the semiconductor manufacturing process, the vapor deposition process cannot be completely eliminated from the production line, nor can the subsequent cleaning steps. (However, the number of cleaning steps requiring the use of PFCs has been significantly reduced and will continue to be reduced by the conversion to the innovative copper metallization process. The vapor deposition chambers, therefore, are a major focus in measuring the reduction in global warming gases.) Nevertheless, the Agency believes that the use of the innovative copper metallization process should be encouraged where possible. (Also, as stated earlier, IBM has developed an alternative cleaning process that uses dilute nitrogen trifluoride (NF 3 ) as a replacement for the PFCs. The dilute NF 3 is reported to have a much lower impact on global warming than the PFCs that would otherwise be used.)

From a public policy standpoint, it would not serve to encourage manufacturers to employ less-hazardous or more environmentally friendly and innovative production processes and ingredients in manufacturing operations if the Agency is unwilling to revisit existing hazardous waste listings to determine if the wastes resulting from such innovative process changes still warrant a hazardous waste listing. This XL project offers the Agency the opportunity to consider proactively the appropriate regulatory status of the wastewater treatment sludges generated from an innovative production process before it is widely used and commonplace and may serve as a precedent for other listed wastestreams.

Additionally, the Agency believes that to the extent the implementation of the hazardous waste regulations, including the actual requirements as well as the costs and administrative burdens, are directly related to the hazards being posed by the waste being regulated, this will improve the overall implementation of the program and compliance with the regulations. Just as it is important to ensure that those wastes that can pose significant risk to human health and the environment are properly controlled and managed, it is also important to not needlessly subject wastes that do not pose such risks to the same type of regulatory oversight.

IBM has established an appropriate stakeholder group to develop the Final Project Agreement for this XL pilot project and to evaluate IBM's plan and progress in implementing the project. IBM has solicited input on this project from a wide range of stakeholders including local and national environmental groups, neighborhood associations, and industry trade associations. Stakeholders have been notified of this project by direct mail, telephone, and notification in the local press.

In addition, IBM has conducted a series of meetings with select stakeholders who had agreed to serve as commenters for this project. They had been briefed on the proposal, and were supportive of the project as described. The State of Vermont also supports the project and is a Project Signatory to the Agreement. Stakeholder meetings were held at the IBM facility on February 17 and March 24, 2000.

IBM has kept an open dialogue with interested stakeholders since the project's inception and will continue to involve any interested stakeholders in the project's development. In addition, EPA and IBM will make all project-related documents and events publically accessible through announcements, EPA's web site and public dockets.

As stated earlier, introducing the rinsewaters from the metallization process into the wastewater treatment system has caused the entire volume of wastewater treatment sludge to be defined as a hazardous waste, increasing the facility's waste management costs by approximately $3,500/year. Removing the hazardous waste designation will eliminate this expenditure. Also, as discussed earlier, the State of Vermont has waived the waste tax that would otherwise apply to IBM's generation of F006 waste (approximately $225,000/year). (Note that the State of Vermont is not authorized to do hazardous waste delistings which could change the regulatory status of the sludge from a listed hazardous waste to a nonhazardous waste; however, the State has more flexibility in assessing hazardous waste generation taxes. Had the State not granted this tax waiver, the cost savings associated with this specific XL project would be considered significant.) Finally, IBM expects to see cost savings of $100,000 to $200,000 per year when the conversion to the copper metallization process has been fully implemented. The sources of these cost savings include reduced material costs ( e.g. , reduction in the use and resultant purchase of PFCs) and reduced energy expenditures.

Because the IBM Vermont facility will continue to be regulated as a Large Quantity Generator due to the volume of hazardous wastes generated at other parts of the facility, and because there is no State hazardous waste tax being applied, the actual reduction in paperwork and cost savings related to waste management are not significant. The wastewater treatment sludge will no longer be considered a hazardous waste (unless the sludge otherwise exhibits a characteristic of hazardous waste) and so will not have to be counted in the facility's annual report. While this reduction in reported hazardous waste generated will certainly improve the facility's public image, it will save only a little time and money in preparing the annual report for the hazardous wastes generated by other facility operations.

There are also cost savings realized by not having to use a hazardous waste transporter or hazardous waste manifest to ship the sludge off-site for further management. Also, because the sludges are currently shipped to Canada for treatment and disposal, IBM must currently file an annual “Request for Export of Hazardous Waste” with Canada, requiring 2 hours of engineering time, as well as several hours of phone calls and follow-up to ensure the application is expeditiously processed. Such an application and expenditure of resources is not needed if the sludges being shipped to Canada are not hazardous wastes.

EPA, as well as VTDEC, will also benefit from some paperwork reduction and cost savings by not having to process and track the manifests and export documents that will otherwise have to be processed without this XL project.

In considering the cost savings and paperwork reduction associated with this XL project, it is important to consider the potential impacts if this pilot project proves successful and the regulatory flexibility ( i.e. , the exemption of the copper metallization unit from the listing description of F006 wastes) is promulgated on a national basis. The conversion to the copper metallization process represents significant operational cost savings for IBM. As a result, on a national level the overall cost (and paperwork) reduction that would be realized may be quite significant, assuming this innovative technology (or a similar one) is adopted by more semiconductor manufacturers. While there is little question that a national exemption patterned after this site-specific exemption would result in cost and paperwork reductions, because of the variability in how States implement their waste taxes, or other mechanisms for raising revenues based on the hazardous wastes generated in the State, it is difficult to estimate a projected savings on such taxes on a national level.

As stated earlier, to allow for the implementation of the XL pilot project, EPA is today modifying the current regulatory framework in 40 CFR 261.4(b) to provide a site-specific exemption for IBM's copper metallization process from the narrative description for F006 listed hazardous waste (see 40 CFR 261.31(a)), thus removing the F006 listing designation from the sludges generated by the treatment of the wastewaters generated by the copper metallization process. VTDEC likewise intends to modify its State hazardous waste program to allow for the same removal of the F006 listing designation from the wastewater treatment sludge. It should be noted that the Agency intends that the exemption will apply to all the wastewater treatment sludge resulting from the treatment of the copper metallization rinsewaters at the site, including those sludges that are in the process of being generated, sludges that result from rinsewaters already in the wastewater treatment system, and sludges that have been removed from the wastewater treatment system and are being stored pending off-site transportation.

Through the development of the Final Project Agreement (FPA), IBM has agreed to comply with several key criteria as conditions for this exemption, which are included in the regulatory text of the exemption. These conditions are focused on proving the environmental benefits of removing the F006 listing from the wastewater treatment sludges (or the inappropriateness of designating these wastewater treatment sludges F006 hazardous waste) and to gather the data and other information that would allow the Agency to make a determination regarding the possible future adoption of this site-specific exemption as a nationwide generic exemption. IBM has also agreed to commit to a good faith effort to achieve several goals related to superior environmental performance. (Note that while achieving these goals is not being proposed as a condition of the exemption due to their uncertain nature, an evaluation of the success of this XL pilot project will certainly be influenced by IBM's success in achieving their stated goals, as well as the effort expended to achieve the goals.)

As conditions of the site-specific exemption, IBM must report on the following:

(1) IBM must analyze the plating bath and rinsewaters generated from the copper metallization process. The analysis must be conducted on samples that are representative of rinsewaters and plating baths associated with all the tools that are converted to the copper metallization process and will measure for the presence of volatiles, semi-volatiles, and metals (using the methods specified in 40 CFR part 264, appendix IX) in both the plating bath and rinsewaters. IBM must collect, analyze and submit this data twice a year (by January 15 and July 15 of each year).

(2) In addition, IBM must report on the status of the greenhouse gas emission reduction project at the facility. This will include greenhouse gas reductions achieved from the conversion to the copper metallization process and IBM's additional voluntary initiative to reduce greenhouse gas emissions from its other chamber cleaning processes. IBM will track usage of C 2 F 6 , the primary PFC used in the chamber cleaning operation, and estimate the reduction in PFC emissions based on the reduction in chemical usage. Likewise, IBM will provide similar data for the chemicals that replace the C 2 F 6 , specifically, dilute nitrogen trifluoride (NF 3 ), and dilute C 2 F 6 , including the quantity of NF 3 used in the cleaning process, and the carbon equivalent potential of the NF 3 to calculate the global warming impact of the converted processes. IBM will report on the number of chambers converted during the reporting period and remaining to be converted to achieve the site global warming gas emission reduction goal along with an update of the calculated greenhouse gas emission reductions for the facility, both in terms of total mass emitted and mass emitted normalized to production. 4 Submissions of these data are likewise due twice a year, by January 15 and July 15 in conjunction with the plating bath and rinsewater analyses.

In addition, IBM commits to monitor copper concentrations in its wastewater effluent for conformance with their current NPDES (National Pollutant Discharge Elimination System) permit. IBM's stated goal is to maintain copper concentrations in the effluent discharge of less than 40% of the discharge limit.

This project will be in effect for five years from the date that the final rulemaking becomes effective (the latter of the EPA final rule or the VTDEC final rule) unless it is terminated earlier or extended by all Project Signatories (if the FPA is extended, the comments and input of stakeholders will be sought and a Federal Register document will be published). Any Project Signatory may terminate its participation in this project at any time in accordance with the procedures set forth in the FPA. The project will be completed at the conclusion of the five-year anniversary of the final rulemaking or at a time earlier or later determined by the amount of information gathered to date and the interest of the parties involved.

Upon completion of the project term, EPA and VTDEC commit to evaluating the project. If the project results indicate that it was a success, EPA will consider transferring the regulatory flexibility (or some similar flexibility) to the national RCRA program (through rulemaking procedures). Should the project results indicate that the project was not successful, EPA will promulgate a rule to remove the site-specific exemption. Absent any regulatory action on the part of the Agency, the implementing rule ( i.e. , the site-specific exemption) will remain in effect as long as IBM continues to meet its conditions ( i.e. , EPA and VTDEC intend to allow IBM to continue operating under the site-specific rule). However, as for any conditional exemption, if at any time, should IBM fail to meet the conditions of the site-specific exemption, the exemption is not applicable. Also, the Agency may promulgate a rule to withdraw the exemption at any time, subject to the procedures agreed to in the Final Project Agreement (FPA), including, but not limited to, a substantial failure on the part of any Project Signatory to comply with the terms and conditions of the FPA or if the exemption becomes inconsistent with future statutory or regulatory requirements.

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

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

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

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

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

Because the annualized cost of this final rule will be significantly less than $100 million and will not meet any of the other criteria specified in the Executive Order, it has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866, and is therefore not subject to OMB review.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq. , generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. This rule will not have a significant impact on a substantial number of small entities because it only affects the IBM facility in Essex Junction, VT and it is not a small entity. Therefore, EPA certifies that this action will not have a significant economic impact on a substantial number of small entities.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and the Comptroller General of the United States. Section 804, however, exempts from Section 801 the following types of rules: rules of particular applicability, rules relating to agency management and personnel, and 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.

This action applies only to one facility, and therefore requires no information collection activities subject to the Paperwork Reduction Act, and therefore no information collection request (ICR) will be submitted to OMB for review in compliance with the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation of why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

As noted above, this rule is applicable only to one facility in Vermont. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. EPA has also determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Under section 3006 of RCRA, EPA may authorize qualified States to administer and enforce the RCRA program for hazardous waste within the State. (See 40 CFR part 271 for the standards and requirements for authorization.) States with final authorization administer their own hazardous waste programs in lieu of the Federal program. Following authorization, EPA retains enforcement authority under sections 3008, 7003 and 3013 of RCRA.

After authorization, Federal rules written under RCRA (non-HSWA), no longer apply in the authorized state except for those issued pursuant to the Hazardous and Solid Waste Act Amendments of 1984 (HSWA). New Federal requirements imposed by those rules do not take effect in an authorized State until the State adopts the requirements as State law.

In contrast, under section 3006(g) of RCRA, new requirements and prohibitions imposed by HSWA take effect in authorized States at the same time they take effect in nonauthorized States. EPA is directed to carry out HSWA requirements and prohibitions in authorized States until the State is granted authorization to do so.

Today's rule, will be promulgated pursuant to non-HSWA authority, rather than HSWA. Vermont has received authority to administer most of the RCRA program; thus, authorized provisions of the State's hazardous waste program are administered in lieu of the Federal program. Vermont has received authority to administer the regulations that specifically identify hazardous wastes by listing them. As a result, the rule to modify the listing for F006 hazardous waste would not be effective in Vermont until the State adopts the modification. It is EPA's understanding that subsequent to the promulgation of this rule, Vermont intends to propose rules or other legal mechanisms to provide the exemption for the copper metallization process from the F006 listing description. EPA may not enforce these requirements until it approves the State requirements as a revision to the authorized State program.

The Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant,” as defined under Executive Order 12866; and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

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

Executive Order 13132, entitled: “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the regulation. EPA may also not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with the State and local officials early in the process of developing the regulation.

This rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States. Or on the distribution of power and responsibilities among the various level of government, as specified in Executive Order 13132. The exemption outlined in today's rule will not take effect unless Vermont chooses to adopt the rule or other legal implementing mechanism. Thus, the requirements of section 6 of the Executive Order do not apply to this rule. Although section 6 of Executive Order 13132 does not apply to this rule, EPA did fully coordinate and consult with the state and local officials in developing this rule.

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments. If the mandate is unfunded, EPA must provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities. Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. There are no communities of Indian tribal governments located in the vicinity of the facility. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

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

As parts of the FPMR are rewritten, they are being moved into the Federal Management Regulation (FMR). Subpart 101-6.4 of the Federal Property Management Regulations (FPMR) has been rewritten as a part of GSA's regulatory initiative to update, streamline, and clarify the FPMR. During this rewriting process, GSA surveyed the Federal Fleet Policy Council (FEDFLEET) members in November 1999 and considered the comments received.

The scope provision of the current regulation in subpart 101-6.400 states that the rule does not apply to use of a Government passenger carrier in conjunction with official travel in performing temporary duty (TDY) assignments. In redrafting the regulation, GSA revised the structure of the rule. While the scope of this final rule states that the regulation governs the use of Government passenger carriers to transport employees between their homes and place of work, the rule still does not apply to the use of a Government passenger carrier in conjunction with official travel in performing temporary duty (TDY) assignments, or permanent change of station (PCS) travel, as is made clear in § 102-5.20 of this final rule.

GSA occasionally receives inquiries about the tax implications for employees using Government passenger carriers for transportation between their residence and place of employment. Agencies and employees should examine their tax responsibilities and consult the Internal Revenue Service as needed.

Another subject about which GSA receives questions involves Government contractor use of Government passenger carriers. While this regulation, in most provisions, addresses Federal officers or employees exclusively, 41 CFR 102-34.230 states that an agency cannot authorize a Government contractor to use motor vehicles between residence and place of employment unless authorized in accordance with 31 U.S.C. 1344 and this regulation.

GSA has determined that this final rule is not a significant regulatory action for the purposes of Executive Order 12866 of September 30, 1993.

This final rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.

The Paperwork Reduction Act does not apply because this final rule does not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public which require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.

This final rule is exempt from congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel.

The Area 2A Catch Sharing Plan (CSP) for Pacific halibut off Washington, Oregon, and California is implemented in the annual management measures for the Pacific halibut fisheries published on March 20, 2000 (65 FR 14909). Those measures organize the Oregon sport fishery for halibut between Cape Falcon and Humbug Mountain into three separate seasons. The first season is a small, incidental season for halibut taken shoreward of the 30-fathom depth contour, and lasts from May 1 through September 30. Halibut are not frequently encountered in nearshore waters, and this first season offers fishers the opportunity to retain incidentally-caught halibut on fishing trips targeting other species. The second season is an all-depth fishery in May, with the season length determined by comparing pre-season estimates of expected catch per day against the halibut quota for that fishery. The third season is an all-depth fishery in August, which harvests the remainder of the all-depth quota not taken in the May fishery.

Before the start of the May 2000 all-depth season, Oregon Department of Fish and Wildlife (ODFW) estimated that the May fishery would take 106,724 lb (48,409 kg) of halibut over a 5-day season, leaving 35,893 lb (16,281 kg) of halibut for the August all-depth fishery. However, weather during the 5-day fishery was unusually pleasant and vessels landed significantly more halibut than had been estimated in preseason projections, 128,573 lb (58,320 kg). As a result of this overage in the May fishery, only 14,044 lb (6,370 kg) of halibut remained for an August fishery from the all-depth quota. Based on past August all-depth fisheries, ODFW had estimated that at least 30,000 lb (13,608 kg) would be needed to hold a single day of all-depth fishing in August. The International Pacific Halibut Commission (IPHC), ODFW, and NMFS met and agreed to cancel the August all-depth fishing opportunity, based on insufficient quota. This fishery had been set preseason for Friday, August 4.

The Area 2A CSP allows inseason changes to sport fishery season dates and other management measures, and includes several provisions for quota transfers. Under the CSP, halibut quota may be transferred from the Oregon central coast nearshore fishery to the all-depth fishery, as long as enough quota remains available to allow nearshore halibut fishing opportunities through September 30. The 2000 quota for the Oregon coast nearshore fishery is 12,324 lb (5,590 kg,) of which ODFW estimates 7,324 lb (3,322 kg) will be needed to maintain the fishery through September 30.

On August 11, 2000, NMFS met via telephone conference call with representatives of ODFW, the Pacific Fishery Management Council (Council), and IPHC to determine whether moving quota from the nearshore fishery to the all-depth fishery would provide enough halibut quota to hold a day of all-depth sport fishing in September. By combining the 14,044 lb (6,370 kg) remaining in the all-depth quota with the 5,000 lb (2,268 kg) available from the nearshore fishery, 19,368 lb (8,785 kg) could be made available to the all-depth fishery. Historically, September all-depth fishing days have had landings levels of about half the level of August all-depth fishing days in the same year. Because the August fishery this year was expected to take about 30,000 lb (13,608 kg) of halibut, managers determined that 19,368 lb (8,785 kg) would be enough halibut to hold a day of all-depth fishing in September. To ensure conservative season structuring, halibut managers further recommended holding the fishery on a week day in late September, when sport fishery participation decreases due to colder weather and the opening of the school year.

Section 24 of the 2000 Pacific halibut regulations provides NMFS with the flexibility to make certain inseason management changes, provided that the action is necessary to allow allocation objectives to be met, and that the action will not result in exceeding the catch limit for the area. The structuring objectives for this subarea are to provide two periods of fishing opportunity in May and in August in productive deeper water areas along the coast, principally for charter boat and larger private boat anglers, and to provide a period of fishing opportunity in the summer for nearshore waters for small boat anglers. While this year’s fishing season has met the structuring objective for the nearshore fishery, too much halibut was taken in the May fishery to meet the objective of having a second all-depth season in August. This inseason action would address the lost August opportunity as much as possible by scheduling an all-depth season date in September.

In consultation with the ODFW, the Council, and the IPHC, NMFS has determined that transferring 5,000 lb (2,268 kg) of unneeded quota from the nearshore fishery to the all-depth fishery and scheduling a day of all-depth fishing for Friday, September 22 accommodates the CSP’s season structuring objective for the Oregon central coast area without allowing the fishery to exceed its quota.

For the reasons stated here, NMFS announces the following changes to the 2000 annual management measures (65 FR 14909, March 20, 2000).

Regulations implemented under the authority of the Atlantic Tunas Convention Act (16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. General category effort controls (including time-period subquotas and RFDs) are specified annually under 50 CFR 635.23(a) and 635.27(a). The 2000 General category effort controls were specified on July 7, 2000 (65 FR 42883, July 12, 2000).

Under 50 CFR 635.23(a)(4), NMFS may increase or decrease the daily retention limit of large medium and giant BFT over a range from zero (on RFDs) to a maximum of three per vessel to allow for maximum utilization of the quota for BFT. Based on a review of dealer reports, daily landing trends, and the availability of BFT on the fishing grounds, NMFS has determined that adjustment to the RFD schedule, and, therefore, an increase of the daily retention limit for certain previously designated RFDs, is necessary. Therefore, NMFS adjusts the daily retention limit for September 10, 11, 17, 18, 24, and 25, 2000, to one large medium or giant BFT per vessel. NMFS has selected these days in order to give adequate advance notice to fishery participants and NMFS enforcement.

The intent of this adjustment is to allow for maximum utilization of the General category subquotas for the September fishing period (specified under 50 CFR 635.27(a)) by General category participants in order to help achieve optimum yield in the General category fishery, to collect a broad range of data for stock monitoring purposes, and to be consistent with the objectives of the HMS FMP. For these same reasons, NMFS has already adjusted the General category daily retention limit for 10 previously scheduled RFDs in July and August (65 FR 46654, July 31, 2000).

While catch rates have continued to be low so far this season, NMFS recognizes that they may increase. In addition, due to the temporal and geographical nature of the fishery, certain gear types and areas are more productive at various times during the fishery. In order to ensure that the September subquota is not filled prematurely and to ensure equitable fishing opportunities in all areas and for all gear types, NMFS has not waived all the RFDs in September. If catch rates continue to be low, some or all of the remaining previously scheduled RFDs may be waived as well.

This action is taken under 50 CFR 635.23(a)(4) and is exempt from review under Executive Order 12866.

The LLP is a limited access system authorized under section 303(d) of the Magnuson-Stevens Fishery Conservation and Management Act. The LLP is designed to limit the number, size, and operation of vessels that may be used in the affected groundfish and crab fisheries. The North Pacific Fishery Management Council (Council) adopted the LLP in June 1995, and officially submitted it to NMFS in June 1997. A proposed rule to implement the LLP was published on August 15, 1997 (62 FR 43865). The LLP was approved by NMFS on September 12, 1997. A final rule to implement the LLP was published on October 1, 1998 (63 FR 52642). Additional rules to implement an application process and a transfer process for LLP licenses were proposed on April 19, 1999 (64 FR 19113), and published as final on August 6, 1999 (64 FR 42826).

The current regulatory text regarding an eligible applicant for a Norton Sound red or blue king crab license under the LLP does not accurately represent the Council’s intent or the FMP amendment text and is inconsistent with regulations governing the LLP application requirements. The word “and” between “1993” and “1994”, in the “eligible applicant” definition at 50 CFR 679.2, is a drafting error that instead should be “or”. Currently, the regulation defining an eligible applicant for an LLP license based on participation in the Norton Sound red and blue king crab fisheries at 50 CFR 679.2 reads as follows:

The reference to § 679.4(k)(5)(ii)(G) specifies the criteria for an area/species endorsement for Norton Sound red and blue king crab on an LLP license. Basically, these criteria include one documented harvest of any amount of red or blue king crab from Norton Sound between January 1, 1993, and December 31, 1994.

This regulatory text appears clear that unless otherwise exempted, to qualify for an LLP license to fish for red or blue king crab in Norton Sound, an individual would have to:

(a) Submit an LLP application during the application period (which ended December 17, 1999);

(b) Have held a State of Alaska permit for the Norton Sound king crab summer fishery in 1993 and 1994; and

(c) Have made one documented harvest of any amount of red or blue king crab from Norton Sound during the same 2-year period, 1993 through 1994.

This regulation is essentially the same as that published in the proposed rule for public comment on August 15, 1997 (62 FR 43866). No comments were received on this eligibility issue in Norton Sound. However, a more fundamental issue is whether the intent of the Council and the LLP implementing regulations on this point are consistent. With respect to crab fisheries, the LLP is authorized by Amendment 5 to the FMP for the Commercial King and Tanner Crab Fisheries in the Bering Sea/Aleutian Islands. Amendment 5 was approved by the National Marine Fisheries Service on September 12, 1997, and added section 8.1.4.1.1 to the FMP, which reads in part as follows:

The FMP text, for individuals, shows a strong connection between holding a State permit for, and making at least one landing from, the Norton Sound summer king crab fisheries. The reason that the Council made an exception to the normal vessel ownership requirement for these fisheries is that many of the participants are not vessel owners and fished on the vessels of others, and the Council did not want to exclude any past participant from future participation in these fisheries under the LLP. In addition, the Council was aware that this approach could result in more vessels fishing for king crab in Norton Sound under the LLP, but the entry of new vessels from outside the area was unlikely due to the management of those fisheries by the State of Alaska (State) under a super-exclusive registration system.

The FMP amendment text does not specify a particular time period within which an individual would have to hold a State permit for, and make at least one landing from, the Norton Sound summer king crab fisheries. The Council newsletter dated June 28, 1995, and the preamble to the proposed rule indicate that the Council intended the Norton Sound king crab fisheries to be exempted from the standard general qualification period (GQP) of January 1, 1988, through June 27, 1992, that applies to most other crab fisheries. Instead of the GQP, the Council stipulated a landing requirement during the 2-year period 1993 through 1994. The reason for this is that the State started its super-exclusive registration system in 1993. Hence, when the Council adopted the LLP in June 1995, the period 1993 through 1994 represented the most recent participation history under the super-exclusive system for Norton Sound, and the best snapshot of local or resident involvement in the king crab fisheries in that area.

In summary, the resulting “eligible applicant” regulatory text quoted earlier substitutes an individual State permit requirement for the vessel ownership otherwise required for LLP eligibility, and exempts the Norton Sound king crab fishery from the GQP requirements. Instead, an “eligible applicant” could receive an LLP license with a Norton Sound red and blue king crab area/species endorsement if the applicant has a minimum of one documented harvest of red or blue king crab in Norton Sound during the 2-year period 1993 through 1994.

Apparently the Council intended to design the LLP to include all of the 1993 and 1994 participants in the Norton Sound summer king crab fisheries. No indication of the same concern for excess fishing capacity exists in these fisheries that the Council had for the other LLP groundfish and crab fisheries. Requiring a minimum of only one documented harvest in the Norton Sound king crab fisheries in either 1993 and 1994, but requiring a State permit in both years would be restrictive (i.e., would qualify fewer LLP participants for the Norton Sound king crab fisheries). Requiring a State permit only for the year in which the minimim landing requirement was satisfied would be less restrictive. In addition, regulations implementing the LLP application process (published August 6, 1999, 64 FR 42826) added § 679.4(k)(6) in which an applicant for a Norton Sound crab species endorsement must contain:

For this reason, the definition for “eligible applicant,” subparagraph (3) at § 679.2, is corrected.

Alaska, Fisheries, Recordkeeping and reporting requirements.

Eligible applicant * * *