This rule is issued under Marketing Order No. 929, as amended (7 CFR part 929), regulating the handling of cranberries grown in Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in the State of New York, hereinafter referred to as the “order.” The marketing order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, cranberry handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable cranberries beginning September 1, 1999, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

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

This rule continues the increase in the assessment rate established for the Committee for the 1999-2000 and subsequent fiscal periods from $0.04 to $0.06 per barrel of cranberries acquired by handlers.

The cranberry marketing order provides authority for the Committee, with the approval of the Department, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers of cranberries. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 1996-1997 fiscal period, the Committee recommended, and the Department approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended or terminated by the Secretary upon recommendation and information submitted by the Committee or other information available to the Secretary.

In August of 1999, the Committee recommended, and the Department administratively approved, 1999-2000 expenditures of $548,231. The Committee met on March 30, 2000, and unanimously recommended additional 1999-2000 expenditures of $127,108 for total 1999-2000 expenditures of $675,339 and an assessment rate of $0.06 per barrel of cranberries. An increased assessment rate was recommended by the Committee to cover additional startup costs in connection with implementing a volume control program for 2000-2001. The Committee held numerous meetings to discuss the need for volume regulation which were not contemplated in the original budget for 1999-2000. Volume regulation has been implemented by the Department for the 2000-2001 season to address the industry's oversupply situation.

The major increased expenditures recommended by the Committee for the 1999-2000 fiscal period included $128,239 for administration costs, $120,307 for personnel, and $81,700 for Committee meetings. Budgeted expenses for these items in the original 1999-2000 budget were $63,531 for administration, $93,407 for personnel, and $49,200 for Committee meetings.

In deriving the recommended assessment rate increase, the Committee used the actual assessable production of 6,355,413 barrels. This figure is 1,005,413 barrels more than the 5,350,413 barrels estimated at the beginning of the fiscal period. This increased rate generated an additional $127,108 for a total of $341,108 in assessment income. This amount plus interest income, funds from other sources, and funds in the reserve will be sufficient to cover budgeted expenses. Funds in the reserve (currently $45,000) will be kept within the approximately one year's operational expenses permitted by the order (§ 929.42(a)).

The assessment rate will continue in effect indefinitely unless modified, suspended, or terminated by the Secretary upon recommendation and information submitted by the Committee or other available information.

Although the assessment rate is effective for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or the Department. Committee meetings are open to the public and interested persons may express their views at these meetings. The Department will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 1999-2000 budget and those for subsequent fiscal periods will be reviewed and, as appropriate, approved by the Department.

In a separate action, the Department will propose to increase the assessment rate for the 2000-2001 fiscal period to cover the Committee's increased costs associated with implementing volume regulation. The proposed rule inviting comments on the increase is being published in this issue of the Federal Register .

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

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

There are approximately 20 handlers of cranberries who are subject to regulation under the order and approximately 1,100 producers of cranberries in the regulated area. Small agricultural service firms, which include handlers, are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $500,000. The majority of cranberry handlers and producers may be classified as small businesses.

This rule continues the increase in the assessment rate established for the Committee and collected from handlers for the 1999-2000 and subsequent fiscal periods from $0.04 to $0.06 per barrel of cranberries. In August of 1999, the Committee recommended, and the Department administratively approved, 1999-2000 expenditures of $548,231. On March 30, 2000, the Committee met and unanimously recommended additional expenditures of $127,108 for total 1999-2000 expenditures of $675,339. The assessment rate of $0.06 is $0.02 higher than the previous rate. The quantity of assessable cranberries for the 1999-2000 year was 6,355,413 barrels, 1,005,413 barrels more than the 5,350,000 estimated at the beginning of the fiscal period. Income derived from handler assessments, along with interest income and funds from the Committee's authorized reserve, will be adequate to cover budgeted expenses.

The major increased expenditures recommended by the Committee for the 1999-2000 fiscal period include $128,239 for administration costs, $120,307 for personnel, and $81,700 for Committee meetings. Budgeted expenses for these items in the original 1999-2000 budget were $63,531 for administration, $93,407 for personnel, and $49,200 for Committee meetings.

An increased assessment rate was recommended by the Committee because the industry is in a surplus situation and recommended a volume regulation for the 2000-2001 season. The Department has approved that volume regulation. The Committee incurred additional startup costs in connection with the development and implementation of the volume regulation program. Also, the Committee held numerous meetings to discuss the volume regulation which were not contemplated in the original budget.

The Committee discussed the alternative of continuing the existing assessment rate, but concluded that the Committee could run out of funds with the implementation of the volume regulation program. In deriving the recommended assessment rate increase, the Committee used the actual assessable production for the crop year at 6,355,413 barrels. This amount plus adequate supplies in the reserve will be sufficient to cover budgeted expenses. Funds in the reserve (currently $45,000) will be kept within the approximately one year's operational expenses permitted by the order (§ 929.42(a)).

This action continues the increase in the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the marketing order. In addition, the Committee's meeting was widely publicized throughout the cranberry industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the March 30, 2000, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

This action imposes no additional reporting or recordkeeping requirements on either small or large cranberry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

The Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

An interim final rule concerning this action was published in the Federal Register on August 8, 2000. Finally, the interim final rule was made available through the Internet by the Office of the Federal Register . A 60-day comment period was provided for interested persons to respond to the interim final rule. The comment period ended on October 10, 2000, and no comments were received.

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

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

Pursuant to 5 U.S.C. 553, it is also found that good cause exists for not postponing the effective date of this action until 30 days after publication in the Federal Register because: (1) The 1999-2000 fiscal period ended August 31, 2000, and all assessable cranberries acquired by handlers during that period have been assessed; (2) handlers are aware of this action which was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years; and (3) an interim final rule was published on this action which provided for a 60-day comment period; no comments were received.

Section 263 of the ARPA requires that these regulations are to be promulgated without regard to the notice and comment provisions of 5 U.S.C. 553 or the Statement of Policy of the Secretary of Agriculture effective July 24, 1971, (36 FR 13804) relating to notices of proposed rulemaking and public participation in rulemaking. These regulations are thus issued as final.

This final rule has been determined to be economically significant under Executive Order 12866 and has been reviewed by the Office of Management and Budget (OMB). A cost-benefit assessment was completed and is summarized after the background section explaining the actions this rule will take.

The titles and numbers of the Federal assistance programs, as found in the Catalog of Federal Domestic Assistance, to which this final rule applies are: Commodity Loan and Loan Deficiency Payments—10.051; Production Flexibility Payments for Contract Commodities—10.055; Disaster Reserve Assistance—10.452.

It has been determined that the Regulatory Flexibility Act is not applicable to this rule because USDA is not required by 5 U.S.C. 553 or any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this rule.

It has been determined by an environmental evaluation that this action will have no significant impact on the quality of the human environment. Therefore, neither an environmental assessment nor an Environmental Impact Statement is needed.

The programs administered under the regulations contained in this rule are not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115 (June 24, 1983).

The provisions of Title II of the Unfunded Mandates Reform Act of 1995 are not applicable to this rule. There are no such mandates set out in this rule and because the USDA is not required by 5 U.S.C. 553 or any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this rule.

Section 263 of the ARPA requires that the regulations necessary to implement title II of the ARPA be issued as soon as practicable after the date of enactment and without regard to the notice and comment provision of 5 U.S.C. 553 or the Statement of Policy of the Secretary of Agriculture effective July 24, 1971, (36 FR 13804) relating to the notice of proposed rulemaking and public participation in rulemaking. It also requires the Secretary to use the provisions of 5 U.S.C. 808 (the Small Business Regulatory Enforcement Fairness Act (SBREFA)), which provide that a rule may take effect at such time as the agency may determine if the agency finds for good cause that public notice is impracticable, unnecessary, or contrary to the public purpose, and thus does not have to meet the requirements of § 801 of SBREFA requiring a 60-day delay for Congressional review of a major regulation before the regulation can go into effect. This final rule is considered major for the purposes of SBREFA. However, these regulations affect a large number of agricultural producers who have been significantly impacted by natural disasters and poor market conditions. Accordingly, it would be contrary to the public interest to delay the provisions of this rule because of the nature of the relief involved and such delay would be contrary to the expressed terms of the legislation. This rule is issued as a final rule and is effective immediately.

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 not have a substantial direct effect on States or their political subdivisions, or on the distribution of power and responsibilities among the various levels of Government.

Section 263 of the ARPA requires that these regulations be promulgated and the programs administered without regard to the Paperwork Reduction Act. This means that the information to be collected from the public to implement these programs and the burden, in time and money, the collection of the information would have on the public does not have to be approved by the Office of Management and Budget or be subject to the normal requirement for a 60-day public comment period.

This rule will implement the requirements of the Agricultural Risk Protection Act of 2000 (Pub. L. 106-224) related to oilseeds payments, peanut marketing assistance, honey recourse loans, crop and pasture flood compensation, and for the 2000 crop year only, the expansion of eligibility for loan deficiency payments to include producers whose cropland is not covered by a production flexibility contract. Generally, those rules follow, where applicable, existing rules as this will allow for ease of administration and speed in making the payments, consistent with the intent of the statute and with the lack of any indication, except as may be noted, of Congressional dissatisfaction with the existing programs. In making these corrections and changes however to existing regulations the rules will, at least in some cases, remove from the Code of Federal Regulations, the authority citation for the previous programs. This housekeeping matter is not intended to, and does not, change the operation of the previous programs to the extent that there are any lingering issues or disputes with respect to such programs.

Section 202 of the ARPA provides that “[t]he Secretary shall use $500,000,000 of funds of the Commodity Credit Corporation to make payments to producers of the 2000 crop of oilseeds that are eligible to obtain a marketing assistance loan under section 131 of the Agricultural Market Transition Act” (AMTA) (7 U.S.C. 7231). A similar program for the 1999 crop of oilseeds, established by section 804 of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2000 (Pub. L. 106-78), was codified in 7 CFR 1411 by publication of a final rule on June 8, 2000 (65 FR 36550). This rule provides for a 2000 Oilseeds Program similar to the 1999 program. Specifically, this rule revises: (1) the definition of “Eligible oilseed” to include sesame; (2) crop years referenced in the part 1411 definitions of “County average soybean yield”, “Established producer”, “National average oilseed yield”, and “New producer” in § 1411.103; (3) crop years used in determining “eligible producers” in § 1411.201, “payment acreage” in § 1411.204, and “payment yield” in § 1411.205; (4) the program funding references in § 1411.301 from $475 million to $500 million; and (5) the provisions relating to the final date for submission of late-file acreage reports as set out in § 1411.303 to set, in effect, a new deadline for the new program.

The regulations for this program follow the basic procedures and rules of the preceding oilseed program as the authorizing statute for the new program is the same in all material aspects, except for one aspect, as the prior program. The one difference is that established producer payments are based on the activities occurring in three prior crop years (1997-99) rather than only two prior crop years as was the case for the preceding program. The regulations incorporate that change but also differ from those for the preceding program in that they add sesame as one of the oilseeds for which payments can be made. Sesame was excluded under the prior program because the relevant statutory provisions for the new and old programs specified that the only oilseeds which would be eligible for payments would be those which were eligible to qualify a producer for a market assistance loan under section 131 of the AMTA, 7 U.S.C. 7231. Under that part of AMTA, the Secretary is allowed to make loans on “loan commodities” and “loan commodities” are defined in section 102 of the AMTA, 7 U.S.C. 7202, to include “oilseed” and the term “oilseed” is defined in section 102 to mean “soybeans, sunflower seed, rapeseed, canola, safflower, flaxseed, mustard seed, or if designated by the Secretary, other oilseeds.” Previously, the Secretary has designated crambe for inclusion as one of the “other” oilseeds which can generate AMTA loans and it has been determined, recently to so designate sesame as well. Accordingly, the new oilseed program covers sesame whereas the old program did not.

Rules governing loan deficiency payments (LDP's) are codified in 7 CFR part 1421 for commodities other than cotton and in subpart A of 7 CFR part 1427 for cotton. These regulations are modified in this rule to implement section 206 of the ARPA, which amended provisions of the AMTA related to LDP's under the marketing assistance loan program for agricultural producers. Prior to the new law, under the provisions of AMTA, except in the case of oilseeds, only producers growing contract commodities on farms covered by a production flexibility contract (PFC) were eligible to receive LDP's. Section 206(a) of the ARPA amends the AMTA to allow producers of contract commodities not eligible for a marketing assistance loan (that is contract commodities produced on farms not covered by a PFC) to receive LDP's, but for the 2000 crop year only. Further however, section 206 specifies, under the heading “Transition” that a payment to a producer newly-eligible for a payment under the new provisions for non-PFC farms that harvested a commodity on or before the date that is 30 days after the promulgation of new rules implementing the new law shall be determined as of the date the producer lost beneficial interest in the commodity, as determined by the Secretary. Section 206 then specifies, however, that otherwise, a producer shall be eligible for a payment only if the producer has a “beneficial interest” in the commodity, as determined by the Secretary. Normally, under existing rules, the farmer must have control of the commodity at the time that the payment is requested but that which appears to be addressed by the statute is that farmers on non-PFC farms may have already marketed part of this year's crop at a time at which they could not have made a request for a loan deficiency payment since it was only the change of law provided for in section 206 that permitted such a payment. Accordingly, so that the rules will be in accordance with the intent of the statute without going so far as to provide what would appear to be, otherwise, unintended benefits not possessed by other payees, this rule modifies parts 1421 and 1427 so as to allow payments to be made for eligible commodities non-PFC farms without having to meet the normal control requirements. However, this is limited. It only applies so long as, in conformity with the statute, the crops were harvested by that date which is 30 days after the publication of this rule. For such commodities, the payment will be made as of the date at which the farmer lost control or “beneficial interest” of the commodity. For crops marketed after that date, the farmer must, just like with producers on PFC farms, have control of the crop at the time that the payment is requested. It should be noted, however, that these amendments will still, in all cases, as does the statute, limit payments to those persons who are considered to be the “producers” of the commodity. Thus, the status of contract growers is not changed. Such growers continue to be ineligible for payments. Instead, the amendments reflect a change with respect to the handling of non-PFC farms only and allow for a transition for those farms to accommodate the change circumstances for this crop year. These changes are similar to changes that were implemented for the 1999 crop year under separate legislative authority. Those 1999-crop rules were published in a February 16, 2000, rule (65 FR 7942) as corrected on March 15, 2000 (65 FR 13865).

Section 204(c) of the ARPA provides that “[t]he Secretary shall use funds of the Commodity Credit Corporation to make available recourse loans to producers of the 2000 crop of honey on fair and reasonable terms and conditions, as determined by the Secretary.” Section 1122 of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriation Act of 1999 established a similar program for the 1998 crop of honey to assist producers in marketing their honey during a period of low prices. Regulations implementing the 1998 program were codified in 7 CFR 1434 by a final rule published on March 8, 1999 (64 FR 10293). Subsequently, the program was made available for the 1999 crop of honey by section 801 of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2000. The final rule implementing the 1999 program by amending 7 CFR 1434 was issued on February 16, 2000 (65 FR 7942). The 2000 program will be operated in the same manner as the 1999 program and this rule amends 7 CFR 1434 by revising the dates referenced within the regulation.

Section 257 of the ARPA authorizes the Secretary to use not more than $24 million of funds of the Commodity Credit Corporation to compensate producers for losses resulting from long-term flooding. Areas impacted by generalized flooding since 1992 due to, for example, the expansion of the boundaries of natural bodies of water such as Devil's Lake in North Dakota and Day County and surrounding areas in South Dakota, have been the subject of considerable attention and concern. Such flooding can change the basic character of the land and render it ineligible for other benefits or for enrollment in programs like the Conservation Reserve Program.

The 1998 Flood Compensation Program (FCP), codified in 7 CFR 1439 by an interim rule published on August 31, 1999 (64 FR 47358), was designed to provide assistance to producers who had incurred losses as a result of such flooding. The program provided compensation to eligible producers whose “land was inaccessible or unfit for crop production, grazing, or haying because of flooding or excess moisture during all of the period beginning October 1, 1997, through August 1, 1999.” Subsequently, a final rule published on June 8, 2000 (65 FR 36550) reorganized 7 CFR 1439 and removed the regulations related to the 1998 FCP because they were considered to be obsolete because the application deadline had passed.

This rule implements section 257 of the ARPA by implementing the 2000 FCP, which will be codified in subpart F of 7 CFR 1439. The new program will be operated in the same manner as the 1998 FCP with the exception (as required by ARPA) that the program will only be available in counties approved under the 1998 FCP. The 2000 FCP provides compensation to eligible producers whose land was not usable from October 1, 1999, through September 30, 2000. Under the provisions of the 2000 FCP, as required by the law no “person”, as “person” is defined in the applicable regulations, will be able to receive over $40,000. Also, no person can receive any payment if that person's gross revenue for 1999, as determined in conformity with the rules, was in excess of $2.5 million. Consistent with the new law, the applicant must be the owner or lessee under a binding lease, of cropland or pastureland that was used for the production of at least one of the production years 1992-99, but that has been engulfed in the period after 1992, and such person must have owned or leased the land continuously since October 1, 1999 and must still be the owner or lessee of the land. Other restrictions apply as well. To avoid the possibility of over-compensation for the same losses, producers will not be eligible to receive payments under this subpart and other programs for losses that occurred during FY 2000. As provided for in the new law, unadjusted payment rates will be equal to the average county cash rental rate per acre established by the National Agricultural Statistical Service for the 2000 crop year. For cases where such rate is not available, the rule provides for an alternative calculation method.

Section 204(a) of the ARPA provides that “[t]he Secretary shall use funds of the Commodity Credit Corporation to provide payments to producers of quota peanuts or additional peanuts to partially compensate the producers for continuing low commodity prices, and increasing costs of production for the 2000 crop year.” The ARPA specifies that the payment rate shall be equal to $30.50 per ton for quota peanuts and $16.00 per ton for additional peanuts. In order to implement this program, regulations codified at 7 CFR part 1447, which implemented a similar program for the 1999 crop year, are amended by revising the time-frame for filing an application, the payment rate for quota and additional peanuts, and the years from which actual yields may be used in establishing the yield used in the payment calculation. The 1999 crop rules were set out in the February 16, 2000, rule (65 FR 7942).

Outlays under the programs implemented by this rule will total approximately $626 million. The table summarizes the outlays, while a summary of the Cost/Benefit Assessment for each program follows.

U.S. oilseed producers are experiencing serious financial hardships as a result of low oilseed prices. The farm-level market value of oilseed production has dropped substantially since the mid-1990's. The farm value of the 1999 oilseed crop was down an estimated $5.3 billion, or 29 percent, from the previous 5-year high set in 1996, despite a 12-percent increase in production. Projections for the 2000 crop put farm value up 6 percent from 1999, but this is with a projected 13-percent increase in production from 1999. Farm value for the 2000 oilseed crop is projected down more than $4.5 billion, or 25 percent, from 1996, despite a 26 percent increase in production during the period.

In passing ARPA, Congress recognized the financial hardships being faced by oilseed producers and the inability of the AMTA payment mechanism to provide market loss payments to these producers. Section 202 of ARPA authorized the use of $500 million in CCC funds to assist oilseed producers suffering from reduced farm incomes as a result of large supplies and low prices. To be eligible for payments from these funds, a producer must produce an oilseed in 2000 that is eligible for marketing assistance loans under section 131 of AMTA (7 U.S.C. 7231). Oilseeds specifically designated as eligible for marketing assistance loans under section 102 of AMTA (7 U.S.C. 7202) are soybeans, safflower seed, canola, rapeseed, mustard seed, sunflower seed, and flaxseed. For the 2000 crop, the Secretary has also used his authority under section 102 to designate both crambe and sesame as an “other” oilseed, making them eligible for marketing assistance loans and oilseed program payments.

Oilseed program benefits for a producer are determined by multiplying the payment acreage, times a payment yield, times a payment rate determined by the Secretary. Payment acreage for an eligible established producer—a producer who also produced oilseeds in 1997, 1998, and/or 1999—is based on the higher of that producers' 1997, 1998, or 1999 acreage. For an eligible producer who was a new producer in 2000, payment acreage is based on that producer's 2000 acreage. Payment yield for an established soybean producer is the higher of that producer's actual yield in 1997, 1998, or 1999, or the Olympic average yield for that producer's county for the years 1995 through 1999. (The Olympic average is the average annual yield for the stated period after excluding the highest and lowest years.) Payment yield for a new soybean producer in 2000 is the higher of that producer's 2000 yield or the producer's county 1995-99 Olympic average yield. For an established producer of other eligible oilseeds, payment yield is the higher of that producers' 1997, 1998, or 1999 yield, or the Olympic average of the national yield for the years 1995 through 1999 for the crop for which the payment is being made. Payment yield for a new producer of an eligible oilseed other than soybeans in 2000 is the higher of that producer's 2000 yield, or the 1995-99 Olympic average national yield for the oilseed.

The payment rate determined by the Secretary must consider the number of eligible payment acres and payment yields as well as the fixed amount of CCC funds authorized by Congress for the Oilseed Program.

The Oilseed Program as prescribed by Congress in ARPA clearly lays out total available funding for direct producer payments and procedures for determining payment acreage and yield as did the 2000 Appropriations Act. For this reason no options were considered regarding these aspects of the program.

As was the case with the 2000 Appropriations Act, ARPA leaves to the Secretary's discretion the method used to establish the payment rates under the 2000 Oilseed Program. This latitude results in at least two options or alternative methods for determining the payment rate by crop for the various types of eligible oilseeds. Under the first option, payment rates would be based on production volumes with the same per unit payment rate offered for all types of oilseeds. The second option would tie payment rates among the types of oilseeds to each crop's relative market value using Olympic average farm prices for the 1995 through 1999 marketing years. The second option was selected because it incorporates into the payment rate calculation some measure of relative market value for each type of oilseed. This method was also used to determine the 1999 oilseed payment rate. Tying the payment rate to market value was thought to be more equitable to producers of higher value minor oilseeds because prices are much more volatile and quality issues much more important in the markets for these crops.

The budgetary impact of the Oilseed Program will total $500 million. The largest share of total payments will go to soybean producers who, based on pre-enrollment estimates, are expected to receive $477,933,976 or 96 percent of the total payments (Table 3). Pre-enrollment estimates for payments to minor oilseed producers are as follows: $14,516,899 for sunflower seed producers, $4,266,230 for canola producers, $1,749,382 for safflower producers, $1,136,675 for flaxseed producers, $193,049 for mustard seed producers, $124,066 for crambe producers, $16,753 for rapeseed producers, and $62,969 for sesame producers. Because this assistance will be in the form of direct payments, the program is expected to result in a dollar-for-dollar increase in farm income for oilseed producers.

Pre-enrollment estimates of per unit payment rates are expected to be highest for safflower seed and mustard seed at 35 and 33 cents per hundredweight (cwt), respectively. The lowest per unit rate is expected to be for flaxseed at 22 cents per cwt (13 cents per bushel). The pre-enrollment estimate for the soybean payment rate is 24 cents per cwt (14 cents per bushel). On a per acre basis, the payments will be highest for soybeans and safflower at $5.96 and $5.92 per acre, respectively. For the remaining oilseeds, pre-enrollment estimates indicate that per acre payments will range from a low of $2.70 for mustard seed to a high of $3.65 for sunflower seed.

Final payment acreage and yield will depend upon enrollment. If actual enrollment data indicate that claims are different than $500,000,000, a national factor will be applied so outlays equal $500,000,000. This factor could be greater than or less than 1.

The Federal Agriculture Improvement and Reform Act of 1996 (the 1996 Act) provided farms with base acreage for the 1996 crop the option to sign production flexibility contracts (PFC) for the 1996-2002 crops of wheat, corn, grain sorghum, barley, oats, upland cotton, and rice. Producers on farms enrolled in a PFC receive PFC payments that are based on the contract acres enrolled and the program yield for the contract commodity on the farm. In addition, these producers are eligible to receive commodity loan benefits for any contract commodity produced on the farm.

Results from the one-time sign-up for production flexibility payments, and thus, eligibility to receive loan benefits, suggest that most eligible cropland was enrolled in the program. Of the eligible 1996 cropland base, 98.8 percent was enrolled.

Section 135 of the 1996 Act specifies that a producer may elect to receive a loan deficiency payment (LDP) on a quantity of an eligible commodity rather than placing the commodity under loan. Commodities eligible for a nonrecourse marketing assistance loan include PFC commodities (wheat, rice, upland cotton, corn, grain sorghum, barley, and oats) and oilseeds, including soybeans, crambe, sesame, and minor oilseeds (sunflower seed, canola, flaxseed, mustard seed, safflower, and rapeseed). Under the terms of section 135, as enacted, to receive an LDP on production of a PFC commodity, the farm on which the commodity was produced must have eligible cropland covered by a PFC.

Section 206 of the ARPA, however, expands the eligibility of producers of contract commodities to receive LDPs. Under the ARPA, any producer of a contract commodity, whether or not the commodity was produced on a farm with eligible cropland covered by a PFC, is eligible to receive LDPs on all production of contract commodities on the farm for the 2000 crop only.

It was assumed that all cropland suitable for production of contract commodities was included in the total base acres eligible for enrollment in a PFC. Thus, the potential cropland which could become eligible for LDPs under the provisions of the 2000 Act is represented by the crop base that was not enrolled in a PFC. Based on this assumption, an additional 2,603,649 acres of contract commodities grown during 2000/01 will be eligible for LDPs.

Because the 1996 Act provided nearly complete planting flexibility to producers, the mix of crops grown on the additional LDP eligible cropland is unlikely to match the base acreage in 1996. It is assumed that the mix of crops on the additional eligible acres is similar to the crop mix planted nationally. In addition, it is assumed that the average yield of each contract commodity grown on these acres is equal to the national average yield, and the LDP rate is equal to the national average LDP rate. Producers on farms which do not have a PFC are expected to request payments at about half the rate of producers on farms with a PFC. The additional amount of LDPs which will likely be paid under the extension of eligibility provided by the APRA is estimated at $43 million and these benefits will be received by an additional 100,000 producers.

Because the additional LDP eligibility was not extended until after the 2000 crop had been planted, no change in supply, demand, or prices are expected under this program. Thus, the only impact on crop producers is the additional LDP payments which will increase farm income by a corresponding amount. Food prices are expected to be unaffected by the extension of eligibility of LDPs because supply, demand, and crop prices are unaffected.

The ARPA provides that recourse loans shall be provided for the 2000 crop of honey on fair and reasonable terms and conditions. It further provides that the loan rate shall be 85 percent of the average price of honey during the 5-crop year period preceding the 2000 crop year, excluding the crop years in which the average price was the highest and the lowest.

The 2000-Crop Honey Recourse Loan Program (2000 Honey Program) will be administered in the same manner as the 1999-Honey Recourse Loan Program (1999 Honey Program). The 1999 Honey Program requires that the repayment of a loan shall include repayment of principal and interest. The loans must be repaid and honey may not be delivered to the CCC in satisfaction of the loan obligation. Loans will mature no later than 9 months following the month in which the loan is disbursed. Thus, loan principal can be held for a maximum of 10 months. Uniform Storage Agreements for honey warehouses will not apply. Interest will be charged at the rate paid by CCC plus 1 percentage point. There will not be loan premiums and discounts. If a loan is not repaid, CCC will conduct a local sale of the honey used as loan collateral. If the sales proceeds do not equal or exceed the amount owed by the producer, a claim will be established.

Effective August 1995, China agreed to limit its exports to the United States and to establish a price floor on such exports. That agreement was credited by the domestic honey industry for resulting in the price increases, from an annual average price of 52.8 cents for 1994, to 68.5 cents for 1995, and 88.8 cents for 1996. However, prices then began falling, to 75.2 cents for 1997, 65.5 cents for 1998, and 59.9 cents for 1999. Honey prices reported in June 2000 by the National Honey Market News (published by the Agricultural Marketing Service) have been in the range of 40-60 cents per pound, down about 3 cents from a year ago. Producers see these lower prices resulting from abundant and cheap imports, now primarily from Argentina. Imports make up about 40 percent of the honey consumed in the United States.

The 2000-crop loan rate will be unchanged from last year at 59.0 cents per pound based on the 1995 through 1999 prices and the statutory formula. With the current relatively low price for honey, the 2000-crop loan rate is expected to exceed most current market prices. This exposes CCC to the possibility of losses if loans are defaulted on and the proceeds from sale of the honey are not large enough to cover the loan amount and interest expense. Loan default expenses are budgeted for in the program, but none has occurred in the past.

Producers who use the 2000-crop loan program will benefit from the reduced borrowing costs compared with commercial loans. Estimates of this interest savings are based on an assumed commercial rate of prime plus 2 percentage points. Currently, a honey producer would be charged 7.25 percent by CCC compared to 11.24 percent by a commercial lender. This 4-percentage point difference on program loan principal of $12 million (same as loaned in 1999) is equivalent to loan interest savings to the sector of about $400,000, if all loans are held the full 10 months. Producers may also gain from circumstances where commercial credit may not be available to them.

Program advocates assert that the primary benefit of the program is to allow producers to delay marketings to take advantage of any subsequent market price increases. A market-price increase of about 3.2 cents per pound would be needed to recover the loan interest if the loan is held to maturity. Current market prices are relatively low due to continued imports of cheap honey from China and Argentina.

Domestic honey prices are closely related to prices of imports because of sizeable quantities imported. For the 1992-1995 period, honey imports represented about 42 percent of total domestic honey consumption. Without higher foreign honey prices, it would seem likely that domestic honey prices will remain low in spite of the 2000 Honey Loan Program. The amount of honey estimated to be put under loan is not sufficient to create upward price pressure. With prices expected to be unaffected by the loan program, domestic consumers will not be impacted.

Legislation creating the 1998 Flood Compensation Program (1998 FCP) authorized the Secretary of Agriculture to provide financial assistance to eligible producers in North and South Dakota that incurred multi-year crop and grazing losses due to continuous flooding. Continuation of such flooding in these States has resulted in the need for further compensation to producers whose covered land has been unusable for agricultural production during the 2000 crop year. Section 257 of the Agricultural Risk Protection Act of 2000 (Pub. L. 106-224) authorizes the Secretary to provide assistance to these producers under the 2000 Flood Compensation Program (2000 FCP).

Reports from State Farm Service Agency offices project that about 500,000 acres in North Dakota and 729,987 acres in South Dakota will be flooded continuously during the 2000 crop year ( i.e., flooding will have occurred from October 1, 1999, through September 30, 2000). These reports also suggest that about 12,000 producers are likely to be eligible for assistance.

Under the 2000 FCP, payments will be provided to eligible producers in the approved counties based on the quantity of cropland and pasture that was incapable of agricultural production due to flooding during the 2000 crop year. Per-acre payment rates will equal the average cash rental rate established for the county by the National Agricultural Statistics Service for the 2000 crop year. One rate per county will be established for cropland and another rate for pasture. Any person with gross receipts in excess of $2.5 million for calendar year 1999 will not be eligible. The maximum payment amount for eligible persons is $40,000, however, the sum of all payments cannot exceed $24 million. Therefore, based on the projection of 12,000 eligible producers, the average payment per producer will be $2,000.

The 2000 Peanut marketing Assistance Program will provide $61.6 million in financial assistance to an estimated 40,000 producers who have experienced increased costs of production and lower market prices over the last five years. While peanut yields on average have increased about 200 pounds per acre, this increase has not ameliorated the impact of the quota price support freeze and increased cost of production. Payments under the program will be based on produced and considered produced peanuts at the rates of $30.50 per ton for quota peanuts and $16.00 per ton for additional peanuts. Payments will assist peanut producers in meeting their financial obligations and are not likely to affect the market price for peanut products. No measurable impact is likely for consumers.

Section 263 of the ARPA requires that these regulations be promulgated without regard to the notice and comment provisions of 5 U.S.C. 553 or the Statement of Policy of the Secretary of Agriculture effective July 24, 1971, (36 FR 13804) relating to notices of proposed rulemaking and public participation in rulemaking. These regulations are thus issued as final.

This final rule has been determined to be economically significant under Executive Order 12866 and has been reviewed by the Office of Management and Budget (OMB). A cost-benefit assessment was completed and is summarized after the background section explaining the actions this rule will take.

It has been determined that the Regulatory Flexibility Act is not applicable to this rule because USDA is not required by 5 U.S.C. 553 or any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this rule.

It has been determined by an environmental evaluation that this action will have no significant impact on the quality of the human environment. Therefore, neither an environmental assessment nor an Environmental Impact Statement is needed.

The programs administered under the regulations contained in this rule are not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115 (June 24, 1983).

The provisions of Title II of the Unfunded Mandates Reform Act of 1995 are not applicable to this rule because the USDA is not required by 5 U.S.C. 553 or any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this rule.

Section 263 of the ARPA requires that the regulations necessary to implement the Act be issued as soon as practicable after the date of enactment and without regard to the notice and comment provision of 5 U.S.C. 553 or the Statement of Policy of the Secretary of Agriculture effective July 24, 1971, (36 FR 13804) relating to the notice of proposed rulemaking and public participation in rulemaking. It also requires the Secretary to use the provisions of 5 U.S.C. 808 (the Small Business Regulatory Enforcement Act (SBREFA)), which provide that a rule may take effect at such time as the agency may determine if the agency finds for good cause that public notice is impracticable, unnecessary, or contrary to the public purpose, and thus does not have to meet the requirements of § 801 of SBREFA requiring a 60-day delay for Congressional review of a major regulation before the regulation can go into effect. This final rule is considered major for the purposes of SBREFA. However, these regulations affect a large number of agricultural producers who have been significantly impacted by natural disasters and poor market conditions. Accordingly, and because Section 263 explicitly sets out Congress' intent that the waiting period of SBREFA should not apply, it has been determined that it would be contrary to the public interest and the relevant public laws to delay implementation of this rule. This rule is therefore made effective immediately.

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 not have a substantial direct effect on States or their political subdivisions, or on the distribution of power and responsibilities among the various levels of Government.

Section 263 of the ARPA requires that these regulations be promulgated and the programs administered without regard to the Paperwork Reduction Act. This means that the information to be collected from the public to implement these programs and the burden, in time and money, the collection of the information would have on the public does not have to be approved by the Office of Management and Budget or be subject to the normal requirement for a 60-day public comment period.

This rule will implement the requirements of the Agricultural Risk Protection Act of 2000 (Pub. L. 106-224) related to the market assistance programs for tobacco, wool and mohair, and cottonseed.

Section 204 of the ARPA changes the rules for reconstitution of farms with burley tobacco quotas to allow, on the division of such a farm by sale, the quota to be divided in such manner as the buyer and seller agree. Previously, the buyer and seller were not allowed that option. Rules contained in 7 CFR Part 718 have been modified accordingly.

Section 204(e) of the ARPA directs the Secretary of Agriculture to use $100 million of funds of the Commodity Credit Corporation (CCC) to provide assistance to producers and first handlers of the 2000 crop of cottonseed. A similar program for the 1999 crop of cottonseed, authorized under section 104(a) of Pub. L. 106-113, was codified in subpart F of 7 CFR 1427 by publication of a final rule on June 8, 2000 (65 FR 36550). Under the 1999-crop program, payments were provided to gins who, almost universally, obtain the cottonseed from producers as partial or full payment for their ginning services. Program payments compensated gins for seed prices that were so low that their ginning costs were not fully covered by the seed market value. As that program seems to have been successful in accomplishing its intended goals and there is no indication that Congress was dissatisfied with the prior program, it has been decided to operate the new program in the same manner as the old.

The major provisions of this program are as follows. The CCC will announce a period during which U.S. cotton gins may apply for cottonseed payments. To participate, cotton gins must complete an application form including: (1) Applicant name, address, and a contact person and telephone number; (2) bank account identifying information for payees electing to have payments made by direct account deposit; (3) the gin's 5-digit identifying code; (4) the number of bales of cotton ginned from the 2000 cotton crop; and, (5) the weight (in pounds) of cotton lint of the reported bales for which payment is requested. CCC must receive the application within the announced application period.

At the close of the application period, based on the number of bales and the weight of cotton lint for which payment is requested, CCC will estimate the national total quantity of cottonseed for payment. The payment rate per ton of cottonseed, and payments to applicants, will then be determined. The resulting payments to cotton gins will not be subject to any payment limitation.

Because outlays for this program are a fixed amount, the national average payment rate and individual payments can be calculated and provided only after the total eligible quantity of cottonseed can be determined from approved applications.

Section 204(b) of the ARPA directs the Secretary to use $340 million of CCC funds to make payments to eligible persons who own or operate, or produce tobacco on, a farm for which the quantity of quota of eligible tobacco allotted to the farm under Part I of subtitle B of Title III of the Agricultural Adjustment Act of 1938 (7 U.S.C. 1311 et seq.) was reduced from the 1999 crop year to the 2000 crop year and that is used for the production of eligible tobacco during the 2000 crop year. Funds will be paid directly to quota holders, tobacco controllers, growers, producers and tenants whose quota was reduced from the 1999 crop year to the 2000 crop year.

The statute allocates funds in a specific amount to16 States. CCC shall directly divide the amount allocated to a State among farms in the State based on the quota of eligible tobacco available to each farm of an eligible person for the 2000 crop year. These allocated funds will be paid to the eligible persons who are eligible quota owners, quota lessees, controllers, tenants and tobacco producers on farms in the State. In the case of a State that is a party to the National Tobacco Grower Settlement Trust, the funds, to the extent practicable, will be distributed under this part (that is, under TLAP00) to eligible persons in the State in accordance with formulas established pursuant to the Trust with such adjustments as the Secretary has determined are necessary in order to meet the October 1 to October 20, 2000, statutory window for disbursing payments to eligible persons. In the case of a State that is not a party to the National Tobacco Grower Settlement Trust, the funds will be distributed pursuant to a formula established by the Secretary.

The rule specifies that quotas or allotments which are suspended from production because of a Conservation Reserve Program (CRP) contract with the CCC will not be treated as “considered produced” for the purposes of this program and will not generate payments under this subpart. This is because the program is designed to cover market losses for a particular period whereas the suspended quotas and allotments, because of the suspension, were not expected by the producer to generate income during that period and, consequently, in fact produced the same income as if there had been no reduction in the overall national marketing quota for the kind of tobacco involved. Rather, the income received was the income under the CRP contract which was not diminished by the reduction in the tobacco marketing quota. Also, the rule specifies that for purposes of this program, an eligible person's status, as owner or controller or producer of the tobacco, will be determined as of July 3, 2000, unless the Deputy Administrator shall determine otherwise. The choice of the date is consistent with the State programs that this program is intended to mimic and also consistent with the provisions of the normal Federal program for tobacco in which July 1 is normally the last date for making permanent transfers of quota. At this point, in addition, persons with an interest in tobacco quotas have a history of payments under the first TLAP program and under the “Phase II” program operated by the States.

Due to the October 20, 2000, payment deadline imposed by the statue, the use of all individual State trust payment formulas would generate a high level of risk in the overall program delivery being delayed, with a subsequent delay in the FSA ability to issue payments for the program. After careful consideration of the various State formulas two formulas were selected and the States will be grouped accordingly to the formula that most closely matched the State's formula.

Accordingly, the funds for all flue-cured (types 11, 12, 13 and 14) and cigar-binder (types 54 and 55) tobaccos will be paid, 50 percent to the quota owner and 50 percent to the producer. The allocated funds for all burley (type 31) and dark fire-cured (type 21) tobaccos will be paid one-third to quota owners; one-third to the farm controller; and one-third to the grower(s)/tenant(s). These payment scenarios most nearly reflect the Phase II payment formulas for these kinds of tobacco in the principal growing areas. The rules provide a special provision for Georgia in that payment in that State will be made only if a specified amount is also contributed by the State to the same persons who are otherwise eligible for Federal payments under this new program. This special provision is required by the authorizing legislation.

Section 204(d) of the ARPA provides that the Secretary shall use funds of the Commodity Credit Corporation to make payments to producers of wool and mohair for the 1999 marketing year. Producers of wool and mohair are experiencing the lowest prices in history. The ARPA requires the Secretary of Agriculture to make direct payments to wool and mohair producers at payment rates of 20 cents per pound for wool and 40 cents per pound for mohair. Producers wanting to participate in the new program must file an application for payment by December 29, 2000, or such other date as may be set by the Deputy Administrator for Farm Programs, FSA. Applications will be spot-checked and validated by FSA. Payment will be made only for wool and mohair shorn in the United States in 1999 from live domestic animals owned by the producer for 30 days or more. These restrictions are intended to insure that coverage is limited to actual wool producers, as opposed to meat producers, for wool actually produced as wool, not a by-product, during the relevant time period allowed for by the statute. Other restrictions will also apply.

Outlays under the programs implemented by this rule will total approximately $450 million. The table summarizes the outlays and a summary of the Cost/Benefit Assessment for each program follows.

The cottonseed support payment program is designed to provide payments to cotton ginners in response to an expected continuation of low cottonseed prices in the 2000 crop year. The statute authorizes the expenditure of $100 million in Commodity Credit Corporation funds for payments to first handlers or producers of 2000-crop cottonseed. Normally, the value of the seed covers the cost to cotton producers of ginning their cotton. In 1999, however, the value of the seed was insufficient to pay the full cost of ginning in many locations in the Cotton Belt, and growers were asked to pay additional fees. During the 2000 crop year, prices for cottonseed are projected to be even lower than they were in the 1999 season, but ginning costs are likely to be the same or higher. Thus, losses again are expected in the ginning process.

Last season, the average price of cottonseed, $90 per ton, was about $39 per ton (30 percent) below the average level received in 1998, or about $27 per ton (23 percent) less than the average of 1994 through 1998. Though it is very early in the 2000 ginning season, USDA expects that cottonseed prices will drop further in 2000 and average about $84 per ton.

Cottonseed prices in 1999 would equate to about $34 worth of seed per bale of cotton lint produced, on a national average. The national average ginning cost for 1999 is estimated at $46 per bale. Thus, the national average value of cottonseed likely fell about $12 short of the cost of ginning a bale of cotton. That is the equivalent of about 2.5 cents per pound of lint.

For the 2000 crop year, the expected value of cottonseed is only about $32 per bale of lint, while ginning costs are again expected to average about $46 per bale. The average loss over the entire 19-million-bale crop now expected to be harvested would be about $14 per bale, or almost 2.9 cents per pound.

For ginning services in 1999, some farmers were initially asked to pay the ginner an additional 2 or 3 cents per pound of cotton lint beyond the value of the seed. Later in the season, as the 1999 cottonseed program began to be publicized, some ginners merely held these ginning bills, knowing they would receive the program payment. In 2000, it is likely that ginners will hold bills against the payment they are expecting from this year's program.

Cottonseed prices are influenced heavily by soybean prices. Prices for soybeans in 1999 fell from the depressed level of $4.93 they averaged in 1998 to $4.65 per bushel. A further stock build-up is projected for the 2000 crop year, and prices are projected at $4.35 per bushel, even lower than they were in 1999. The prices for other oilseeds, including canola, sunflower seed, and cottonseed are all projected to be down substantially from last year's level.

The most viable option to assist cotton producers is a direct payment program in which payments are made to ginners. There are between 1000 and 1100 gins in the United States. About 25 percent are co-operatives. Another 50 percent are owned as corporations by farmers who gin their own and their neighbors' cotton. About 25 percent are independent gins.

Thus, farmers have a direct interest in about 75 percent of the gins and can be expected to receive nearly the full benefit of any payments made to the gins. In the other 25 percent of gins where farmers do not directly operate or share in the ownership, farmers still may be expected to receive a substantial portion of the program benefits because: (1) The gins may have held the ginning bills pending the implementation of this program; (2) gins may rebate farmers any ginning bill already paid by farmers; or (3) competition among gins may dictate that any payments beyond those needed to cover the shortfall in seed prices will be rebated to the gins' customers.

In 1999, total cottonseed production was estimated at 6,422,400 tons. Total losses associated with ginning in 1999 are estimated at $190 million. Total funding available for the 1999 program was $79 million, and payments were $12.23 per ton of seed produced, or about $4.77 per bale of lint pressed. Payments were made to 1015 gins and covered about 41 percent of the losses.

For 2000, given the current projection of cotton lint production of 19,159,000 bales, cottonseed production should total about 7.38 million tons. At $84 per ton, the seed would be valued at $622 million. Ginning costs are expected to average a little over $46 per bale, so the cost of ginning the 2000 crop should be about $885 million. The projected loss on ginning costs would be $263 million, or about $13.75 per bale of lint pressed. The payments will cover about 38 percent of the loss.

On September 20, 1998, the major cigarette manufacturers agreed to pay $246 billion to the various states to settle their medicare lawsuits. To defray these costs, the manufacturers raised cigarette prices substantially. The increased cost of cigarettes, along with adverse publicity surrounding smoking has curtailed cigarette use—and therefore leaf use—substantially.

As a result, marketing quota for flue-cured and burley tobaccos continue to decline. The 2000 crop quotas were reduced 18.4 percent and 45.3 percent respectfully. In addition, producers of Virginia fire-cured (type 21) tobacco and cigar filler and binder (types 42-44; 53-55) tobacco suffered declines of 15 percent and 17 1/2 percent respectively, in 2000 allotments, for reason's unrelated to the settlement.

Most tobacco operations are small family-owned farms. There are few, if any, alternatives for tobacco. With no crop alternatives and little diversification in tobacco growing regions, economic hardship is particularly harsh during downturns in tobacco production. Thus, the tobacco loss assistance provisions of the ARPA appropriated $340 million to lessen economic hardships in specific tobacco communities.

The $340 million will assist quota holders and growers to defray income lost in crop year 2000 due to quota reductions. The program will pay producers roughly $1 for each pound of quota lost in crop year 2000. This amount of payment will more than cover producers' and quota holders' lost profit for crop year 2000.

Both wool and mohair production in the United States have been on the decline in recent years. The number of head of sheep estimated to have been shorn for wool production has declined every marketing year since 1981. The number of goats clipped for mohair production has declined annually for about the last 10 years. Wool production has been cut in half since 1988 and is estimated for 1999 at 46.5 million pounds. Mohair production in 1999 is estimated at only 3.2 million pounds, only one-fifth of the production in 1991.

Wool prices in 1995 averaged over $1 per pound, but by the end of the 1999 marketing year they were averaging about 60 cents. Average prices for mohair were about $2.50 per pound for 2 years and then increased to $3.50 per pound in 1999. Because of reduced production, as well as low prices, the value of wool produced in 1999 is estimated at about $17.9 million, a decline of 85 percent from the value 10 years ago and down 40 percent from the value in 1998. The value of mohair produced in 1999 is estimated at $10 million, about half of the value 10 years ago and down 20 percent from the already depressed value in 1998.

Wool consumption by domestic textile mills also has declined steadily in recent years and is projected for 1999 at only 85 million pounds, the lowest in at least 25 years and down 30 million pounds from 1998's level.

A recourse loan program was implemented for mohair in the 1998 and 1999 marketing years, but only about 40 percent of the 5.5 million pounds of hair placed under loan in 1998 and about 10 percent of the 1.2 million pounds placed under loan in 1999 has been redeemed.

Given these discouraging production, price, and consumption figures, Congress has provided direct Market Loss Assistance (MLA) payments for producers of mohair and wool in 1999.

Two options were considered for determining the quantity of a producer's wool or mohair eligible for payment. The first option limited the eligible quantity to marketings of wool or mohair during marketing year 1999. The second option allowed producers to certify the quantity they produced during marketing year 1999 and subject them to spot checks by CCC.

The second option was selected for two reasons. First, the program administration would be much simpler if paper documentation of marketings were not required. Spot checks can be accomplished by local FSA personnel. Penalties for inaccurate certifications by producers can be easily assessed and will inhibit false reports.

Second, many producers have not yet marketed their wool or mohair because of the very low prices this program was designed to address. To deny those producers payments on the grounds they had no 1999 marketings would be contrary to the objective of the program.

Payments of 20 cents per pound on 1999 wool production would amount to about $9 million, more than doubling proceeds from wool production. However, payments will not actually be made to producers until almost the end of the 2000 marketing year, so it is difficult to envision significant near-term impacts on the U.S. wool situation. Some additional production may be stimulated in early 2001 for producers who otherwise lack financing. However, continued heavy textile imports likely will mean stagnant mill demand for wool. MLA payments may contribute to continued depressed prices in the future to the extent that they stimulate additional production.

Mohair producers are to receive 40 cents per pound. MLA payments will amount to about $1 million, or 10 percent of sales receipts in 1999. The income impact of this program on mohair producers is not as significant as it is on wool producers, and its impact on the supply/use situation for mohair should be even less than its impact on the wool situation.

The regulations in 9 CFR part 94 (referred to below as the regulations) govern the importation of specified animals and animal products into the United States in order to prevent the introduction of various animal diseases including rinderpest, foot-and-mouth disease (FMD), African swine fever, hog cholera, and swine vesicular disease. These are dangerous and destructive communicable diseases of ruminants and swine. Section 94.1 of the regulations lists regions of the world that are declared free of rinderpest or free of both rinderpest and FMD. Rinderpest or FMD exists in all other regions of the world not listed. Section 94.11 of the regulations lists regions of the world that have been declared to be free of rinderpest and FMD, but are subject to certain restrictions because of their proximity to or trading relationships with rinderpest-or FMD-affected regions.

Prior to the effective date of this interim rule, the Republic of South Africa, except the FMD-controlled area that includes Kruger National Park, was among the listed regions in §§ 94.1 and 94.11 considered to be free of rinderpest and FMD. However, on September 12, 2000, a suspected outbreak of FMD was detected in the South African province of KwaZulu-Natal; on September 17, 2000, the Republic of South Africa's National Department of Agriculture (National Department of Agriculture) notified the Office International des Epizooties (OIE) with clinical confirmation of the FMD diagnosis.

Therefore, to protect the livestock of the United States from FMD, we are amending the regulations in § 94.1 by removing the province of KwaZulu-Natal from the list of regions considered to be free of rinderpest and FMD. We are also removing KwaZulu-Natal from the list of regions in § 94.11 that are considered to be free of these diseases, but are subject to certain restrictions because of their proximity to or trading relationships with rinderpest-or FMD-affected regions. Other regions of the Republic of South Africa, with the exception of the FMD-controlled area that includes Kruger National Park, will remain on the list of regions considered to be free of rinderpest and FMD. As a result of this action, the importation into the United States of any ruminant or swine and any fresh (chilled or frozen) meat and other products of ruminants or swine that left KwaZulu-Natal on or after September 12, 2000, is prohibited or restricted. We are making these amendments effective on September 12, 2000, because that is the day that FMD was initially detected in KwaZulu-Natal.

Although we are removing the province of KwaZulu-Natal from the list of regions considered to be free of rinderpest and FMD, we recognize that the National Department of Agriculture responded immediately to the detection of the disease by imposing restrictions on the movement of ruminants, swine, and ruminant and swine products from the affected area and initiating measures to eradicate the disease. At the time of publication of this interim rule, it appears that the outbreak is well controlled. Because of the National Department of Agriculture's efforts to ensure that FMD does not spread beyond the province of KwaZulu-Natal, we intend to reassess the situation in accordance with the standards of the OIE. As part of that reassessment process, we will consider all comments received on this interim rule. This future reassessment will determine whether it is necessary to continue to prohibit or restrict the importation of ruminants or swine and any fresh (chilled or frozen) meat and other products of ruminants or swine from KwaZulu-Natal, or whether we can restore the province of KwaZulu-Natal to the list of regions considered free of rinderpest and FMD.

This rulemaking is necessary on an emergency basis to prevent the introduction of FMD into the United States. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register .

We will consider comments that are received within 60 days of publication of this rule in the Federal Register . After the comment period closes, we will publish another document in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the rule as a result of the comments.

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

This interim rule amends the regulations by removing the Republic of South Africa province of KwaZulu-Natal from the list of regions considered free of rinderpest and FMD. We are taking this action because the Republic of South Africa's National Department of Agriculture has reported cases of FMD in that region. This action prohibits or restricts the importation into the United States of any ruminant or swine, and any fresh (chilled or frozen) meat and other products of ruminants or swine, that left the province of KwaZulu-Natal on or after September 12, 2000. This action is necessary to protect the livestock of the United States from FMD.

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has retroactive effect to September 12, 2000; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

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

The regulations in 9 CFR, chapter I, subchapter D, and 7 CFR, chapter III, require inspection, laboratory testing, certification, or quarantine of certain animals, animal products, plants, plant products, or other commodities intended for importation into, or exportation from, the United States.

When these services must be provided by an employee of Veterinary Services (VS) on a Sunday or holiday, or at any other time outside the VS employee's regular duty hours, the Government charges a fee for the services in accordance with 9 CFR part 97. Under circumstances described in § 97.1(a), this fee may include the cost of commuted traveltime. Section 97.2 contains administrative instructions prescribing commuted traveltime allowances, which reflect, as nearly as practicable, the periods of time required for VS employees to travel from their dispatch points and return there from the places where they perform Sunday, holiday, or other overtime duty.

We are amending § 97.2 of the regulations by adding a commuted traveltime allowance for travel between Dallas-Fort Worth International Airport and the metropolitan area. The amendment is set forth in the rule portion of this document. This action is necessary to inform the public of the commuted traveltime between the dispatch and service location.

The commuted traveltime allowances appropriate for employees performing services at ports of entry, and the features of the reimbursement plan for recovering the cost of furnishing port of entry services, depend upon facts within the knowledge of the Department of Agriculture. It does not appear that public participation in this rulemaking proceeding would make additional relevant information available to the Department.

Accordingly, pursuant to the administrative procedure provisions in 5 U.S.C. 553, we find upon good cause that prior notice and other public procedure with respect to this rule are impracticable and unnecessary; we also find good cause for making this rule effective less than 30 days after publication of this document in the Federal Register .

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

The number of requests for overtime services of a VS employee at the location affected by our rule represents an insignificant portion of the total number of requests for these services in the United States.

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

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

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations, or policies that conflict with its provisions or that would otherwise impede its full implementation. This rule is not intended to have retroactive effect. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this rule or the application of its provisions.

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

A final rule airworthiness directive (FR Doc. 00-27166) applicable to Pratt & Whitney PW2000 series turbofan engines, was published in the Federal Register on October 24, 2000 (65 FR 63542). The following corrections are needed:

A final rule airworthiness directive (FR Doc. 00-26971) applicable to Pratt & Whitney JT8D series turbofan engines was published in the Federal Register on October 24, 2000 (65 FR 63537). The following correction is needed:

A final rule airworthiness directive (FR Doc. 00-26970) applicable to Pratt & Whitney JT8D-200 series turbofan engines was published in the Federal Register on October 24, 2000 (65 FR 63540). The following correction is needed:

On August 23, 2000, the FAA proposed to amend 14 CFR part 71 by modifying the Class E airspace area at Willits, CA (65 FR 38227). Additional controlled airspace extending upward from 1200 feet above the surface is needed to contain aircraft executing the RNAV RWY 16 and RWY 34 SIAP at Ells Field-Willits Municipal Airport, Willits, CA. This action will provide adequate controlled airspace for aircraft executing the RNAV RWY 16 and RWY 34 SIAP Ells Field-Willits Municipal Airport, Willits, CA.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments to the proposal were received. Class E airspace designations for airspace extending from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9H dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 modifies the Class E airspace area at Willits, CA. A revision to the RNAV RWY 16 and RWY 34 SIAP has made this action necessary. The effect of this action will provide adequate airspace for aircraft executing the RNAV 16 and RWY 34 SIAP at Ells Field-Willits Municipal Airport, Willits, CA.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description of each SIAP is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation Regulations (FAR). The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, and 8260-5. Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR (and FAR) sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to part 97 is effective upon publication of each separate SIAP as contained in the transmittal. Some SIAP amendments may have been previously issued by the FAA in a National Flight Data Center (NFDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP amendments may require making them effective in less than 30 days. For the remaining SIAPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(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) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description on each SIAP is contained in the appropriate FAA Form 8260 and the National Flight Data Center (FDC)/Permanent (P) Notices to Airmen (NOTAM) which are incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation's Regulations (FAR). Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs, their nature, complex and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction of charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR (and FAR) sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes SIAPs. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained in the content of the following FDC/P NOTAMs for each SIAP. The SIAP information in some previously designated FDC/Temporary (FDC/T) NOTAMs is of such duration as to be permanent. With conversion to FDC/P NTAMs, the respective FDC/T NOTAMs have been canceled.

The FDC/P NOTAMs for the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these chart changes to SIAPs by FDC/P NOTAMs, the TERPS criteria were applied to only these specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a National Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Further, the SIAPs contained in this amendment are based on the criteria contained in the TERPS. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(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) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We are adopting amendments to Rule 154   1 under the Securities Act of 1933   2 and Rules 14a-2, 3 14a-3, 4 14a-7, 5 14b-1, 6 14b-2, 7 14c-3, 8 and Schedules 14A and 14C   9 under the Securities Exchange Act of 1934. 10

The federal securities laws generally require public companies to deliver a “proxy statement” when they solicit proxy voting authority from their security holders. 11 Even when they are not soliciting proxy voting authority, these companies must deliver an “information statement” to security holders when they are taking certain corporate actions. Lastly, in connection with the delivery of a proxy statement or information statement, when directors are being elected, these companies must send security holders an annual report. 12 As a result of ownership of securities by individuals through different types of accounts, such as brokerage accounts, individual retirement accounts and custodial accounts for minors, duplicate copies of these documents often are delivered to a single household. 13

We are adopting amendments to the proxy rules to reduce the amount of this duplicative information that security holders receive. 14 Today's amendments expand upon rules we adopted in November 1999 that permit companies to household prospectuses, annual reports and investment company semi-annual reports if the document is delivered to a shared address and security holders properly consent to householding. 15

At the time we originally proposed those rules, we did not propose rules to permit householding of proxy statements and information statements. However, in response to those original proposals, several commenters suggested that we consider further action to permit the householding of proxy materials. A number of commenters noted that householding proxy materials would facilitate the common practice of mailing the annual report together with the proxy statement or information statement. A few commenters further suggested that we extend the proposed householding provisions expressly to permit broker-dealers and banks (“intermediaries”) to household delivery of annual reports, proxy statements and information statements to beneficial owners of equity securities.

In response to these comments, when we adopted the rules to permit the householding of prospectuses, annual reports and investment company semi-annual reports, we also proposed to permit delivery of one proxy statement or information statement to security holders who share an address. We proposed these rules to reduce the number of duplicate documents delivered to security holders and conform the provisions regarding the householding of proxy statements and information statements to the amendments that permit the householding of prospectuses, annual reports and investment company semi-annual reports.

We received 16 comment letters in response to the proposals. 16 Commenters generally supported householding of proxy statements and information statements, but many suggested changes that would affect the scope and conditions of the rules. We are adopting the proposed amendments, with a number of modifications that address issues raised by commenters. The adopted rules differ from the proposed rules in that they will

• Expand the permitted forms of addressing householded annual reports and proxy statements or information statements to include any form to which each security holder included in a householded group consents in writing;

• Shorten the notification period for householding by implied consent to 60, rather than 90, days;

• Eliminate the proposed requirement that the notice of intent to household by implied consent be delivered separately from any other communications; and

• Permit intermediaries to household only if the company does not object.

Rule 154, as originally adopted, prohibited the householding of combination proxy statement-prospectuses delivered for business combinations, exchange offers or reclassifications of securities registered on Forms N-14, 17 S-4  18 and F-4. 19 To coordinate Rule 154 with today's amendments to the proxy rules, we are adopting, as proposed, an amendment to Rule 154 that removes the prohibition on householding of those combination proxy statement-prospectuses.

Companies, intermediaries and security holders have indicated to us in the past that the distribution of multiple copies of the same document to security holders who share the same address often inundates security holders with unwanted mail and causes the company to incur higher than necessary printing and mailing costs. Today's amendments will alleviate these concerns by allowing companies and intermediaries to household proxy statements and information statements to both record and beneficial security holders in the same manner as they may household prospectuses and annual reports to security holders.

Exchange Act Rule 14a-3 requires a company to furnish a proxy statement to security holders before soliciting proxy voting authority for a matter submitted to a security holder vote. 20 Companies are able to deliver proxy statements directly only to their security holders of record; they generally must deliver proxy statements to their beneficial security holders indirectly through intermediaries. 21

On September 15, 1999, the Commission issued a final rule providing prospective applicants for natural gas facilities or services the option, in appropriate circumstances and prior to filing an application, to employ a collaborative process to identify and address significant issues. 1 Indicated Shippers  2 filed a timely request for rehearing. 3

We will deny in part and grant in part the request for rehearing, for the reasons discussed below.

Order No. 608 sets forth regulations to govern certain discussions that take place prior to the submission of an application to the Commission. Under these regulations, a prospective applicant that seeks to construct, operate, or abandon natural gas facilities or services may, in appropriate circumstances and prior to filing an application, design a collaborative process to address and resolve issues raised by its proposal.

The Commission anticipates that if a natural gas company invites entities that might be interested in new facilities or services, or in the abandonment of existing facilities or services, to identify issues and discuss resource impacts as part of the process of developing a proposal, this will facilitate the filing of a complete application. A project sponsor that is able to submit an application that addresses and resolves issues, along with a preliminary draft environmental assessment (EA) or environmental impact statement (EIS) in accordance with the National Environmental Policy Act (NEPA), 4 may be processed expeditiously. Applications that are incomplete, or that are amended in response to issues identified only after filing, or that require the submission of additional information or studies or resource impacts before the Commission is able to consider the merits, generally take longer to process than applications that are uncontentious and complete.

As noted in the final rule, this pre-filing collaborative process is optional and voluntary and is intended to be flexible, adaptable, and responsive to the facts and circumstances of each particular case. The collaborative regulations do not delete or replace any existing regulations. Thus, a prospective gas facility applicant that elects to forego pre-filing collaborative consultation may continue to use the standard authorization procedures.

A project sponsor that seeks to undertake a pre-filing collaboration pursuant to the new regulations must demonstrate to the Commission that it has made reasonable efforts to contact and invite all potentially interested entities to participate and that it has developed a communications protocol to govern how the applicant and participants will communicate. The Commission will give public notice in the Federal Register of the requested collaboration and invite comments. The Commission will review the adequacy of the applicant's outreach efforts, consider comments, and weigh whether pre-filing discussions are likely to be productive. If the request to collaborate is approved, then Commission staff will be assigned to help guide the pre-filing process, which can include the preparation of a preliminary draft NEPA document. The applicant will maintain a file, available to the public, of all relevant documentation of the collaboration, including minutes or summaries of meetings.

Once underway, a pre-filing collaboration may continue until accord has been reached among the participants, until relevant resource issues have been considered and a preliminary draft EA or EIS prepared, or until the project sponsor or participants conclude further efforts to address unresolved issues are unlikely to be productive. A project sponsor undertaking a pre-filing collaboration is not foreclosed from filing an application at any time, nor is a collaborative participant (or non-participant) precluded from intervening and commenting on or protesting any aspect of an application once it is filed with the Commission and an on-the-record proceeding commences. 5

Indicated Shippers repeat objections raised in response to the Commission's notice of proposed rulemaking  6 and assert the final rule fails to respond adequately to these objections; consequently, Indicated Shippers argue the final rule does not constitute reasoned decisionmaking. Indicated Shippers claim the pre-filing collaborative process would force entities to participate in pre-filing proceedings, discount or disregard the concerns of potentially affected entities, and result in biased decision making by the Commission.

Indicated Shippers contend that section 7 of the Natural Gas Act (NGA) does not expressly authorize the Commission to promulgate pre-filing collaborative procedures and believe the Commission's review process should only begin after an application is filed. Indicated Shippers maintain pre-filing collaboration may render the Commission's post-filing consideration “academic and nothing more than an empty formality,”  7 whereby the Commission would rubber-stamp the outcome of a pre-filing collaboration. Indicated Shippers stress such action would contravene NGA section 7(c)(1)(B), which provides for notice and hearing following the filing of an application. While the Commission describes participation in a pre-filing collaboration as optional and voluntary, Indicated Shippers challenge this characterization, contending interested entities will be compelled to either participate in pre-filing procedures or otherwise lose their only meaningful opportunity to present their concerns.

Indicated Shippers is correct that the NGA does not specify procedural formalities to be followed prior to the time the Commission is asked to act in response to a petition. The Order No. 608 regulations establish an outline for certain pre-filing formalities, but these regulations only apply where a prospective applicant and interested entities agree to adhere to them, i.e., they are voluntary. Further, being present at or absent from a pre-filing collaboration will not prejudice an entity's capacity to endorse or object to a proposed project subsequent to the applicant's submission to the Commission of a request for authorization. Finally, section 16 of the NGA grants the Commission “power to perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions of this act.” In this case, we find the regulations put in place by this rule are appropriate to promote the efficient review of requests NGA section 7 authorizations.

Indicated Shippers acknowledge that prior to Order No. 608, prospective applicants have engaged in pre-filing discussions, typically with Commission staff. Project sponsors also typically negotiate for easements with landowners along a prospective right-of-way and confer with resource agencies prior to proposing a route for new facilities. These conversations and negotiations occur in anticipation of obtaining NGA section 7(b) abandonment approval or section 7(c) certificate authorization, but for the most part, proceed unaided by Commission regulation. The new regulations offer an option to enhance the utility of such discussions by directing a project sponsor to contact a more inclusive range of potentially affected entities and providing a framework to identify issues and initiate the NEPA review process. In effect, the Order No. 608 regulations encourage a project sponsor to converse collectively, not individually, and in public, not in private, with all affected entities in a single forum, subject to formalities designed to promote constructive dialogue.

Indicated Shippers' concern that a pre-filing collaboration could curtail entities' capability to bring concerns to the Commission following filing is unfounded. As discussed in the final rule, all entities have the option of participating in or abstaining from a collaboration, and participants are under no obligation to agree not to contest aspects of a proposal.

After a collaboration concludes and an application is filed, the Commission will consider the requested authorization in conformity with our standard procedures governing notice, comment, and the examination of all relevant issues. Regardless of the outcome of a pre-filing collaboration, following filing all interested entities will have a meaningful opportunity to comment and raise concerns. If collaborative participants reach agreements that are submitted in conjunction with an application, we will review the results, and then accept, reject, or modify the terms of the participants' agreements when we act on the application. Although we anticipate collaborative accords may enhance the acuity of our review of an application, we stress that regardless of the uniformity and ardor with which collaborative participants urge on a particular proposal, no authorization will issue unless we determine that a project is required by the public convenience and necessity.

A project sponsor seeking Commission approval to use the pre-filing collaborative process must demonstrate that it has made reasonable efforts to notify all potentially affected entities. Section 157.22(d) of the regulations states that the Commission “will give public notice in the Federal Register of a request to initiate a pre-filing collaboration. If the Commission approves the request, 8 § 157.22(e)(1) states that “[t]o the extent feasible under the circumstances of the process, the Commission will give notice in the Federal Register . . . of the initial information meeting or meetings and the scoping of environmental issues.”  9 Indicated Shippers question whether these procedures will be sufficient to ensure that potentially interested entities will have adequate notice of a proposal to initiate a pre-filing collaboration and the Commission's acceptance thereof.

Indicated Shippers suspect a prospective applicant might serve notice selectively in an effort to exclude persons likely to object to the proposal. Further, Indicated Shippers note that § 157.22(b)(3) states that an applicant that decides to seek Commission approval to undertake a pre-filing collaboration, after inviting potentially interested entities to participate, is to then inform “all entities contacted by the applicant that have expressed an interest in the pre-filing collaborative process” of its decision. Indicated Shippers object that this approach not only does nothing to cure omissions in an applicant's initial notification; rather, it restricts notice of Commission approval of a collaboration to only those entities that an applicant had previously contacted that had responded to express an interest.

Mr. Frederick W. Martin requests that notification of a proposed collaboration be sent by certified mail to all landowners with property eligible for listing on the National Registry of Historic Places.

Section 157.22(b)(1) of our regulations directs a project sponsor seeking to initiate a pre-filing collaboration to make “a reasonable effort” to contact “resource agencies, local governments, Indian tribes, citizens' groups, landowners, customers, and others” that might be interested in its proposal. Commission staff will work closely with project sponsors to ensure that such outreach efforts are comprehensive. Where we find a prospective applicant's efforts at notification to be inadequate, or the range of contacted parties to be too narrow, we will not grant the request to use the collaborative process unless identified defects are remedied. Thus, selective notification, as a means to handpick participants, is incompatible with the collaborative approach expressed in the final rule. We do not believe a more thorough application will result, or the time required to obtain project authorization will be reduced, by conducting a collaboration that merely serves as a forum for the like-minded to praise a proposal.

We will adopt Indicated Shippers' suggestion to modify the regulations to ensure that potentially interested entities be made aware of Commission approval of a request to use the collaborative process. Accordingly, we change § 157.22(e)(1) to read as follows:

In reference to Indicated Shippers' argument for broader notification requirements, we clarify that the Commission-approved mailing list is expected to include all entities filing comments in response to the notice of a request to use the pre-filing process. However, we will not modify § 157.22(b)(3), which restricts the scope of the second round of notification— i.e., notice that a request to use the pre-filing process has been submitted to the Commission—to the subset of potentially interested entities that have responded to the § 157.22(b)(1) invitation and expressed an interest in the pre-filing process. If a project sponsor makes an adequate initial effort to invite potentially interested entities to participate in a pre-filing collaboration, we find no need for the project sponsor to continue to inform non-responsive or uninterested entities of ongoing developments.

We also find no need to compel a project sponsor to send certified mail to certain landowners, as proposed by Mr. Frederick W. Martin, since we believe the above-described requirements will be sufficient to ensure adequate notice. Further, we note the early notification requirements recently put in place in § 157.6(d) of our regulations are designed to ensure that landowners that may be affected by a proposed project have ample time and opportunity to participate in the Commission's consideration of a proposal following the filing of an application. 10

Indicated Shippers are concerned the documentation of a pre-filing collaboration may not be adequate or timely and urge the Commission to ensure interested parties have access to information on an ongoing collaboration, without the need to actively participate in the process, by requiring the prospective applicant to make periodic reports to the Commission summarizing the progress of the pre-filing proceeding.

We are persuaded that periodic reporting on a collaboration will facilitate an entity's oversight of an ongoing proceeding, in particular where an entity has interests in separate, simultaneous collaborative proceedings. Therefore, we will require that a collaborative sponsor submit quarterly reports on the progress of a collaboration. Such reports should summarize meetings held, topics addressed, studies undertaken, etc. We do not expect transcripts or extensive documentation and thus do not expect these quarterly updates to unduly burden a project sponsor. Accordingly, we will add the following requirement as § 157.22(e)(5):  11

We expect that collaborative participants, when establishing a communications protocol to govern discussions, will routinely include provisions regarding the mechanics of documenting the progress of discussions, studies, decisions, etc., and of making this documentation of the collaboration accessible. We also expect that at the conclusion of the collaborative process, participants will decide what data gathered during the pre-filing process should be filed with the application and thereby be entered into the record of the proceeding.

In deciding whether to go forward with a proposed collaboration, or to resolve matters once a collaboration is underway, the rule directs participants to act by consensus, defined as “a collective opinion; the judgment arrived at by most of those concerned.”  12 Indicated Shippers believe this standard is too vague and is open to abuse. Indicated Shippers are concerned that the regulations do not provide for review of Commission decisions on requests to use the collaborative process, and speculate the Commission may approve a collaborative request despite strong objections from a minority of interested entities.

Indicated Shippers complain that the Commission's decision to permit a pre-filing collaboration is not subject to review, thus entities opposing a collaboration are without recourse.

We stress that a pre-filing collaboration will not be permitted to commence unless we find that the weight of opinions expressed by a representative sample of interested entities favor going forward. Where support is insufficient, either because only a small number of affected entities endorse a pre-filing collaboration or because key players refuse to participate, we may decide pre-filing collaboration is unlikely to prove productive, and so deny the request.

We see no need to provide for any review of a decision on a request to use the pre-filing collaborative procedure. A project sponsor that does not meet the criteria for a pre-filing collaboration under § 157.22 of the regulations may nevertheless engage in pre-filing consultations. If a request to collaborate is approved despite an entity's objection, that entity's recourse can be to decline to participate in the collaboration. As noted, absence from a collaboration need not bar an entity from bringing any question, concern, or objection to the Commission's attention following filing of the application.

If an entity becomes aware of an ongoing collaboration and seeks to join in, the collaborative regulations do not prevent participation, but do require that latecomers not delay or disrupt the process and abide by any ground rules that have already been established.

Indicated Shippers believe these constraints are inequitable because the latecomer may not have been aware of the collaboration due to defective notice on the part of the applicant and because there is no assurance that the protocol governing the collaboration will be sufficient to allow the latecomer to participate meaningfully. Further, Indicated Shippers anticipate that latecomers to an ongoing collaboration could be precluded from revisiting old or raising new issues, which may result in a filed application that fails to fully address all aspects of a proposed project.

The notification procedures in place, as modified herein, should prove sufficient to ensure all potentially interested entities are informed of the applicant's intent to undertake a pre-filing procedure, the applicant's request to the Commission to do so, Commission approval of the request, the time and place of the initial information meeting(s), and the expected scope of the collaboration.

If, during the course of an ongoing collaboration, the character of the originally proposed project is altered such that previously uninformed entities are affected, we expect the prospective applicant to contact those entities to notify them of the ongoing collaboration and invite them to participate. For example, if a new alternative routing is selected, the applicant should promptly contact landowners along the alternative route and invite them to join in the ongoing collaboration.

We expect adherence to a communications protocol, the project sponsor's maintenance of public files, and periodic reporting on a collaboration's progress to the Commission, will permit an entity entering an ongoing collaboration to be promptly brought up to date. Where a late-entering entity believes its concerns have been inadequately addressed despite its participation in the collaboration, that entity may so state in comments submitted to the Commission after an application is filed. Such comments will help ensure a full and complete record is before the Commission as it evaluates a proposed project.

Indicated Shippers renew their request to limit the scope of a pre-filing collaboration to environmental issues. Indicated Shippers contend that because environmental issues are “confined to a well-defined geographic area,” consideration in a pre-filing collaboration is a manageable undertaking that may “constitute a meaningful improvement” in the certification process. 13 However, because non-environmental issues may not be neatly bounded, Indicated Shippers are concerned that pre-filing discussion of such issues may be impractical, as there may be large numbers of potentially interested entities involved, including an applicant's competitors. Indicated Shippers assert inclusion of non-environmental issues will create uncertainty and lead to discrimination.

In theory, participants in a pre-filing collaboration can take up and reach a comprehensive accord on all relevant issues; in practice, this will not be the case with every collaboration. Nevertheless, we expect applications to be more complete and less contentious following pre-filing collaborations. Additionally, we expect the post-filing NEPA process may be completed in less time than would be the case absent the pre-filing collaboration. The regulations are intended to permit the project sponsor and participants to trim the topics to be addressed to the interests of the collaborative group; we do not expect a collaboration to cover issues that are unlikely to be productively discussed. However, just as we see no point in insisting on a collaborative agenda that is all-inclusive, we see no point in precluding particular topics from discussion if the participants opt to pursue them.

We recognize that prospects may be dim for a collaboration to reach accord on certain non-environmental issues. Nevertheless, if the project sponsor and participants anticipate that pre-filing consideration of such issues may advance the preparation of an application, we see no reason to bar their consideration as part of the pre-filing collaborative process. An entity that is not at the collaborative table during discussions concerning such an issue, or that objects to the collaborative participants' treatment of the issue, is not precluded from commenting on the issue following the filing of the application. The Commission will thoroughly review all comments and the entire evidentiary record prior to taking any action on the application. Thus, we are not persuaded that the pre-filing consideration of non-environmental issues by a collaborative group will result in discrimination to any entity.

In the final rule we stated that Commission staff involved in a pre-filing collaboration may participate in post-filing review of an application. Indicated Shippers renew their objection to this possibility, contending such involvement is contrary to prohibitions against ex parte communication.

The Commission's ex parte regulations are intended to avoid any prejudice, real or apparent, that might result to a party in a contested, on-the-record proceeding before the Commission were a party or “interceder” to communicate information regarding the merits to decision-making (advisory) staff without the knowledge of other parties. 14 These regulations do not apply to a pre-filing collaboration because it does not constitute an on-the-record proceeding before the Commission. Such a proceeding only commences upon submission of an application to the Commission. The Commission's staff's role in a pre-filing collaboration, as described above, is limited to facilitating conversation and in assisting in initiating the NEPA review process; staff may, as they do now, provide general procedural, statutory, and regulatory guidance. However, Commission staff will neither make any determination regarding the merits of a prospective applicant's proposal nor endorse or reject any collaborative accords.

Indicated Shippers can make use of the communications protocol to address their concerns about private communications with Commission staff during the pre-filing process and to establish a degree of disclosure that is appropriate for communication between collaborative participants and Commission staff.

In view of the above, we affirm our determination in the final rule that a staff member's participation in a pre-filing discussion need not disqualify that individual from serving in an advisory role in a proceeding on an application that is subsequently filed. We stress that staff representations in the pre-filing forum cannot in any way bind the Commission, because the Commission alone is responsible for making all final decisions on the application.

The Office of Management and Budget (OMB) is required to approve certain information collection requirements imposed by agency rule. 15 This order on rehearing clarifies the notice procedure described in § 157.22(e)(1) of the regulations and specifies a time frame for the periodic reports described in § 157.22(e)(4) of the regulations. The reporting burden imposed by the final rule was previously reviewed and approved by OMB and these minor modifications make no substantive or material change to the approved requirements. As noted in the final rule, due to the voluntary nature of a pre-filing process, no burdens will be imposed upon a project sponsor beyond those it elects to take upon itself. We will transmit to a copy of this order on rehearing to OMB for its information.

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

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

User assistance is available for RIMS, CIPS, and the FERC Website during normal business hours from our Help line at (202) 208-2222 (E-mail to WebMaster@ferc.fed.us. ) or the Public Reference at (202) 208-1371 (E-Mail to public.referenceroom@ferc.fed.us ).

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

For the reasons discussed in the body of this order, we deny in part and grant in part Indicated Shippers' request for rehearing of Order No. 608.

Changes to Order No. 608 made in this order on rehearing will become effective on December 4, 2000.

Prior to issuance of Order No. 608, the Commission determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that the rule was not a “major rule” as defined in Section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. 16 We affirm our prior determination, and find that the final rule, as clarified and modified herein, is not a major rule. This order on rehearing will be submitted to both houses of Congress, the General Accounting Office, and OMB for their information and records.

Before Commissioners: James J. Hoecker, Chairman; William L. Massey, Linda Breathitt, and Curt Hébert, Jr.

In an effort to reflect changes in the electric industry and in the way the Federal Energy Regulatory Commission (Commission) regulates the electric industry, the Commission is amending its regulations to establish a new methodology for the assessment of annual charges to public utilities. The regulation provides that annual charges will be assessed to public utilities that provide transmission service based on the volume of electricity transmitted by those public utilities. The regulation thus will result in the Commission's now assessing annual charges on transmission rather than, as previously, assessing annual charges on both power sales and transmission.

The Commission is required by section 3401 of the Omnibus Budget Reconciliation Act of 1986 (Budget Act)  1 to “assess and collect fees and annual charges in any fiscal year in amounts equal to all of the costs incurred * * * in that fiscal year.”  2 The annual charges must be computed based on methods which the Commission determines to be “fair and equitable.”  3 The Conference Report accompanying the Budget Act provides the Commission with the following guidance as to this phrase's meaning:

The annual charges do not enable the Commission to collect amounts in excess of its expenses, but merely serve as a vehicle to reimburse the United States Treasury for the Commission's expenses. 7

As required by the Budget Act, the Commission's regulations provide for the payment of annual charges by public utilities. 8 The Commission intends that these electric annual charges in any fiscal year will recover the Commission's estimated electric regulatory program costs (other than the costs of regulating Federal Power Marketing Agencies (PMAs) and electric regulatory program costs recovered through electric filing fees) for that fiscal year. In the next fiscal year, the Commission adjusts its annual charges up or down, as appropriate, both to eliminate any over-or under-recovery of the Commission's actual costs and to eliminate any over-or under-charging of any particular person. 9

In calculating annual charges, the Commission first determines the total costs of its electric regulatory program and subtracts all PMA-related costs and electric filing fee collections to determine total collectible electric regulatory program costs. It then uses the data submitted under FERC Reporting Requirement No. 582 (FERC-582) to determine the total volumes of long-term firm wholesale sales and transmission, and short-term sales and transmission and exchanges for all assessable public utilities. The Commission divides those transaction volumes into its collectible electric regulatory program costs to determine the unit charge per megawatt-hour for each category of long-term and short-term transactions. Finally, the Commission multiplies the transaction volume in each category for each public utility by the relevant unit charge per megawatt-hour to determine the annual charges for all assessable public utilities. 10

Public utilities subject to these annual charges must submit FERC-582 to the Office of the Secretary by April 30 of each year. 11 The Commission issues bills for annual charges, and public utilities then must pay the charges within 45 days of the date on which the Commission issues the bills. 12

Since the issuance of Order No. 472, in 1987, the industry has undergone sweeping changes, including: the Commission's establishment of open access transmission as a foundation for competitive wholesale power markets; 13 a movement by many states to develop retail competition; the growing divestiture of generation assets by traditional public utilities; the entry of new market participants into the industry in the form of independent and affiliated power marketers and stand-alone merchant plant generators; and the establishment of Independent System Operators (ISOs), the expected establishment of Regional Transmission Organizations (RTOs), and also the establishment of transmission companies (transcos) and power exchanges as managers of transmission systems and power markets respectively.

As the landscape of the industry has changed and continues to change, the nature of the work of the Commission likewise has changed. This rule, as described below, reflects these changes—changing the way in which the Commission assesses annual charges to recover its electric regulatory program costs to reflect recent industry and Commission changes, by assessing annual charges to public utilities that provide transmission service based on the volumes of electric energy transmitted.

On January 28, 2000, the Commission issued a Notice of Proposed Rulemaking (NOPR) proposing revisions to the Commission's annual charges regulations. 14 In the NOPR, the Commission proposed a new methodology for the assessment of annual charges to public utilities. The Commission proposed to assess its electric regulatory program costs solely on the MWh of electric energy transmitted in interstate commerce by public utilities, rather than, as the Commission had done in the past, on both jurisdictional power sales and transmission volumes. Specifically, the Commission proposed to assess annual charges to public utilities based on their transmission of electric energy in interstate commerce, as measured by (1) unbundled wholesale transmission, (2) unbundled retail transmission, and (3) bundled wholesale power sales, which for this purpose, by definition, include a transmission component. 15

As to ISOs, and potential RTOs, that have members that retain ownership of transmission facilities, the Commission stated in the NOPR that it was concerned that the assessment of annual charges to ISOs and RTOs could result in a “double counting” of transactions—by counting a single transaction both to the transmission-owning public utility and to the ISO or RTO. In the NOPR, the Commission proposed two solutions to prevent “double counting”: (1) Not charge the ISO or RTO annual charges, but instead charge each individual transmission-owning public utility based on the MWh of transmission service provided on their lines; or (2) allow the ISO or RTO to act as an agent for all of the individual transmission owners and have the ISO or RTO pay the annual charges rather than the individual transmission owners. 16 The Commission, noting that either of these approaches may be acceptable, solicited comments on these two approaches, as well as any other approach that would allow the Commission to collect annual charges on MWh of transmission service in the most administratively efficient manner.

Comments on the NOPR were due on April 3, 2000. 17 The Commission received 35 initial and reply comments in response to the NOPR. Based on consideration of the comments submitted in response to the NOPR, as discussed below, the Commission adopts a Final Rule that follows the approach of the NOPR.

In Order No. 472, to implement the Budget Act, the Commission formulated an annual charge billing procedure. To do this, the Commission had to determine: (1) The types of companies which the Commission should bill; (2) how to estimate and then allocate the Commission's costs among its different regulatory programs; and (3) how to allocate each program's costs among the companies under each program. After the annual charge billing procedure was formulated, the Commission then had to determine (1) how to adjust the annual charges at the end of a fiscal year “to eliminate any over-recovery or under-recovery of [the Commission's] total costs, and any overcharging or undercharging of any person” pursuant to section 3401(e) of the Budget Act; and (2) the standards for waiving all or part of an annual charge pursuant to section 3401(g) of the Budget Act.

We note at the outset that this Final Rule is only for the determination of annual charges to recover the costs of the Commission's electric regulatory program. Therefore, how to apportion the Commission's total costs among the Commission's different regulatory programs is not before the Commission.

Below, we will discuss the types of companies to be billed, the apportionment of our electric regulatory program costs among such companies, and other matters related to the changes to the Commission's regulations on annual charges.

The Commission's electric regulatory program includes: administering the provisions of Parts II and III of the Federal Power Act (FPA)  18 as they apply to the activities of public utilities (traditionally, principally investor-owned utilities);  19 discharging its responsibilities under various statutes involving the PMAs; and implementing various provisions of the Public Utility Regulatory Policies Act of 1978 (PURPA)  20 involving qualifying cogenerators and small power producers (QFs).

Pursuant to section 205 of the FPA, 21 the Commission regulates the rates, terms and conditions of service of public utilities making sales for resale or transmitting electric energy in interstate commerce. All jurisdictional rates, terms and conditions must be on file with the Commission, and may be approved by the Commission only if they are just and reasonable and not unduly discriminatory or preferential. Under section 206 of the FPA, 22 the Commission may change any rates, terms or conditions that it finds to be unjust, unreasonable, or unduly discriminatory or preferential.

The Commission also regulates certain accounting and corporate activities of public utilities pursuant to the FPA. Examples include the following: Under section 203, 23 the Commission reviews applications filed by public utilities seeking to merge or to dispose of jurisdictional facilities. Pursuant to section 204, 24 the Commission reviews the proposed securities issuances of public utilities whose securities issuances are not regulated by a state commission within the meaning of section 204(f). Under sections 301 and 302, 25 the Commission has authority over a public utility's accounting and its depreciation. Section 304 outlines the Commission's authority to direct public utilities (and also licensees) to report information, including information on transmission of electric energy to the Commission. 26

The Commission reviews the rates established by the Department of Energy for the PMAs (Bonneville Power Administration (BPA), Southeastern Power Administration, Southwestern Power Administration, and Western Area Power Administration). While regulation of public utility rates is guided by the FPA, regulation of the PMAs' rates is subject to the standards enumerated in a number of other statutes. 27 Essentially, the statutes require that the rates established by the PMAs must be devised with regard for the recovery of the cost of generation and transmission of electric energy, the encouragement of the most widespread use of the power, the provision of the lowest possible rates to customers consistent with sound business principles, and the protection of the interests of the United States in amortizing its investment in the projects within a reasonable period of time. The Commission is also authorized, pursuant to the Northwest Power Act, to review the Average System Cost methodology used to determine rates for exchange sales by utilities to BPA.

Section 210 of PURPA  28 requires the Commission to prescribe rules to encourage cogeneration and small power production of electricity. In particular, the section directs the Commission to adopt rules requiring utilities to purchase power from and sell power to qualifying cogeneration and small power production facilities. The Commission reviews applications filed by cogenerators and small power producers requesting QF certification, and either grants or rejects such applications based on criteria set forth in the Commission's regulations. 29

a. Proposed New Methodology. In the NOPR, the Commission proposed to assess annual charges only to public utilities involved in the transmission of electric energy in interstate commerce.

b. Comments. Avista argues that the Commission should ensure that filings by PMAs and QFs carry an appropriate filing fee so that the majority of the cost of regulating those entities is paid for by those entities directly. 30 Avista and AEP argue that all costs will be borne by regulated transmission-owning public utilities, while other transmitting entities (non-jurisdictional) will not bear a comparable burden.

c. Commission Conclusion. The Commission will adopt the approach taken in the NOPR. That is, it will assess annual charges only to public utilities that provide transmission service.

The Commission is not persuaded that any change is warranted with respect to the Commission's existing policy as to assessment of annual charges to PMAs; the costs associated with the Commission's regulation of PMAs are separately identified and separately recovered. 31

The Commission will continue to excuse qualifying cogenerators and small power producers from the direct assessment of annual charges. 32 We already have exempted them from regulation under most sections of the FPA, including sections 205 and 206 of the FPA. 33 While these entities could be transmitting utilities subject to our authority under sections 211, 212, and 213 of the FPA, in fact, we have not exercised this limited authority as to any such entities.

The Commission will continue its existing policy that municipal utility systems and rural electric cooperative utility systems that are financed by the Rural Utilities Service will not be required to pay annual charges. 34 While these entities may be transmitting utilities subject to our authority under sections 211, 212 and 213 of the FPA, they are not public utilities under the FPA. 35 In addition, the number of such entities that we, in fact, regulate under this limited authority is very small, as is the amount of transmission they provide under section 211 of the FPA. 36 The Commission also will continue its practice of not assessing annual charges to utilities operating in Alaska or Hawaii. They are not public utilities under the FPA because they do not make wholesale sales or transmit electric energy in interstate commerce.

Lastly, the Commission will not assess annual charges to foreign electric utilities to the extent that their transactions are in foreign commerce or wholly within another country. 37

The Commission, given the changes in the electric industry and in the Commission's regulation of the electric industry, proposed that annual charges be assessed based solely on volumes of electric energy transmitted, rather than, as in the past, based on volumes of electric energy both sold and transmitted.

Many comments received in support of the NOPR stated that the proposal properly recognizes that the Commission's regulatory efforts in electricity are now predominately focused on ensuring non-discriminatory, open access transmission service. 38 APX states that targeting annual charges to power sales and exchanges cannot be justified in relation to the Commission's current workload. PNGC supports the Commission's proposal, stating that it will eliminate a disparity in costs faced by power sellers depending upon their jurisdictional status, eliminate problems faced by power sellers in recovering these costs as part of market prices for power, more accurately assess costs to those services, i.e., transmission, which require much more of its resources, and eliminate multiple assessments currently faced by power sellers.

The Commission notes that the instant rulemaking on annual charges moots the petition for rulemaking and the petition can therefore be terminated.

NYMEX and MLCS support the proposed revisions, stating that for a competitive wholesale power market to continue to develop, electricity must be considered a fungible commodity that can be bought and sold in a competitive open market without incurring excessive transaction costs. They urge that the proposed rule be adopted, as it promotes, rather than stymies, competitive electric wholesale transactions. The rules proposed will reduce transaction costs, better enable the wholesale electric market to respond efficiently to market-driven forces, and promote liquidity and price transparency in the industry.

A number of commenters cautioned that the proposed method is not clear and does not allow public utilities to make a proper analysis as to how the method proposed will impact their companies. These commenters request that the Commission defer final action, provide additional detail and analysis, and allow another opportunity to comment.

EEI states that, at best, it and its members can only guess at three possible Form No. 1 data line items that may qualify under the proposed method of assessing annual charges. 39 EEI argues that the Commission's clarification regarding the exact line items required to make the proposed annual assessment calculation is needed in order for those entities subject to the rule to evaluate its impact and be in a position to comment other than on the concept. Otherwise, EEI argues, the proposed method cannot be considered “fair and equitable,” as required. 40

Some commenters argue that because the Commission regulates a certain sector of the industry, i.e., transmission, that does not necessarily imply that it is fair or equitable to burden only that sector with all costs associated with the Commission's regulatory activity. They assert that Commission's open access regulations also benefit generators and consumers. Avista argues that more costs of FERC's electric regulatory program are associated with transmission does not mean that all costs associated with all aspects of electric regulation should be recovered only from transmission providers. Avista argues that the Commission should ensure that filings by power marketers and generators carry an appropriate filing fee so that the majority of the cost of regulating those entities is paid for by those entities directly. 41 NEP asserts that the Commission's principle of cost causation provides that entities whose actions give rise to costs should bear the responsibility for those costs. NEP asserts that when the party that causes costs to be incurred is no longer responsible for paying them, there is no incentive for that party to control or reduce those costs; there is no incentive for that party to act efficiently.

A number of commenters state that they generally support the Commission's approach, but assert that because the NOPR seeks to assess annual charge cost responsibility to unbundled retail transmission, but not bundled retail transmission, the NOPR methodology could be unfairly prejudicial to the public utilities that have unbundled their retail transmission service to date because it would force these utilities to absorb a disproportionately large percentage of the FERC's electric regulatory program costs. These commenters add that the proposed methodology may serve as a disincentive for additional utilities to unbundle their retail transmission services. Thus, they request that the Commission clearly define and provide the industry with clear criteria for what constitutes unbundled retail transmission services for the purposes of the annual charge calculation.

EEI and ComEd, in this regard, recommend that the Commission clarify that “unbundled retail transmission,” as a category of transactions qualifying for annual assessment, does not include bundled retail transmission service in states that have adopted retail competition. EEI notes that some states have adopted retail competition but permit retail customers to elect to continue to receive bundled service.

EPSA and APX urge the Commission to include bundled retail service in its measurement of annual charges, otherwise the NOPR will result in the Commission's costs being spread only to a small fraction of transmission service. EPSA argues that bundled retail customers, like wholesale customers, benefit from the Commission's regulation of open access transmission service.

Cal ISO and FirstEnergy request that the Commission consider exempting unbundled retail transmission from the annual charge assessments, at least on an interim basis until a greater proportion of the country has undergone restructuring. The Midwest ISO states that it does not want to see assignment of cost responsibility to bundled retail customers in states that have not unbundled their retail customers through state customer choice legislation.

SoCal Edison proposes that the unbundled transmission component of the annual charge assessment be phased-in over a five year period. NUSCO asserts that the Commission should recognize that industry restructuring is in different stages throughout the country, and argues that the Commission should provide for a gradual transition to the new methodology. Specifically, NUSCO argues that the Commission should consider adopting a five-year transition to account for transitioning retail markets.

Avista argues that the Commission's proposal is likely to result in other forms of double counting. 42 Avista asserts that a better method would be to assess the charge either at the point of generation or the point of consumption, and argues that a charge on generation would be administratively simpler.

FirstEnergy and NEP argue that the NOPR ignores the occurrence of cost shifting that results because annual charges will not be imposed on other sellers of power. FirstEnergy, APS and GPU Energy assert that cost shifting results in an additional burden in that it will be necessary for the utility to revise its OATT on an annual basis—which is overly burdensome for the public utility, interested parties and the regulatory review process. Member Systems argue that the Commission should allow jurisdictional public utilities to defer collection of any increased assessment until their next section 205 rate increase proceeding.

Avista urges the Commission to consider whether a transmission-owning utility should be assessed annual charges based on the transmission of power generated by a PMA to serve the PMA's load, asserting that a jurisdictional, transmission-owning public utility should not be required to pay annual charges that it cannot recover from its transmission customers or recover such charges from its native load customers. Avista also asserts that the presence of PMAs in some areas of the country raises the possibility that the proposal will have uneven regional impacts noting that PMAs do not operate in all regions of the country.

APS and NEP argue that the Commission's contention that annual charges are ultimately charged to customers through transmission rates, albeit indirectly, is erroneous and flawed. 43 NEM expresses reservations that the proposed methodology could increase costs to power marketers significantly and cautions the Commission on the potentially negative impact on power marketers of blending short- and long-term transactions and effectively increasing the assessments' impact on power marketers that primarily engage in short-term contracts. Thus, NEM requests that the Commission clarify that the proposed methodology is applicable only to transmission facility owners and that only such entities will receive annual bills. NEM asserts that the rulemaking needs to explicitly address the applicability of annual charges to other entities, such as power marketers. NEM expects that it is not the Commission's intention to treat power marketers that do not provide transmission services but engage in power sales, which include a transmission component, like public utilities that own transmission facilities. NEM also asserts that it is critical that the charge be on a per unit basis, not on a per transaction basis since power marketers will be impacted when the transmission owners pass along the assessment charges.

SDG&E argues that the proposed rule should clarify that the “transmission of electric energy” for purposes of assessing annual charges should not include its retail load (SDG&E notes that it is obligated to bid all of its retail customers' demand into the California power exchange). SDG&E asserts that such an interpretation would result in its retail customers experiencing a substantial increase in the annual charge over that which they currently bear.

The Commission is persuaded that it should change the way in which it apportions annual charges among the entities it regulates, and as a consequence, it will adopt the approach proposed in the NOPR.

As previously stated, at present, the Commission first determines the total costs of its electric regulatory program and subtracts all PMA-related costs and electric filing fee collections to determine the total collectible electric regulatory program costs. It then uses the data submitted under FERC-582 to determine the total volumes of long-term firm sales and transmission, and short-term sales and transmission and exchanges for all assessable public utilities. 44 The Commission next divides into its collectible electric regulatory program costs those transaction volumes to determine the unit charge per megawatt-hour for each category of transactions. Finally, the Commission multiplies the transaction volume in each category for each public utility by the relevant unit charge per megawatt-hour to determine the annual charges for each assessable public utility. 45 This methodology for assessing annual charges worked well given the industry structure that existed at the time it was adopted. However, because there have been such dramatic changes in the industry, and the Commission's regulation of the industry, this approach is no longer appropriate.

With open-access transmission, functional unbundling and the rapid movement to market-based power sales rates brought about by, inter alia, Order No. 888, 46 state retail unbundling efforts, and the recently issued Order No. 2000, 47 the time and effort of our electric regulatory program is now increasingly devoted to assuring open and equal access to public utilities' transmission systems. Wholesale power sales rates are now increasingly being disciplined by competitive market forces and less by the Commission directly. As a consequence, we believe it appropriate to now assess our electric regulatory program costs solely on the MWh of electric energy transmitted in interstate commerce by public utilities providing transmission service, 48 rather than, as in the past, on both jurisdictional power sales and transmission volumes. 49

As stated above, the Commission will now assess annual charges to all jurisdictional public utilities, as defined by the FPA, that provide transmission service. Such annual charges will be based on the MWh of unbundled transmission service (both wholesale  50 as well as retail  51 ) and on bundled wholesale power sales (which, by definition, include a transmission component, assuming that the public utility is not separately reporting the transmission component as unbundled transmission). 52

We believe that public utilities know the MWh of transmission they are providing (and that need to be reported on their FERC-582), as they do so pursuant to tariffs and rate schedules on file at the Commission and they bill their customers under these tariffs and rate schedules accordingly. 53 Nevertheless, to aid them in completing their FERC-582s, we will identify specific pages and columns where data may be found that, for the purposes of annual charge calculations, corresponds to the transmission services identified in the above narrative description. The classifications of transactions can be obtained from the FERC Annual Report Form No. 1. They include:

(1) Transmission of Electricity for Others, Transfer of Energy, MWh Delivered (Form No. 1, Pg. 328-329, Col. (j));  54

(2) Purchased Power, Power Exchanges, MWh Delivered (Form No. 1, Pg. 326-327, Col. (i));  55 and

(3) Sales for Resale, MWh Sold (Form No. 1, Pg. 310-311, Col. (g)). 56

For those public utilities, if any, that do not file a Form 1, our narrative description of how, and on what, the annual charges are to be assessed is sufficiently clear to allow them to complete their FERC-582s on a a timely basis.

The Commission also believes that the new assessment methodology is “fair and equitable,” as required by the Budget Act. The Commission believes that it is appropriate that annual charge assessments be exclusively based on transmission volumes as regulation of transmission is increasingly the work the Commission is doing and will be doing in the future. This trend, moreover, will only accelerate as the industry moves forward with the formation of RTOs. Given that the annual charge assessment methodology being adopted here will first be effective for annual charge bills to be paid in calendar year 2002, we believe it appropriate to recover our costs based solely on transmission and solely from transmission providers. In addition, as noted above, the Commission believes that power sellers will continue to contribute to the Commission's recovery of its electric regulatory program costs, albeit indirectly, through the cost-based transmission rates (and annual charges are, we find, a legitimate cost of providing transmission service) they pay for the transmission service they may take. 57

On September 5, 2000, Customs published in the Federal Register (65 FR 53565) T.D. 00-57 that revised the Customs Regulations relating to the filing of petitions in penalty, liquidated damages, and seizure cases. Parts 171 and 172 of the Customs Regulations were recrafted in that document to include petition processing in seizure and unsecured penalty cases under part 171 and liquidated damages and secured penalty petition processing under part 172. It has come to Customs attention that the amendatory instructions regarding appendix C to part 171 set forth in that document inadvertently failed to remove a section and a note in the Appendix which were intended to be removed. Not removing the section resulted in the next section being redesignated incorrectly. Section I.H. and the note following section I.H. were intended to be removed, but were not, and section I.H. was incorrectly designated as section I.F. This document corrects these errors by removing section I.H. and the note following section I.H., and redesignating section I.I. as section I.F.

On December 31, 1980, the Secretary of the Interior conditionally approved the New Mexico program. You can find background information on the New Mexico program, including the Secretary's findings, the disposition of comments, and conditions of approval in the December 31, 1980, Federal Register (45 FR 86459). You can also find later actions concerning New Mexico's program and program amendments at 30 CFR 931.11, 931.15, 931.16, and 931.30.

By letter dated December 1, 1999 (administrative record No. NM-816), New Mexico sent to us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). New Mexico submitted the proposed amendment at its own initiative and in response to the required program amendments at 30 CFR 931.16(m), (n), and (z).

We announced receipt of the proposed amendment in the December 22, 1999 Federal Register (64 FR 71700). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy (administrative record No. 819). We did not hold a public hearing or meeting because no one requested one. The public comment period ended on January 21, 2000.

During our review of the amendment, we identified concerns and notified New Mexico of the concerns by letter dated February 17, 2000 (administrative record no. NM-825). New Mexico responded in two letters dated April 26, 2000, by submitting (1) rule revisions never before submitted (administrative record No. NM-828) and (2) additional revisions to the December 1, 1999, amendment (administrative record No. NM-830).

Based upon New Mexico's revisions to and additional explanatory information for its amendment, we reopened the public comment period in the June 7, 2000, Federal Register (65 FR 36104; administrative record No. 834) and provided an opportunity for a public hearing or meeting on the adequacy of the revised amendment. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on July 7, 2000.

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment.

OSM required at 30 CFR 931.16(m)(1) that New Mexico revise 19 NMAC 8.2 2065.A to require that revegetation success be based on the general revegetation requirements at 19 NMAC 8.2 2060 and 2061 (See finding No. 16(a), 58 FR 65907, 65918, December 17, 1993; administrative record no. NM-706).

New Mexico (1) proposed to revise 19 NMAC 8.2 2065.A to require that success of revegetation shall be measured by techniques identified in the Director's Coal Mine Reclamation Program Vegetation Standards, as approved by the Directors of the New Mexico Mining and Minerals Division (MMD) and OSM after consultation with appropriate State and Federal agencies, and (2) submitted for OSM's approval the Coal Mine Reclamation Program Vegetation Standards guidance document.

The introductory sentence in section I. D., Establishment and Monitoring of Revegetation Success Standards, in the Coal Mine Reclamation Program Vegetation Standards guidance document, requires that “[t]he success of revegetation on reclaimed lands is measured against either an unmined reference area or technical (numeric) standards, and the general revegetation requirements of 19 NMAC 8.2, Subpart 2060.” Because proposed 19 NMAC 8.2 2065.A states that revegetation success shall be measured in accordance with the Coal Mine Reclamation Program Vegetation Standards, the requirement to determine success based in part on the general revegetation requirements of 19 NMAC 8.2 2060 (concerning establishment of a vegetative cover that is diverse, effective, and permanent) is incorporated by reference into 19 NMAC 8.2 2065.A. Therefore, the Director finds that New Mexico's proposed rule at 19 NMAC 8.2 2065.A has satisfied the requirement that the success of reclamation be judged upon New Mexico's counterpart, 19 NMAC 8.2 2060, to the Federal regulation at 30 CFR 816.111(a)(1).

The Federal regulations at 30 CFR 816.111(a)(2) and New Mexico's rules at 19 NMAC 8.2 2061 require that the permittee establish a vegetative cover that is comprised of native species or of introduced species approved by the regulatory authority. New Mexico's proposed Coal Mine Reclamation Program Vegetation Standards guidance document includes the list of introduced species that may be approved in a permit application package. Therefore, the Director finds that by revision of 19 NMAC 8.2 2065 to include the guidance document in its approved program, New Mexico has satisfied the requirement that the success of reclamation be judged upon New Mexico's counterpart, 19 NMAC 8.2 2061, to the Federal regulation at 30 CFR 816.111(a)(2).

Please note that New Mexico's proposed 19 NMAC 8.2 2065.A requires that the Directors of New Mexico MMD and OSM consult with appropriate State and Federal agencies prior to approval of techniques for measuring success; such a requirement for consultation has no counterpart in the Federal program. New Mexico's requirement for consultation with appropriate agencies prior to approval of measuring techniques is not inconsistent with the Federal regulations; however, the Director makes this finding with the interpretation that the consultation requirement applies only to New Mexico and not to OSM.

Based on the discussion above, the Director finds that New Mexico's proposed revision of 19 NMAC 8.2 2065.A and the Coal Mine Reclamation Program Vegetation Standards guidance document are no less effective than the counterpart Federal regulations at 30 CFR 816.111 and satisfy the required amendment at 30 CFR 931.16(m)(1). Therefore, the Director removes the required amendment at 30 CFR 931.16(m)(1).

OSM required at 30 CFR 931.16(m)(2) that New Mexico revise 19 NMAC 8.2 2065.A to specifically identify the technical guidance procedures published by USDA that may be used as the basis for technical success standards demonstrating revegetation success (See finding No. 16(a), 58 FR 65907, 65918, December 17, 1993; administrative record no. NM-706.

New Mexico proposed to revise 19 NMAC 8.2 2065.A to delete the allowance for the use of technical guidance procedures published by USDA or other techniques approved by MMD. With the deletion of unspecified technical guidance procedures, New Mexico has resolved the need for any further action.

The Director finds that New Mexico's proposed revision of 19 NMAC 8.2 2065.A is no less effective than the counterpart Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) and satisfies the required amendment at 30 CFR 931.16(m)(2). Therefore, the Director removes the required amendment at 30 CFR 931.16(m)(2).

OSM required at 30 CFR 931.16(m)(3) that New Mexico propose revisions to 19 NMAC 8.2 2065.A to require that all standards for success and measuring techniques be approved by the Director of OSM for inclusion in New Mexico's approved regulatory program (See finding No. 16(a), 58 FR 65907, 65918, December 17, 1993, administrative record No. NM-706). OSM required at 30 CFR 931.16(n) that New Mexico revise 19 NMAC 2065.B(1) to require that all revegetation success standards and measuring techniques be approved by the Director of OSM as well as the Director of MMD (See finding No. 16(b), 58 FR 65907, 65919, December 17, 1993; administrative record No. NM-706).

New Mexico (1) proposed to revise (a) 19 NMAC 8.2 2065.A to require that the measuring techniques identified in the Coal Mine Reclamation Program Vegetation Standards be approved by Directors of both MMD and OSM, and (b) 19 NMAC 8.2 2065.B(1) to require approval of the Coal Mine Reclamation Program Vegetation Standards by both MMD and OSM, and (2) submitted for OSM's approval the Coal Mine Reclamation Program Vegetation Standards guidance document. In the second paragraph of this document, New Mexico states that “[t]he use of procedures or practices that are not included in these standards, however, requires prior approval of the Directors of both the MMD and OSM.”

Based on the proposed revisions described above and the discussion below concerning revegetation success standards and measuring techniques, the Director finds that New Mexico's proposed revision of 19 NMAC 8.2 2065.A and 2065.B(1) and the Coal Mine Reclamation Program Vegetation Standards guidance document are no less effective than the counterpart Federal regulations at 30 CFR 816.116(a)(1) and (2) and 817.116(a)(1) and (2) and satisfy the required amendments at 30 CFR 931.16(m)(3) and (n). Therefore, the Director removes the required amendments at 30 CFR 931.16(m)(3) and (n).

i. Revegetation Success Standards. Section I.D. (“Establishing and Monitoring Revegetation Success Standards”) in the New Mexico's Coal Mine Reclamation Program Vegetation Standards guidance document sets forth revegetation success standards on reclaimed lands, which may be measured against either an unmined reference area or technical (numeric) standards, and the general revegetation requirements of 19 NMAC 8.2, Subpart 2060.

New Mexico encourages applicants to develop and use technical standards when suitable reference areas are not available and baseline data or historical records are incomplete. For the development of technical standards, New Mexico requires data collected from undisturbed vegetation types remaining on the mine or adjacent to the mine area in combination with additional documentation from data collection from vegetation types similar to those of premine or predisturbance conditions (which should take the form of peer-reviewed scientific, government, or extension publications that describe the condition, production, and potential of natural vegetation communities resembling premine vegetation).

New Mexico requires that reference areas must include each native vegetation type that comprises greater than 15% of the undisturbed premine area, and that reference areas or technical standards for reclaimed croplands and pasture lands must be established regardless of size.

To provide a reasonable measure of revegetation success, New Mexico requires that reference areas must include enough variation in slope, slope position, aspect and edaphic conditions to adequately represent the undisturbed condition of the premine vegetation types. New Mexico also encourages the establishment of extended reference areas whenever mining operations will disturb more than one or two native plant communities. An extended reference area must include each of the major premine vegetation types, and should constitute a logical grazing unit.

The Director finds that the revegetation success standards set forth in Section I.D. of New Mexico's Coal Mine reclamation Program Vegetation Standards guidance document are consistent with and no less effective and the Federal regulations at 30 CFR 816.116(a)(1) and (2) and 817.116(a)(1) and (2).

ii. Measuring Techniques for Demonstrating Success of Revegetation. Section II.B. (“Measurement of Cover, Production, Density and Diversity”) in New Mexico's Coal Mine Reclamation Program Vegetation Standards guidance document sets forth methods and procedures for measuring or sampling vegetation on reclaimed land. New Mexico provides for the use of (1) ocular estimation techniques and intercept techniques ( e.g., line interception and point interception) to measure cover; (2) clipping of herbaceous production, regression models that predict the annual production of individual shrub species, and enclosures to measure productivity; (3) plotless and nearest neighbor methods, quadrat and belt transect methods, and exact counts to measure tree and shrub density; and (4) alpha (a) or species diversity, beta (b) or inter-community diversity, and gamma (g) or landscape diversity to measure diversity.

With the exception of the use of ocular estimation to measure cover, all of New Mexico's proposed measurement procedures are typical methods used for evaluating plant cover, production, density and diversity and have been previously approved by OSM in other State programs.

OSM's previously identified concerns with use of the ocular technique are repeatability and observer bias. However, in Chapter 8, Measuring and Monitoring Plant Populations (C. Elzinga, D. Salzer and J. Willoughby, BLM Technique Reference 1730-1, 1998), the authors note problems with all cover estimation techniques. None is problem or bias free. The BLM authors also include a discussion comparing ocular plot and point intercept (the most commonly used cover estimating technique) methods. The authors indicate that Dethier et al. (1993) created simulated plots containing a known cover of 13 species and compared cover measured by point intercept to cover visually estimated to the nearest percent in the plot. Cover estimations done with the aid of subdividing the 50x50 centimeter plots into 4x5 centimeter rectangles were close between observers, and closer to the true value of cover than measured points. In the field, point intercept failed to detect 19% of the species that were detected by cover estimation. Differences between observers were less for cover estimations than for point measurements. This discussion indicates that cover estimation using ocular methods can be as reliable as point intercept and is more likely to detect a greater diversity of plant species present on the reclaimed area.

New Mexico's guidance document also reflects the concerns with repeatability and observer bias. New Mexico indicates that variability may be reduced by using smaller quadrats for evenly dispersed vegetation (rhizomatous grasses) and larger quadrats for clumped vegetation such as forbs, shrubs, and bunch grasses. Further, New Mexico requires the use of the following techniques to improve the reliability of ocular estimates:

• Frames should be painted to indicate various areal percentages or marked with grids that delineate known percentages.

• The number of observers should be limited, and each observer should be similarly trained ( e.g., by making joint estimates using cardboard shapes of known cover values).

• Sampling error can be reduced by ensuring that vertical projections of ground covered by vegetation, litter or rock contained or rooted within a circular plot or quadrat are carefully estimated and recorded to the nearest percent.

• The use of cover classes as the sole means of establishing or measuring a cover standard will not be accepted.

Based on the above discussion, the Director finds that the methods and procedures for measuring or sampling vegetation on reclaimed land set forth in Section II of New Mexico's Coal Mine Reclamation Program Vegetation Standards guidance document, including the use of ocular estimation for evaluating plant cover, are consistent with and no less effective than the Federal regulations at 30 CFR 816.116(a)(1) and (2) and 817.116(a)(1) and (2).

iii. Statistical Analyses for Demonstrating Revegetation Success with 90 Percent Statistical Confidence. Section III (“Statistical Analyses of Vegetation Data”) and Appendix C (“Statistical Formulas, Examples and Tables”) in New Mexico's Coal Mine Reclamation Program Vegetation Standards guidance document sets forth the acceptable methods of statistical analyses for demonstrating revegetation success with 90 percent statistical confidence. In addition to the traditional approaches for statistically demonstrating revegetation success when evaluating cover, production or stocking density, New Mexico proposes to allow the use of the reverse null hypothesis. For this text, New Mexico has defined the null hypothesis to be that the parameter mean of the revegetated area is less than 90 percent of the parameter mean of the reference area (or technical standard). The alternative hypothesis is that the parameter mean of the revegetated area is greater than or equal to 90 percent of the parameter mean of the reference area (or technical standard). In all cases, a 90 percent confidence interval and a one-sided test with an alpha error of 0.1 is used. The reverse null hypothesis assumes that mining has affected the land and it must be demonstrated that the performance standards required by the regulations have been achieved. In support to its proposed reverse null hypothesis, New Mexico references M. Ames' 1993 publication “Sequential Sampling of Surface-mined Land to Assess Reclamation,” in the Journal of Range Management (46:498-500); W. P. Erikson's 1992 publication “Hypothesis Testing Under the Assumption That a Treatment Does Harm to the Environment,” M.S. thesis, University of Wyoming, and Erikson and McDonald's 1995 publication “Tests for Bioequivalence of Control Media and Test Media in Studies of Toxicity,” in Environmental Toxicology and Chemistry (14:1247-1256).

This reverse null hypothesis is the opposite of the null hypothesis for the Federal regulations. In the September 2, 1983 Federal Register (48 FR 40140, 40152), OSM states that the null hypothesis usually states that there is no difference between the true value of the population parameter and that which is hypothesized. The null hypothesis is a proposition that is considered valid unless evidence throws doubt on it. this means that the mine operator has achieved the required degree of revegetation success unless evidence as provided by the sample data indicates that the standard has not been attained.

The use of the reverse null hypothesis is a more stringent statistical standard to meet than the classical null hypothesis. A mine operator must, in effect, demonstrate that the lower limit of the 90 percent confidence interval for the reclaimed area parameter is greater than (1) the upper limit of the 90 percent confidence interval for 90 percent of the reference area standard or (2) 90 percent of the technical standard. Under the classical null hypothesis an operator must only demonstrate that either the two confidence intervals for the reclaimed parameter and the reference area parameter overlap or the confidence interval for the reclaimed parameter and 90 percent of the technical standard overlap.

An advantage in using the reverse null hypothesis is that sample size is no longer an issue. Small sample sizes are usually associated with large variances and, therefore, large confidence intervals. With the reverse null hypothesis the goal of sampling is to reduce the variance and size of the confidence interval around the sample mean. It is to the operator's benefit to take a sample of sufficiently large size to minimize variance, reduce the width of the confidence interval and ensure that the null hypothesis can be rejected. For this reason, New Mexico does not specify the use of a sample adequacy formula for demonstrating revegetation success. However, New Mexico does recommend a minimum sample size of 30.

The Director finds that Sections III.A and B (“Statistical Analysis of Vegetation Data”) and Appendix C (“Statistical Formulas, Examples and Tables”) in New Mexico's Coal Mine Reclamation Program Vegetation Standards guidance document are consistent with and no less effective than the Federal regulations at 30 CFR 816.116(a)(1) and (2) and 817.116(a)(1) and (2).

OSM required at 30 CFR 931.16(z) that New Mexico revise its rules to either identify selected husbandry practices and submit them with documentation verifying that the proposed practices would be considered normal in the areas being mined, or state that selected husbandry practices approved by the Director may not be implemented prior to approval by OSM in accordance with the State program amendment process at 30 CFR 772.17 (See finding No. 18, 61 FR 26825, 26831, May 29, 1996; administrative record No. NM-786).

New Mexico proposed to revise 19 NMAC 8.2 2065.B(1) to require that the period of extended responsibility under the performance bond requirements of Subparts 14 and 15 begins after the last year of augmented seeding, fertilizing, irrigation, or other work, excluding husbandry practices that are approved by the Director in accordance with paragraph 2065.B(6), and submitted, for OSM's approval, the Coal Mine Reclamation Program Vegetation Standards guidance document.

New Mexico identified proposed normal husbandry practices in Sections IV.A and IV.B of the Coal Mine Reclamation Program Vegetation Standards guidance document and provided the documentation showing that the practices would be considered normal in the areas being mined. In addition, New Mexico requires that applicants must ensure that the current permit contains a management plan that discusses the use of approved husbandry practices before they are implemented. The plan should describe the purpose of the practices, the methods to be used, and the schedule for implementation. Upon approval of the plan by New Mexico, the applicant may implement the husbandry practice.

New Mexico's Coal Mine Reclamation Program Vegetation Standards guidance document discuses the use of the following normal husbandry practices (see finding No. 2.A below for a discussion of one additional normal husbandry practice concerning interseeding and planting of tree and shrub seedlings):

OSM considers, on a practice-by-practice basis, the administrative record supporting each normal husbandry practice proposed by a regulatory authority (53 FR 34641, September 7, 1988). OSM also has provided specific guidance concerning the repair of rills and gullies by stating that a regulatory authority could allow the repair of rills and gullies as a husbandry practice that would not restart the liability period if the general standards of 30 CFR 816.116(c)(4) are met and after consideration of the normal conservation practices within the region (48 FR 40157, September 2, 1983).

For each proposed normal husbandry practice, New Mexico referenced in the Coal Mine Reclamation Program Vegetation Standards guidance document the National Resources Conservation Service's (NRCS) Standard Conservation Practices supplements which support the use of these practices as normal husbandry in the New Mexico coal field regions. New Mexico thus has demonstrated that the proposed normal husbandry practices listed above are normal husbandry practices within there region for unmined lands having land uses similar to the approved postmining land use of the disturbed area. In addition, new Mexico set appropriate limits on aerial extent and time frames for implementation for each proposed practice. If a permittee exceeded these limits, the permittee would have to extend the period of liability for demonstrating success of revegetation.

The Director finds that New Mexico's proposed normal husbandry practices identified above, as discussed in the Coal Mine Reclamation Program Vegetation Standards guidance document, are consistent with and no less effective than the Federal regulations at 30 CFR 816.116(c)(1) and (4) in meeting the requirements of SMCRA. The Director approves the normal husbandry practices identified above and removes the required amendment at 30 CFR 931.16(z).

New Mexico proposed to revise the definition of “Augmented Seeding” at 19 NMAC 8.2 107.A(20) to mean seeding in excess of the normal husbandry practices approved in the Coal Mine Reclamation Program Vegetation Standards guidance document, or reseeding with fertilization or irrigation, or reseeding in response to unsuccessful revegetation in terms of adequate germination or establishment or permanence.

New Mexico proposed a new definition of “Interseeding” at 19 NMAC 8.2 107.I(8) to mean a secondary seeding practice into established vegetation cover in order to take advantage of climatic conditions that favor species requiring special conditions for germination and establishment, or to improve or alter the composition between forage and shrubs, or between warm and cool season grasses.

New Mexico proposed in Section IV.B of the Coal Mine Reclamation Program Vegetation Standards guidance document (1) interseeding and (2) planting of tree and shrub seedlings as normal husbandry practices applicable to the postmining land uses of grazing land, fish and wildlife habitat, forestry, and recreation.

Specifically, New Mexico proposes to allow as normal husbandry, practices:

The Federal regulations at 30 CFR 816.116(c)(1) required that the period of extended responsibility for successful revegetation shall begin after the last year of augmented seeding, fertilizing, irrigation, or other work, excluding husbandry practices that are approved by the regulatory authority in accordance with 30 CFR 816.116(c)(4). The Federal regulations at 30 CFR 816.116(c)(4) require that a State may approve selective husbandry practices, excluding augmented seeding, fertilization, or irrigation, provided it obtains prior approval from OSM that the practices are normal husbandry practices without extending the period of responsibility for revegetation success and bond liability, if such practices can be expected to continue as part of the post-mining land use or if discontinuance of the practices after the liability period expires will not reduce the probability of permanent vegetation success. Approved practices shall be normal husbandry practices with in the region for unmined land having land uses similar to the approved postmining land use of the disturbed area, including such practices as disease, pest, and vermin control, and any pruning, reseeding, and transplanting specifically necessitated by such actions.

i. Definitions of “Augmented Seeding” and “Interseeding” and use of interseeding as a normal husbandry practice. In 1983, OSM considered and rejected the idea of allowning interseeding and supplemental fertilization during the first 5 years of the 10 year responsibility period. While allowing replanting of trees and shrubs “to utilize the best technology available” without extending the responsibility period, OSM determined that augmented seeding, fertilizing or irrigation is not allowed during the responsibility period. (See 48 FR 40156, September 2, 1983.)

However, in 1988, (53 FR 34641, September 7, 1988) OSM stated, in the context of the Federal regulation at 30 CFR 816.116(c)(4), that

Further, in the response to comments received concerning an Ohio program amendment, OSM stated that

New Mexico's proposed definitions for “augmented seeding” and “interseeding” distinguish the differences between them. Interseeding is clearly aimed at establishing species that require special conditions for germination and the establishment or altering of species composition. New Mexico's discussion of interseeding as a normal husbandry practice in the Coal Mine Reclamation Program Vegetation Standards guidance document further clarifies that interseeding is done to enhance the revegetation, rather than to augment the revegetation. New Mexico reiterates that interseeding is defined as a secondary seeding into established revegetation in order to improve composition, diversity or seasonality. In contrast, augmented seeding is reseeding with fertilization or irrigation, or in response to unsuccessful revegetation in terms of adequate germination or establishment or permanence. Thus, New Mexico's goal for interseeding is not to ensure that the reclaimed area will meet the success standards, but to go beyond the minimum standards of the regulations and improve the overall composition, diversity or seasonality of the reclaimed area.

New Mexico also proposes appropriate time frames limiting the application of interseeding as a normal husbandry practice without restarting the bond liability period and requires the all interseeding consist of only native species and approved introduced species contained in the original seed mix.

To support interseeding as a normal husbandry practice, New Mexico submitted New Mexico Rangeland (Circular 525, Cooperative Extension Service, New Mexico State University, 1988, as well as the NRCS's Standard Conservation Practices Code No. 550 for New Mexico. The extension publication indicates that the goals of rangeland seeding, including interseeding, are restoring production potential, changing composition of the vegetation, achieving a higher quality forage resource, getting a better seasonal balance of forage supply, and improving wildlife habitat. Both referenced publications support the use of interseeding as a normal husbandry practice.

OSM previously approved Indiana's definition of “augmented seeding, fertilization, or irrigation” as seeding, fertilizing, or irrigation in excess of normal agronomic practices within the region. OSM's approval was based on the concept that the proposed definition made a distinction between normal conservation practices that were not augmented seeding, fertilizing, irrigation or other work, and augmented husbandry practices (60 FR 53512, October 16, 1995).

Based on New Mexico's proposed definitions of “augmented seeding” and “interseeding,” the guidance provided for use of interseeding as a normal husbandry practice in New Mexico's Coal Mine Reclamation Program Vegetation Standards guidance document, and documentation supporting interseeding as a normal husbandry practice in New Mexico, the Director finds that New Mexico has demonstrated that the proposed use of interseeding is not an augmented seeding. Because the use of interseeding is not an augmented seeding. Because the use of interseeding as proposed by New Mexico clearly supports a key goal of SMCRA, the establishment of a permanent, a key goal of SMCRA, the establishment of a permanent, diverse, and effective vegetative cover without compromising compliance of the State program with the Act, the Director also finds that New Mexico's proposed definitions of “augmented seeding” and “interseeding,” as proposed at 19 NMAC 8.2 107.A(20) and 107.I(8), and use of interseeding, as described in the Coal Mine Reclamation Program Vegetation Standards guidance document, are consistent with and no less effective than the Federal regulations at 30 CFR 816.116(c)(1) and (4) in meeting the requirements of SMCRA. The Director approves New Mexico's proposed definitions of “augmented seeding” and “interseeding,” proposed at 19 NMAC 8.2 107.A(20) and 107.I(8), and the use of interseeding as a normal husbandry practice, proposed in New Mexico's Coal Mine Reclamation Program Vegetation Standards guidance document.

ii. Transplanting of trees and shrubs as a normal husbandry practice. The Federal regulations at 30 CFR 816.116(b)(3)(ii) require that trees and shrubs that will be used in determining the success of stocking and the adequacy of the plant arrangement shall have utility for the approved postmining land use. Trees and shrubs counted in determining such success shall be healthy and have been in place for not less than two growing seasons. At the time of bond release, at least 80 percent of the trees and shrubs used to determine such success shall have been in place for 60 percent of the applicable minimum period of responsibility. In the preamble to this regulation, OSM indicates that the rule represents a reasonable compromise that allows some replanting if approved as normal husbandry practice (53 FR 34638, September 7, 1988).

In support of its proposal to allow the transplanting of trees and shrubs as a normal husbandry practice, New Mexico provided a copy of the NRCS's Standard Conservation Practice Code No. 612, which discusses tree and shrub establishment.

The NRCS publication clearly specifies the need for replanting when survival is inadequate. New Mexico further restricts the transplanting of trees and shrubs to six years prior to bond release. This is equivalent to 60 percent of the applicable minimum period of responsibility, which is 10 years in New Mexico. New Mexico has demonstrated that the transplanting of trees and shrubs is a normal husbandry practice in New Mexico.

The Director finds that the proposed transplanting of trees and shrubs as a normal husbandry practice is consistent with and no less effective than the Federal regulations at 30 CFR 816.116(b)(3)(ii) and (c)(4) and approves it.

New Mexico proposed to revise:

(1) 19 NMAC 8.2 2064, concerning grazing, to require that when the approved postmining land use is range or pasture land, the operator shall demonstrate to the Director, that the reclaimed land has the capability of supporting livestock grazing at rates approximately equal to that for similar non-mined lands for at least two of the last four full years of liability required under paragraph 2065.B of these regulations;

(2) 19 NMAC 8.2 2065.B(2) to require that in areas of more than 26.0 inches average annual precipitation, the period of liability under the performance bond requirements of Subpart 14 shall continue for not less than five full years. Ground cover and productivity shall equal or exceed the approved standard for two of the last four years of the responsibility period;

(3) 19 NMAC 8.2 2065.B(3) to require that in areas of less than or equal to 26.0 inches average annual precipitation, the period of liability under the performance bond requirements of Subpart 14 shall continue for not less than 10 full years. Ground cover and productivity shall equal the approved standard for at least two of the last four years, starting no sooner than year eight of the responsibility period; and

(4) 19 NMAC 8.2 2065.B(5)(iii) to require, “[f]or areas to be used for cropland, success in revegetation of cropland shall be determined on the basis of crop production from the mined area as compared to approved reference areas or other technical guidance procedures. Crop production from the mined area shall be equal to or greater than that of the approved standard for two of the last four growing seasons of the 5 or 10 year liability period established in paragraph 2065.B(1), (2) and (3), starting no sooner than year eight of the 10 year period. The applicable 5 or 10 year period of responsibility for revegetation shall commence at the date of initial planting of the crop being grown.”

The Federal regulations at 30 CFR 815.116(c)(2)(i) and (ii) require

On December 15, 1981, the Secretary of the Interior conditionally approved the Virginia program. You can find background information on the Virginia program, including the Secretary's findings, the disposition of comments, and the conditions of approval in the December 15, 1981, Federal Register (46 FR 61085-61115). You can find later actions on conditions of approval and program amendments at 30 CFR 946.11, 946.12, 946.13, 946.15, and 946.16.

By letter dated June 27, 2000 (Administrative Record Number VA-999) the Virginia Department of Mines, Minerals and Energy (DMME) submitted an amendment to the Virginia program. In its letter, the DMME stated that on December 22, 1999, OSM suspended and modified portions of 30 CFR 784.20 and 30 CFR 817.121 pursuant to an order of the United States Appeals Court for the District of Columbia. The DMME further stated that the corresponding sections of the Virginia Surface Mining Reclamation Regulations also contain the same language the court found inappropriate and which OSM consequently removed from the Federal rules. The DMME stated that it proposes to amend its rules to be consistent with and in the same manner that OSM modified the Federal regulations. We announced receipt of the proposed amendment in the July 14, 2000, Federal Register (65 FR 43723), invited public comment, and provided an opportunity for a public hearing on the adequacy of the proposed amendment. The comment period closed on August 14, 2000. No one requested to speak at a public hearing, so no hearing was held.

The Energy Policy Act was enacted October 24, 1992, Pub. L. 102-486, 106 Stat. 2776 (1992) (hereinafter, The Energy Policy Act or EPAct). Section 2504 of that Act, 106 Stat. 2776, 3104, amends SMCRA, 30 U.S.C. 1201 et seq. Section 2504 of EPAct added a new section 720 to SMCRA. Section 720(a)(1) requires that all underground coal mining operations conducted after October 24, 1992, promptly repair or compensate for material damage to non-commercial buildings and occupied residential dwellings and related structures as a result of subsidence due to underground coal mining operations. Repair of damage includes rehabilitation, restoration, or replacement of the structures identified by section 720(a)(1), and compensation must be provided to the owners in the full amount of the diminution in value resulting from the subsidence. Section 720(a)(2) requires prompt replacement of certain identified water supplies which have been adversely affected by underground coal mining operations. Under section 720(b), the Secretary of the Interior was required to promulgate final regulations to implement the provisions of section 720(a).

On September 24, 1993 (58 FR 50174), OSM published a proposed rule to amend the regulations applicable to underground coal mining and control of subsidence-caused damage to lands and structures through the adoption of a number of permitting requirements and performance standards. We adopted final regulations on March 31, 1995 (60 FR 16722).

The rules were challenged by the National Mining Association in the District Court for the District of Columbia and in the U.S. Court of Appeals for the District of Columbia Circuit. On April 27, 1999, the U.S. Court of Appeals issued a decision vacating certain portions of the regulatory provisions of the subsidence regulations. See National Mining Association v. Babbitt, 173 F.3d 906 (1999). We suspended those regulatory provisions that are inconsistent with the rationale provided in the U.S. Court of Appeals' decision. The following Federal provisions were suspended.

This regulation provided that if damage to any non-commercial building or occupied residential dwelling or structures related thereto occurred as a result of earth movement within an area determined by projecting a specific angle of draw from the outer-most boundary of any underground mine workings to the surface of the land, a rebuttable presumption would exist that the permittee caused the damage. The presumption typically would have applied to a 30-degree angle of draw. Once the presumption was triggered, the burden of going forward shifted to the mine operator to offer evidence that the damage was attributable to another cause. The purpose of this regulatory provision was to set out a procedure under which damage occurring within a specific area would be subject to a rebuttable presumption that subsidence from underground mining was the cause of any surface damage to non-commercial buildings or occupied residential dwellings and related structures.

The Court of Appeals vacated, in its entirety, this rule that established an angle of draw and that created a rebuttable presumption that damage to EPAct protected structures within an area defined by an “angle of draw” was in fact caused by the underground mining operation. 173 F.3d at 913.

In reviewing the regulation, the Court rejected the Secretary's contention that the angle of draw concept was reasonably based on technical and scientific assessments and that it logically connected the surface area that could be damaged from earth movement to the underground mining operation. The angle of draw provided the basis for establishing the surface area within which the rebuttable presumption would apply. The Secretary had explained that the rebuttable presumption merely shifted the burden of document production to the operator in evaluating whether the damage was actually caused by the underground mining operation within the surface area defined by the angle of draw. The Court nevertheless held that the angle of draw was irrationally broad and that the scientific facts presented did not support the logical inference that damage to the surface area would be caused by earth movement from underground mining within the area.

Based on the conclusion that there was no scientific or technical basis provided for establishing a rational connection between the angle of draw and surface area damage, the Court further concluded that the rebuttable presumption failed. In reviewing the rebuttable presumption requirement, the Court held “an evidentiary presumption is ‘only permissible if there is sound and rational connection between the proved and inferred facts, and when proof of one fact renders the existence of another fact so probable that it is sensible and timesaving to assume the truth of [the inferred] fact * * * until the adversary disproves it.’ ;” That is to say, for the presumption to be permissible, the facts would have to demonstrate that the earth movement from the underground mining operation “more likely than not” caused the damage at the surface. See National Mining Association, 173 F.3d at 906-910. In compliance with the Court of Appeals' decision of April 27, 1999, we suspended 30 CFR 817.121(c)(4)(i) through (iv).

Paragraph (v) within this section applies generally to the types of information that must be considered in determining the cause of damage to an EPAct protected structure and is not limited to or expanded by the area defined by the angle of draw. Therefore, paragraph (v) remains in force.

This regulatory provision required, unless the applicant was denied access for such purposes by the owner, a survey which identified certain features. First, the survey had to identify the condition of all non-commercial buildings or occupied residential dwellings and related structures which were within the area encompassed by the applicable angle of draw and which might sustain material damage, or whose reasonably foreseeable use might be diminished, as a result of mine subsidence. Second, the survey had to identify the quantity and quality of all drinking, domestic, and residential water supplies within the proposed permit area and adjacent area that could be contaminated, diminished, or interrupted by subsidence. In addition, the applicant was required to notify the owner in writing that denial of access would remove the rebuttable presumption that subsidence from the operation caused any postmining damage to protected structures that occurred within the surface area that corresponded to the angle of draw for the operation. (See discussion of angle of draw above). This regulatory provision was challenged insofar as it required a specific structural condition survey of all EPAct protected structures. The Court of Appeals vacated the specific structural condition survey regulatory requirement in its decision on April 27, 1999. In reviewing the Secretary's requirement, the Court clearly upheld the Secretary's authority to require a pre-subsidence structural condition survey of all EPAct protected structures. The Court accepted the Secretary's explanation that this specific structural condition survey was necessary, among other requirements, in order to determine whether a subsidence control plan would be required for the mining operation. However, because of the Court's ruling on the “angle of draw” regulation discussed above, it vacated the requirement for a specific structural condition survey because it was tied directly to the area defined by the “angle of draw.”

In compliance with the Court of Appeals” decision, we suspended that portion of 30 CFR 784.20(a)(3) which required a specific structural condition survey of all EPAct protected structures. The remainder of this section continues in force to the extent that it applies to the EPAct protected water supplies survey and any technical assessments or engineering evaluations necessarily related thereto.

Following, according to SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17, are our findings concerning Virginia's amendment.

Subsection 4 VAC 25-130-784.20(a)(3) is amended by adding the following language at the end of subdivision (3).

As stated above, the Federal regulation at 30 CFR 784.20(a)(3), which required the performance of a survey of the condition of all noncommercial buildings or occupied residential dwellings and structures related thereto, that may be materially damaged or for which the reasonably foreseeable use may be diminished by subsidence, within the areas encompassed by the applicable angle of draw is suspended. In the proposed amendment, Virginia has suspended the State counterpart to the suspended Federal regulation. Since the language of 4 VAC 25-130-784.20(a)(3) and the added sentence suspending a portion of the regulation are substantively identical to the amended Federal regulation, we find these changes to the provisions at 4 VAC 25-130-784.20(a)(3) which required a specific structural condition survey of all EPAct protected structures, are consistent with the suspension of the Federal regulation discussed above, and do not render the Virginia program regulations less effective than the Federal regulations. Therefore, we are approving this amendment.

Section 4 VAC 25-130-817.121(c)(4), is revised by deleting the title “Rebuttable presumption of causation by subsidence,” and by deleting paragraphs (c)(4)(i) through (iv). New language is added which states that “Section (4)(i) through (iv) are suspended consistent with the Secretary's suspension of the corresponding Federal rule.” The paragraph designation “(v)” is deleted.

As amended, section 4 VAC 25-130-817.121(c)(4) provides the following.

As discussed above, Federal regulations concerning the rebuttable presumption at 30 CFR 817.121(c)(4)(i) through (iv) have been suspended. Since the regulations at 4 VAC 25-130-817.121(c)(4)(i) through (iv) were previously approved by OSM as the State counterparts to the suspended Federal regulations, we find that the suspension and deletion by Virginia to be consistent with the suspension of the Federal regulations and do not render the Virginia program regulations less effective than the Federal regulations. Therefore, we are approving the amendments.

According to 30 CFR 732.17(h)(11)(i), we solicited comments on the proposed amendment from various Federal agencies with an actual or potential interest in the Virginia program. The U.S. Department of Labor, Mine Safety and Health Administration (MSHA) responded and stated that there appears to be no conflict with the MSHA regulations or policy. The U.S. Fish and Wildlife Service (USFWS) responded and stated that it foresees no effects from the proposed amendment on the USFWS trust resources, including endangered and threatened species. The U.S. Department of Agriculture, Natural Resources Conservation Service (NRCS) responded and stated its concurrence with the amendments.

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the written concurrence of the EPA with respect to any provisions of the State program amendment that relate to air or water quality standards promulgated under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ).

None of the rule suspensions Virginia proposed pertain to air or water quality standards. Nevertheless, we requested EPA's comments on the proposed amendment.

The EPA responded by letter dated July 11, 2000 (Administrative Record Number VA-1002) and stated that it has no objections to the amendments since they are not contrary to the clean Water Act or other statutes or regulations implemented by the EPA. The EPA also provided the following general comments. The EPA stated that Virginia's requirements for subsidence control plans and pre-subsidence surveys primarily relate to minimizing damage to surface structures and drinking water supplies, as required by SMCRA. The EPA recommended that, where there is a potential for subsidence problems associated with water loss in streams, that stream flow and aquatic life monitoring of streams in the path of any longwall mining operation also be included in pre-subsidence surveys. The EPA also recommended that measures to minimize or prevent subsidence cracks in the stream beds be implemented to the extent feasible, including the avoidance of mining under the streams and the detecting and sealing of stream cracks after subsidence.

These comments are outside the scope of this amendment.

We solicited public comments on the amendment. One commenter responded and expressed support for the amendments and stated that OSM should approve them. In response, and for the reasons discussed above in the findings, we are approving the amendments.

Based on the above findings, we approve the Virginia amendment as submitted by Virginia on June 27, 2000.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 946 which codifies decisions concerning the Virginia program. We are making this final rule effective immediately to expedite the State program amendment process.

This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart federal regulation.

This rule does not have federalism implications. SMCRA delineates the roles of the federal and state governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that state laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that state programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, to the extent allowed by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of state regulatory programs and program amendments since each such program is drafted and promulgated by a specific state, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed state regulatory programs and program amendments submitted by the states must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed state regulatory program provision does not constitute a major federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A).

This rule does not contain information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior has determined that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The state submittal which is the subject of this rule is based upon counterpart federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Accordingly, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the state. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart federal regulation.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million.

b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.

This determination is based upon the fact that the state submittal which is the subject of this rule is based upon counterpart federal regulations for which an analysis was prepared and a determination made that the federal regulation was not considered a major rule.

This rule will not impose a cost of $100 million or more in any given year on any governmental entity or the private sector.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing a NPRM would be contrary to the public interest since immediate action is needed to protect boaters from hazards associated with the compromised structural integrity of the Southern Natural Gas dock at Elba Island. The Coast Guard received notice of this compromised structural integrity of the facility on September 21, 2000 and the safety zone becomes effective on September 21, 2000.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying its effective date would be contrary to the public interest since immediate action is needed to protect boaters from hazards associated with the compromised structural integrity of the Southern Natural Gas dock at Elba Island. The Coast Guard received notice of compromised structural integrity of the Southern Natural Gas dock at Elba Island on September 21, 2000 and the safety zone becomes effective on September 21, 2000.

This regulation is necessary to protect boaters from the hazards associated with Compromised structural integrity of the Southern Natural Gas dock at Elba Island. All vessels are prohibited from anchoring or transiting restricted waters and channels unless specifically authorized by the Captain of the Port Savannah, GA. This regulation does not apply to authorized law enforcement or search and rescue vessels operating within the safety zone. The Captain of the Port Savannah, GA will issue a Marine Safety Information Broadcast Notice to Mariners (BNTM) to notify the marine community of the safety zone and the imposed restrictions.

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

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

The Coast Guard certifies under section 605(b) that this rule will not have a significant economic impact on a substantial number of small entities as it will only effect a limited area.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding this rule.

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

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

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

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

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

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

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

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

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Further, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

This rule is based upon a Presidential declaration of a national emergency. Because of recent events discussed below, immediate action is needed to protect the safety of lives and property at sea and to prevent threatened disturbance of the international relations of the United States. Therefore notice and public comment on the rule before the effective date of this rule are, impractical, unnecessary, contrary to the public interest and this rule should be made effective in less than 30 days after publication. Further, because this temporary rule involves the foreign affairs of the United States it is excepted from rulemaking procedures in accordance with 5 USC 553(a)(1).

On March 1, 1996, the President of the United States signed Proclamation No. 6867 declaring a national emergency following the February 24, 1996, shooting down of two Brothers to the Rescue aircraft by Cuban armed forces. In the Proclamation, which addressed the disturbances or threatened disturbances of United States international relations, the President authorized the Secretary of Transportation to regulate the anchorage and movement of domestic and foreign vessels. Order No. 96-3-7, signed by the Secretary of Transportation delegated this authority to the Commandant, United States Coast Guard. This authority has been further delegated to the Commander, Seventh Coast Guard District and appropriate Captains of the Port. To secure the rights and obligations of the United States and to protect its citizens and residents from the use of excessive force upon them by foreign powers, the Coast Guard on March 8, 1996 (61 FR 9348) pursuant to its regulatory authority in 50 USC 191 and as supplemented by the authority delegated to the Secretary of Transportation in the Presidential Proclamation, established a security zone.

This security zone restricted the operation of vessels within the internal waters and territorial seas of the United States, adjacent to or within the coastal waters around southern Florida. This security zone prohibited private, noncommercial vessels less than 50 meters in length from departing the security zone with the intent to enter Cuban territorial waters, absent express authorization from the Captain of the Port (COTP).

On May 14, 1997 (62 FR 26390) the Coast Guard published a temporary rule revising the security zone by additional security measures that prohibit a similar class of vessels from getting underway in or departing the security zone with the intent to enter Cuban territorial waters without express authorization from the COTP. Additionally, under the revised security zone, commercial vessels less than 50 meters in length became subject to the same restrictions as private, noncommercial vessels less than 50 meters in length.

On July 17, 1998 (63 FR 38476) the Coast Guard published a temporary rule again revising the security zone by expanding its geographic scope to the Florida peninsula, encompassing all of the internal waters and territorial seas of the United States adjacent to or within the State of Florida and within the boundaries of the Seventh Coast Guard District.

This temporary rule further amends the security zone by providing streamlined procedures and timing guidelines for processing requests to depart the security zone. The Coast Guard shall have ten (10) calendar days from the receipt of the application to decide whether an application for written authorization will be granted or denied. Upon notification by the Coast Guard that an application has been denied, the applicant has three (3) business days in which to request a written denial notification. If such a request is made within the three (3) business days after the Coast Guard's notice of denial, the Coast Guard has fifteen (15) calendar days to provide specific, written reasons stating the basis for the denial. This amendment clarifies the procedure to be used by the Coast Guard in the handling of applications and the acceptance or denial of such applications for vessels in the security zone.

This temporary rule will also amend the security zone by adding the word “reasonable” to more accurately define the “articulable basis” standard for requesting verbal assurances that a vessel will not enter Cuban territorial waters. Officials must have a reasonable articulable basis to require a verbal assurance from a vessel owner that the vessel will not enter Cuban territorial waters, as a condition for a vessel to get underway from within the security zone, or depart from the security zone.

Finally, this temporary rule adds a new provision that states that the failure of a vessel master, owner or person in charge of a vessel within the security zone, including all auxiliary vessels, to provide requested verbal assurances shall not be used as the sole basis for seizing the vessel for forfeiture under the security zone.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). This rule is based upon a Presidential declaration of a national emergency. Further, these revisions to the rule seek to clarify the procedures, rights, and duties under the security zone.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to depart the security zone with the intent to enter Cuban territorial waters. However, this rule will not have a significant economic impact on a substantial number of small entities because it contains provisions to obtain authorization to depart the security zone.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we will assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding this rule.

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

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

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

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

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

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

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

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

A notice of proposed rulemaking (NPRM) was not published for this regulation. In keeping with requirements of 5 U.S.C. 553(B), the Coast Guard finds a good cause exists for not publishing a NPRM. Application for the blasting operations was not received by the Marine Safety Office Juneau until October 9, 2000. The operations are scheduled to commence November 2, 2000; thus time to publish a NPRM is inadequate for this regulation. In keeping with requirements of 5 U.S.C. 553 (d)(3), the Coast Guard also finds that good cause exists for making this regulation effective less than 30 days after publication in the Federal Register . Publication of a NPRM and delay of the effective date would be contrary to the public interest because immediate action is necessary to protect the safety of the maritime vessel traffic in the vicinity of the blasting operation.

The U.S. Army Corps of Engineers through its contractor Western Marine Construction, Inc will be conducting blasting/dredging operations on portions of Wrangell Narrows Shipping Channel for the Wrangell Narrows Project (ACOE project number DACW85-00-C-0015). This dredging project is necessary to maintain safe navigation within the Wrangell Narrows Shipping Channel. A 500-yard safety zone around the barge SWINIMOSH along with periodic complete channel closures is needed to protect the safety of the maritime vessel traffic from the potential hazards associated with blasting/dredging operations.

The blasting operations will begin 12:01 a.m. 02 November 2000, and will last until 12:01 a.m. 16 December 2000. This safety zone is necessary to protect the maritime public from the potential hazards associated with the blasting/dredging operations.

This temporary rule is not a significant regulatory action under section 3(f) of the Executive Order 12866 and does not require an assessment of potential costs and benefits under sections 6(a)(3) of that Order. It has been exempted from review by the Office of Management and Budget under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44FR 11040; February 26, 1979). The Coast Guard expects the economic impact of this proposal to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), the Coast Guard must consider whether this rule will have a significant impact on a substantial number of small businesses and not-for-profit organizations that are not dominant in their respective fields, and governmental jurisdictions with populations less than 50,000. For the same reasons set forth in the above Regulatory Evaluation, the Coast Guard certifies under Section 605 (b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) that this temporary final rule will not have a significant economic impact on a substantial number of small entities.

In accordance with Sec. 213 (a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard wants to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If your small business or organization is affected by this rule and you have questions concerning its provisions or options for compliance, please contact the office listed in ADDRESSES in this preamble.

This rule contains no information collection requirements under the Paperwork Reduction Act of 1995 (44 US.C. 3501 et seq. ).

The Coast Guard has analyzed this temporary final rule under the principles and criteria contained in Executive Order 13132 and has determined that this temporary final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

The Coast Guard considered the environmental impact of this temporary final rule and concluded that, under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.1C, this temporary final rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) and E.O. 12875, Enhancing the Intergovernmental Partnership, (58 FR 58093; October 28, 1993) govern the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This rule will not impose an unfunded mandate.

Regulations governing the spiny dogfish fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota, which is allocated into two quota periods based upon percentages of the annual quota. The period 1 commercial quota (May through October) is distributed to the coastal states from Maine through Florida as described in § 648.230.

The initial total commercial quota for spiny dogfish for the 2000 fishing year was set equal to 4,000,000 lb (1,814 mt) (65 FR 25887, May 4, 2000). The commercial quota is allocated into two periods (May 1 through October 31, and November 1 through April 30), with trip limits intended to preclude directed fishing. Quota period 1 was allocated 2,316,000 lb (1,050 mt) and quota period 2 was allocated 1,684,000 lb (764 mt) of the commercial quota, respectively.

Section 648.231 requires the Administrator, Northeast Region, NMFS (Regional Administrator) to monitor the commercial spiny dogfish quota for each quota period and, based upon dealer reports, state data, and other available information, to determine when the commercial quota has been harvested. NMFS is required to publish a notification in the Federal Register advising and notifying commercial vessels and dealer permit holders that, effective upon a specific date, the spiny dogfish commercial quota has been harvested and no commercial quota is available for landing spiny dogfish for the remainder of a given quota period.

Based on dealer reports and other available information, the Regional Administrator closed quota period 1 on August 1, 2000 (65 FR 46877, August 1, 2000). However, due to state management actions that were inconsistent with the Federal quota, spiny dogfish landings have already exceeded the annual quota for the entire 2000 fishing year. Therefore, the Regional Administrator is announcing that the 2000 commercial period 2 quota for spiny dogfish has been harvested and the commercial spiny dogfish fishery will remain closed for the remainder of the fishing year.

Section 648.4(b) provides that Federal spiny dogfish permit holders agree, as a condition of the permit, not to land spiny dogfish in any state after NMFS has published notification in the Federal Register that the commercial quota for the period has been harvested and that no commercial quota for the spiny dogfish fishery is available. The Regional Administrator has determined that period 2 for spiny dogfish no longer has commercial quota available. Therefore, effective 0001 hrs local time, November 1, 2000, landings of spiny dogfish in coastal states from Maine through Florida by vessels holding commercial Federal fisheries permits are prohibited through April 24, 2001, 2400 hrs local time. The fishing year 2001 quota period 1 for commercial spiny dogfish harvest will open on May 1, 2001. Effective November 1, 2000, federally permitted dealers are also advised that they may not purchase spiny dogfish from federally permitted spiny dogfish permit holders that land in coastal states from Maine through Florida for quota period 2 (through April 24, 2001).

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.