OPM published a proposed rule in the Federal Register on June 21, 2000 (65 FR 38442) to amend the regulations governing SES performance appraisal. We received 15 written comments during the public comment period: 7 from Federal departments and agencies; 2 from professional organizations; and 6 from individuals. In addition, we have discussed the proposals with a number of senior executives and other stakeholders since publication of the proposed rule. There was broad support for the proposed changes, especially those that give agencies greater flexibility for tailoring their performance management systems to their organizational and operational needs. There was also general support for the concept of balanced measurement, although some commenters said they need additional information and guidance about using balanced measures. There were a few suggested modifications to the proposals, and some commenters proposed additional requirements. We discussed the public comments and suggestions with a representative group of agency SES program managers. We have included their views in our reactions to these comments and suggestions.

The members of the Senior Executive Service (SES) are dedicated, hard-working public servants. Individually and through the organizations they lead, these senior executives strive to deliver value to the American people. This results-orientation was central to the original vision for the SES, outlined in the Civil Service Reform Act (CSRA) of 1978. CSRA intended that SES performance management systems:

• “Ensure accountability for honest, economical, and efficient Government”

• “Assure that senior executives are accountable and responsible for the effectiveness and productivity of employees under them”

• “Ensure that compensation, retention, and tenure are contingent on executive success which is measured on the basis of individual and organizational performance”

• “Recognize exceptional accomplishment.”

The Government Performance and Results Act (GPRA) of 1993 and the National Partnership for Reinventing Government (NPR) validated this original vision and challenged Government to shift its focus from internal processes and outputs to results that are aligned with customer expectations.

In discussions with stakeholders that were triggered by OPM's 1998 Draft Framework for Improving the Senior Executive Service , executives and others said the current regulations discourage results-oriented performance management. They also told us that agency leaders must drive the effort to strengthen their SES performance management systems. Respondents to OPM's survey of the Senior Executive Service in 1999 reinforced these findings:

• Only 72% believed their performance rating represents a fair and accurate picture of their performance;

• Only 48% felt that SES bonus determinations are based on merit; and

• 57% did not think poor performing executives are removed from their positions.

In response to these concerns, OPM proposed to amend the regulations governing SES performance appraisal. The amended regulations give agencies more flexibility to reinvigorate their SES performance management systems—to focus on results over process. They reinforce the agencies' responsibility to communicate performance expectations and to use the results of the performance management process as a basis for performance awards and other personnel decisions. The regulations also require SES performance management systems to balance organizational results with the needs and perspectives of customers and employees.

Our intent was to substantially deregulate in order to give agencies much more flexibility to tailor their systems and approaches for managing senior executive performance to fit their unique and changing mission and operational needs and organizational climates. We pared many of the current regulatory requirements back to the statutory requirements. We eliminated requirements that are unnecessarily constraining and burdensome to agencies or are process-bound. The changes balance the agencies' desire for maximum flexibility with the need for a corporate approach that safeguards merit principles and contributes to a better, more diverse, results-oriented Government. In addition, we totally restructured the regulations to organize the material more logically and to use plain language, as the President directed in June 1998.

We broadened the focus from determining annual summary ratings to managing performance on an ongoing basis and shifted the emphasis from process to results. The restructured regulations establish separate sections on the key components of performance management: planning and communicating, monitoring, appraising, and rating performance and using performance results.

As part of this expanded focus, we revised the purpose statement to stress:

• Expecting excellence in senior executive performance;

• Holding executives accountable for results;

• Communicating regularly about goals and expectations;

• Appraising senior executive performance using measures that balance organizational results with customer, employee, or other perspectives; and

• Making performance the basis for pay, awards, and other personnel decisions.

Most commenters supported this approach. One agency in particular expressed appreciation for OPM's efforts to make the regulations as open as possible, with few absolute restrictions. Four commenters specifically mentioned support for reinforcing the links between SES performance and agency strategic planning initiatives. Another agency said the changes would help agencies hold senior executives accountable.

Two commenters questioned whether regulations are needed to accomplish the goals of this initiative. One agency said that agencies can align performance management systems with GPRA goals under current regulations. A professional organization said rulemaking is not the most appropriate vehicle for establishing guidelines for managing performance, as this is an ever-evolving art. This organization preferred that we use more informal methods to provide guidance to agencies.

It is true that many of the performance management improvements included in these regulations can be implemented under the current framework of law and regulation. In fact, several agencies have already implemented innovative performance management systems which incorporate balanced measures. However, many agencies told us that the current regulations focus too much on process and inhibit results-oriented performance management. They asked for more latitude to design performance systems that better fit their organizational cultures and operational goals. By overhauling these regulations, we hope to promote a culture change—a culture change that views SES performance management as a tool for driving results, instead of an irritating, annual chore.

We modified system requirements to prescribe a framework for agency systems that identifies key system components, without specifying how these components will be implemented. Within this framework, agencies can design performance management systems to meet their organizational and operational needs. No commenters opposed this modification.

We modified the minimum appraisal period. The current requirements provide for a minimum appraisal period of 90-120 days. Agencies can rate a senior executive's performance after he/she has completed the minimum period, provided there is enough information on which to base a rating. We proposed to keep the 90-day minimum, but remove the 120-day cap to allow agencies to establish minimum appraisal periods that are longer than 120 days. There was general support for this proposal. However, one professional organization recommended that the minimum appraisal period be lengthened from 90 days to 120 days because, in their view, 90 days does not give sufficient time to form the basis for a meaningful evaluation. The minimum appraisal period has always been 90 days, with the caveat that agencies can rate an executive's performance only if there is enough information on which to base a rating. To date, there has been no evidence of agency or senior executive difficulty with the 90-day minimum. Further, the SES program managers preferred to retain the 90-day minimum period, provided that we also retain the caveat. Therefore, we are not adopting the organization's recommendation. The final regulations reflect the minimum appraisal provisions as proposed.

We changed performance standards to performance requirements to reflect the term used in statute, and eliminated the requirement to use the term non-critical element. Agencies will establish performance requirements for critical elements and any other performance elements that will be used to appraise performance and derive the annual summary rating. There were no objections to these changes, so they are adopted as proposed.

We modified rating level requirements to remove the requirement to establish three rating levels for each critical element. The performance on each critical element and any other performance elements must be appraised. No commenters objected to these changes, so they are adopted as proposed.

We reduced the summary rating level requirements to the minimum three summary rating levels prescribed in statute ( i.e., fully successful, minimally satisfactory, and unsatisfactory). We removed the current maximum of five levels ( i.e., no more than two levels above fully successful). There were no objections to these changes, so they are adopted as well.

We revised rating terms to reflect the statutory requirement for an annual summary rating. There are now only two rating terms: the initial rating becomes initial summary rating and the final rating becomes the annual summary rating. We removed references to other types of ratings. There were no comments on these changes, so they are adopted as proposed.

We modified the method for deriving summary ratings to remove the current requirement to give critical elements more weight than non-critical elements in determining a summary rating. There were no comments on this change, so it is adopted.

The regulations require agencies to evaluate senior executive performance using measures that balance organizational results with customer satisfaction, employee perspectives, and any other measures agencies decide are appropriate. Introduction of the balanced scorecard concept in 1992 by Robert Kaplan and David Norton of the Harvard Business School as well as recent studies by the National Partnership for Reinventing Government and others have shown that both the public and private sectors are increasingly and successfully using balanced measurement to help create high-performing organizations. They indicate that an approach to performance planning, management, and measurement that balances the needs and perspectives of customers, stakeholders, and employees with the achievement of the organization's business or operational results is critical to successful improvement efforts.

By institutionalizing the use of balanced measures, the Government acknowledges what its best executives have always known: leading people and building customer coalitions are the foundation of organizational success. In OPM's 1999 SES survey, career executives reported that “leading people” and “building coalitions” are the most important contributors to executive success now, and they will be even more important in the future.

There is general support for the concept of balanced measurement, although some commenters requested additional information and guidance about using balanced measures. There was consensus that the regulations should not prescribe how balanced measures are imposed and implemented. The regulations require agencies to evaluate senior executive performance using balanced measures, but they do not dictate how. Agencies can define the measures, determine the appropriate balance among the various measures, and decide an implementation method that best meets their organizational and operational needs.

In discussions with stakeholders about the proposed regulations, some have expressed anxiety about the measurement factors and what they mean. Some fear that employee perspectives means a supervisor's popularity with employees. Some said that senior executives have multiple customers and stakeholders, many of whom have conflicting views and interests. They are concerned that these considerations might not be taken into account. A few worried that senior executives would be held accountable for program results over which they have little or no control. Others were concerned that using balanced measurement would require agencies to invest in expensive surveys or sophisticated measurement tools.

These are all valid concerns, but agencies will have latitude under the regulations to weigh employee and customer concerns in whatever manner they decide is appropriate to their missions and structures. The employee perspectives factor is not a “popularity contest.” Rather, this factor focuses on such things as how executives lead and motivate their employees, address job and training needs, and provide a healthy working environment.

• Having multiple stakeholders is a “given” in the Federal sector, where executives frequently have to balance the needs of a variety of customers and stakeholders. For example, in regulatory agencies, executives often make decisions that stakeholders do not endorse. The customer satisfaction factor considers how executives deal with stakeholders, balance the varying needs of customers, and build partnerships and coalitions to achieve results. The issue is not always whether customers or stakeholders agree with the decision, but how the executives reach the decision; i.e. , whether stakeholders have an opportunity to participate in the decision-making and share their views, whether customers are treated with interest and respect, etc.

• Regarding measurement, we believe that agencies can measure results in ways that do not require elaborate systems.

Further, agencies will have the flexibility to define measures and design systems that fit their organizational and operational needs and are aligned with their strategic and performance planning initiatives. These flexibilities should enable agencies to address their senior executives' concerns.

Two commenters suggested mandating additional measures. One was the addition of financial results to more directly reflect Kaplan and Norton's balanced scorecard approach. The other proposed adding diversity and representation.

The National Partnership for Reinventing Government's August 1999 report on Balancing Measures states that, although there is no such thing as a fixed and truly balanced set of measures, a balanced approach should factor in at least employee, customer, and business perspectives. Agencies may add other measures; however they must not dilute the importance of the key measures. (The report on Balancing Measures is available on the NPR website at: www.npr.gov.)

We discussed these recommended additions with SES program managers, who preferred that the regulations only specify the three most common factors, i.e. , organization results, customer satisfaction, and employee perspectives. Most believed that the three key measures are broad enough to incorporate diversity and financial measures. However, agencies have the flexibility to address them as separate factors, if they choose. Therefore, consistent with our approach to give agencies as much flexibility as possible to develop measures that reflect their overall mission strategies, we are not adopting the recommendations. OPM will issue supplemental guidance and continue ongoing discussions with stakeholders to help agencies address balanced measurement.

Evaluation Criteria. Two commenters proposed that we mandate additional evaluation criteria. One proposed to include selected leadership competencies as an element of each executive's appraisal. Another proposed a requirement that two of the executive core qualifications for entry into the Senior Executive Service (leading people and building coalitions) be made critical elements in all SES appraisals.

Strong and effective leadership is fundamental to executive success; it is manifested through the three balanced measures. All new career executives must demonstrate their leadership ability in five areas ( i.e. , leading change, leading people, results-driven, business acumen, and building coalitions). Some agencies have incorporated the themes of these Executive Core Qualifications into their SES performance management systems. We support this approach, but SES program managers indicated that we should not dictate it. Since the suggested changes would be inconsistent with the flexible approach taken in the regulations, we are not adopting them.

One commenter also suggested that an increased emphasis on diversity and representation as an SES performance element would serve to increase accountability for results. We agree that this is important. The appraisal criteria in the revised regulations at § 430.307(a) address an executive's progress in meeting affirmative action, equal employment opportunity, and diversity goals.

Another commenter proposed that the regulations clarify that senior executives are responsible and accountable for protecting the human and workplace assets under their control and for ensuring that these assets are used in ways that prevent pollution and use energy resources efficiently. We believe that effectively managing the work environment is inherent in both the “organizational results” and “employee perspectives” factors of balanced measurement, which agencies can describe in ways that are appropriate to their organizational needs. Accordingly, we are not adopting this proposed addition.

Supervisor Appraisals. An agency was concerned about the lack of incentive for supervisors to conduct timely performance assessments. The agency wanted the regulations to require that, before a supervisor changes jobs or leaves an agency he/she be required to appraise the performance of subordinate senior executives in writing. The proposed regulations include requirements for appraisals of senior executives who change jobs, but they are silent on departing supervisors. The current regulations do not address this, but we have issued supplemental guidance to agencies that encourages them to obtain appraisal information from departing supervisors. We sought the views of SES program managers, who felt that we should not mandate this as a governmentwide requirement, but continue to address it in supplemental guidance. We agree. Agencies have the latitude to include such a requirement in their performance management systems.

Written Progress Reviews. The same agency also felt that the requirement for periodic progress reviews needed to be strengthened by requiring that the overall results of each progress review be documented in writing. We shared this comment with the SES program managers, who did not support the proposal. We understand the concern, but we prefer to let agencies decide how best to ensure that there is ongoing communication between supervisors and senior executives about their performance. The emphasis should be on communication, rather than process or format.

Performance Review Boards. A professional organization proposed mandating that agencies include women, minorities, and people with disabilities on Performance Review Boards (PRBs) in organizations, organizational components, and geographical locations where minorities, women, and persons with disabilities are determined to be underrepresented in the workforce. We appreciate the concerns about diversity that prompted this comment, but it might be difficult for other than large departments and agencies to comply with such a requirement. The revised regulations encourage agencies to include women, minorities, and people with disabilities on PRBs. Including this in the actual language of the regulation sends a strong message to agency leadership. Further, we want to maintain the focus on the substance of diversity and diverse viewpoints, rather than on numbers or process.

Editorial Suggestions. One commenter suggested more precise language for clarity. For example, the commenter felt the term “strategic planning initiatives” might be misinterpreted as a process-focused item, rather than a linkage between performance accountability and an agency's long-term and annual goals and objectives. By using this term, we intended a broad focus on strategic and annual performance planning and evaluation efforts and any related initiatives. In our view, using more precise terminology or definition could narrow that focus or limit an agency's flexibility. Therefore, we are not adopting the suggested language changes.

During the public comment period, we discussed with agency SES program managers options for obtaining OPM approval of revised performance management systems, in accordance with 5 U.S.C. 4312. The general consensus was agency self-certification, similar to the method used to approve performance management systems for the general workforce to comply with requirements at 5 CFR 430.209 and 210. Under this approach, OPM would develop a checklist of key system requirements, and agencies would certify that their revised performance management systems comply with these requirements and provide supporting documentation as appropriate. OPM will provide these materials and accompanying guidance to agencies within 60 days of the publication of this final rule.

OPM will issue additional guidance in various formats to help agencies implement the changes, including examples of ways to use the various flexibilities provided under these regulations. We will also share information about how public and private sector organizations are using balanced measurement to evaluate senior executive performance.

The following table lists the changes to the current regulations. The “current rule” column lists the regulations in the current subpart C affected by the final regulations. The “final rule” column shows the disposition of the current rules. The third column explains each change.

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

I certify that these regulations will not have a significant economic impact on a substantial number of small entities because the regulations pertain only to Federal employees and agencies.

What events have caused this AD? The Civil Aviation Authority (CAA), which is the airworthiness authority for the Czech Republic, recently notified the FAA that an unsafe condition may exist on all LET Model L-13 “Blanik” sailplanes. The CAA reports an incident involving one of the affected sailplanes where the tail-fuselage attachment fitting was damaged. Further analysis reveals that the material characteristics of the tail-fuselage attachment fitting were inadequate.

What are the consequences if the condition is not corrected? The tail-fuselage attachment fitting is a primary structural element within the empennage. Failure of this part, if not detected and corrected, could result in loss of controlled flight.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all LET Model L-13 “Blanik” sailplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on August 9, 2000 (65 FR 48648). The NPRM proposed to require you to inspect the tail-fuselage hinge for strength requirements and damage, and would require you to replace any hinge with damage or that does not meet strength requirements.

Was the public invited to comment ? Interested persons were afforded an opportunity to participate in the making of this amendment. No comments were received on the proposed rule or the FAA's determination of the cost to the public.

What is FAA's Final Determination on this Issue? After careful review of all available information related to the subject presented above, we have determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We determined that these minor corrections:

• Will not change the meaning of the AD; and

• Will not add any additional burden upon the public than was already proposed.

How many sailplanes does this AD impact? We estimate that this AD affects 140 sailplanes in the U.S. registry.

What is the cost impact of the inspection for the affected sailplanes on the U.S. Register? We estimate that it will take approximately 4 workhours per sailplane to accomplish the inspection, at an average labor rate of $60 an hour. Based on the cost factors presented above, we estimate the total cost impact of the inspection on U.S. operators to be $33,600, or $240 per sailplane.

What is the cost impact of the replacement for the affected sailplanes on the U.S. Register? We estimate that it will take approximately 16 workhours per sailplane to accomplish the replacement (as necessary), at an average labor rate of $60 an hour. The manufacturer will provide the replacement attachment fittings at no cost. Based on the cost factors presented above, we estimate the total labor cost impact of the replacement on U.S. operators to be $960 per sailplane.

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

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

What events have caused this AD? Raytheon recently notified FAA that a Beech Model A36 airplane did not have sealant between the faying surfaces of the part number (P/N) 109-361023-13 tube assembly fitting and the P/N 36-430054-69 upper firewall panel. Raytheon found this condition during a routine production process inspection.

Other airplanes that were part of this particular production process are:

What are the consequences if the condition is not corrected? This condition, if not corrected, could result in smoke or fire penetrating the firewall and entering the flight compartment or cabin.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Raytheon Beech Models A36 and B36TC airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on August 16, 2000 (65 FR 49952). The NPRM proposed to require you to inspect for the installation of firewall sealant; and install firewall sealant if not present.

Was the public invited to comment? Interested persons were afforded an opportunity to participate in the making of this amendment. No comments were received on the proposed rule or the FAA's determination of the cost to the public.

What is FAA's Final Determination on this Issue? After careful review of all available information related to the subject presented above, we have determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We determined that these minor corrections:

• Will not change the meaning of the AD; and

• Will not add any additional burden upon the public than was already proposed.

How many airplanes does this AD impact? We estimate that this AD affects 134 airplanes in the U.S. registry.

What is the cost impact of this AD on owners/operators of the affected airplanes? We estimate the following costs to accomplish the inspection:

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

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

What events have caused this proposed AD? The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for the Federal Republic of Germany, recently notified the FAA that an unsafe condition may exist on all DG Flugzeugbau GmbH Model DG-800B sailplanes equipped with a SOLO engine. The LBA reports that 5 sailplanes had a broken crankshaft or connecting rod bearing failures. Improper drive belt tension caused the damage and failures.

What happens if you do not correct the condition? This condition, if not corrected, could result in loss of propulsion during critical phases of flight.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain DG Flugzeugbau Model DG 800B sailplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on August 10, 2000 (65 FR 48931). The NPRM proposed to measure and correct improper propeller drive belt tension.

Was the public invited to comment? Interested persons were afforded an opportunity to participate in the making of this amendment. No comments were received on the proposed rule or the FAA's determination of the cost to the public.

What is FAA's Final Determination on this Issue? After careful review of all available information related to the subject presented above, we have determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We determined that these minor corrections:

• Will not change the meaning of the AD; and

• Will not add any additional burden upon the public than was already proposed.

What are the differences between the LBA AD and this AD? The German AD requires measuring the drive belt tension within the next 25 hours time-in-service but no later than December 31, 1999, on the affected sailplanes registered in Germany. We require measuring the drive belt tension within the next 25 hours time-in-service or 90 days after the effective date of this AD, whichever occurs first.

Why is the compliance time in both hours time-in-service and calendar time? The unsafe condition described in this AD does not originate as a result of sailplane operation. Applying improper tension to the propeller belt drive can occur at any time. The condition worsens with sailplane operation, but could already exist now. The compliance times afford the following:

• The 25 hours TIS provides that the high-usage sailplanes are inspected for improper tension in a reasonable time period; and

• The 90 day compliance time provides that improper tension does not go undetected for a long period of time on low-usage sailplanes.

How many sailplanes does this AD impact? We estimate that this AD affects 6 sailplanes in the U.S. registry.

What is the cost impact of this AD on owners/operators of the affected sailplanes? We estimate the following costs to accomplish the measurement:

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

Does this AD involve a significant rule or regulatory action? For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

A copy of the final evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

What events have caused this AD? The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom, recently notified the FAA that an unsafe condition may exist on certain British Aerospace HP137 Mk1, Jetstream series 200, and Jetstream Models 3101 and 3201 airplanes. The CAA reports two incidents of cracks in the upper edge member radii and bottom diaphragm radii of the rudder quadrant support structure.

Investigation of these incidents revealed that the D-washers in the rudder quadrant support structure were installed incorrectly. These D-washers, when installed correctly, are designed to reinforce the bend radii of the affected structure.

What are the consequences if the condition is not corrected? Cracks in the rudder quadrant support structure, if not detected and corrected, could result in loss of rudder control with consequent airplane control problems.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain British Aerospace HP137 Mk1, Jetstream series 200, and Jetstream Models 3101 and 3201 airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on August 10, 2000, (65 FR 48933). The NPRM proposed to require you to inspect the rudder quadrant support structure for cracks and correct D-washer installation; and would require you to replace any cracked component and replace any incorrectly installed D-washers.

Was the public invited to comment? Interested persons were afforded an opportunity to participate in the making of this amendment. No comments were received on the proposed rule or the FAA's determination of the cost to the public.

What is FAA's Final Determination on this Issue? After careful review of all available information related to the subject presented above, we have determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We determined that these minor corrections:

• Will not change the meaning of the AD; and

• Will not add any additional burden upon the public than was already proposed.

What is the compliance time of this AD? The compliance time of this AD will be “within 90 calendar days after the effective date of this AD.”

Why is the compliance in calendar time instead of hours time-in-service (TIS)? The cracks in the rudder quadrant support structure occur as a direct result of airplane operation if the D-washers are incorrectly installed. Because the D-washers could have been incorrectly installed in the field or at the factory, the problem has the same chance of occurring on an airplane with 50 hours TIS as one with 5,000 hours TIS. Therefore, we believe that 90 calendar days will:

• Assure that the unsafe condition does not go undetected for a long period of time on the affected airplanes; and

• Will not inadvertently ground any of the affected airplanes.

How many airplanes does this AD impact? We estimate that this AD affects 264 airplanes in the U.S. registry.

What is the cost impact of this AD on owners/operators of the affected airplanes? We estimate that it will take approximately 1 workhour per airplane to accomplish the inspection of the rudder quadrant support structure and the D-washers, at an average labor rate of $60 an hour. Based on the figures presented above, the total cost impact of the inspection on U.S. operators is estimated to be $15,840, or $60 per airplane.

Costs for any necessary replacements are as follows:

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

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

On August 3, 2000, the President announced significant changes to export control policy for HPCs. The new policy continues the Administration's commitment, as announced on July 1, 1999, to review and update its HPC policy every six months to reflect rapid advancements in microprocessor technology, as well as identify any risk posed by HPC exports to certain end-users and countries. This policy strengthens America's high-tech competitiveness, while maintaining export controls to protect U.S. national security.

The Administration, in consultation with the national security community and industry, has determined the following adjustments are warranted. Effective immediately, the upper License Exception CTP level for Computer Tier 2 countries is raised from 33,000 to 45,000 MTOPS and the upper License Exception CTP level for Computer Tier 3 countries is raised from 20,000 to 28,000 MTOPS. For purposes of License Exception CTP eligibility, this rule removes the distinction between military and civil end-users and end-uses in Computer Tier 3 countries. Effective February 26, 2001, this rule raises the advance notification level for HPC exports to Computer Tier 3 countries from 12,500 to 28,000 MTOPS. As required by the NDAA, changes in the advance notification level for HPC exports to Tier 3 destinations are only effective 180 days following the President's submission of a report to Congress. The President sent this report to Congress on August 30, 2000. This new level reflects the Administration's determination that widespread commercial availability of computers with performance capabilities up to 28,000 MTOPS makes that a realistic and enforceable control level.

The Administration has decided to combine the Tier 3 civil and military licensing thresholds, as agencies have determined that the previous distinction, based on the judgement that there is a difference in the availability and ease of upgrade/assembly between four and eight processor systems, is no longer valid. Agencies now judge that this distinction no longer exists due to improvement in, and the world-wide availability of single processors, boards, chipsets, and operating systems. Removal of the distinction will allow agencies to focus export control resources on meaningful control levels.

This rule removes Argentina from Computer Tier 2 and places it in Computer Tier 1, and removes Estonia from Computer Tier 3 and places it in Computer Tier 2. However, due to requirements in the 1998 NDAA, removing Estonia from Computer Tier 3 is not effective until 120 days after the Congress receives a report justifying such a removal. On August 30, 2000, the President informed the Congress of his intent to remove Estonia from Computer Tier 3; thus, Estonia will be moved to Computer Tier 2 effective December 28, 2000.

Finally, this rule raises the CTP levels under License Exception TSR relating to items controlled under ECCNS 4D003 and 4E003 on the Commerce Control List to 33,000 MTOPS. This update reflects the rapid advances in HPC technology and aligns the level with our domestic policy and our multilateral Wassenaar Arrangement obligations. Requirements for reporting exports in § 743.1(c)(2) remain consistent with our Wassenaar Arrangement obligations.

Due to advancement in HPC and microprocessor technology, the United States will review these levels to determine if further adjustments are warranted. In particular, agencies will review control levels by December 2000 to determine if further changes are warranted; additional countries may also be moved between tiers.

Although the Export Administration Act (EAA) expired on August 20, 1994, the President invoked the International Emergency Economic Powers Act and continued in effect the EAR, and to the extent permitted by law, the provisions of the EAA, as amended, in Executive Order 12924 of August 19, 1994, as extended by the President's notices of August 15, 1995 (60 FR 42767), August 14, 1996 (61 FR 42527), August 13, 1997 (62 FR 43629), August 13, 1998 (63 FR 44121), August 10, 1999 (64 FR 44101), and August 8, 2000 (65 FR 48347).

1. This final rule has been determined to be significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. This regulation involves collections previously approved by the Office of Management and Budget under control numbers 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 45 minutes per manual submission and 40 minutes per electronic submission. Miscellaneous and recordkeeping activities account for 12 minutes per submission. Information is also collected under OMB control number 0694-0107, “National Defense Authorization Act,” Advance Notifications and Post-Shipment Verification Reports, which carries a burden hour estimate of 15 minutes per report. This rule also involves collections of information under OMB control number 0694-0073, “Export Controls of High Performance Computers” and OMB control number 0694-0093, “Import Certificates and End-User Certificates”.

3. This rule does not contain policies with Federalism implications sufficient to warrant preparation of a Federalism assessment under Executive Order 13132.

4. The provisions of the Administrative Procedure Act requiring notice of proposed rule making, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military or foreign affairs function of the United States (see 5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rule making and an opportunity for public comment be given for this rule. Because a notice of proposed rule making and opportunities for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , are inapplicable.

Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted to Office of Exporter Services, Bureau of Export Administration, Department of Commerce, P.O. Box 273, Washington, DC 20044.

The Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIAA), as amended by the Debt Collection Improvement Act of 1996 (DCIA), 28 U.S.C. 2461 note, requires each federal agency to issue regulations adjusting civil monetary penalty amounts within its jurisdiction for inflation at least once every four years, using the June consumer price index (CPI) published by the United States Department of Labor, Bureau of Labor Statistics. The last time the Commission adjusted its civil penalties was in 1996, when it published the initial adjustments required by the Act. See 61 FR 54548 (Oct. 21, 1996), 55840 (Oct. 29, 1996) (correction); Commission Rule 1.98, 16 CFR 1.98 (inflation adjustments of civil monetary penalty amounts).

The Commission is now amending Rule 1.98 to reflect the 10.02% increase in the relevant CPI since 1996 ( i.e. , from 156.7 in June 1996 to 172.4 in June 2000), with the amount of each increase being rounded in accordance with section 5(a) of the FCPIAA. The Commission is also making conforming amendments to include its Recycled Oil Rule, which was inadvertently omitted from the previous adjustment. See 16 CFR 1.98(l), as amended; 16 CFR 311.6 (prohibited acts under test procedures and labeling standards for recycled oil).

Thus, the civil penalty amount for violations of Clayton Act section 7A and of rules and orders enforced under or by reference to the FTC Act will increase from $11,000 to $12,000. See amended Rule 1.98(a), (c)-(e), (m). Civil penalty amounts prescribed by Webb-Pomerence Act section 5, Wool Products Labeling Act section 6(b), Fur Products Labeling Act sections 3(e) and 8(d)(2), and Energy Policy and Conservation Act sections 333(a) (Appliance Labeling Rule) will increase from $110 to $120. See amended Rule 1.98(g)-(k). Civil penalty amounts prescribed by Clayton Act section 11( l ), FTC Act section 10, and Energy Policy and Conservation Act section 525(a) and (b) (Recycled Oil Rule) will reflect comparable percentage increases. See amended Rule 1.98(b), (f), (l). These inflation adjustments will become effective November 20, 2000, and will apply to violations occurring after that date, pursuant to section 7 of the FCPIAA.

Because the Commission has no discretion in determining the relevant amounts of these mandatory adjustments, the Commission finds it unnecessary to seek public comment on them. See 5 U.S.C. 553(b)(B). The requirements of the Regulatory Flexibility Act also do not apply. See 5 U.S.C. 603, 604.

In a notice published in the Federal Register on September, 13, 1999 (64 FR 49495), FDA announced that a food additive petition (FAP 9A4684) had been filed by the American Ingredients Co., 3947 Broadway, Kansas City, MO 64111. The petition proposed to amend the food additive regulations in § 172.846 Sodium stearoyl lactylate (21 CFR 172.846) to provide for the safe use of sodium stearoyl lactylate as an emulsifier, stabilizer, and texturizer in cream liqueur drinks.

FDA has evaluated the data in the petition and other relevant material. Based on this information, the agency concludes that the proposed use of sodium stearoyl lactylate is safe, that the additive will achieve its intended technical effect, and, therefore, that the regulation in § 172.846 should be amended as set forth below.

In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that FDA considered and relied upon in reaching its decision to approve the petition are available for inspection at the Center for Food Safety and Applied Nutrition by appointment with the information contact person listed above. As provided in § 171.1(h), the agency will delete from the documents any materials that are not available for public disclosure before making the documents available for inspection.

The agency has previously considered the environmental effects of this rule as announced in the notice of filing for FAP 9A4684. No new information or comments have been received that would affect the agency's previous determination that there is no significant impact on the human environment and that an environmental impact statement is not required.

This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

Any person who will be adversely affected by this regulation may at any time file with the Dockets Management Branch (address above) written objections by November 13, 2000. Each objection shall be separately numbered, and each numbered objection shall specify with particularity the provisions of the regulation to which objection is made and the grounds for the objection. Each numbered objection on which a hearing is requested shall specifically so state. Failure to request a hearing for any particular objection shall constitute a waiver of the right to a hearing on that objection. Each numbered objection for which a hearing is requested shall include a detailed description and analysis of the specific factual information intended to be presented in support of the objection in the event that a hearing is held. Failure to include such a description and analysis for any particular objection shall constitute a waiver of the right to a hearing on the objection. Three copies of all documents are to be submitted and are to be identified with the docket number found in brackets in the heading of this document. Any objections received in response to the regulation may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.

The PBGC's regulations prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits of terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions are intended to reflect current conditions in the financial and annuity markets.

Three sets of interest assumptions are prescribed: (1) a set for the valuation of benefits for allocation purposes under section 4044 (found in Appendix B to Part 4044), (2) a set for the PBGC to use to determine whether a benefit is payable as a lump sum and to determine lump-sum amounts to be paid by the PBGC (found in Appendix B to Part 4022), and (3) a set for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology (found in Appendix C to Part 4022). (See the PBGC's two final rules published March 17, 2000, in the Federal Register (at 65 FR 14752 and 14753). Effective May 1, 2000, these rules changed how the interest assumptions are used and where they are set forth in the PBGC's regulations.)

Accordingly, this amendment (1) adds to Appendix B to Part 4044 the interest assumptions for valuing benefits for allocation purposes in plans with valuation dates during November 2000, (2) adds to Appendix B to Part 4022 the interest assumptions for the PBGC to use for its own lump-sum payments in plans with valuation dates during November 2000, and (3) adds to Appendix C to Part 4022 the interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology for valuation dates during November 2000.

For valuation of benefits for allocation purposes, the interest assumptions that the PBGC will use (set forth in Appendix B to part 4044) will be 7.10 percent for the first 25 years following the valuation date and 6.25 percent thereafter. These interest assumptions represent an increase (from those in effect for October 2000) of 0.10 percent for the first 25 years following the valuation date and are otherwise unchanged.

The interest assumptions that the PBGC will use for its own lump-sum payments (set forth in Appendix B to part 4022) will be 5.25 percent for the period during which a benefit is in pay status, 4.50 percent during the seven-year period directly preceding the benefit's placement in pay status, and 4.00 percent during any other years preceding the benefit's placement in pay status. These interest assumptions represent an increase (from those in effect for October 2000) of 0.25 percent for the period in which a benefit is in pay status and for the seven-year period directly preceding benefit's placement in pay status and are otherwise unchanged.

For private-sector payments, the interest assumptions (set forth in Appendix C to part 4022) will be the same as those used by the PBGC for determining and paying lump sums (set forth in Appendix B to part 4022).

The PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect, as accurately as possible, current market conditions.

Because of the need to provide immediate guidance for the valuation and payment of benefits in plans with valuation dates during November 2000, the PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

Pursuant to the authority cited below, the Department of the Navy amends 32 CFR part 752. This amendment provides notice that the Deputy Judge Advocate General of the Navy (Admiralty and Maritime Law) has made administrative corrections to the Admiralty Claims regulations. It has been determined that invitation of public comment on this amendment would be impracticable and unnecessary, and it is therefore not required under the public rulemaking provisions of 32 CFR part 336 or Secretary of the Navy Instruction 5720.45. Interested persons, however, are invited to comment in writing on this amendment. All written comments received will be considered in making subsequent amendments or revisions of 32 CFR Part 752, or the instructions on which they are based. Changes may be initiated on the basis of comments received. Written comments should be addressed to Commander Gregg A. Crevi, JAGC, U.S. Navy, Deputy Assistant Judge Advocate General (Admiralty and Maritime Law), Office of the Judge Advocate General (Code 11), 1322 Patterson Ave SE, Suite 3000, Washington Navy Yard, DC 20374-5066. It has been determined that this final rule is not a “significant regulatory action” as defined in Executive Order 12866.

It has been determined that this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. The provisions contained in this rule will have little or no direct effect on States or local governments.

This rule will not have a significant economic impact on a substantial number of small entities for purposes of the Regulatory Flexibility Act (5 U.S.C. Chapter 6).

This rule does not impose collection of information requirements for purposes of the Paperwork Reduction Act (44 U.S.C. Chapter 35, 5 CFR Part 1320).

The proposed rule was published in the April 25, 2000, Federal Register (65 FR 24164) for a 60-day public comment period. NARA announced the availability of the proposed rule widely and posted notices in its research rooms nationwide. A copy of the proposed rule was also posted on the NARA web site for review.

NARA received over 285 timely comments by mail, fax, and email to the Comments, Inquire, and OIG Hotline mailboxes. We considered multiple comments from a single respondent (e.g., to more than one NARA email address or to provide additional examples of concerns with specific copiers) as a single timely comment. We also received a number of Congressional inquiries on behalf of constituents and have considered those inquiries also.

Most of the comments were from individuals, a number of whom identified themselves as genealogists. We received comments from 9 genealogical organizations, ranging in scope from a local genealogy club in California and a subordinate Grange unit in Wisconsin to the Ohio Society of the War of 1812 to the joint Federation of Genealogical Societies/National Genealogy Society Records Preservation and Access Committee. We received comments from several individuals who identified themselves as professional/academic historians.

In response to the comments, we have modified the fees and process for ordering pension files and clarified the effective date of the final rule. In addition, we have removed the fee for diazo microfiche reproductions (§ 1258.12(d) in the proposed rule). There is no longer a need to include this item in the fee schedule because we have completed conversion of all of the microfiche previously covered by the fee schedule to products sold through NARA's microform publication program. The fee for published microfiche, unchanged since 1996, is $4.25 per fiche. All other provisions in the proposed Part 1258, including the fees for other products specified in § 1258.12, are unchanged in this final rule. Following is a discussion of the major issues addressed in the comments.

Comments: A large number of respondents commented that the fee increases for fixed fee (NATF 80 series) orders would put them beyond their reach and asked NARA to reconsider the proposal. A recurring theme throughout these comments was that many genealogists are retired and on fixed incomes. A number of respondents voiced suspicion that NARA was intentionally discouraging requests to reduce its workload. Still others questioned why NARA was raising prices when the Federal Government was reporting a budget surplus. The Records Preservation and Access Committee, which sought input from the genealogical community before developing their position, reported that that the comments to the Committee were “overwhelmingly negative” and that the $40 fee for pension files was “almost universally condemned.” The Committee's experience also reflects the comments NARA received directly.

Only a handful of respondents supported the proposed fixed fee order changes. The Records Preservation and Access Committee and one individual reluctantly supported the revised fees because they are based on actual costs. Several other individuals stated their full support for the fees. Four respondents in addition to the Records Preservation and Access Committee said that they could “live with” the proposed $17-$17.75 fee for non-pension file fixed fee orders.

NARA response: The current fees for fixed fee orders were last changed in 1991. Since that time, there have been increases in salaries, equipment costs, and postage, as well as changes in how the orders are handled that account for the additional costs. The order fulfillment system, required as part of a mandatory upgrade to our Trust Fund accounting system to meet Government financial accounting requirements and to make the system Y2K compliant, and use of a contractor to copy the records are major differences in how orders are handled.

We regret the need to increase fees for providing copies of NARA records using the fixed fee order forms and we recognize that the amount of the increase may cause a hardship for some of our customers. A major component of NARA's mission is to provide continuing access to our archival holdings, and we do not want to diminish access provided through reproduction of the records. To provide such access requires resources. As we explained in the preamble to the proposed rule, NARA does not receive appropriations to provide copies of our holdings for the public. The cost of searching for files that are not found and providing negative responses, however, is funded by appropriations. Customers who receive copies are not also absorbing the cost for negative searches and customers who receive negative responses are not charged for NARA's effort.

NARA fees for reproduction of records in 36 CFR Part 1258, including these fixed fee orders, are set under the Archivist's authority in 44 U.S.C. 2116(c). That statute requires that, to the extent possible, NARA recover the actual cost of making copies of records and other materials transferred to the custody of the Archivist of the United States. The actual cost of making copies of records in response to pension fixed-fee orders includes materials and equipment, order handling, shipping, and the labor costs associated with making the reproduction. A brief description of these cost elements for a copy of a full pension file follows.

Comments: We received a number of comments questioning our statement that the average pension file is approximately 105 pages. While some of the respondents may have confused selected pension files or military service files which they had received with full pension files, many researchers who had ordered a number of complete pension files reported their experience that the file size was generally 40-50 pages or less. The Sons of Union Veterans of the Civil War stated that none of their members had received a pension file close to 102 pages.

NARA response : Because of the number of comments on the size of files and the level of concern that a requester would be charged $40 for 20 or fewer pages, NARA conducted a new 2-week sample of all NATF 80 pension and bounty land warrant orders copied by the on-site contractor between June 16 and June 29, 2000. The 2-week sample contained 1,338 files, and all pages in each file were counted regardless of whether the order was for the selected file or remaining documents. Each side that had writing on it was counted. If the back was blank, it was not counted. For this sample, we collected additional information on the period of service for which the pension was sought to allow us to analyze the orders in greater depth.

Our analysis showed that the size of the pension file was affected by the service time period. The Civil War and post-Civil War period had the largest number of orders and the greatest variation in size of the file. Eighty-seven percent of the orders in the sample were for Civil War or post-Civil War pensions; the size of these files ranged from a low of 5 pages to 546 pages. Five percent of the files from the Civil War/post-Civil War period (60 files) had more than 200 pages. In contrast, pre-Civil War pension files accounted for only 2 percent of the total orders in the sample period (25 files) and ranged from 4 pages to 111 pages. Eleven percent of the orders in the sample were for Revolutionary War records, which are the only pension files serviced on microfilm. The size of these files ranged from a low of 5 pages to a maximum of 184 pages.

Because the new sample is larger and more current than the sample on which the proposed $40 fee for complete pension files was based, we have used the new sample as the basis for the revisions to the fees for pension file orders discussed later in this SUPPLEMENTARY INFORMATION. We have calculated the revised fees based on a weighted composite order that includes records from all three eras. The weighting omits the highest and lowest 10 percent of the orders in the samples to reduce the distortion in pricing that their inclusion would cause. For paper records (89 percent of the total files), we used an order size of 66 pages. For microfilm records (11 percent of the total files), we used an order size of 26 pages.

Comments: A relatively small number of respondents strongly endorsed the proposal to copy all pages in a pension file, and several respondents expressed surprise that more people did not realize they were not receiving the entire file. The proposed fee for the full file orders may have been the reason more researchers did not support the proposal, but 13 respondents provided other specific reasons why a partial file at a lower fee is desirable. Several comments stated that a full file is only useful if it is for the right person. These respondents noted that it is not always possible to be sure of the identification of the veteran when placing the order. Another reason raised in five comments was that the researcher might be seeking only basic information. One respondent had ordered 43 files in the past and only needed the full pension file 3 or 4 times. A professional genealogist, who endorsed offering full files, also noted that many people use the pension file only as a supplementary source for information on the veteran and his family. Several respondents expressed their views that the full pension file contains duplicative or unimportant materials.

Eighteen respondents recommended that NARA offer an option for full or partial pension files. Some of these respondents suggested a variety of alternatives including charging more for expedited service, raising fees only for customers who are not veterans, charging a flat fee for a set number of pages plus an additional charge per page or increment of 10 pages, and establishing a multi-tiered fee structure based on whether records are available on microfilm through other sources such as the Family History Centers or if NARA is the only source.

NARA response: We considered the alternative pricing structures suggested in the comments before deciding on the approach to take. It is not feasible to retain the current $10 fee for any pension file order due to the cost increases described earlier in the SUPPLEMENTARY INFORMATION.

We are aware that copies of vital records (birth, death, and marriage records) are available on an expedited basis from some states for an extra fee. We currently allow expedited service only for still pictures and motion picture and video recordings among the holdings of a Presidential library and only if staff is available to handle the order or the NARA contractor making the reproduction can provide the service. Given that the standard fee cannot stay at $10 as the respondent assumed, we do not believe that there would be sufficient demand for expedited handling of fixed fee orders to warrant setting up special handling procedures to accommodate it.

We also find no basis for charging veterans less than other citizens for the reproduction of pension files that are not related to their own service. Department of Defense regulations govern furnishing copies of military service records at the National Personnel Records Center to veterans and their immediate family members because those records are still in the legal custody of the Department. The pension files ordered through the NATF Form 85 are in NARA legal custody in the National Archives of the United States.

We carefully evaluated the proposals for charging a flat search/order handling fee plus a copying fee per page or per increment of pages. These proposals would add to the staff handling costs. The pricing information on the number of pages or increments would have to be entered in the order processing/fulfillment system for each order; the staff would have to count the number of pages and send a price quote to the customer; and, when a response is received, retrieve the file again for copying. The proposals would also increase the overall response time.

Comments: Some respondents suggested ways that NARA might reduce its costs to provide copies of military service and pension files. A number of respondents suggested that NARA put key genealogical records on the Internet. One respondent suggested that NARA donate digital copies to RootsWeb where the public could download copies. While one respondent acknowledged that it would be costly for NARA to digitize the records, most respondents did not address the cost to scan the records or maintain them on the NARA web site. Several encouraged NARA to use volunteers to assist in the process or to assist with scanning or microfilming the records. One person recommended that people rent the Revolutionary War microfilm from a Family History Center and make their own copies. Three respondents urged NARA to have the Church of Jesus Christ of Latter Day Saints microfilm or digitize the records and make the records available through their Family History Centers. Another three respondents suggested privatizing the service. One person suggested charging a $5 research fee for all searches instead of raising the reproduction fee.

NARA response: The suggestions relating to microfilming or scanning the records are not solutions that can be implemented quickly to avoid raising the fees for copies of military service and pension files. We have worked with both volunteers and private sector partners on other microfilming and digitizing projects, and plan to continue this effort. Nevertheless, scanning or microfilming the records is a very labor-intensive, long-term effort, even if volunteers or private-sector partners were to do part or all of the work. The records that NARA reproduces in response to researcher requests are different for each requester. NARA has 288 million pages of military pension files that currently exist only in paper and we would need significant resources to convert these holdings to electronic form.

In response to the suggestion that individuals rent the Revolutionary War microfilm and make their own copies, we note that NARA microfilm publications containing records of genealogical interest, including many military service records as well as Revolutionary War pension records, are widely available. NARA regional records facilities and many large libraries and genealogical societies have all or some of the microfilm sets. In addition, rolls of microfilm are available to libraries and individuals through NARA's Microfilm Rental Program (see http://www.nara.gov/publications/microfilm/micrent.html).

The other suggestions would not allow NARA to maintain the $10 fee. NARA is very fortunate to have a large corps of volunteers who provide valuable services to help us carry out our mission nationwide. We could use volunteers to assist with aspects of the fixed-fee order process at the National Archives Building in Washington, DC, but it is not possible to find enough volunteers to replace NARA staff and contractors to lower the costs to $10 per order. As noted earlier in this preamble, we do use a contractor in providing the service but privatizing the service would not reduce the cost. It is not appropriate to charge $5 for each negative research request in order to offset the cost of positive responses. As we stated previously, we do not charge a fee when no file is found.

After evaluating all of the comments on the pension file proposal, we have decided to offer researchers a choice between reproduction of the complete pension file and a pension documents packet of up to 10 pages. Providing the choice of the two reproduction packages will allow NARA to measure the relative demand for each reproduction package. We still believe that providing the complete pension file is the most appropriate way to provide access to these records when researchers are unable to view the records on microfilm or in person, but we need to further evaluate how we can best provide this service. In a future proposed rule we will seek public comment on alternative pricing structures.

For now, we are willing to continue to provide an option for researchers to obtain certain limited information that is contained in most pension files if they do not wish to order a complete file or cannot afford the full file. The pension documents package will not contain the same range of documents previously provided in the $10 fee. It will contain, to the extent that these documents are present in the file, eight documents that contain genealogical information about the pension applicant. Not all of these documents will be found in every file. The package will include any of the following items that are in the file:

We will not provide a count of the remaining pages; if a researcher wishes to obtain a full pension file after reviewing the selected package, he or she will need to order the complete file. If the entire pension file is no more than the 10 pages, we will mark the order “Complete file provided.” Based on our sample, this should occur in no more than 2 percent of the orders. So that customers are not misled that the selected documents constitute the entire file, we will include with the copies an explanation that the entire file contains more information.

The fee for a complete pension file under the new fee schedule is $37.00. The fee for the selected documents packet is $14.75. The new NATF Form 85 will be used to order either a complete pension file or a selected pension documents packet or a bounty land warrant file. As we stated in the proposed rule, the bounty land warrant file should be ordered only when there is no pension file.

Researchers who review military service files and pension files in person at the National Archives Building will continue to be able to copy whatever selected pages they want from the file at a self-service copier.

We specifically invited public comment on our planned pricing structure for separate fees for each of the different types of fixed fee orders versus a blended fee that applied to all fixed fee orders except pension files. We received only one comment on this issue, which supported the blended fee. Because customers did not express a strong preference, we have decided to retain the separate fees for each type of fixed fee order.

Comments: Several respondents commented directly on the proposed nickel increase in the fee for self-service copying. A number of respondents compared the cost of NARA's self-service copies to lower prices available at local copy centers or libraries.

NARA response: Comparing the fees for NARA's nationwide self-service copying program with those charged by a commercial copy center is misleading. The fees for self-service copying of archival records include more than just the cost of the paper, toner, and copier equipment. In addition to these two components, NARA costs that must be recovered include staff oversight of self-service copying and Trust Fund overhead/cashier costs.

NARA self-service copiers use primarily legal or ledger size paper at a cost of approximately 2 cents per page for paper and toner. These costs reflect the quantity discounts that we are able to obtain based on our volume. Our equipment costs average almost 4 cents per page for paper-to-paper copiers and almost 19 cents per page for microfilm-to-paper copiers. These higher equipment costs result from the variation in volume from facility to facility and our commitment to provide self-service copying in all of our facilities. Although very high-volume self-service copiers in the Washington, DC, area, account for 79.6 percent of the 4.9 million self-service electrostatic copies made, our 10 Presidential libraries and 13 regional archives each have at least one paper-to-paper copier available. All regional archives and several libraries have at least one microfilm reader-printer. The costs of copier equipment in all of these field facilities must be shared across fewer copies per facility. (The self-service copier costs discussed here reflect costs for 64 paper-to-paper copiers and 46 microfilm reader-printers used in self-service operations nationwide. The materials and equipment costs cited earlier for fixed-fee pension orders are for the specific copiers used in the fixed-fee operation.)

NARA is one of the few archives in the world that permits large-scale self-service copying. We are able to offer this service because of the staff oversight of the copying operation. Before a researcher is allowed to copy paper records, the records must be reviewed by a NARA staff member in the research room to ensure that none of the records are fragile or otherwise unsuitable for self-service copying, and that declassified records are properly marked with the declassification information. These staff costs and the staff time spent maintaining the equipment and supplies are also recovered through the fees for self-service copies. In the Washington, DC, area, our Trust Fund cashier staff process customer payments and service the debit card dispensers. In the field, archival staff handle customer payments. Additionally, a proportional share of the Trust Fund overhead, described previously, is allocated to self-service copying.

Comments: Most of the comments on self-service copying addressed the poor quality of copies and problems with self-service equipment, particularly in the Washington, DC, area. One respondent recommended that NARA install self-service oversize copiers at its College Park, MD and regional facilities.

NARA response: We are very aware that the current copiers at the Washington area facilities have their drawbacks. Beginning two years ago, we installed digital copiers for self-service copying. While these have worked very well in enhancing poor quality microfilm, they have proved to be too sensitive to variations in poor quality paper originals. To address the problems with paper to paper copiers, we are in the process of replacing digital copiers in the Washington area with more durable analog copiers that are easier to maintain. We are also replacing older microfilm reader-printers and the book scanner in FY 2001. The newer versions of these machines take advantage of the simplified process of printing to a digital laser printer, and should prove less prone to mechanical breakdowns. We are in the process of upgrading the microfilm reader-printers in all of our regional archives, replacing the older reader-printers with digital equipment.

We carefully considered the suggestion to provide an oversize copier at the College Park facility and the field facilities, but concluded that oversize copiers are not appropriate for self-service use. In addition to space and low demand considerations in the regional research rooms, our archival reference and preservation staff had serious concerns that oversize maps and other large documents can be more vulnerable to damage during copying. Moreover, these copiers are more complicated to use and, if something should break, more difficult to repair.

We received several questions about what fees would apply to orders that had been received but not filled by NARA when the new fee schedule is effective. We have clarified the effective date in § 1258.16 to specify that the new fees will apply to orders that are received on or after the effective date of the final rule, and not to work that is in process.

NATF Forms 81 through 86 in this proposed rule have been approved by the Office of Management and Budget under the Paperwork Reduction Act and bear current approval numbers on the face of the forms.

This rule is a significant regulatory action for purposes of Executive Order 12866 of September 30, 1993, and has been reviewed by the Office of Management and Budget. This rule does not have federalism implications. As required by the Regulatory Flexibility Act, it is hereby certified that this rule will not have a significant impact on a substantial number of small entities because the affected public is primarily individuals. This rule is not a major rule as defined in 5 U.S.C. Chapter 8, Congressional Review of Agency Rulemaking.

This is a summary of the Order by the Commission, FCC 00-347, adopted on September 14, 2000, and released on September 19, 2000. The complete text of this Order is available for inspection and copying during normal business hours in the FCC Reference Information Center, Courtyard Level, 445 12th Street, SW., Washington, DC, and also may be purchased from the Commission's copy contractor, International Transcription Services, Inc., at 202-857-3800, CY-B400, 445 12th Street, SW., Washington, DC.

This Order amends § 1.80(b) of the Commission's rules by increasing the maximum monetary forfeiture penalties available to the Commission. The Order adjusts the maximum forfeiture penalties to account for the increase in the Consumer Price Index between June 1995 and June 1999, as required by the Debt Collection Improvement Act of 1996, 28 U.S.C. 2461, and as defined in § 1.80(b)(5) of the Commission's rules. In addition to amending § 1.80(b) of the Commission's rules, the Order also deletes some obsolete or duplicative material. The Order does not affect the forfeiture base amounts specified in § 1.80(b)(4) of the Commission's rules.

As the Order simply implements the requirements of § 1.80(b)(5) and updates associated text, the Commission finds good cause to conclude that notice and comment procedures of the Administrative Procedure Act are unnecessary. 5 U.S.C. 553(b)(3)(B). Since a general notice of proposed rulemaking is not required, the Regulatory Flexibility Act does not apply. 5 U.S.C. 601 et seq.

The actions taken in the Order have been analyzed with respect to the Paperwork Reduction Act of 1995, and found to impose no new or modified reporting and record keeping requirements or burdens on the public.

This is a summary of the Commission's Report and Order, (R&O), in the R&O and Further Notice of Proposed Rule Making, (FNPRM), FCC 00-235 in WT Docket No. 98-182 and PR Docket No. 92-235, adopted on June 28, 2000, and released on July 12, 2000. The full text of this R&O and FNPRM ) is available for inspection and copying during normal business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, S.W., Washington, D.C. The complete text may be purchased from the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, N.W. Washington, D.C. 20037. The full text may also be downloaded at: www.fcc.gov. Alternative formats are available to persons with disabilities by contacting Martha Contee at (202) 418-0260 or TTY (202) 418-2555.

1. The Commission initiated this proceeding in conjunction with the 1998 biennial regulatory review under section 11 of the Communications Act of 1934, 47 U.S.C. 161. Section 11 requires the Commission to review all the regulations applicable to providers of telecommunications service and determine whether any rule is no longer in the public interest as a result of meaningful economic competition between providers of telecommunications service, and whether such regulations should be deleted or modified. As part of this review, however, the Commission found it appropriate to consider all of the regulations relating to administering wireless services, not just those pertaining to providers of a telecommunications service, to determine which regulations can be streamlined or eliminated. As a result, the R&O consolidates and streamlines the part 90 Rules.

2. First, the Commission amends the rules to eliminate the distinction between cargo handling and other uses of certain frequencies in the 450-470 MHz band.

3. Second, the Commission amends the rules to change the duration of the license term for stations authorized under part 90 from five years to ten years from the date of initial issuance or renewal. This change will result in decreased costs for licensees.

4. Third, the Commission amends the rules to change the time in which a station must be placed in operation from eight months to twelve months, thereby giving licensees more flexibility in building their stations and simplifying regulatory requirements.

5. Fourth, the Commission amends the rules to require applicants for any of the fifteen 220 MHz public safety channels set forth in §§ 90.719(c) and 90.720 of the Commission's Rules to submit their applications to a public safety frequency coordinator for frequency coordination prior to submission of the applications to the Commission.

6. Fifth, the Commission amends the rules to provide that a radio facility authorized to a public safety licensee may be shared with a Federal Government entity on a cost-shared, non-profit basis.

7. Sixth, the Commission amends the rules to clarify definitions for centralized and decentralized trunking and to establish a new process for licensing trunked systems.

8. Finally, the Commission amends the rules to reassign five low power VHF frequencies from the part 90 PLMRS to the part 95 Citizens Band Radio Service, and eliminates the licensing requirement for these frequencies.

9. As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the 1998 Biennial Regulatory Review, Notice of Proposed Rule Making (NPRM), FCC 98-251, 63 FR 65568 (Nov. 27, 1998) NPRM. The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

10. The Commission's objective in this proceeding is to streamline part 90 of the Commission's Rules and reduce regulatory requirements, and to promote more efficient use of the spectrum. Therefore, the Commission amends part 90 to: (i) Ease restrictions on uses of certain frequencies in the 450-470 MHz band; (ii) extend the license term for stations authorized under part 90; (iii) increase the time in which a station must be placed in operation; (iv) require frequency coordination for public safety applications at 220 MHz; (v) provide that a radio facility authorized to a public safety licensee may be shared with a Federal Government entity on a cost-shared, non-profit basis; (vi) clarify definitions for centralized and decentralized trunking and establishment of a new process for licensing trunked systems; and (vii) reassign five low power VHF frequencies from the part 90 Private Land Mobile Radio (PLMR) Services to the part 95 Citizens Band Radio Service, and eliminate the licensing requirement for these frequencies. The Commission believes that these changes will encourage growth of land mobile systems and enhance telecommunications offerings for consumers, producers and new entrants.

11. No petitions or comments were filed in direct response to the IRFA. The Commission has nonetheless considered the effect of these rule changes on small entities and considered other alternatives. These actions should benefit all entities subject to the rule changes, including small businesses.

12. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act, unless the Commission has developed one or more definitions that are appropriate for its activities.

Under the Small Business Act, a “small business concern” is one that: (i) Is independently owned and operated; (ii) is not dominant in its field of operation; and (iii) satisfies any additional criteria established by the Small Business Administration (SBA). A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Last, the definition of “small governmental entity” is one with populations of fewer than 50,000. There are 85,006 governmental entities in the nation. This number includes such entities as states, counties, cities, utility districts and school districts. There are no figures available on what portion of this number has populations of fewer than 50,000. However, this number includes 38,978 counties, cities and towns, and of those, 37,556, or ninety-six percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all government entities. Thus, of the 85,006 governmental entities, we estimate that ninety-six percent, or about 81,600, are small entities that may be affected by our rules.

The rules adopted in this R&O affect a number of small entities who are either licensees, or may choose to become applicants for licenses, in the PLMR Service. The adopted rules apply to businesses and local government entities that operate radio systems for their own internal use in the PLMR services. Traditionally, PLMR services have provided for the private, internal communications needs of public safety entities, state and local government entities, large and small businesses, transportation providers, the medical community, and other diverse users of two-way radio systems.

PLMR systems currently serve an essential role in a vast range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories. Because of the vast array of PLMR users, the Commission has not developed nor would it be possible to develop a definition of small businesses specifically applicable to PLMR users. Therefore, for the purpose of determining whether a licensee is a small business as defined by the Small Business Administration (SBA), each licensee would need to be evaluated within its own business area. Therefore, the appropriate definition for PLMR small businesses is the SBA's definition for radiotelephone (wireless) companies. That definition provides that a small entity is a radiotelephone company employing no more than 1,500 persons.

13. The Rules adopted in this document have minimal additional reporting or recordkeeping requirements for PLMR licensees. In fact, our decision to increase the license term from five to ten years will result in a decrease in the amount of fees paid and paperwork required. On the other hand, applicants for certain channels are now required to coordinate their frequencies prior to submission of an application, which is achieved through the use of registered frequency coordinators.

14. In the IRFA, the Commission indicated that many of the proposed rules will result in economic benefits to small business and local government entities. The Commission believes that relaxing the restrictions on cargo/non-cargo operations will help to satisfy demand for communications on these frequencies. Continued exclusion of non-cargo operations is an alternative to the approach here, but that would result in the underutilization of important spectrum resources.

15. The Commission also believes that there will be several public interest benefits gained by the decision to extend the license term for all part 90 licensees to ten years. First, there will be an economic benefit to new applicants in that their licensing costs would effectively be lowered. Under the Commission's current license fee structure, a part 90 licensee with a ten-year authorization has an economic advantage over a licensee with a five-year license in that it enjoys a longer license term at less cost. Second, existing five-year licenses will receive a ten-year renewal period upon expiration of the five-year license, thus halving the licensee's long-term renewal costs. One alternative to this action would be to leave the license term at five years. This alternative would not benefit small businesses. In addition, it would result in administrative inefficiencies for the agency.

16. Regarding the decision to increase the time in which a station must be placed in operation from eight to twelve months, the Commission envisions that this change in the regulatory treatment of PLMR stations will reduce the necessity for a licensee to request an extension of the time to construct, and thus would eliminate the costs necessary to make such a request. It will also give licensees more flexibility in determining how and when to construct their stations. The alternative to this situation is to leave the requirement date at eight months and require licensees to continue requesting extensions of time. The changes we undertake herein, however, will benefit small businesses and enhance administrative efficiencies.

17. By requiring frequency coordination for the 220 MHz public safety channels, the Commission is benefiting small entities and other applicants in a number of ways. For example, requiring frequency coordination will prevent the filing of mutually exclusive applications and will result in applications for the most appropriate channels, thereby minimizing interference potential and congestion. The alternative would be to make no changes to these licensing procedures, but then the benefits of frequency coordination would not be realized.

18. Permitting a public safety licensee to share its station with a Federal Government entity on a non-profit, cost-sharing basis, will be beneficial to both parties. It will lower the operational costs of the public safety system in that the public safety licensee would obtain cost-sharing benefits from the Federal agency, and it would enable the Federal agency to obtain needed communications at a lower cost than if the Federal agency had to implement its own communications system. An alternative to this change would be to continue prohibiting such sharing arrangements, but the Commission believes that adopting these Rules and thereby lowering costs and increasing access to needed spectrum will ease the regulatory burden on small businesses.

19. By requiring all trunked operations to be specifically licensed, the Commission is promoting licensee flexibility, facilitating more efficient use of the spectrum, and minimizing interference concerns and congestion. The alternative, i.e., to not require such licensing, would not achieve these benefits.

The Commission will send a copy of the R&O, including this FRFA, in a report to be sent to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996. In addition, the Commission will send a copy of the R&O, including FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the R&O and FRFA (or summaries thereof) will also be published in the Federal Register .

Congress made significant changes to the Endangered Species Act of 1973 (Act), as amended, with the addition of section 10(j) to allow for the designation of specific populations of listed species as “experimental populations.” Previously, we had authority to reintroduce populations into unoccupied portions of a listed species' historical range when doing so would foster the conservation and recovery of the species. However, local citizens often opposed these reintroductions because they were concerned about the placement of restrictions and prohibitions on Federal and private activities. Under section 10(j), the Secretary of the Department of the Interior can designate reintroduced populations established outside the species' current range but within its historical range as “experimental.” Based on the best available information, the Secretary will determine whether such populations are “essential,” or “nonessential,” to the continued existence of the species. Regulatory restrictions are considerably reduced under a Nonessential Experimental Population (NEP) designation.

Species listed as endangered or threatened are afforded protection primarily through the prohibitions of section 9 and the requirements of section 7. Section 9 of the Act prohibits the take of a listed species. “Take” is defined by the Act as harass, harm, pursue, hunt, shoot, wound, trap, capture, or collect, or attempt to engage in any such conduct. Section 7 of the Act outlines the procedures for Federal interagency cooperation to conserve federally listed species and designated critical habitats. It mandates all Federal agencies to determine how to use their existing authorities to further the purposes of the Act to aid in recovering listed species. It also states that Federal agencies will, in consultation with the Service, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Section 7 of the Act does not affect activities undertaken on private lands unless they are authorized, funded, or carried out by a Federal agency.

For the purposes of section 9 of the Act, a population designated as experimental is treated as threatened regardless of the species' designation elsewhere in its range. Threatened designation allows us greater discretion in devising management programs and allows us to adopt whatever regulations are necessary to provide for the conservation of a threatened species. In these situations, the general regulations applying most section 9 prohibitions to threatened species do not apply to that species, and the special rule contains the prohibitions and exceptions necessary and appropriate to conserve that species. Regulations for NEP's are usually more compatible with human activities in the reintroduction area.

For the purposes of section 7 of the Act, we treat NEP's as if the population is proposed for listing, but we treat NEP's as threatened species when they are located within a National Wildlife Refuge or National Park. When NEP's occur outside of such refuges or parks, Federal agencies are required to confer with the Service, in accordance with section 7(a)(4) of the Act, on their actions that are likely to jeopardize the continued existence of a proposed species. The results of a conference are advisory in nature, and agencies are not restricted from committing resources to projects regardless of conference findings and recommendations.

Individuals used to establish an experimental population may come from a donor population, provided their removal is not likely to jeopardize the continued existence of the species, and appropriate permits are issued in accordance with our regulations (50 CFR 17.22) prior to their removal. In this case, the donor ferret population is a captive-bred population, which was propagated with the intention of reestablishing wild populations to achieve recovery goals. In addition, wild progeny from other NEP areas (and also which originated from captive sources) may be directly translocated to the reintroduction site.

The black-footed ferret is a member of the Mustelid or weasel family; has a black facemask, black legs, and a black-tipped tail; is nearly 60 centimeters (2 feet) in length; and weighs up to 1.1 kilograms (2.5 pounds). It is the only ferret species native to North America. The historical range of the species, based on specimen collections, extends over 12 western States (Arizona, Colorado, Kansas, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, Utah, and Wyoming) and the Canadian Provinces of Alberta and Saskatchewan. Prehistoric evidence indicates that ferrets once occurred from the Yukon Territory in Canada to Mexico and Texas (Anderson et al. 1986).

Black-footed ferrets depend almost exclusively on prairie dogs for food, shelter, and denning (Henderson et al. 1969, Forrest et al. 1985). The range of the ferret coincides with that of three prairie dog species (Anderson et al. 1986), and ferrets with young have been documented only in the vicinity of active prairie dog colonies. Historically, black-footed ferrets have been reported in association with black-tailed prairie dog ( Cynomys ludovicianus ), white-tailed prairie dog ( Cynomys leucurus ), and Gunnison's prairie dog ( Cynomys gunnisoni ) towns (Anderson et al. 1986).

Significant reductions in both prairie dog numbers and distribution occurred during the last century due to widespread poisoning of prairie dogs, the conversion of native prairie to farmland, and outbreaks of sylvatic plague, particularly in the southern portions of prairie dog ranges in North America. Sylvatic plague arrived from Asia in approximately 1900. It is an exotic disease foreign to the evolutionary history of prairie dogs, which have little or no immunity to it. Black-footed ferrets also are highly susceptible to sylvatic plague. This severe reduction in the availability of the ferret's principal prey, in combination with other factors such as secondary poisoning from prairie dog toxicants, resulted in the near extinction of the black-footed ferret in the wild by 1980.

In 1974, a remnant wild population of ferrets in South Dakota, originally discovered in 1964, abruptly disappeared. Afterwards, we believed the species to be extinct; however, in 1981 a small population of ferrets was discovered near Meeteetse, Wyoming. In 1985-1986, the Meeteetse population declined to only 18 animals due to outbreaks of sylvatic plague and canine distemper. Following this critical decline, the remaining individuals were taken into captivity in 1986-1987 to serve as founders for a captive-propagation program. Since that time, captive-breeding efforts have been highly successful and have facilitated ferret reintroductions in several areas of formerly occupied range. Today, the captive population of juveniles and adults fluctuates annually between 300 and 600 animals depending on the time of year and on annual reproductive success and mortality. The captive ferret population is currently divided among six captive-breeding facilities throughout the United States and Canada, with a small number of live animals on display for educational purposes at several zoos and other facilities. Also, 65 to 90 ferrets are located at field-based captive-breeding sites in Arizona, Colorado, New Mexico, and Montana.

The recovery plan for the black-footed ferret (U.S. Fish and Wildlife Service 1988) contains the following recovery objectives for reclassification:

(a) Increasing the captive population of ferrets to 200 breeding adults by 1991 (which has been achieved);

(b) Establishing a prebreeding population of 1,500 free-ranging breeding adults in 10 or more different populations, with no fewer than 30 breeding adults in each population by the year 2010 (not achieved); and

(c) Encouraging the widest possible distribution of reintroduced animals throughout their historical range. Although several reintroduction efforts have occurred throughout the ferret's range, populations may have become self-sufficient at only one site in South Dakota.

We can reclassify the black-footed ferret to threatened status when the recovery objectives listed above have been achieved, assuming that the mortality rate of established populations remains at or below a rate at which new populations become established or increase. We have been successful in rearing black-footed ferrets in captivity, and in 1997 we reached captive-breeding program objectives.

In 1988, we divided the single captive population into three subpopulations to avoid the possibility of a catastrophic event eliminating the entire captive population ( e.g., contagious disease). Additional breeding centers were added later, and presently there are six separate subpopulations in captive-breeding facilities. Current recovery priorities emphasize the reintroduction of animals back into the wild from the captive source stock. Surplus individuals produced in captivity are now available for release into reintroduction areas.

The Service, in cooperation with western State and Federal agencies, Tribal representatives, and conservation groups, evaluates potential black-footed ferret reintroduction sites and has previously initiated ferret reintroduction projects at several sites within the historical range of the black-footed ferret. The first reintroduction project occurred in Wyoming in 1991, and subsequent efforts have taken place in South Dakota and Montana in 1994, in Arizona in 1996, a second effort in Montana in 1997, and in Colorado/Utah in 1999. The Service and the Black-Footed Ferret Recovery Implementation Team (composed of 27 State and Federal agencies, Indian Tribes, and conservation organizations) have identified the Cheyenne River Sioux Reservation as a priority black-footed ferret reintroduction site due to its extensive black-tailed prairie dog habitat and the absence of sylvatic plague.

The area designated as the Cheyenne River Sioux Reservation Black-Footed Ferret Experimental Population Area (Experimental Population Area) overlays all of Dewey and Ziebach Counties in South Dakota. The boundaries of these Counties also are the boundaries of the Cheyenne River Sioux Reservation. Within the Experimental Population Area, the primary reintroduction area will be in large black-tailed prairie dog complexes located along the Moreau River. The approximate center of the Experimental Population Area is the town of Eagle Butte, the location of Cheyenne River Sioux Tribal offices. Eagle Butte is approximately 160 kilometers (100 miles) northwest of Pierre, the capital of South Dakota.

The Experimental Population Area supports two large complexes of black-tailed prairie dog colonies located within the two-county area. These two counties encompass approximately 1,141,558 hectares (2,820,751 acres). Approximately half or 574,752 hectares (1,420,193 acres) of the Experimental Population Area is Tribal Trust and Allotted lands. The majority of this Tribal Trust and Allotted land, approximately 90 percent or 505,875 hectares (1,250,000 acres), is native rangeland used for grazing.

Some lands within the Experimental Population Area are owned by private landowners (approximately 50 percent, although much less in the primary reintroduction area). No ferrets will be released on private lands. The Tribe and other Cooperators have agreed that if any ferrets disperse onto private lands they will capture and translocate them to Tribal lands if requested by the landowner or if necessary for protection of the ferrets.

Black-footed ferret dispersal into areas outside of the Experimental Population Area is unlikely due to the large size of the Experimental Population Area, the absence of suitable nearby habitat (few if any prairie dogs can be found to the south and west), cropland barriers ( e.g., expansive cultivation over the northern portion of the Experimental Population Area), and physical barriers ( e.g., the Missouri River to the east). The Tribe estimates a total of approximately 8,408 hectares (20,777 acres) of black-tailed prairie dog colonies are potentially available to black-footed ferrets in the Experimental Population Area and could support over 200 ferret families (characterized as an adult female, three kits, and one-half an adult male; i.e., one adult male for every two adult females). Large, contiguous prairie dog colonies and the absence of physical barriers between prairie dog colonies along the Moreau River (the primary ferret release area) should facilitate ferret distribution throughout the Moreau River Reintroduction Area.

In the early 1990s, the Tribe began development of a Prairie Management Plan as a framework for managing the natural resources of 574,752 hectares (1,420,193 acres) of Tribal Trust lands within the Cheyenne River Sioux Reservation boundaries (Cheyenne River Sioux Tribe 1992). The Prairie Management Plan included development of prairie dog and black-footed ferret management strategies. Phase I of the Prairie Management Plan accomplished initial prairie dog surveys along the Moreau River in areas believed to be well-suited for ferret reintroduction. Phase II surveys confirmed that prairie dog colonies along the Moreau River are highly suitable for ferret releases due to the number and size of prairie dog colonies, the spatial relationships of prairie dog towns to each other, their location on Tribal Trust and Allotted lands, their remoteness, and their distance from human settlements (Cheyenne River Sioux Tribe 1999).

Recent surveys revealed 5,739 hectares (14,156 acres) of prairie dog colonies within the Moreau River complex. In addition to the Moreau River prairie dog complex, a secondary black-footed ferret release area was identified to the south in the Southeast Parade Management Area, an area that supports 2,280 hectares (6,621 acres) of black-tailed prairie dog towns. This area requires further evaluation to ensure appropriate conditions exist for future reintroductions of black-footed ferrets. The Tribe selected the Moreau River prairie dog complex as the primary ferret reintroduction area because of its location within the historical range of the black-footed ferret, our determination that ferrets are no longer present, the abundance of suitable ferret habitat (lands containing active prairie dog colonies), the extensive amount of land managed by the Tribe, and the area's isolation from human activities.

The primary reintroduction area within the Experimental Population Area generally includes lands along the Moreau River in Dewey and Ziebach Counties in north-central South Dakota. Extensive ferret surveys were conducted in this area in the 1980s and 1990s, but no evidence of ferrets was found. There are no confirmed records of ferrets occurring within the boundaries of the Experimental Population Area since the early 1960s.

Black-footed ferrets will be released only if biological conditions are suitable and meet the management framework developed by the Tribe, in cooperation with the BIA, the Service, private landowners, and Federal and State land managers. The Service will reevaluate ferret reintroduction efforts in the Experimental Population Area should any of the following conditions occur:

(i) Failure to maintain sufficient habitat on specific reintroduction areas to support at least 30 breeding adults after 5 years.

(ii) Failure to maintain suitable prairie dog habitat available within specific reintroduction areas.

(iii) A wild ferret population is found within the Experimental Population Area following the initial reintroduction and prior to the first breeding season. The only black-footed ferrets currently occurring in the wild result from reintroductions in Wyoming, Montana, Arizona, Utah/Colorado, and elsewhere in South Dakota over 100 miles from the reintroduction site on Cheyenne River Tribal lands. Consequently, the discovery of a black-footed ferret on the experimental population area prior to the reintroduction would confirm the presence of a new population and prevent designation of an experimental population in the area.

(iv) Discovery of an active case of canine distemper or other disease contagious to black-footed ferrets on or near the reintroduction area prior to the scheduled release.

(v) Fewer than 20 captive black-footed ferrets are available for release.

(vi) Funding is not available to implement the reintroduction phase of the project on the Cheyenne River Sioux Reservation.

(vii) Land ownership changes significantly, or cooperators withdraw from the project.

All of the above conditions will be based on information routinely collected by us or the Tribe.

The standard reintroduction protocol calls for the release of 20 or more captive-raised, or wild-translocated black-footed ferrets in the Experimental Population Area in the first year of the program, and 20 or more animals released annually for the next 2 to 4 years. Biologists expect to release 50 or more ferrets in the first year and believe a self-sustaining wild population could be established on the Cheyenne River Sioux Reservation within 5 years. Released ferrets will be excess to the needs of the captive-breeding program, and their use will not affect the genetic diversity of the captive ferret population (ferrets used for reintroduction efforts can be replaced through captive breeding). In the future, it may be necessary to interchange ferrets from established, reintroduced populations to enhance the genetic diversity of the population on the Experimental Population Area.

Recent studies (Biggins et al. 1998, Vargas et al. 1998) have documented the importance of outdoor “precon- ditioning” experience on captive-reared ferrets prior to release in the wild. Ferrets exposed to natural prairie dog burrows in outdoor pens and natural prey prior to release survive in the wild at significantly higher rates than do cage-reared, non-preconditioned ferrets. The Forest Service will participate in the reestablishment of ferrets on the Cheyenne River Sioux Reservation by preconditioning captive-raised ferrets in large open-air pens on the Conata Basin District of the Buffalo Gap National Grasslands in southwestern South Dakota. In these pens, young ferrets are exposed to live prairie dogs, burrows, and other natural stimuli. In addition, biologists may translocate up to 25 ferrets born in the wild on the Buffalo Gap National Grasslands to the Cheyenne River Sioux Reservation (if annual production levels of wild ferrets on Conata Basin are sufficient to allow translocation of excess young).

The Tribe will develop specific reintroduction plans and submit them to the Service as part of an established, annual black-footed ferret allocation process. Ferret reintroduction cooperators submit proposals by mid-March of each year, and the Service makes preliminary allocation decisions (numbers of ferrets provided to specific projects) by May. Proposals submitted to the Service include updated information on habitat, disease, project/ferret status, proposed reintroduction and monitoring methods, and predator management. In this manner, the Service and reintroduction cooperators evaluate the success of prior year efforts and apply current knowledge to various aspects of reintroduction efforts, thereby providing greater assurance of long-range reintroduction success.

We will transport ferrets to identified reintroduction areas within the Experimental Population Area and release them directly from transport cages into prairie dog burrows. Depending on the availability of suitable vaccine, we will vaccinate released animals against certain diseases (especially canine distemper) and take appropriate measures to reduce predation from coyotes, badgers, and raptors, where warranted. All ferrets we release will be marked with individually coded passive integrated transponder tags, and we may promote use of radio-telemetry studies to document ferret behavior and movements. Other monitoring will include spotlight surveys, snow tracking surveys, and visual surveillance.

Since captive-born ferrets are more susceptible to predation, starvation, and environmental conditions than wild animals, up to 90 percent of the released ferrets could die during the first year of release. Mortality is usually highest during the first month following release. In the first year of the program, a realistic goal is to have at least 25 percent of the animals survive the first winter.

The goal of the Cheyenne River Sioux Reservation reintroduction project is to establish a free-ranging population of at least 30 adults within the Experimental Population Area within 5 years of release. At the release site, population demographics and potential sources of mortality will be monitored on an annual basis (for up to 5 years). We do not intend to change the nonessential designation for this experimental population unless we deem this reintroduction a failure or the black-footed ferret is recovered in the wild.

We determine this reintroduction to be nonessential to the continued existence of the species for the following reasons:

(a) The captive population (founder population of the species) is protected against the threat of extinction from a single catastrophic event by housing ferrets in six separate subpopulations. As a result, any loss of an experimental population in the wild will not threaten the survival of the species as a whole.

(b) The primary repository of genetic diversity for the species is 240 adult ferrets maintained in the captive-breeding population. Animals selected for reintroduction purposes are surplus to the captive population. Hence, any use of animals for reintroduction efforts will not affect the overall genetic diversity of the species.

(c) Captive breeding can replace any ferrets lost during this reintroduction attempt. Juvenile ferrets produced in excess of the numbers needed to maintain the captive-breeding population are available for reintroduction.

This reintroduction will be the seventh release of ferrets back into the wild in six experimental population areas. The other experimental populations occur in Wyoming, southwestern South Dakota, north-central Montana (with two separate reintroduction efforts), Arizona, and Colorado/Utah (a single reintroduction area that overlays both States). Reintroductions are necessary to further the recovery of this species. The NEP designation alleviates landowner concerns about possible land use restrictions. This nonessential designation provides a flexible management framework for protecting and recovering black-footed ferrets while ensuring that the daily activities of landowners are unaffected.

Section 10(j) of the Act requires that an experimental population be geographically separate from other wild populations of the same species. Since the mid-1980s, the BIA and the Tribe conducted black-footed ferret surveys in the Experimental Population Area. In addition to these surveys, they spent many hours surveying prairie dog colonies at the reintroduction site. No ferrets or ferret sign (skulls, feces, trenches) were located. Therefore, we conclude that wild ferrets are no longer present on the Experimental Population Area and that this reintroduction will not overlap with any wild population.

All released ferrets and their offspring are expected to remain in the Experimental Population Area due to the presence of prime habitat (lands occupied by prairie dog colonies) and surrounding geographic barriers. We will attempt to capture any ferret that leaves the Experimental Population Area (in an attempt to identify its origin) and will either return it to the release site, translocate it to another site, or place it in captivity. If a ferret leaves the reintroduction area, but remains within the Experimental Population Area, and occupies private property, the landowner can request its removal. Ferrets will remain on private lands only when the landowner does not object to their presence.

We will mark all released ferrets and will attempt to determine the source of any unmarked animals found. Any ferret found outside the Experimental Population Area is considered endangered, as provided under the Act. We will undertake efforts to confirm whether any ferret found outside the Experimental Population Area originated from captive stock. If the animal is unrelated to members of this or other experimental populations ( i.e. , it is from noncaptive stock), we will place it in captivity as part of the breeding population to improve the overall genetic diversity of the captive population. Existing contingency plans allow for the capture and retention of up to nine ferrets that are not from captive stock. In the highly unlikely event that a ferret from captive stock is found outside the Experimental Population Area, we will move the ferret back to habitats that would support the primary population(s) of ferrets.

This reintroduction will be undertaken in cooperation with the Cheyenne River Sioux Tribe, the BIA, and the Forest Service in accordance with the “Cooperative Management Plan for Black-Footed Ferrets, Moreau River or Southeast Parade Reintroduction Areas“Cheyenne River Sioux Reservation. Copies of the Cooperative Management Plan may be obtained from the Prairie Management Program Coordinator, P.O. Box 590, Eagle Butte, South Dakota 57625. In the future, we will evaluate whether additional black-footed ferret reintroductions are feasible within the Experimental Population Area (over 45,000 total acres of occupied prairie dog habitat exist within the Experimental Population Area). Cooperating agencies and private landowners would be involved in the selection of any additional sites. Management considerations of the reintroduction project include:

Several monitoring efforts will occur during the first 5 years of the program. We will annually monitor prairie dog distribution and numbers, and test for the occurrence of sylvatic plague. Testing resident carnivores ( e.g. , coyotes) for canine distemper will begin prior to the first ferret release and continue each year. We will monitor released ferrets and their offspring annually using spotlight surveys, snowtracking, other visual survey techniques, and possibly radio-telemetry on some individuals. The surveys will incorporate methods to monitor breeding success and long-term survival rates.

Through public outreach programs, we will inform the public and other appropriate State and Federal agencies about the presence of ferrets in the Experimental Population Area and the handling of any sick or injured animals. To meet our responsibilities to treat the Tribe on a Government to Government basis, we will request that the Tribe inform Tribal members of the presence of ferrets on Cheyenne River Sioux Reservation lands, and the proper handling of any sick or injured ferrets that are found. The Tribe will serve as the primary point of contact to report any injured or dead ferrets. Reports of injured or dead ferrets also must be provided to the Service Field Supervisor (see ADDRESSES section). It is important that we determine the cause of death for any ferret carcass found. Therefore, we request that discovered ferret carcasses not be disturbed, but reported as soon as possible to appropriate Tribal and Service offices.

The presence of canine distemper in any mammal on or near the reintroduction site will cause us to reevaluate the reintroduction program. Prior to releasing ferrets, we will establish the presence or absence of canine distemper in the release area by collecting at least 20 coyotes or other carnivores. Sampled predators will be tested for canine distemper and other diseases.

We will attempt to limit the spread of distemper by discouraging people from bringing unvaccinated pets into core ferret release areas. Any dead mammal or any unusual behavior observed in animals found within the area should be reported to us. Efforts are under way to develop an effective canine distemper vaccine for black-footed ferrets. Routine sampling for sylvatic plague in prairie dog towns will take place before and during the reintroduction effort, and annually thereafter.

Ferrets selected for reintroduction are excess to the needs of the captive population. Experimental populations of ferrets are usually less genetically diverse than overall captive populations. Selecting and reestablishing breeding ferrets that compensate for any genetic biases in earlier releases can correct this disparity. The ultimate goal is to establish wild ferret populations with the maximum genetic diversity possible from founder ferrets. The eventual interchange of ferrets between established populations found elsewhere in the western United States will ensure that genetic diversity is maintained to the maximum extent possible.

We will work with the Tribe, affected landowners, and other Federal and State agencies to resolve any management conflicts in order to maintain suitable prairie dog habitat on core release areas at or above 90 percent of the habitat levels as determined by the 1999 survey.

We will reintroduce only ferrets that are surplus to the captive-breeding program. Predator control, prairie dog management, vaccination, ferret preconditioning, and improved release methods should reduce mortality. Public education will help reduce potential sources of human-caused mortality.

The Act defines “incidental take” as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. A person may take a ferret within the Experimental Population Area provided that the take is unavoidable, unintentional, and was not due to negligent conduct. Such conduct will not constitute “knowing take,” and we will not pursue legal action. However, when we have evidence of knowing ( i.e. , intentional) take of a ferret, we will refer matters to the appropriate authorities for prosecution. Any take of a black-footed ferret, whether incidental or not, must be reported to the local Service Field Supervisor (see ADDRESSES section). We expect a low level of incidental take since the reintroduction is compatible with existing land use practices for the area.

Based on studies of wild black-footed ferrets at Meeteetse, Wyoming, black-footed ferrets can be killed by motor vehicles and dogs. We expect a rate of mortality similar to what was documented at Meeteetse, and, therefore, we estimate a human-related annual mortality rate of about 12 percent of all reintroduced ferrets and their offspring. If this level is exceeded in any given year, we will develop and implement measures to reduce the level of mortality.

Service employees and authorized agents acting on their behalf may handle black-footed ferrets for scientific purposes; to relocate ferrets to avoid conflict with human activities; for recovery purposes; to relocate ferrets to other reintroduction sites; to aid sick, injured, and orphaned ferrets; and salvage dead ferrets. We will return to captivity any ferret we determine to be unfit to remain in the wild. We also will determine the disposition of all sick, injured, orphaned, and dead ferrets.

The Service and cooperators identified issues and concerns associated with the ferret reintroduction before preparing this rule. The reintroduction also has been discussed with potentially affected State agencies and landowners within the release area. Affected State agencies, landowners, and land managers have indicated support for the reintroduction of ferrets in the Experimental Population Area as a NEP, if land use activities in the Experimental Population Area are not constrained without the consent of affected landowners.

We do not expect conflicts between livestock grazing and ferret management. Grazing and prairie dog management on private lands within the Experimental Population Area will continue without additional restriction from implementation of ferret recovery activities. With proper management, we do not expect adverse impacts to ferrets from hunting, prairie dog shooting, prairie dog control, and trapping of furbearers or predators within the Experimental Population Area. If proposed prairie dog shooting or control will locally affect ferret prey base within a specific area, project biologists will determine whether ferrets could be impacted and, if necessary, take steps to avoid such impacts. If private activities impede the establishment of ferrets, we will work closely with the Tribe and landowners to develop appropriate procedures to minimize conflicts.

We will release ferrets in a manner that provides short-term protection from natural (predators, disease, lack of prey base) and human-related sources of mortality. Improved release methods, vaccination, predator control, and management of prairie dog populations should help reduce natural mortality. Releasing ferrets in areas with little human activity and development will minimize human-related sources of mortality. We will work with the Tribe and landowners to help avoid certain activities that could impair ferret recovery.

We will inform the general public of the importance of this reintroduction project in the overall recovery of the black-footed ferret. The designation of the NEP on the Cheyenne River Sioux Reservation will provide greater flexibility in the management of reintroduced ferrets. The NEP designation is necessary to secure needed cooperation of the Tribe, landowners, agencies, and recreational interests in the affected area. Based on the above information, and using the best scientific and commercial data available (in accordance with 50 CFR 17.81), the Service finds that releasing black-footed ferrets into the Experimental Population Area will further the conservation of the species.

In the July 18, 2000, proposed rule and associated notifications, we requested all interested parties to submit factual reports or information that might contribute to the development of a final rule. Appropriate Federal and State agencies, Tribes, county governments, environmental and agricultural organizations, and other interested parties were contacted and requested to comment. Articles providing information about the proposed rule and the opportunity for public comment were published in South Dakota in the “Midwest News,” the “Capitol Journal,” the “Timberlake Topic,” the “Eagle Butte News,” the “West River Progress,” and the “Rapid City Journal.” Information regarding the publication of the proposed rule as well as the text of the rule itself was made available on the Region 6 website >www.r6.fws.gov< during the public comment period. A news interview with South Dakota Public Radio was conducted by a representative of the Cheyenne River Sioux Tribe.

We informed the Cheyenne River Sioux Tribe of the publication of the proposal and the opportunity for public comment. Throughout development of the proposal we maintained regular coordination with the Cheyenne River Sioux Tribe and have received their full support in this reintroduction. Public meetings were held by the Cheyenne River Sioux Tribe on June 19 and 22, 2000, in Eagle Butte, South Dakota. Contacts were made with the South Dakota Department of Game, Fish, and Parks regarding the publication of the reintroduction proposal and the public comment period. On July 15, 2000, a presentation about the proposal, including the public comment period, was given to the South Dakota Prairie Dog Working Group, a consortium of Federal and State agencies, environmental organizations, and local agricultural groups interested in black-tailed prairie dog and black-footed ferret conservation issues. No requests for public hearings were made and no public comments were received on this proposal.

In accordance with the criteria in Executive Order 12866, the rule to designate NEP status for the black-footed ferret reintroduction into north-central South Dakota is not a significant regulatory action subject to Office of Management and Budget review. This rule will not have an annual economic effect of $100 million and will not have an adverse effect upon any economic sector, productivity, jobs, the environment, or other units of government. Therefore, a cost-benefit and economic analysis is not required.

All the lands within the NEP area are within the Cheyenne River Sioux Reservation, and the specific lands where ferrets will actually be released are Tribal Trust and Allotted lands. Other public areas in the NEP include South Dakota school lands, South Dakota Department of Game, Fish, and Parks lands, and U.S. Army Corps of Engineers lands. Most of the prairie dogs within the NEP area occur on Tribal Trust and Allotted lands, and those occurring on other lands are not needed for a successful ferret release. Land uses on private, Tribal, and State school lands will not be hindered by the reintroduction, and only voluntary participation by private landowners will occur.

This rule will not create inconsistencies with other agencies' actions or otherwise interfere with an action taken or planned by another agency. Federal agencies most interested in this rulemaking are primarily other Department of the Interior bureaus ( i.e., Bureau of Land Management and BIA) and the Department of Agriculture (Forest Service). The action allowed by this rulemaking is consistent with the policies and guidelines of the other Interior bureaus. Because of the substantial regulatory relief provided by the NEP designation, we believe the reintroduction of the black-footed ferret in the areas described will not conflict with existing human activities or hinder public utilization of the area.

This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. This rule will not raise novel legal or policy issues. The Service has previously designated experimental populations of black-footed ferrets at five other locations (in Colorado/Utah, Montana, South Dakota, Arizona, and Wyoming) and for other species at numerous locations throughout the nation.

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The area affected by this rule consists of Dewey and Ziebach Counties, South Dakota. A majority of the area affected by this rule is within the Cheyenne River Sioux Reservation, which is administered by the Tribe.

Reintroduction of ferrets allowed by this rule will not have any significant effect on recreational activities in the experimental area. We do not expect any closures of roads, trails, or other recreational areas. Suspension of prairie dog shooting for ferret management purposes will be localized and prescribed by the Tribe. We do not expect ferret reintroduction activities to affect grazing operations, resource development actions, or the status of any other plant or animal species within the release area.

Because participation in ferret reintroduction by private landowners is voluntary, this rulemaking is not expected to have any significant impact on private activities in the affected area. The designation of a NEP in this rule will significantly reduce the regulatory requirements regarding the reintroduction of ferrets on the Cheyenne River Sioux Reservation, will not create inconsistencies with other agency actions, and will not conflict with existing or proposed human activity, or Tribal and public uses of the land.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule will not have an annual effect on the economy of $100 million or more for reasons outlined above. It will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The rule does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises.

The nonessential experimental population designation will not place any additional requirements on any city, county, or other local municipalities. The site designated for release of the experimental population is predominantly Cheyenne River Sioux Tribal Trust and Allotted land administered by the Cheyenne River Sioux Tribe, who support this project. Some South Dakota State school lands may also be affected.

The State of South Dakota has expressed support for accomplishing the reintroduction through a nonessential experimental designation. Accordingly, this rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required.

Because this rulemaking does not require any action be taken by local or State government or private entities, we have determined and certify pursuant to the Unfunded Mandates Reform Act, 2, U.S.C. 1502 et seq. , that this rulemaking will not impose a cost of $100 million or more in any given year on local or State governments or private entities ( i.e., it is not a “significant regulatory action” under the Act).

In accordance with Executive Order 12630, the rule does not have significant takings implications.

Designating reintroduced populations of federally listed species as NEP's significantly reduces the Act's regulatory requirements with respect to the reintroduced listed species within the NEP. Regulatory relief can be provided regarding take of reintroduced species within NEP areas, and a special rule has been developed stipulating that unavoidable and unintentional take (including killing or injuring) of the reintroduced black-footed ferrets would not be a violation of the Act, when such take is nonnegligent and incidental to a legal activity ( e.g., livestock management, mineral development) and the activity is in accordance with State laws and regulations.

Most of the lands within the Experimental Population Area are administered by the Cheyenne River Sioux Tribe. Multiple-use management of these lands by industry and recreation interests will not change as a result of the experimental designation. Private landowners within the Experimental Population Area will still be allowed to conduct lawful control of prairie dogs, and may elect to have black-footed ferrets removed from their land should ferrets move onto private lands.

Because of the substantial regulatory relief provided by NEP designations, we do not believe the reintroduction of ferrets would conflict with existing human activities or hinder public use of the area. A takings implication assessment is not required.

In accordance with Executive Order 13132, the rule does not have significant Federalism implications to warrant the preparation of a Federalism Assessment. As stated above, most of the lands within the Experimental Population Area are Tribal Trust and Allotted lands, and multiple-use management of these lands will not change to accommodate black-footed ferrets. The designation will not impose any new restrictions on the State of South Dakota. The Service has coordinated extensively with the Tribe and State of South Dakota, and they endorse the NEP designation as the only feasible way to pursue ferret recovery in the area. A Federalism Assessment is not required.

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

This regulation contains collection of information requiring Office of Management and Budget (OMB) approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. This information collection has been approved by OMB and has been assigned OMB control number 1018-0095. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

We have analyzed this rule in accordance with the criteria of the National Environmental Policy Act of 1969 (NEPA). We have prepared an Environmental Assessment (EA) as defined under the authority of NEPA, which is available from Service offices identified in the ADDRESSES section. In that EA we determined that this rule does not constitute a major Federal action significantly affecting the quality of the human environment.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2, we have closely coordinated this rule with the Cheyenne River Sioux. Throughout development of this rule, we maintained regular contact with the Cheyenne River Sioux Tribe and have received their full support in this reintroduction.

We have waived the 30-day delay between publication of this final rule and its effective date as provided in the Administrative Procedure Act (5 U.S.C. 533(d)(3)). This is necessary to ensure that ferret kits are released on the Cheyenne River Sioux Reservation at the most biologically favorable time possible. Previous ferret releases and scientific study have demonstrated that ferret survival is markedly enhanced by adequate preconditioning of kits in outdoor pens between 60-90 days of age and subsequent release into the wild from about 120-140 days of age.

The bulk of the annual production of captive-reared ferrets for the year 2000 was completed between mid-May to mid-June. To facilitate the reintroduction of ferrets on the Cheyenne River Sioux Reservation site in 2000, we have allocated ferrets from later litters. However, in order to ensure that ferrets are reintroduced as close to optimal age as possible, it will be necessary to release allocated ferrets by October 2000.

A substantial delay of releasing ferrets at optimal ages would necessitate the transfer of allocated ferrets to other reintroduction sites and would postpone reintroduction efforts on the Cheyenne River Sioux Reservation until 2001. Such an action would substantially impact our ferret reintroduction efforts for the year 2000 and would retard overall species recovery. Good cause exists under 5 U.S.C. 553(d) for the rule to be effective immediately upon publication.

The primary authors of this rule are Mike Lockhart at telephone 307/721-8805 and Scott Larson (see ADDRESSES section).

The Atlantic swordfish and tuna fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act. The Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP) is implemented by regulations at 50 CFR part 635.

Pelagic longline gear is the dominant commercial fishing gear used by U.S. fishermen in the Atlantic Ocean to target HMS. The gear consists of a mainline, often many miles long, suspended in the water column by floats and from which baited hooks are attached on leaders (gangions). Though not completely selective, longline gear can be modified (e.g., gear configuration, hook depth, timing of sets) to target preferentially yellowfin tuna, bigeye tuna, or swordfish.

Observer data and vessel logbook data indicate that pelagic longline fishing for Atlantic swordfish and tunas results in catch of such non-target finfish species, as bluefin tuna, billfish, undersized swordfish, and of protected species, including threatened and endangered sea turtles. The bycatch of fish that are hooked but not retained due to economic or regulatory factors contributes to overall fishing mortality. Such bycatch mortality may significantly impair the rebuilding of overfished finfish stocks. Additionally, the bycatch of protected species (sea turtles or marine mammals) may significantly impair the recovery of these species.

Consistent with national standard 9 of the Magnuson-Stevens Act, NMFS has implemented measures to reduce bycatch and bycatch mortality to the extent practicable in the Atlantic pelagic longline fishery. In 1999, NMFS implemented a time and area closure in the Mid-Atlantic bight for the month of June to reduce bycatch of Atlantic bluefin tuna (64 FR 29090, May 28, 1999). Additionally, NMFS implemented a year-round time and area closure in the northeastern Gulf of Mexico (DeSoto Canyon), effective November 1, 2000; a year-round time and area closure along the east coast of Florida, effective February 1, 2001; and a 3-month time and area closure off Georgia, South Carolina, and a portion of North Carolina (Charleston Bump), effective February 1, 2001 (65 FR 47214, August 1, 2000).

Under the Endangered Species Act (ESA), NMFS is required to address fishery-related take of sea turtles that are listed as threatened or endangered. Although a high percentage of hooked sea turtles are released alive, NMFS remains concerned about serious injuries of turtles taken by pelagic longline gear. On November 19, 1999, NMFS re-initiated consultation under section 7 of the ESA based on preliminary reports observing that incidental take of loggerhead sea turtles by the Atlantic pelagic longline fishery during 1999 had exceeded levels anticipated in the Incidental Take Statement previously issued for the HMS FMP. Additionally, the consultation considered the impacts of the pelagic longline rulemaking that was in preparation because it was recognized that certain time and area closures, if implemented, could affect the overall interaction rates of the pelagic longline fleet with sea turtles.

National standard 9 of the Magnuson-Stevens Act requires that conservation and management measures, “to the extent practicable, (A) minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch.” Sea turtles are defined as bycatch in the Magnuson-Stevens Act because they may not be retained and must be released. In certain times and areas, the Atlantic pelagic longline fishery has relatively high rates of sea turtle bycatch, with associated mortality.

In its most recent Biological Opinion (BO) on management of the Atlantic HMS fisheries, completed June 30, 2000, NMFS concluded that operation of the pelagic longline fishery jeopardized the continued existence of threatened loggerhead and endangered leatherback sea turtles. This conclusion was based on the current status of the loggerhead and leatherback sea turtle populations in the Atlantic Ocean, Caribbean Sea, and Gulf of Mexico, the status of the northern subpopulation of loggerhead sea turtles, and the anticipated continuation of current levels of injury and mortality of both species described in the environmental baseline and cumulative effects section of the BO. The future trend of species abundance considers the current rate of bycatch in HMS fisheries and the potential shifts in effort estimated in the Final Supplemental Environmental Impact Statement on the Regulatory Amendment to the Atlantic Tunas, Swordfish, and Sharks Fishery Management Plan.

In order to improve monitoring of commercial landings and to enhance enforceability of the reporting regulations, this final rule clarifies or modifies several of the existing reporting requirements for dealers and owners whose vessels are federally permitted in the summer flounder, scup, black sea bass, Atlantic sea scallop, NE multispecies, monkfish, Atlantic mackerel, squid, butterfish, surfclam, ocean quahog, spiny dogfish or Atlantic bluefish fisheries. Regulations implementing the fishery management plans (FMPs) for the summer flounder, scup, black sea bass, Atlantic sea scallop, NE multispecies, monkfish, Atlantic mackerel, squid, butterfish, surfclam, ocean quahog, spiny dogfish and Atlantic bluefish fisheries were prepared under the authority of the Magnuson-Stevens Fishery Conservation and Management Act and are found at 50 CFR part 648. A proposed rule to implement these changes was published on December 2, 1999 (64 FR 67551). NMFS reopened the comment period on the proposed rule to ensure that affected fishmen and dealers were aware of the proposed reporting changes and had an opportunity to provide comments (65 FR 7820, February 16, 2000).

One of the data elements that dealers are required to provide on the weekly reports is a trip identifier for each trip from which fish are purchased. This requirement is in the existing regulations. However, the term “trip identifier” has not been defined and, thus, has not been reported by industry. Supplying a trip identifier for each trip from which fish are purchased would aid in matching dealer data with the corresponding vessel data by using a uniquely identifiable serial number from the vessel logbook, if applicable, or a combination of the date sailed, and, if the vessel sailed more than once on the same day, the sequential trip number within that date sailed. To enable dealers to provide the trip identifier to NMFS, vessel owners/operators would have to provide each dealer with the trip identifier information at the time of offloading.

Because dealer compliance would be dependent upon compliance by the vessel owner/operator, establishing responsibility for compliance would be difficult, making fair and equitable enforcement of the requirement equally difficult. Thus, a requirement to provide a trip identifier is not being imposed at this time. Due to the importance of establishing a link between the dealer and vessel data, NMFS intends to make reporting a trip identifier mandatory in the near future. NMFS will work with industry members to explore various options for transferring trip identifier information from vessels to dealers without overly burdening either party. NMFS encourages the industry to assist in the development of alternative methods for providing this information.

This final rule modifies two requirements affecting summer flounder, scup, black sea bass, Atlantic sea scallop, NE multispecies, monkfish, Atlantic mackerel, squid, butterfish, spiny dogfish or Atlantic bluefish dealers, and two requirements affecting surfclam or ocean quahog dealers.

To collect more comprehensive and accurate data on the processing segment of the industry, dealers who have been issued a summer flounder, scup, black sea bass, Atlantic sea scallop, NE multispecies, monkfish, Atlantic mackerel, squid, butterfish, spiny dogfish or an Atlantic bluefish permit must complete all sections of the Annual Processed Products Report.

Federally permitted dealers must retain copies of reports, and records upon which the reports were based, for a total of 3 years after the date of the last entry on the report. This time frame is in keeping with standard business practices and will allow for validating the compliance of past landings reported by dealers and vessels.

To ensure that quotas in the surfclam and ocean quahog fisheries are not exceeded, harvest levels must be monitored on a timely basis. While dealers have historically provided these data on a weekly basis, this action specifies that reports must be postmarked or received within 3 days of the end of the reporting week.