This rule is issued under Marketing Agreement No. 113 and Marketing Order No. 946, both as amended (7 CFR part 946), regulating the handling of Irish potatoes grown in Washington, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

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

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

This rule exempts shipments of potatoes for experimentation from the grade, size, maturity, pack, inspection, and assessment requirements of the marketing order. By relaxing the requirements on new and innovative packaging and on non-traditional varieties of fresh potatoes, this rule provides the industry with greater marketing flexibility and the ability to investigate new methods for increasing producer returns, and provides consumers with more choices in buying fresh potatoes. The Committee unanimously recommended the exemption for experimental packs and varieties at its meeting held on June 8, 2000.

Section 946.51 of the order provides authority for the Committee to recommend the implementation, modification, suspension or termination of regulations. Section 946.52 provides the necessary authority for the Department to issue regulations, and to modify, suspend, or terminate such regulations. Furthermore, § 946.54 provides authority for the modification, suspension, or termination of handling regulations for the purpose of facilitating the handling of potatoes for special purposes, while § 946.55 provides for adequate safeguards to prevent such special purpose shipments from entering unauthorized outlets. The order's handling regulations, § 946.336, establish the grade, size, maturity, pack, and inspection requirements for potatoes grown in Washington. The assessment rate for Washington potatoes is established in § 946.248, pursuant to § 946.41.

Handlers have expressed a desire to experiment with shipping potatoes of different varieties in the same container. This has been a problem, however, since the order requires that all potato varieties, as a minimum, meet U.S. No. 2 grade as defined in the U.S. Standards for Grades of Potatoes. These standards specify that a particular lot of potatoes has “similar” varietal characteristics.

Although the order's handling regulations do allow the mixing of any size and variety in a 3-pound or smaller container, handlers have been unable to ship a large enough quantity of the experimental packs to determine market feasibility. With this action, however, marketers will have the ability to experiment with various packs, including containers with a mixture of different potato varieties and sizes.

Prior to this action, the order's regulations required that all potatoes shipped to the fresh market, with the exception of those meeting the minimum quantity and special purpose exemptions, be inspected and assessed. The handling regulations did not provide adequate relief for commercially viable shipments of non-traditional or experimental potato varieties that could not meet minimum inspection requirements. Several producers and handlers within the production area are attempting to develop and market new varieties of potatoes. Some of the new varieties have irregular shapes or are small in size and will not meet minimum order requirements. In order to market these unique potatoes, handlers were required to utilize the order's minimum quantity exemption, which allows shipments up to, but not in excess of, 500 pounds of potatoes daily without regard to assessment and inspection requirements. This has prevented handlers from shipping larger quantities of these potatoes and from adequately determining their marketability and consumer acceptance. By allowing handlers to ship the quantities of new varieties they believe are necessary to determine marketability, this rule adequately addresses this issue.

As is currently required for all special purpose shipments, handlers shipping experimental potato packs or experimental potato varieties will need to apply for and obtain a Special Purpose Certificate from the Committee. To help ensure compliance with the revised provisions and to statistically track the shipments of experimental potato packs and varieties, the Committee will require that shipments made pursuant to this action be reported on the Special Purpose Shipment Report, as modified to include potatoes shipped for experimental purposes. Such reports will help the Committee in determining whether applicable requirements have been met and whether proper disposition has occurred, and will be furnished to the Committee for each shipment made pursuant to the applicable Special Purpose Certificate. The Committee's intent is to keep reporting requirements at the minimum level necessary to monitor compliance while determining the viability and extent of any changes in the packaging and marketing of Washington potatoes.

The Committee contends that the purpose of the order is to provide quality assurance and minimum grade standards for Washington potatoes and not to inhibit innovation. This rule thus provides the Washington potato industry with the ability to seek new and innovative ways to market its fresh potato crop without the costs and constraints of regulation that otherwise provide a necessary service to the industry. This rule provides the industry with the flexibility to explore new markets while enhancing product development, and helps in identifying niche markets which may benefit producers, handlers, buyers, and consumers of Washington State potatoes. Should a particular experimental pack or variety become commercially significant and some form of quality control or assessment reinstatement be needed, the Committee will consider further changes in the exemptions.

As referenced earlier, the Committee currently utilizes two forms for special purpose shipments. These are the Shippers Application for Special Purpose Certificate and the Special Purpose Shipment Report. To conform to this terminology, this rule also replaces the term “Certificate of Privilege” with the term “Special Purpose Certificate” wherever it appears in the Rules and Regulations and Handling Regulations established under the order.

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 initial 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 the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 40 handlers of Washington potatoes who are subject to regulation under the marketing order and approximately 340 Washington potato producers in the regulated area. Small agricultural service firms 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. A majority of these handlers and producers may be classified as small entities, excluding receipts from other sources.

This rule exempts shipments of potatoes shipped for experimentation from the grade, size, maturity, pack, inspection, and assessment requirements prescribed under the regulations of the marketing order regulating the handling of potatoes grown in Washington. Pursuant to authority in §§ 946.51, 946.52, and 946.54, at its meeting on June 8, 2000, the Committee unanimously recommended that this exemption for experimental potato packs and varieties be added under § 946.336(d), Special purpose shipments. By relaxing the regulations, this rule provides the Washington potato industry with the enhanced ability to seek new and innovative methods of marketing its fresh potato crop. This rule provides the industry with the flexibility to explore new markets while enhancing product development, and helps to identify niche markets which may benefit producers, handlers, buyers, and consumers of Washington State potatoes.

The Committee believes that this rule will have a positive economic impact on the Washington potato industry. Producers and handlers will be able to concentrate on developing innovative new packaging and marketable new potato varieties without the costs associated with inspection and administrative assessments, as well as most of the costs associated with grading. Although not having specific information regarding the volume of potatoes that will be marketed through this exemption, the Committee estimates that the initial volume being shipped will be low and thus will have little negative impact on Committee assessment income. However, since one of the objectives of this action is to increase the utilization of fresh potatoes produced in Washington, the Committee will consider changing the handling regulation and assessment requirements in the future, if needed, to help ensure quality control and adequate Committee income if the experimental shipments become commercially viable.

The current assessment rate is $0.002 per hundredweight of potatoes handled. Also, the cost of inspection under the marketing order is $0.06 per hundred weight of potatoes inspected. Handlers, both small and large, shipping potatoes under the experimental shipment exemption will not incur these costs. Any savings accrued will be proportional to the quantities of potatoes shipped under the experimentation exemption.

With regard to alternatives, we believe that this action best reflects the marketing and product development goals of the Washington potato industry.

The Committee estimates that initially four or five handlers may each apply for and obtain a Special Purpose Certificate for the purpose of making shipments of experimental packs or varieties. In addition, such handlers will be required to furnish to the Committee a Special Purpose Shipment Report for each shipment made under the experimental purposes exemption. The Committee estimates that the additional paperwork burden on handlers for this action will total less than ten hours. Such time is currently approved under OMB No. 0581-0178 by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, the Department has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

Further, the Committee's meeting was widely publicized throughout the Washington potato industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the June 8, 2000, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

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.

This rule invites comments on a change to the regulations prescribed for the production area under the Washington potato marketing order. Any comments received will be considered prior to finalization of this rule.

After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that this interim final 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 and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) This rule relaxes requirements on Washington potato handlers and provides additional marketing opportunities; (2) early September was the beginning of the 2000-2001 shipping season and this rule should be in place as promptly as possible so that handlers can take advantage of the benefits resulting from this relaxation; (3) this recommendation was unanimously approved by the Committee at a public meeting and interested parties had an opportunity to provide input; and (4) this rule provides a 60-day comment period and any comments received will be considered prior to finalization of this rule.

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

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

The Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), 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 request modification or exemption from such order by filing 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 the law. A handler is afforded the opportunity for a hearing on the petition. After a 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 its principal place of business, has jurisdiction in equity to review the Secretary's ruling on the petition, provided a bill in equity is filed not later than 20 days after the date of the entry of the ruling.

In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), the Agricultural Marketing Service has considered the economic impact of this action on small entities and has certified that this final rule will not have a significant economic impact on a substantial number of small entities because the Tennessee Valley milk order ceased operating as of October 1, 1997, and there are no handlers or dairy farmers that will be affected by the termination of its one remaining administrative provision.

This order of termination is issued pursuant to the provisions of the Agricultural Marketing Agreement Act, as amended (7 U.S.C. 601-674), and of the order regulating the handling of milk in the Tennessee Valley marketing area.

Notice of proposed rulemaking was published in the Federal Register on July 3, 1997 (62 FR 36022), concerning a proposed termination of the order. Interested persons were afforded opportunity to file written data, views and arguments thereon.

In total, 11 comments were received, 3 supporting the termination, 3 opposed to it, and 5 taking no position on the termination but offering comments on questions raised by the Department in the notice of proposed termination.

After consideration of all relevant material, including the proposal in the notice, the comments received, and other available information, the Administrator of the Agricultural Marketing Service found and determined that the order regulating the handling of milk in the Tennessee Valley marketing area (7 CFR 1011) did not tend to effectuate the declared policy of the Act and terminated all of the operating provisions of the order on September 5, 1997, effective October 1, 1997 (62 FR 47923).

This rule terminates the last remaining provision of the Tennessee Valley Federal milk marketing order effective one day after publication of this final rule in the Federal Register .

On May 12, 1997, the Department issued a partial final decision on proposed amendments to the Carolina, Southeast, Tennessee Valley, and Louisville-Lexington-Evansville milk orders (i.e., Orders 5, 7, 11, and 46) which was published on May 20, 1997 (62 FR 27525). The final decision document contained proposed amended orders for the 4 southeast marketing areas, including the Tennessee Valley order, and directed the respective market administrators of the 4 orders to ascertain whether producers approved the issuance of the amended orders. The final decision concluded that amended orders were needed to effectuate the declared policy of the Act.

Less than two-thirds of the producers whose milk is pooled in the Tennessee Valley marketing area approved the issuance of the proposed amended order. The Act requires approval by at least two-thirds of the producers before an amended order may be issued.

Pursuant to the provisions of the Agricultural Marketing Agreement Act and of the order regulating the handling of milk in the Tennessee Valley marketing area, the operating provisions of the Tennessee Valley Federal milk order were terminated effective October 1, 1997. Notice of the termination was published in the Federal Register on September 12, 1997 (62 FR 47923). Certain administrative provisions were left intact at that time so that the market administrator, in his capacity as the order's liquidating agent, could disburse all of the money remaining in the administrative, producer-settlement, and marketing service funds established under the order. These tasks having been completed, the remaining provisions of the order are unnecessary and may be removed immediately. Therefore, it is determined that the remaining provisions of Part 1011 no longer tend to effectuate the declared policy of the Act and are hereby terminated pursuant to provisions of 7 U.S.C. 608(c)(16)(A).

For the same reasons, it is hereby found and determined, upon good cause, that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice or engage in further rulemaking prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register .

The Truth in Lending Act (TILA; 15 U.S.C. 1601-1666j) requires creditors to disclose credit terms and the cost of consumer credit as an annual percentage rate. The act requires additional disclosures for loans secured by a consumer's home, and permits consumers to cancel certain transactions that involve their principal dwelling. TILA is implemented by the Board's Regulation Z (12 CFR part 226). The Board's official staff commentary (12 CFR part 226 (Supp. I)) interprets the regulation, and provides guidance to creditors in applying the regulation to specific transactions.

In 1995, the Board published amendments to Regulation Z implementing HOEPA, contained in the Riegle Community Development and Regulatory Improvement Act of 1994, Public Law 103-325, 108 Stat. 2160 (60 FR 15463). These amendments are contained in § 226.32 of the regulation and impose substantive limitations and additional disclosure requirements on certain closed-end mortgage loans bearing rates or fees above a certain percentage or amount. As enacted, the statute requires creditors to comply with the HOEPA rules if the total points and fees payable by the consumer at or before loan consummation exceed the greater of $400 or 8 percent of the total loan amount. TILA and Regulation Z provide that the $400 figure shall be adjusted annually on January 1 by the annual percentage change in the Consumer Price Index (CPI) that was reported on the preceding June 1. (15 U.S.C. 1602(aa)(3) and 12 CFR 226.32(a)(1)(ii)). The Board adjusted the $400 amount to $451 for the year 2000.

The Bureau of Labor Statistics publishes consumer-based indices monthly, but does not “report” a CPI change on June 1; adjustments are reported in the middle of each month. The board uses the CPI-U index, which is based on all urban consumers and represents approximately 80 percent of the U.S. population, as the index for adjusting the $400 figure. The adjustment to the CPI-U index reported by the Bureau of Labor Statistics on May 15, 2000, was the CPI-U index “in effect” on June 1, and reflects the percentage increase from April 1999 to April 2000. The adjustment to the $400 figure below reflects a 3.1 percent increase in the CPI-U index for this period and is rounded to whole dollars for ease of compliance.

For the reasons set forth in the preamble, for purposes of determining whether a mortgage transaction is covered by 12 CFR 226.32 (based on the total points and fees payable by the consumer at or before loan consummation), a loan is covered if the points and fees exceed the greater of $465 or 8 percent of the total loan amount, effective January 1, 2001. Comment 32(a)(1)(ii)-2, which lists the adjustments for each year, is amended to reflect the dollar adjustment for 2001. Because the timing and method of the adjustment is set by statute, the Board finds that notice and public comment on the change are unnecessary.

The Board certifies that this amendment will not have a substantial effect on the regulated entities because the only change is to raise the exemption level for transactions requiring HOEPA disclosures.

In FR Doc. 00-22892, appearing on page 54686 in the Federal Register of Friday, September 8, 2000, the following corrections are made:

1. On page 54687, in the second column, under the heading, “II. Petitions for Plant Sterol/Stanol Esters and Reduced Risk of CHD,” in the 17th line, the phrase “extension of 30 days” is corrected to read “extension of 28 days”.

2. On page 54687, in the second column, in the 18th line, at the end of the paragraph, the following sentence is added: “This interim final rule went on public display at the Office of the Federal Register on September 5, 2000.”

3. On page 54687, in the second column, in the last sentence of the first full paragraph, the phrase “an extension of the deadline to publish a proposed regulation” is corrected to read “an extension of the deadline for the petition”.

4. On page 54687, in the second column, after the last sentence of the first full paragraph, the following sentence is added: “As previously noted, this interim final rule went on public display at the Office of the Federal Register on September 5, 2000.”

5. On page 54687, in the third column, in the last paragraph, under the heading “a. Plant esterol esters ”, beginning in the 4th line, the phrase “esterified to food-grade fatty acids” is corrected to read “esterified with food-grade fatty acids”.

6. On page 54688, in the second column, under the heading “b. Plant stanol esters ”, beginning in the 4th line, the phrase “esterified to food-grade fatty acids” is corrected to read “esterified with food-grade fatty acids”.

7. On page 54693, in the first column, in the first full paragraph, in the 17th line, the phrase “esterified to sunflower oil” is corrected to read “esterified with sunflower oil”.

8. On page 54693, in the third column, in the first full paragraph, in the 35th line, the symbol “N” is corrected to read “n”.

9. On page 54715, in the third column, in Ref. 37, the phrase “London: Academic” is corrected to read “London: Academic Press”.

10. On page 54716, in the first and second columns, in Refs. 60 and 63, the word “Atheroscelrosis” is corrected to read “Atherosclerosis”.

11. On page 54717, in the second column, in Ref. 102, the word “IsokaAE4aAE4ntaAE4” is corrected to read “Isokaanta”.

Under the National Capital Revitalization and Self-Government Improvement Act of 1977, the District of Columbia was required to amend the District of Columbia Code in order to accomplish major changes in sentencing for offenses committed on or after August 5, 2000. Among those changes was a requirement that parole be abolished for many offenses, and replaced by terms of supervised release to be imposed at the time of sentencing and served following release from imprisonment. The District of Columbia carried out these requirements through the Sentencing Reform Amendment Act of 2000, which abolishes parole and establishes maximum terms of supervised release to be imposed at the time of sentencing, together with maximum penalties to be followed in the event a term of supervised release is revoked. This law applies only to offenders who are convicted of crimes committed on or after August 11, 2000. (It does not apply to offenders who are serving sentences that include eligibility for parole.)

The Revitalization Act also provided that offenders who are sentenced to serve terms of supervised release imposed by the Superior Court of the District of Columbia shall be subject to the authority of the U.S. Parole Commission. The Commission was given the same authority over Superior Court supervised releasees as is exercised by the U.S. District Courts over federal supervised releasees under 18 U.S.C. 3583. The sole exception is that any extension of a term of supervised release imposed by the Superior Court must be ordered by the Superior Court. Further, the Revitalization Act specifies that the procedures to be followed by the Commission in exercising its authority over Superior Court supervised releasees are the procedures applicable to federal parolees under the Parole Commission and Reorganization Act of 1976, as set forth in Chapter 311 of Title 18, United States Code.

The Commission is, accordingly, soliciting public comment on the regulations it proposes to adopt in order to carry out this new function. The interim regulations cover all aspects of the supervised release function, from the commencement of a term of supervised release and the setting of the conditions of release, to the procedures and penalty provisions governing the revocation process in a case where the conditions of release are violated by the releasee. The regulations implement the substantive provisions of 18 U.S.C. 3583 and D.C. Code 24-1233 (the relevant provisions of the Revitalization Act), and incorporate the relevant procedural requirements of Chapter 311 of Title 18, U.S. Code, as implemented at 28 CFR part 2, subpart A.

To assist the Commission in making the determinations required by the supervised release function, the Commission is also proposing to adopt guidelines both for early termination decisions and for decisions to reimprison following revocation of supervised release. The early termination guidelines are based on the guidelines currently applicable to D.C. Code parolees with respect to the release of such parolees from active supervision. See CFR 2.95 (2000). The guidelines for determining the length of any new term of imprisonment to be imposed upon revocation of supervised release are the reparole guidelines made applicable to federal parolees at 28 CFR 2.21 and to D.C. Code parolees at 28 CFR 2.81. However, the maximum authorized terms of reimprisonment and further supervised release that may be imposed upon revocation of supervised release are established by 18 U.S.C. 3583(h) and by the Sentencing Reform Amendment Act of 2000. These maximum penalty provisions, which are significantly different from those applicable in the context of parole revocations, are set forth in these regulations. Because the applicable penalties are determined by reference to the original offense of conviction, a comprehensive reference table is set forth in these interim regulations so that hearing examiners, supervised releasees, and their representatives, will clearly understand the limits within which the Commission's decision is to be made at a revocation hearing.

These interim rules are being made effective as interim rules so that any offender who commences a term of supervised release in the near future can be effectively supervised pending consideration of final regulations. Public comment is invited on all aspects of these interim rules, and will be considered by the Commission prior to adopting final rules.

The interim regulations set forth below will be applied solely to offenders serving terms of supervised release that have been imposed by the Superior Court of the District of Colombia for crimes committed on or after August 5, 2000. There is no retroactive application to other offenders. Supervision will be provided by the Court Services and Offender Supervision Agency (CSOSA). In the case of terms of supervised release under the District of Columbia Code that are imposed by the U.S. District Court for the District of Columbia, such terms of supervised release will be under the exclusive jurisdiction of the U.S. District Court for the District of Columbia and supervision will be carried out by the U.S. Probation Office rather than CSOSA.

The U.S. Parole Commission has determined that these interim rules do not constitute a significant rule within the meaning of Executive Order 12866. The rules will not have a significant economic impact upon a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 605(b), and are deemed by the Commission to be rules of agency practice that will not substantially effect the rights or obligations of non-agency parties pursuant to Section 804(3)(C) of the Congressional Review Act.

On December 15, 1980, the Secretary of the Interior conditionally approved the Colorado program. You can find background information on the Colorado program, including the Secretary's findings, the disposition of comments, and conditions of approval in the December 15, 1980, Federal Register (45 FR 82173). You can also find later actions concerning Colorado's program and program amendments at 30 CFR 906.15, 906.16, and 906.30.

By letter dated May 12, 2000, Colorado sent to us an amendment to its program (administrative record No. CO-691) under SMCRA (30 U.S.C. 1201 et seq. ). Colorado sent the amendment in response to May 7, 1986, and June 19, 1997. letters (administrative record Nos. CO-282 and CO-686) that we sent to Colorado in accordance with 30 CFR 732.17(c); required program amendments codified at 30 CFR 906.16(d) and (e); and to include changes made at its own initiative.

We announced receipt of the proposed amendment in the June 7, 2000, Federal Register (65 FR 36098, administrative record No. C-691-2). 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. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on August 8, 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 as described below.

Rule 1.04(71) (30 CFR 701.5), concerning the definition of “Land use,”

Rule 1.04(81a) (30 CFR 701.5), concerning the definition of “Other treatment facilities” (replacing the deleted definition of “Sediment treatment facilities” at Rule 1.04(115a)),

Rule 1.04(86a) (30 CFR 701.5), concerning the definition of “Permanent impoundment,” and

Rule 1.04 (137a) (30 CFR 701.5), concerning the definition of “Temporary impoundment.”

Because the proposed definitions at Rules 1.04(71), (81a), (86a) and (137a) contain language that is the same as or similar to the corresponding Federal definitions, the Director finds that they are as effective as the corresponding Federal regulations at 30 CFR 701.5. The Director approves the proposed definitions of “Land use,” “Other treatment facilities,” “Permanent impoundment,” and “Temporary impoundment” at Rules 1.04(71), (81a), (86a) and (137a).

Colorado proposed at Rule 1.04(115) the definition of “Sedimentation pond” that, with two exceptions, is the same as the Federal definition of “sedimentation pond” at 30 CFR 701.5.

The first exception is that Colorado's proposed definition of “Sedimentation pond” clarifies that the State Engineer's requirements are not applicable to those structures designed solely to control sediment or which do not store water. There is no counterpart in the Federal program to requirements of the State Engineer. By this clarification, Colorado has not diminished the requirements of the Colorado program that do have counterparts in the Federal program. Therefore, the clarification is consistent with the Federal definition of “sedimentation pond” at 30 CFR 701.5.

The second exception is that Colorado's proposed definition of “Sedimentation pond” distinguishes between impoundments used as a “primary sediment control structure” to remove solids from water and “secondary sedimentation control measures,” such as ditches, riprap, check dams, mulches, and other measures used to reduce overland flow velocity, reduce runoff volume or trap sediment. Secondary sedimentation control structures may contribute to a sediment control program but are not considered a sedimentation pond. The Federal regulations at 30 CFR 816.45 provide for the use of sediment control measures such as straw dikes, riprap, check dams, mulches, vegetative sediment filters, dugout ponds, and other measures that reduce flow velocity, reduce runoff volume, or trap sediment. Colorado's clarification that such measures are not sedimentation ponds is consistent with the provision in the Federal regulations for use of such sediment control measures. In addition, Colorado's existing Rule 4.05.5 has the same requirements for sediment control measures as do the Federal regulations at 30 CFR 816.45.

The Director finds, based on the discussion above, that Colorado's proposed definition of “Sedimentation pond” at Rule 1.04(115) is as effective as the Federal definition of “sedimentation pond” at 30 CFR 701.5 and approves it.

Colorado proposed at Rule 2.05.3(4) and (4)(a) to require (in a permit application) a general plan and detailed design plan for each proposed sedimentation pond, impoundment, other treatment facility and diversion. This requirement is similar to and as effective as the requirement in the Federal regulations at 30 CFR 780.25(a) and 784.16(a) (see the discussion of the use of the terms “sedimentation ponds and the treatment facilities” in the Colorado program in place of the term “siltation structure used in the Federal programs at finding No. 7).

Colorado proposed editorial revisions at Rule 2.05.3(4)(a)(iii) concerning application requirements for impoundments that must meet the applicable requirements of the State Engineer. Specifically, Colorado proposed to refer to the defined term “impoundment” (rather than “reservoir”) and to correct a typographical error by requiring any impoundment with a capacity of 100 (rather than1000) acre feet to meet the applicable requirements of the State Engineer. OSM has no counterpart Federal regulations governing impoundments which require State Engineer approval; however, the revisions proposed to Rule 2.05.3(4)(a)(iii) do not conflict and are consistent with and as effective as the Federal regulations concerning impoundments at 30 CFR 780.25(c) and 784.16(c).

Colorado required at proposed Rule 2.05.3(4)(a)(iv) that where a sedimentation pond or impoundment meets or exceeds the criteria at 30 CFR 77.216(a), the permittee must comply with the applicable requirements of the Mine Safety and health Administration (MSHA), 30 CFR 77.216-1 and -2. Colorado's requirement proposed at Rule 2.05.3(4)(a)(iv) is the same as and as effective as the requirement in the Federal regulations at 30 CFR 780.25(c)(2) and 784.16(c)(2) concerning structures that meet the size or other requirements of 30 CFR 77.216-1 and 77.216-2.

Coloradao proposed at Rule 2.05.3(4)(a)(v) that any plans required to be submitted to, and approved by, the Office of the State Engineer or MSHA for impoundments shall also be submitted to Colorado as part of the permit application. Colorado's requirement concerning impoundments proposed at Rule 2.05.3(4)(a)(v) is the same as the requirement in Federal regulations at 30 CFR 780.25(a)(2) and 784.16(a)(2), with the exception that Colorado also included a reference to plans required to be approved by the State Engineer. This exception has no counterpart in the Federal regulations (as discussed above), but is consistent with the Federal regulations. Therefore, Rule 2.05.3(4)(a)(v) is as effective as the Federal regulations at 30 CFR 780.25(a)(2) and (c)(2) and 784.16(a)(2) and (c)(2).

Colorado proposes to add new Rule 2.05.3(4)(a)(vi) requiring that all impoundments meeting the Class B or C criteria for dams in the U.S. Department of Agriculture, Natural Resource Conservation Service (NRCS), Technical Release No. 60 (TR-60, 210-VI-TR60, October 1985), “Earth Dams and Reservoirs,” comply with the requirements for structures that meet or exceed the size or other criteria of MSHA at 30 CFR 77.216(a), and to state that TR-60 and 30 CFR 77.216(a) are incorporated by reference. Colorado's requirement in proposed Rule 2.05.3(4)(a)(vi) is the same as and as effective as the requirement in the Federal regulations at 30 CFR 780.25(a)(2) and 784.16(a)(2) concerning impoundment meeting the Class B or C criteria.

Colorado proposed to add new Rule 2.05.3(4)(a)(vii) requiring that (1) each plan for an impoundment which meets the Class B or C criteria in TR-60 or meets the size or other criteria of 30 CFR 77.216(a) shall include a stability analysis of the structure, (2) the stability analysis shall include, but shall not be limited to, strength parameters, pore pressure, and long term seepage conditions, and (3) the plan shall also contain a description of each engineering design assumption and calculation with a discussion of each alternative considered in selecting the specific design parameters and construction methods. Colorado's proposed Rule 2.05.3(4)(a)(vii) is consistent with and as effective as the Federal regulations at 30 CFR 780.25(f) and 784.16(f).

Colorado revised proposed Rule 2.05.3(4)(b), concerning the applicable design requirements for sedimentation ponds, whether temporary or permanent, to correct typographical errors and clarify the intent of the rule. Colorado's proposed Rule 2.05.3(4)(b) is consistent with and as effective as the Federal regulations at 30 CFR 780.25(c) and 784.16(c).

The Director, based on the above discussion, approves Colorado's proposed Rules 2.05.3(4); 2.05.3(4)(a)(iii), (iv), (v), (vi), and (vii); and 2.05.3(4)(b) concerning application requirements for sedimentation ponds, other treatment facilities, impoundments, banks, dams, and embankments.

Colorado proposed at Rule 2.05.3(8)(a)(iii), concerning coal mine waste and non-coal processing waste banks, dams, or embankments, to revise its requirements for impoundments that must meet the applicable requirements of the State Engineer. Specifically, Colorado proposed to refer to the defined term impoundment (rather than reservoir) and to correct a typographical error by requiring any impoundment with a capacity of 100 (rather than 1000) acre feet to meet the applicable requirements of the State Engineer. OSM has no counterpart Federal regulations requiring such impoundments to meet requirements of the State Engineer; however, the revisions proposed to Rule 2.08.3(8)(a)(iii) are consistent with and as effective as the Federal regulations concerning coal processing waste impoundments at 30 CFR 780.25(c), (d) and (e) and 784.16(c), (d), and (e).

Colorado also proposed to revise Rule 2.05.3(8)(a)(iii) by recodifying the last sentence as Rule 2.05.3(8)(a)(iv). Proposed Rule 2.05.3(8)(a)(iv) requires that if a coal mine waste and non-coal processing waste banks, dams, or embankments meet or exceed the criteria of 30 CFR 77.216(a), the permittee must comply with the applicable requirements of the MSHA, 30 CFR 77.216-1 and -2. This requirement is the same as and as effective as the Federal regulations at 30 CFR 780.25(c)(2), (d) and (e) and 784.16(c)(2), (d) and (e).

Colorado proposed to add new Rule 2.05.3(8)(a)(v) that requires all impoundments meeting the Class B or C criteria for dams in the U.S. Department of Agriculture, NRCS, Technical Release No. 60 (TR-60, 210-VI-TR60, October 1985), “Earth Dams and Reservoirs,” comply with the requirements for structures that meet or exceed the size or other criteria of MSHA at 30 CFR 77.216(a), and incorporated by reference TR-60 and 30 CFR 77.216(a). This requirement at proposed Rule 2.05.3(8)(a)(v) is the same as and as effective as the requirement in the Federal regulations at 30 CFR 780.25(c)(2) and 784.16(c)(2) concerning impoundments meeting the Class B or C criteria.

Colorado proposed to add new Rule 2.05.3(8)(a)(vi) which provides that (1) each plan for an impoundment which meets the Class B or C criteria in TR-60 or meets the size or other criteria of 30 CFR 77.216(a) shall include a stability analysis of the structure, (2) the stability analysis shall include, but shall not be limited to, strength parameters, pore pressure, and long term seepage conditions, and (3) the plan shall also contain a description of each engineering design assumption and calculation with a discussion of each alternative considered in selecting the specific design parameters and construction methods. Colorado's proposed Rule 2.05.3(8)(a)(vi), concerning coal mine waste and non-coal processing waste banks, dams, or embankments, is the same as and as effective as the Federal regulations at 30 CFR 780.25(f) and 784.16(f).

The Director, based on the above discussion, approves Colorado's proposed Rules 2.05.3(8)(a)(iii), (iv), (v), and (vi), concerning coal mine waste and non-coal processing waste banks, dams, or embankments.

Colorado proposed an editorial revision at Rule 2.07.3(3)(b) to replace the “Soil Conservation Service” with the current agency name, the “National Resource Conservation Service.” Colorado proposed to revise Rule 2.07.3(3)(c) to clarify that written comments regarding technical revisions may be submitted within 10 days of the initial newspaper publication. This revision clarifies that the written comment period for a technical revision is different from the written comment period for new permits, permit revisions and permit renewals. Colorado's clarification in Rule 2.07.3(3)(c) is consistent with Colorado's existing Rule 2.08.4(6)(b)(ii) which specifies the written comment period for technical revisions.

The Federal regulations at 30 CFR 774.13(b)(2) require that the regulatory authority establish guidelines concerning the extent of revisions for which all the permit application information requirements and procedures, including public participation, shall apply. The Director finds that Colorado's proposed Rules 2.07.3(3) (b) and (c) are consistent with and as effective as the Federal regulations at 30 CFR 773.13(b)(2).

A. Rule 1.04(31a), Definition of “Cumulative impact area.” Colorado proposed at Rule 1.04(31a) a definition of “Cumulative impact area” meaning

Colorado's existing Rule 1.04(51) defines the term “general area” to mean

The Federal definition of “cumulative impact area” at 30 CFR 701.5 means

Colorado uses the term “cumulative impact area” in its rules in conjunction with the term “general area” for which OSM has no counterpart. Colorado's proposed definition of “cumulative impact area” describes an area which includes, at a minimum, an area within the boundaries of mining related operations. The counterpart Federal definition of “cumulative impact area” describes an area including the same operations, but which would also include any area of impact outside of and resulting from operations within the boundaries of mining related operations. However, Colorado's definition of the term “general area” describes the topographic and ground water basin surrounding the area to be mined.

Therefore, the Director finds that Colorado's proposed definition of “cumulative impact area,” at Rule 1.04 (31a) used in conjunction with the existing term “general area,” defined at Rule 1.04(51) is an effective as the Federal definition of “cumulative impact area” at 30 CFR 701.5 and approves it.

B. Rule 2.07(2)(c), written findings concerning cumulative hydrologic impacts of all anticipated mining. Colorado proposed Rule 2.07.6(2)(c), concerning the written findings the regulatory authority must make about the probable cumulative hydrologic impacts of all anticipated coal mining prior to approval of a permit or revision application, that is, with one exception, the same as the Federal regulation at 30 CFR 773.15(c)(5). The exception is that Colorado's proposed rule uses the terms “general and cumulative impact area” where the Federal regulation uses the term “cumulative impact area.” As discussed in finding No. 6.A above, the Director found that Colorado's use of the terms “general area” and “cumulative impact area” is as effective as the use of the term “cumulative impact area” in Federal regulations.

Based on the above discussion, the Director finds that proposed Rule 2.07.6(2)(c), in conjunction with Colorado's proposed definition of “cumulative impact area” at Rule 1.04(31a) and existing definition of “general area” at Rule 1.04(51), is the same as and as effective as the Federal regulation at 30 CFR 773.15(c)(5), concerning the written findings about cumulative hydrologic impacts necessary for permit application approval. The Director approves proposed Rule 2.07.6(2)(c).

Colorado proposed to revise Rule 4.05.2, concerning sedimentation ponds and other treatment facilities and water quality standards and effluent limitations, to include in paragraphs (1), (2), (3)(a), (4), (5) and (6) a reference to the term “other treatment facilities,” so that all the requirements of these rules apply to the use of “other treatment facilities” as well as “sedimentation ponds.”

The counterpart Federal regulations at 30 CFR 816.46 and 817.46 refer to the use of siltation structures. Colorado has deleted its definition of “siltation structure,” added a definition of “other treatment facilities” (see finding No. 1) and revised its definition of “sedimentation pond” (see finding No. 2). Wherever the Federal regulations at 30 CFR 816.46 and 817.46 refer to the term “siltation structures,” Colorado refers to the terms “sedimentation pond” and “other treatment facilities.” Colorado's proposed revisions at Rule 4.05.2 are otherwise the same as the respective counterpart Federal regulations at 30 CFR 816.42, 816.46, 817.42 and 817.46 as follows:

The Federal regulations at 30 CFR 701.5 define “siltation structures” to mean sedimentation ponds or other treatment facilities. Because Colorado uses the terms “sedimentation ponds” and “other treatment facilities” wherever the Federal regulations use the term “siltation structure,” Colorado's rules are the same as the Federal regulations. Therefore, the Director finds that Colorado's proposed Rules 4.05.2(1), (2), (3)(a), (4), (5), and (6) are as effective as the counterpart Federal regulations at 30 CFR 816.42, 816.46, 817.42 and 817.46 and approves them.

Colorado proposed to recodify and or revise Rule 4.05.6, concerning general requirements for sedimentation ponds, as follows:

Rule 4.05.6(1) to make the requirements of Rule 4.05.6 applicable to “other treatment facilities” as well as “sedimentation ponds;”

Rule 4.05.6(2) to require that sedimentation ponds and other treatment facilities be designed, constructed and maintained in compliance with Rules 4.05.6 and 4.05.9;

Rule 4.05.6(3) to make the requirements of Rules 4.05.6(3)(a), (3)(b) and (3)(c) applicable to other treatment facilities as well as sedimentation ponds, and to delete Rule 4.05.6(3)(d) and (3)(e) concerning design and construction requirements for spillways (Colorado proposed these requirements in Rule 4.05.9, see finding No. 10);

Rule 4.05.6(4) requiring that spillways for sedimentation ponds and other treatment facilities comply with Rule 4.05.9(2);

Rule 4.05.6(5) requiring all supporting calculations, documents and drawings used to establish the requirements of Rules 4.05.6 and 4.05.9, be included in the permit application including any revisions to a permit (note: this was an existing rule previously codified as 4.05.6(7) and was only revised to make the rule applicable to permit revisions and reference 4.05.6 rather than 4.05.6(3));

Rule 4.05.6(6) requiring that sedimentation ponds be designed, constructed and maintained to prevent short-circuiting to the extent possible (note: this was an existing rule previously codified as Rule 4.05.6(9) and not otherwise revised); and

Rule 4.05.6(7) requiring that sedimentation ponds or other treatment facilities not be removed until the disturbed area is reclaimed and it is demonstrated that the requirements of Rule 4.05.2(2) are met and if proposed to remain as permanent structures, it must be demonstrated that the requirements of Rule 4.05.9 are met (note: this was an existing rule previously codified as 4.05.6(14) and revised only so that its requirements apply to other treatment facilities as well as sedimentation ponds).

Wherever the Federal regulations at 30 CFR 816.46 and 817.46 refer to the term “siltation structures,” Colorado refers to the terms “sedimentation pond” and “other treatment facilities.” Colorado's proposed Rule 4.05.6 is otherwise the same as or similar to the respective counterpart Federal regulations at 30 CFR 780.12(a)(4), 780.18(b), 816.46 and 817.46 as follows:

Therefore, the Director finds that Colorado's proposed revisions at Rule 4.05.6 are as effective as the counterpart Federal regulations at 30 CFR 780.12(a)(4), 780.18(b), 816.46 and 817.46 and approves them.

Colorado proposed to revise Rule 4.05.7, concerning the requirement to use erosion control measures to minimize disturbance from discharge structures to the hydrologic balance, by adding “other treatment facilities” to those sedimentation ponds, impoundments, and other structures to which the rule currently applies.

The counterpart Federal regulations at 30 CFR 816.47 and 817.47 do not refer to “other treatment facilities”; Colorado's rule is otherwise the same as the Federal regulations. The addition of the reference to “other treatment facilities” provides the capability of applying the rule to a broader spectrum of structures and therefore ensuring environmental protection in a broader spectrum of circumstances.

Therefore, the Director finds that Colorado's proposed Rule 4.05.7 is consistent with and as effective as the Federal regulations at 30 CFR 816.47 and 817.47 and approves it.

OSM required at 30 CFR 906.16(d) that Colorado revise rule 4.05.9 to clearly indicate that Rules 4.05.9(1)(g) and 4.05.9(4) through (13) apply to both temporary and permanent impoundments (56 FR 1371, January 14, 1991). OSM required at 30 CFR 906.16(e) that Colorado revise Rule 4.05.9(2) to remove the phrase “in which water is impounded by a dam” (56 FR 1371, January 14, 1991).

Colorado proposed to extensively revise Rule 4.05.9 concerning the performance standards specific to impoundments. Colorado proposed to recodify and or revise Rule 4.05.9 as follows:

Rule 4.05.9(1) requiring that the design, construction and maintenance of all impoundments, including sedimentation ponds, sediment treatment facilities, or other treatment facilities shall be in compliance with Rule 4.05.9, and in compliance with all applicable Federal and State water quality standards;

Rules 4.05.9(2)(a) through (e) specifying the requirements for impoundment spillway systems;

Rule 4.05.9(3), identifying impoundments that must meet the design requirements of the State Engineer;

Rule 4.05.9(4), identifying impoundments that must meet the criteria of MSHA at 30 CFR 77.216(a);

Rule 4.05.9(5), requiring persons who impound water for a beneficial use to meet all applicable State laws;

Rule 4.05.9(6), requiring stability of embankments, foundations and abutments and a foundation investigation for those impoundments meeting the criteria of the State Engineer, the size or other criteria of MSHA at 30 CFR 77.216(a) or the criteria of TR-60;

Rule 4.05.9(7) specifying requirements for all impoundment embankments;

Rules 4.05.9(8)(a) and (b), requiring safety factors for impoundments meeting the size or other criteria of MSHA at 30 CFR 77.216(a) or TR-60 (minimum safety factor of 1.5 and a seismic safety factor of at least 1.2) and those that do not (a minimum static safety factor of 1.3);

Rule 4.05.9(9), requiring the protection of embankments from erosion;

Rule 4.05.9(10), requiring adequate freeboard for all impoundments and specifying the freeboard hydrograph criteria for impoundments meeting the Class B or Class C criteria for dams in TR-60;

Rule 4.05.9(12), specifying that the vertical portion of any remaining highwall shall be located far enough below the low-water line, along the full extent of the highwall, to provide adequate safety and access for the proposed water users;

Rule 4.05.9(13)(a) through (f), concerning the bases for approval of a permanent impoundment;

Rule 4.05.9(14), specifying the inspection requirements for all impoundments;

Rule 4.05.9(15), specifying the contents of certified inspection reports;

Rule 4.05.9(17), specifying quarterly inspection requirements for certain impoundments;

Rules 4.05.9(18)(a) through (e) identifying those impoundments that can be exempted from the quarterly inspection requirements of Rule 4.05.9(17) with requirements specific to them;

Rule 4.05.9(19), identifying emergency procedures if an examination or inspection indicates a potential hazard;

Rule 4.05.9(20), requiring that examination of impoundments that meet the criteria of the State Engineer be in accordance with the requirements of the State Engineer; and

Rule 4.05.9(21), requiring that examination of impoundments meeting the size or other criteria of MSHA at 30 CFR 77.216(a) or the Class B or C criteria for dams in TR-60 be in accordance with the requirements of 30 CFR 77.216-3.

Colorado's proposed revisions at Rule 4.05.9 that, with five exceptions having no Federal counterparts, are the same as or similar to the Federal regulations at 30 CFR 816.49 and 817.49 as follows:

All but five of Colorado's proposed revisions at Rule 4.05.9 are the same as or similar to the counterpart Federal regulations at 30 CFR 816.49 and 817.49 (the exceptions that have no Federal counterparts are discussed below in findings Nos. 10.A, 10.B, and 10.C). Therefore, the Director finds that the proposed revisions to Rule 4.05.9 identified in the above chart as being the same as or similar to the counterpart Federal regulations (1) are as effective as the counterpart Federal regulations at 30 CFR 816.46, 816.49, 817.46 and 817.49 as identified in the chart above, and (2) satisfy the required amendments at 30 CFR 906.16(d) and (e). The Director approves them and removes the required amendments.

A. Rule 4.05.9(2)(b), Design of impoundments with a combination of a principal and emergency spillway. Colorado proposed at Rule 4.05.9(2)(b) that if an impoundment is designed and constructed with a combination of a principal and emergency spillways, there shall be no out-flow through the emergency spillway during the passage of runoff resulting from the 10-year 24-hour precipitation event, regardless of the volume of water and sediment directed to the impoundment from any underground working or surface pit (please note that OSM has previously found that Colorado's 10-year 24-hour event is equivalent to the 25-year 6-hour event specified in the Federal regulations). Colorado's proposed rules concerning impoundment spillways are otherwise the same as the Federal regulations at 30 CFR 816.49(a)(9) and 817.49(a)(9). There is no direct Federal counterpart to proposed Rule 4.05.9(2)(b). However, the proposed rule is consistent with the Federal regulations at 30 CFR 816.49(a)(9)(ii)(C) (and Colorado's proposed Rule 4.05.9(2)(c)(ii)), which require that impoundments designed and constructed with a combination of principal and emergency spillways safely pass the 10-year 24-hour precipitation event. Colorado's proposed Rule 4.05.9(2)(b) effectively requires an applicant to consider all sources of water that may flow into an impoundment when designing the capacity of the impoundment. For these reasons, the Director finds that proposed Rule 4.05.9(2)(b) is as effective as the Federal regulations concerning impoundment spillway design at 30 CFR 816.49(a)(9) and 817.49(a)(9). The Director approves Rule 4.05.9(2)(b).

B. Rules 4.05.9(3), (5) and (20), Impoundments which must meet the requirements of other State laws. Colorado's proposed Rules 4.05.9 (3) and (20) require impoundments that meet the specifications of the State Engineer to be designed and inspected in accordance with the requirements of the State Engineer. Colorado's proposed Rule 4.05.9(5) requires persons who impound water for a beneficial use to meet all applicable State laws. There are no counterpart Federal regulations. However, the Federal regulations concerning permits on Federal lands at 30 CFR 740.13(a)(2) require that every person conducting surface coal mining and reclamation operations on Federal lands comply with, among other things, all other applicable State and Federal laws and regulations. The Director finds that Colorado's proposed Rules 4.05.9(3), (5), and (20), concerning impoundments that must comply with other State laws, are consistent with and as effective as the Federal regulations at 30 CFR 740.13(a)(2). The Director approves proposed Rules 4.05.9(3), (5), and (20).

C. Rules 4.05.9(18) (a) through (e), Allowance for exemption of certain impoundments from the requirements for quarterly examinations. Colorado proposed new language at Rule 4.05.9(18) allowing Colorado to approve a waiver of the quarterly impoundment examinations required in Rule 4.09.9(17) for certain impoundments, if the permittee demonstrates in writing that failure of the impoundments will not create a threat to public health and safety or threaten significant environmental harm. The written safety demonstration must be submitted by a professional engineer, as part of a permit application (proposed Rule 4.05.9(18)(b)). Prior to approving the waiver, Colorado must conduct a field inspection to verify the adequacy of the safety demonstration (proposed Rule 4.05.9(18)(d)). The proposed rule also allows the annual inspection of the impoundments that are exempt from quarterly examinations to be conducted by a qualified person other than a professional engineer (proposed Rule 4.05.9(18)(c)).

Impoundments which may quality for Colorado's approval of the waiver from quarterly examinations must not be the primary sediment control for a particular area, must be located in reclaimed areas to enhance the postmining land use and must be either completely incised or must not exceed 2 acre-feet in capacity nor have embankments larger than 5 feet in height measured from the bottom of the channel (as measured vertically from the upstream toe of the embankment to the bottom of the spillway; proposed Rule 4.05.9(18)(a)). If a waiver is approved, Colorado must periodically inspect the impoundments and areas downstream to verify that the safety demonstration remains adequate (proposed Rule 4.05.9(18)(e)). Colorado may terminate an approved waiver, for good cause, if conditions of the impoundment or conditions downstream from the impoundment are such that failure of the impoundment will create a threat to public health and safety or threaten significant environmental harm (proposed Rule 4.05.9(18)(e)).

Because, with the exception of those rules requiring quarterly examinations and the annual inspection to be conducted by a professional engineer, all rules in the Colorado program concerning impoundments would apply to these impoundments constructed in the reclaimed environment, these small impoundments would (1) be shown on a map as required at Rule 2.04.7(4)(e); (2) have general and detailed plans prepared by a professional engineer as required by Rule 2.05.3(4); (3) be subject to the design requirements for impoundments at Rule 4.05.9; and (4) be subject to the requirements at proposed Rule 4.05.9(14)(a) for an inspection by a professional engineer during and upon completion of construction.

Colorado stated in its “Statement of Basis, Specific Statutory Authority, and Purpose” that the impoundments described in proposed Rule 4.05.9(18) are typically constructed at Colorado mine sites to enhance the postmining land uses of rangeland and wildlife habitat and are considered beneficial features in mine site reclamation plans.

The Federal regulations at 30 CFR 816.49(a)(11) and (12) and 817.49(a)(11) and (12), concerning the inspection of impoundments, do not provide for exemptions. However, OSM Directive No. TSR-2, Transmittal No. 375, dated September 14, 1987, entitled “Quarterly Examination of Water Impoundments,” exempts impoundments constructed without an embankment from the quarterly examination requirement since there is no embankment to examine for structural weaknesses or other hazardous conditions. This directive is applicable to the evaluation of State programs as well as to the implementation, administration and enforcement of a Federal program. That portion of Colorado's proposed Rule 4.05.18(a) which allows a waiver of quarterly examination for completely incised impoundments is consistent with the OSM Directive No. TSR-2.

Colorado's proposed Rule 4.05.18 is also consistent with precedent set by OSM's approval of a similar amendment to the Illinois permanent regulatory program. OSM approved in Illinois a rule exempting from quarterly inspections impounding structures that impound water to a design elevation not more than 5 fee above the upstream toes of the structure and have a storage volume of not more than 20 acre-feet (see finding No. 9, 56 FR 64966, 64968, December 13, 1991), OSM's approval in Illinois was based, in part, on Illinois' requirements that (1) an application for the exemption contain a report sealed by a professional engineer which finds that the structure would pose no threat to life, property or the environment, (2) Illinois would field verify the report prior to approval and periodically thereafter, and (3) Illinois would terminate the exemption if warranted. Colorado's proposed Rule 4.05.9(18) contains similar provisions yet would apply to smaller impounding structures (those that impound water to a design elevation not more than 5 feet above the upstream toes of the structure and have a storage volume of not more than 2, not 20, acre-feet).

Based on the above discussion, the Director finds that Colorado's proposed Rule 4.05.9(18) is as effective as the Federal regulations at 30 CFR 816.49(a)(11) and (12) and 817.49(a)(11) and (12) and approves it.

Colorado proposed to revise Rule 4.05.18, concerning stream buffer zones, by revising Rules 4.05.18(1)(a) through (c) and deleting Rule 4.05.18(3) so that Rule 4.05.18 is the same as the Federal regulations at 30 CFR 816.57 and 817.57. The this reason, the Director finds that Colorado's proposed Rules 4.05.18 is as effective as the Federal regulations at 30 CFR 816.57 and 817.57 and approves it.

Colorado proposed to add or revise Rules 1.04(93a), 2.05.6(3)(b)(iv), 4.05.13(1)(a) and (b), 4.21.4(10), and 4.28.3(16), concerning addition of a definition for “Point of compliance” and revising requirements for a hydrologic monitoring plan, ground water monitoring, coal exploration, and coal processing plants and support facilities, to include requirements for ground water monitoring at points of compliance.

Colorado proposes at Rule 1.04(93a) to define “Point of compliance” to mean:

Colorado's proposed revision of its rules, in effect, adds detailed provisions requiring operators to monitor for and be in compliance with State ground water quality standards at specific points of compliance. With respect to ground water monitoring at points of compliance, these rules have no direct counterpart in the Federal regulations.

Colorado, in order to ensure that the State ground water quality program concerning points of compliance was adequately administered, was obligated by State law to define and include ground water quality points of compliance in the Colorado program. Colorado's existing requirements for ground water monitoring, counterpart to the Federal regulations at 30 CFR 780.21(c) and 816.41 and 817.41, are in Rules 4.05.13(1)(a) and (c). OSM finds that Colorado's proposed requirements for ground water monitoring at points of compliance are separate from, and may be in addition to, the SMCRA-mandated ground water monitoring requirements. OSM bases this interpretation on the language in proposed Rules 4.05.13(1)(a) and (b) where Colorado states, respectively, that “ground water shall be monitored in a manner approved by the Division, including but not limited to specific points or compliance” and “[t]hese points of compliance shall be monitoring locations in addition to any other monitoring points required by the Division.” Also, at proposed Rule 4.05.13(1)(b)(iii), concerning ground water monitoring for points of compliance, Colorado states “[m]onitoring points established under 4.05.13(1)(c) [counterpart to SMCRA-mandated monitoring] may be utilized for this purpose, when appropriate.” By these statements in the proposed rules concerning points of compliance, Colorado has distinguished between OSM's requirements for ground water monitoring and the requirements in its program for a ground water monitoring program in compliance with the Colorado Water Quality Control Commission's requirements.

The Federal regulations at 30 CFR 816.41(c)(1) and 817.41(c)(1) require that ground-water monitoring be conducted according to the ground-water monitoring plan approved under 30 CFR 780.21(i) and provide that the regulatory authority may require additional monitoring when necessary. The requirement for additional ground water monitoring in Colorado's program proposed at Rules 1.04(93a), 2.05.6(3)(b)(iv), 4.05.13(1)(a) and (b), 4.21.4(10), and 4.28.3(16) is consistent with the Federal regulations at 30 CFR 780.21(i)(2) and (j)(2), 816.41(c)(1) and 817.41(c)(1), 815.15(i), and 827.12(c), all of which require monitoring in compliance with other State and Federal laws. In addition, the Federal regulations at 30 CFR 816.42 and 817.42 mandate that all discharges (including ground water discharges) must be made in compliance with all applicable State and Federal water quality control laws and regulations. Colorado's proposed addition of rules concerning ground water monitoring for points of compliance ensures that all State ground water monitoring requirements are followed by operators and enforced under the Colorado program, which clearly is consistent with the goals of the Federal program at 30 CFR 816.41 and 817.42.

Based on the above discussion, the Director finds that Colorado's proposed Rules 1.04(93a), 2.05.6(3)(b)(iv), 4.05.13(1)(a) and (b), 4.21.4(10), and 4.28.3(16) are consistent with and as effective as the Federal regulations at 30 CFR 816.41 and 817.42 and approves them.

We asked for public comments on the amendment (administrative record No. CO-691-1), but did not receive any.

Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Colorado program (administrative record no. CO-691-1).

By memorandum dated June 26, 2000 (administrative record No. NM-691-3), the U.S. Department of Interior, Fish and Wildlife Service (FWS), commented that (1) it is the policy of FWS to require formal section 7 consultation under the Endangered Species Act of 1973, as amended, if there is any water depletion associated with mining and related activities (e.g., sediment pond or other pond development) in the Upper Colorado River Basin; (2) ponds below 6,500 feet elevation, and deeper than 1 foot, that are connected to waterways are considered a potential non-native fish source and outlets must be screened, or if within the 50 year flood plain, must be screened and or bermed (with potential for section 7 consultation if this is not thought to be possible); and (3) Colorado's proposed rules concerning the 100 foot buffer zone should be revised to provide for a 300 foot buffer zone because this would better protect riparian ecosystem that may occur adjacent to the stream.

With respect to the FWS comments concerning water depletion, potential non-native fish source and section 7 consultation requirements, Colorado's existing Rule 2.04.11 concerning fish and wildlife resource information, requires that Colorado consult with the appropriate State and Federal fish and wildlife management, conservation, or land management agencies having responsibilities for fish and wildlife or their habitats. Colorado's existing Rule 2.05.6(2) requires the permit applicant to submit a fish and wildlife plan and existing Rule 2.05.6(2)(b) requires that Colorado submit this plan to the FWS for review within 10 days upon request by the FWS.

With respect to the FWS comment requesting that Colorado's proposed Rule 4.05.18 require a 300 foot rather than a 100 foot stream buffer zone, the counterpart Federal regulations at 30 CFR 816.57 and 817.57 require a 100 foot stream buffer zone.

As discussed under the Director's findings above, the Colorado rules proposed in this amendment are no less effective than the counterpart Federal regulations. OSM can only require that the Colorado program contain rules no less effective than the counterpart Federal regulations. For this reason, the Director is taking no further action in response to these comments.

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written agreement from EPA for those provisions of the program amendment that relate to air or water quality standards issued 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 revisions that Colorado proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA's to agree on the amendment. However, under 30 CFR 732.17(h)(11)(i), OSM requested comments on the amendment from EPA (administrative record No. CO-691-1). EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On May 25, 2000, we requested comments on Colorado's amendment (administrative record No. CO-691-1). but neither responded to our request.

Based on the above findings, we approve the amendment sent to us by Colorado on May 12, 2000.

We approve, as discussed in:

Finding No. 1, Rules 1.04(71), (81a), (86a) and (137a), concerning the definitions of land use, other treatment facilities, permanent impoundment and temporary impoundment;

Finding No. 2, Rule 1.04(115), concerning the definition of sedimentation pond;

Finding No. 3, Rules 2.05.3(4), (4)(a)(iii), (iv), (v) and (vii), and (4)(b), concerning the reclamation plan requirements for sedimentation ponds and other treatment facilities, impoundments, banks, dams and embankments;

Finding No. 4, Rules 2.05.3(8)(a)(iii), (iv), (v) and (vi), concerning coal mine waste and non-coal processing waste banks, dams, or embankments;

Finding No. 5, Rules 2.07.3(3)(b) and (c), concerning the time frame for written comments on technical revisions;

Finding No. 6, Rules 1.04(31a) and 2.07.6(2)(c), concerning the definition of cumulative impact area and the criteria for permit approval or denial;

Finding No. 7, Rules 4.05.2(1), (2), (3)(a), (4), (5) and (6), concerning performance standards for sedimentation ponds and other treatment facilities;

Finding No. 8, Rule 4.05.6, concerning the general requirements for sedimentation ponds and other treatment facilities;

Finding No. 9, Rule 4.05.7, concerning requirements for discharge structures;

Finding No. 10, Rule 4.05.9, concerning the performance standards for impoundments;

Finding No. 11, Rules 4.05.18(1)(a) through (c), concerning protection of stream buffer zones; and

Finding No. 12, Rules 1.04(93a), 2.05.6(3)(b)(iv), 4.05.13(1)(a) through (c), 4.21.4(10) and 4.28.3(16), concerning the definition of point of compliance and ground water monitoring at points of compliance.

We approve the rules as proposed by Colorado with the provision that they be fully promulgated in identical form to the rules submitted to and reviewed by OSM and the public.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 906, which codify decisions concerning the Colorado program. We are making this final rule effective immediately to expedite the State program amendment process and to encourage States to make their programs conform with the Federal standards. SMCRA requires consistency of State and Federal standards.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866 (Regulatory Planning and Review).

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 (Civil Justice Reform) and has determined that 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 the Federal regulations at 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.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB 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 that 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 regulations.

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; and 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.

OSM has determined and certifies under the Unfunded Mandates Reform Act (2 U.S.C. 1502 et seq. ) that this rule will not impose a cost of $100 million or more in any given year on any local, State, or Tribal governments or private entities.

On February 16, 1980, the Secretary of the Interior conditionally approved the Texas program. You can find background information on the Texas program, including the Secretary's findings, the disposition of comments, and the conditions of approval in the February 27, 1980, Federal Register (45 FR 12998). You can find later actions concerning the Texas program at 30 CFR 943.10, 943.15, and 943.16.

By letter dated August 24, 2000 (Administrative Record No. TX-650.01), Texas sent us an amendment to its program under SMCRA and the Federal regulations at 30 CFR 732.17(b). Texas sent the amendment in response to our letter dated November 22, 1999 (Administrative Record No. TX-650), that we sent to Texas under 30 CFR 732.17(c). The amendment also includes changes made at Texas' own initiative.

We announced receipt of the amendment in the September 12, 2000, Federal Register (65 FR 54982). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the proposed amendment. The public comment period closed on October 12, 2000. Because no one requested a public hearing or meeting, we did not hold one.

Following, under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17, are the Director's findings concerning the amendment to the Texas program.

Any revisions that we do not discuss below concern minor wording changes, or revised cross-references and paragraph notations to reflect organizational changes resulting from this amendment.

The State regulations listed in the table below contain language that is the same as or similar to the corresponding sections of the Federal regulations. Differences between the State regulations and the Federal regulations are minor.

Because the above State regulations have the same meaning as the corresponding Federal regulations, we find that they are no less effective than the Federal regulations.

Texas proposed to remove the following language from this paragraph:

We are approving the removal of this language because it is not as effective as the Federal regulations at 30 CFR 816.106 concerning the backfilling and grading of previously mined areas. Also, in this rulemaking, Texas proposed and we are approving an amendment to its regulations that include provisions for backfilling and grading of previously mined areas that are as effective as the Federal regulations. Please refer to the table listed in III. Director's Findings, A. Backfilling and grading: General grading requirements.

Texas proposed to remove the following language from this paragraph:

We are approving the removal of this language because it is not as effective as the Federal regulations at 30 CFR 817.106 concerning the backfilling and grading of previously mined areas. Also, in this rulemaking, Texas proposed and we are approving an amendment to its regulations that include provisions for backfilling and grading of previously mined areas that are as effective as the Federal regulations. Please refer to the table listed in III. Director's Findings, A. Backfilling and grading: General grading requirements.

Texas proposed to remove paragraph (a)(3) which reads as follows:

As a result of this removal, Texas is redesignating paragraphs (a)(4) through (a)(7) as paragraphs (a)(3) through (a)(6). We are approving the removal and redesignations of the above regulations because there is no Federal counterpart regulation to paragraph (a)(3) and its removal and the subsequent redesignation of paragraphs (a)(4) through (a)(7) as paragraphs (a)(3) through (a)(6) will not make the Texas regulations less effective than the Federal regulations.

Also, Texas proposed to revise paragraph (a)(4) [redesignated as paragraph (a)(3)] by adding new language (shown in bold) to read as follows:

There is no Federal counterpart regulation to the language that is added to the above paragraph. However, we are approving the addition of the new language because it is not inconsistent with the Federal regulations at 30 CFR 764.15 pertaining to initial processing, recordkeeping, and notification requirements for petitions concerning lands unsuitable for mining.

Texas proposed to remove paragraph (b)(2) that allows the Commission to provide for a hearing or a period of written comments on the completeness of petitions for designating areas as unsuitable for surface coal mining operations. As a result of the removal of this paragraph, Texas is redesignating paragraph (b)(3) as (b)(2). We are approving the amendments because there is no counterpart Federal regulation to paragraph (b)(2) and the removal of this paragraph and the redesignation of paragraph (b)(3) as (b)(2) will not make the Texas regulations less effective than the Federal regulations.

On September 6, 2000, under section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of the Federal regulations, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Texas program (Administrative Record No. TX-650.02). The Texas Parks and Wildlife Department Resource Protection Division responded on October 6, 2000 (Administrative Record No. TX-650.04), that its review of the proposed amendment indicates minimum impacts to fish and wildlife resources.

Under 30 CFR 732.17(h)(11)(ii), we are required to obtain the written concurrence of the EPA for those provisions of the program amendment that relate to air or water quality standards issued 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 revisions that Texas proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask the EPA for its concurrence.

Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from the EPA (Administrative Record No. TX-650.02) on September 6, 2000. The EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On September 6, 2000, we requested comments on Texas' amendment (Administrative Record No. TX-650.02), but neither responded to our request.

We asked for public comments on the amendment, but did not receive any.

Based on the above findings, we approve the amendment as sent to us by Texas on August 24, 2000. We approve the regulations that Texas proposed with the provision that they be published in identical form to the regulations sent to and reviewed by OSM and the public.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 943, which codify decisions concerning the Texas program. We are making this final rule effective immediately to expedite the State program amendment process and to encourage Texas to bring its program into conformity with the Federal standards. SMCRA requires consistency of State and Federal standards.

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 regulations.

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 under 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 regulations.

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.

An interim final version of this rulemaking was published at 65 FR 56792, Sept. 20, 2000, and also at U.S. Patent and Trademark Office, 1239 Off. Gaz. 125 (Oct. 17, 2000). The rationale for the rulemaking appears with the interim rule.

The interim rule elicited two comments. One comment notes a reference in 37 CFR 1.671(e) to a rule that was deleted. That reference is eliminated in this final rule. Any other references to deleted rules in subpart E of this title should be considered obsolete. They will be eliminated in a future rulemaking.

A second comment raised a concern as to whether exhibits should be numbered, noting that there is no patent interference rule requiring that exhibits be numbered. Each exhibit needs to be identified in some unique manner. All interferences declared by the Board of Patent Appeals and Interferences (Board) at this time are subject to a “Standing Order” that requires that exhibits be numbered.

The same comment noted that former 37 CFR 1.682 authorized placing a publication in evidence without the need for an affidavit. According to the comment, affidavits will now be necessary. Publications generally may be placed in evidence in interference cases without an affidavit. If an objection is made by an opponent, e.g., for lack of authenticity, then under the Board's practice the party has a period of time within which to supplement its evidence by properly authenticating the publication. The Board expects few, if any, problems with the admissibility of most printed publications given that most parties will have no reason to question the authenticity of most printed publications.

This rulemaking is procedural and is not subject to the requirements of 5 U.S.C. 553 so no initial regulatory flexibility analysis is required under 5 U.S.C. 603.

This rulemaking does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (August 4, 1999).

This rulemaking has been determined to be not significant for purposes of Executive Order 12866 (September 30, 1993).

This interim rule creates no information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

On June 5, 1998 (63 FR 31014), July 22, 1998 (63 FR 39432) and June 9, 1999 (64 FR 30911), the EPA revoked the 1-hour ozone NAAQS in many areas around the country in anticipation of implementing the new 8-hour ozone NAAQS that was established in 1997. EPA revoked the 1-hour standard to allow areas that were showing attainment to redirect their focus toward meeting the new 8-hour standard. On June 9, 1999, the EPA revoked the 1-hour standard for the Allegan area because ozone monitors were showing attainment of the ozone NAAQS.

On May 14, 1999, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision on the 8-hour ozone NAAQS that blocked EPA's ability to implement the new standard. That action left nearly 3,000 U.S. counties without any federal public health standard for ozone. To remedy this situation, on July 20, 2000, EPA published a final rulemaking action in the Federal Register (65 FR 45181) to reinstate the 1-hour standard in areas where it had been revoked, including Allegan.

For areas with clean air quality data, like Allegan, the July 20, 2000 rulemaking (65 FR 45182) specifies that reinstating the nonattainment designation will occur 180 days after EPA published the rulemaking, on January 16, 2001. EPA believes that it is appropriate to provide nonattainment areas with clean air quality data since revocation additional time to complete the redesignation process. Therefore, EPA delayed the applicability date of the final rule for 180 days for areas that were designated nonattainment at the time of revocation and continue to have clean data, to allow States to submit redesignation requests and EPA time to act on them prior to the January 16, 2001 applicability date. The July 20, 2000 rule specifies a procedure by which EPA can synchronize the effective date of the reinstatement and the redesignation. EPA is using that procedure in this action.

The EPA is determining that the Allegan ozone nonattainment area has attained the NAAQS for ozone. On the basis of this determination, EPA is also determining that certain CAA requirements do not apply to the Allegan area as long as it continues to attain the ozone NAAQS. These requirements are (section 172(c)(1)) attainment demonstration requirements and (section 172(c)(9)) contingency measure requirement.

EPA believes it is reasonable to interpret provisions regarding attainment demonstrations and certain related provisions to not require SIP submissions, as described further below, if an ozone nonattainment area subject to those requirements is monitoring attainment of the ozone standard ( i.e. , attainment of the NAAQS is demonstrated with three consecutive years of complete, quality-assured, air quality monitoring data). EPA made this interpretation, and described our legal rationale for it in a memo from John Seitz dated May 10, 1995. EPA is basing the determination that Allegan County has attained the ozone standard upon three years of complete, quality-assured, ambient air monitoring data for the 1997 to 1999 ozone seasons recorded at the Allegan monitoring site. These data demonstrate that Allegan County has attained the ozone NAAQS. Preliminary ozone monitoring data for 2000 continue to show that this area is attaining the ozone NAAQS.

The requirements of section 172(c)(1) concerning the submission of a plan to ensure reasonable further progress (RFP) plan and the ozone attainment demonstration and the requirements of section 172(c)(9) concerning contingency measures for RFP or attainment will not apply to Allegan County.

The State must continue to operate an appropriate air quality monitoring network, in accordance with 40 CFR part 58, to verify the attainment status of the area.

The determination in this document does not shield an area from future EPA action to require emissions reductions from sources in the area where there is evidence, such as photochemical grid modeling, showing that emissions from sources in the area contribute significantly to nonattainment in, or interfere with maintenance by, any other states with respect to the NAAQS (see section 110(a)(2)(D)). The EPA has authority under sections 110(a)(2)(A) and 110(a)(2)(D) of the CAA to require such emission reductions if necessary and appropriate to deal with transport situations.

The EPA believes it is reasonable to interpret provisions regarding RFP and attainment demonstrations and certain related provisions to not require SIP submissions if an ozone nonattainment area subject to those requirements is monitoring attainment of the ozone standard ( i.e. , attainment of the NAAQS demonstrated with three consecutive years of complete, quality-assured, air quality monitoring data). EPA has interpreted the general provisions of subpart 1 of part D of Subchapter I (sections 171 and 172) as not requiring the submission of SIP revisions concerning RFP, attainment demonstrations, or contingency measures, as explained in a memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, entitled “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” dated May 10, 1995 (See Sierra Club v. EPA , 99 F.3d 1551 (10th Cir. 1996)).

The attainment demonstration requirements of section 182(b)(1) are that the plan provide for “such specific annual reductions in emissions * * * as necessary to attain the national primary ambient air quality standard by the attainment date applicable under the CAA.” If an area has in fact monitored attainment of the relevant NAAQS, EPA believes there is no need for an area to make a further submission containing additional measures to achieve attainment. This is also consistent with the interpretation of certain section 172(c) requirements provided by EPA in the General Preamble to Title I of the Clean Air Act Amendments of 1990 (1990 Act). As EPA stated in the Preamble, no other measures to provide for attainment would be needed by areas seeking redesignation to attainment since “attainment will have been reached” (57 FR 13564). Upon attainment of the NAAQS, the focus of state planning efforts shifts to the maintenance of the NAAQS and the development of a maintenance plan under section 175A.

Similarly, the EPA has previously interpreted the contingency measure requirement of section 172(c)(9) as no longer applying once an area has attained the standard since those “contingency measures are directed at ensuring RFP and attainment by the applicable date” (57 FR 13564). EPA has exercised this policy most recently in approvals for the Cincinnati, OH and Muskegon, MI areas (65 FR 37879 and 65 FR 52651).

The EPA has reviewed the ambient air monitoring data for ozone (consistent with the requirements contained in 40 CFR part 58 and recorded in AIRS) for Allegan County from the 1997 through 1999 ozone seasons, as recorded at the Allegan monitoring site. This data is summarized in Table 1 of this document covering EPA's analysis of the redesignation request. Preliminary monitoring data for 2000 show the area continues to attain the 1-hour ozone NAAQS. On the basis of this review, EPA determines that this area has attained the 1-hour ozone standard during the 1997-1999 period, which is the most recent three-year time period of air quality monitoring data. The State therefore is not required to submit an attainment demonstration, RFP, or a section 172(c)(9) contingency measure plan.

The official record for this direct final rule is at the addresses in the ADDRESSES section at the beginning of this document. The addresses for sending comments are also provided in the ADDRESSES section at the beginning of this document. If we receive adverse comments on this action, we will withdraw this final rule and address the comments received in response to this action in a final rule on the related proposed rule. We will not open a second public comment period. Parties interested in commenting on this action should do so at this time.

The EPA is approving the redesignation request for the Allegan area because three years of ambient monitoring data demonstrate that the ozone NAAQS has been attained and the area has satisfied the other requirements for redesignation. The EPA is approving the maintenance plan submitted by the Michigan Department of Environmental Quality (MDEQ) as a revision to the SIP. The EPA is also notifying the public that we believe the motor vehicle emissions budgets for VOC and NO X are adequate for conformity purposes and approvable as part of the maintenance plan.

The redesignation would change the official designation of Allegan County from nonattainment to attainment for the 1-hour ozone standard. It would also put a plan in place to maintain the 1-hour ozone standard for the next 10 years. This plan includes contingency measures to correct any future violations of the 1-hour ozone standard. It also includes motor vehicle emissions budgets for VOC and NO X which would be used in any conformity determination that is made on or after the effective date of the maintenance plan approval.

The EPA originally designated the Allegan area as an ozone nonattainment area under section 107 of the 1977 CAA on March 3, 1978 (43 FR 8962). The EPA revisited this original designation in 1991 to reflect new designation requirements contained in the 1990 Act. On November 6, 1991 (56 FR 56694), the EPA designated Allegan County as an ozone nonattainment area. At the time of the 1991 designations, up to date monitoring data was not available for this area, nor had the State completed a redesignation request showing that it complied with the requirements of section 107 of the Act. Based on this, the EPA designated the area as nonattainment, but did not establish a nonattainment classification, establishing the area as an incomplete data ozone nonattainment area. The preamble for the original designation contains more detail on this action (56 FR 56694).

The Allegan area has since recorded three years of complete, quality-assured, ambient air quality monitoring data for 1997-1999, thereby demonstrating that the area has attained the 1-hour ozone NAAQS.

On September 1, 2000, the State of Michigan submitted a redesignation request and section 175A maintenance plan for the Allegan ozone nonattainment area. This revised plan includes updated emissions inventory calculations and air quality monitoring data.

The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) allows for redesignation providing that: (1) The Administrator determines that the area has attained the NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable state implementation plan and applicable federal air pollutant control regulations and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175(A); and, (5) the state containing such area has met all requirements applicable to the area under section 110 and part D.

The EPA provided guidance on redesignation in the State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, on April 16, 1992 (57 FR 13498) and supplemented the guidance on April 28, 1992 (57 FR 18070). The EPA has provided further guidance on processing redesignation requests in the following documents:

For ozone, an area may be considered attaining the 1-hour ozone NAAQS if there are no violations, as determined according to 40 CFR 50.9 and appendix H, based on three complete, consecutive calendar years of quality assured monitoring data. A violation of the 1-hour ozone NAAQS occurs when the annual average number of expected daily exceedances is equal to or greater than 1 per year at a monitoring site. A daily exceedance occurs when the maximum hourly ozone concentration during a given day is 0.125 parts per million (ppm) or higher. The data must be collected and quality-assured in accordance with 40 CFR part 58, and recorded in AIRS. The monitors should have remained at the same location for the duration of the monitoring period required for demonstrating attainment.

The MDEQ submitted ozone monitoring data for the 1996-1998 and the 1997-1999 ozone seasons. Table 1 below summarizes the air quality data.

This data has been quality assured and is recorded in AIRS. During the 1997-1999 time period, the monitor recorded two exceedances of the ozone NAAQS, resulting in a three year average of .67 exceedances per year. Preliminary 2000 ambient air quality monitoring data indicates that the area continues to meet the ozone NAAQS, although an exceedance may have occurred on June 9, 2000. If this June 9, 2000 exceedance is confirmed, the annual number of expected daily exceedances would be 1 for Allegan County and the area would still show attainment of the 1-hour standard.

Before the Allegan area may be redesignated to attainment for ozone, it must have fulfilled the applicable requirements of section 110 and part D. The Calcagni memorandum dated September 4, 1992, states that areas requesting redesignation to attainment must fully adopt rules and programs that come due prior to the submittal of a complete redesignation request.

General SIP elements are delineated in section 110(a)(2) of the CAA. These requirements include but are not limited to the following: a SIP submittal containing rules the state adopted after reasonable notice and public hearing; provisions to establish and operate appropriate apparatus, methods, systems and procedures necessary to monitor ambient air quality; a permit program to implement provisions of part C, Prevention of Significant Deterioration (PSD), and part D, New Source Review (NSR) permit programs; criteria for stationary source emission control measures, monitoring and reporting; provisions for modeling; and provisions for public and local agency participation.

For purposes of redesignation, EPA reviewed the Michigan SIP to ensure that it satisfied all requirements under the amended CAA through approved SIP provisions. A number of the requirements did not change in substance and, therefore, EPA believes that the pre-amendment SIP met these requirements. The EPA has analyzed the Michigan SIP and determined that it is consistent with the requirements of amended section 110(a)(2). (See also 61 FR 20458 and Southwestern Growth Alliance v. Browner , 144 F.3d 984 (6th Cir. 1998)).

Before Allegan County may be redesignated to attainment, the area must fulfill the applicable requirements of part D. Under part D, an area's classification indicates the requirements to which it is subject. Subpart 1 of part D sets forth the basic nonattainment requirements applicable to all nonclassifiable nonattainment areas. Subpart 2 of part D establishes additional requirements for ozone nonattainment areas classified under section 186 of the Act. As described in the “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” specific requirements of subpart 2 may override subpart 1's general provisions (57 FR 13501 (April 16, 1992)). However, as noted in the General Preamble, the subpart 2 requirements do not apply to “not classified” ozone nonattainment areas (57 FR 13525). EPA designated Allegan County as a “not classified” ozone nonattainment areas (56 FR 56694, November 6, 1991), codified at 40 CFR 81.323. Therefore, to be redesignated to attainment, the State must meet the applicable requirements of subpart 1 of part D—specifically sections 172(c) and 176, but not the requirements of subpart 2 of part D.

Section 172(c) sets forth general requirements applicable to all nonattainment areas. Under 172(b), the section 172(c) requirements are applicable as determined by the Administrator, but no later than 3 years from the date of the nonattainment designation.

EPA has determined that Michigan's redesignation request for Allegan County has satisfied all of the requirements under section 172(c) necessary for the area's redesignation to attainment. Many of the general requirements contained in section 172(c) are addressed by the State's pre-amendment submittal which EPA approved on May 6, 1980 (45 FR 29801). In part 2 of this rulemaking, entitled “Determination of Attainment,” EPA is determining that several of the section 172(c) requirements do not apply since the area has attained the ozone NAAQS. The requirements for emissions inventories under section 172(c)(3) and permits programs under section(c)(5) still need to be addressed in order to redesignate the areas. Section 172(c)(3) requires submission and approval of a comprehensive, accurate, and current inventory of actual emissions. The base year emissions inventory for Allegan County is satisfied by the State's submittal of the 1991 inventory for this county in the redesignation request.

Section 172(c)(5) requires permits to construct and operate new and modified major stationary sources anywhere in the nonattainment area (a NSR program). The EPA has determined that areas being redesignated do not need an approved NSR program prior to redesignation provided that the area demonstrates maintenance of the standard without a NSR program in effect. A memorandum from Mary Nichols dated October 14, 1994 describes the rationale for this decision. See discussion in the Grand Rapids, Michigan document published on June 21, 1996 (61 FR 31831). EPA has also applied this policy in redesignations of Youngstown-Warren, Columbus, Canton, Cleveland-Akron-Lorain, Dayton-Springfield, Toledo, Preble County, Columbiana County, Clinton County, and Cincinnati Ohio, as well as Detroit, Michigan. Additional information on EPA's rationale is in the approval of the redesignation request for the Cincinnati area (65 FR 37879).

The State has demonstrated that Allegan County can maintain the standard without a NSR program in effect, and, therefore, the State need not have a fully approved NSR program prior to approval of the redesignation request for the area. The MDEQ's federally delegated PSD program will become effective in Allegan County upon redesignation to attainment.

Section 176(c) of the CAA requires that federally supported or funded projects conform to the air quality planning goals in the applicable SIP. This requirement applies to transportation plans, programs and projects developed, funded or approved under title 23 U.S.C. of the Federal Transit Act (“transportation conformity”), and to all other federally supported or funded projects (“general conformity”). Section 176(c) of the CAA requires transportation conformity. EPA's transportation conformity rule requires that transportation plans, programs, and projects conform to state air quality implementation plans (SIPs) and establishes the criteria and procedures for determining whether or not they do. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standards.

Section 176(c) provides that state conformity revisions must be consistent with Federal conformity regulations that the CAA requires EPA to promulgate. The Federal general conformity regulations were finalized on November 30, 1993, and the Federal transportation conformity regulations were finalized on November 24, 1993. The Federal general conformity regulations have remained the same since that time, but the Federal transportation conformity regulations have been amended several times since 1993. EPA approved Michigan's general and transportation conformity SIPs on December 18, 1996 (61 FR 66607).

The Federal transportation conformity regulations were amended on August 15, 1997 (40 CFR parts 51 and 93 Transportation Conformity Rule Amendments: Flexibility and Streamlining). Michigan submitted new transportation conformity rules on November 30, 1998, in response to the 1997 changes to the Federal transportation conformity regulations. However, the Michigan rules will need to be revised again due to the March 2, 1999 court decision ( Environmental Defense Fund v. Environmental Protection Agency, U.S. Court of Appeals District of Columbia Circuit, No. 97-1637) which rescinded several sections of the Federal transportation conformity rule and asked EPA to revise several sections of the Federal rule.

EPA believes it is reasonable to interpret the conformity requirements as not applying for purposes of evaluating the redesignation request under section 107(d). The rationale for this is based on a combination of two factors. First, the requirement to submit SIP revisions to comply with the conformity provisions of the Clean Air Act continues to apply to areas after redesignation to attainment, since such areas would be subject to a section 175A maintenance plan. Second, EPA's Federal conformity rules require the performance of conformity analyses in the absence of federally approved state rules. Therefore, because areas are subject to the conformity requirements regardless of whether they are redesignated to attainment and must implement conformity under Federal rules if state rules are not yet approved, EPA believes it is reasonable to view these requirements as not applying for purposes of evaluating a redesignation request. See, for example Grand Rapids redesignation at 61 FR 31835-31836 (June 21, 1996).

EPA has explained its rationale and applied this interpretation in numerous redesignation actions. See, Tampa, Florida and Cleveland-Akron-Lorain redesignations 60 FR 52748 (December 7, 1995), and 61 FR 20458 (May 7, 1996), respectively. Consequently, EPA may approve the ozone redesignation request for Allegan County notwithstanding the lack of a fully approved conformity SIP.

The on-highway motor vehicle budgets for Allegan are 9.8 tons of NO X /day and 5.3 tons of VOC/day, based on the area's 2011 level of emissions. Allegan, MI must use the motor vehicle emissions budgets from the maintenance plan in any conformity determination made on or after the effective date of the maintenance plan approval.

The EPA believes the motor vehicle emissions budgets for VOC and NO X are adequate for conformity purposes and approvable as part of the maintenance plan. Interested parties may comment on the adequacy and approval of the budgets by submitting their comments on this direct final rule.

If EPA receives adverse written comments with respect to the adequacy and approval of the Allegan emissions budgets, or any other aspect of our approval of this SIP, by the time the comment period closes, we will publish a timely withdrawal of the direct final rule informing the public that the rule will not take effect. In this case, we will either respond to the comments on the emissions budgets in our final action or proceed with the adequacy process as a separate action.

We will also announce our action on the Allegan emissions budgets on EPA's conformity website: http://www.epa.gov/oms/traq , (once there, click on the “Conformity” button, then look for “Adequacy Review of SIP Submissions for Conformity”).

Michigan maintains that the Allegan area is the recipient of overwhelming amounts of ozone transported from the upwind Gary-Chicago-Milwaukee severe ozone nonattainment areas as demonstrated by its November 14, 1994 petition. The overwhelming transport demonstration includes urban airshed modeling (UAM) which shows that there is minimal to no change in ozone concentrations in Western Michigan even when Western Michigan VOC and NO X emissions are entirely eliminated. The State, therefore, concludes that emission reductions within Allegan County would have little or no impact on ozone concentrations within this area. The State maintains that the improvement in air quality in Allegan is largely due to emission reductions achieved throughout the Lake Michigan region.

Nonetheless, the redesignation request demonstrates that permanent and enforceable emission reductions have occurred in the Allegan area as a result of the Federal Motor Vehicle Emission Control Program (FMVCP) and controls on industrial sources. The submittal provides a general discussion of development of the emission inventories for ozone precursors from 1991-1996 which includes estimates from EPA's NET inventory, Michigan's 1990 base year inventory, off-road mobile estimates from the Lake Michigan Air Directors Consortium (LADCO) inventory developed for use in the Lake Michigan Ozone Study (LMOS), and mobile source data using EPA's MOBILE5a mobile source emissions model. Although 1991 was not one of the years used to designate and classify the area, it was a nonattainment year. The VOC and NO X emission inventories for the years 1991 and 1996 submitted by the State show a declining trend in emissions. The 1996 emission inventory is provided as the attainment year emission inventory.

According to the State's analysis, Allegan County reduced VOC emissions by 5.9 tons per day and NO X emissions by 0.6 tons per day between 1991 and 1996. The emission reductions are due to a combination of FMVCP and industrial source controls.

Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. The plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the EPA approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan which demonstrates attainment for the 10 years following the initial 10 year period. To address potential future NAAQS violations, the maintenance plan must contain contingency measures, with an implementation schedule to promptly correct any future air quality problems.

Section 175A(d) requires that the contingency provisions include a requirement that the State will implement all control measures that were in the SIP prior to redesignation as an attainment area.

An ozone maintenance plan should address the following five elements: Attainment inventory, demonstration of maintenance, monitoring network, verification of continued attainment, and a contingency plan.

The State has adequately developed an attainment emissions inventory for 1996 that identifies VOC and NO X emissions for the Allegan nonattainment area. EPA has determined that 1996 is an appropriate year on which to base attainment level emissions because monitors in the area showed attainment of the ozone NAAQS at the time. The methodologies used in developing these inventories are discussed in further detail in the State's redesignation submittal.

The attainment level of emissions are summarized below:

The 1991 emission inventory developed by MDEQ for the redesignation request is partially based on 1996 values using growth factors specific to Allegan County and the source classification code of each emitting process. The growth factors were made by the Economic Growth Analysis (EGAS) model for stationary sources (for point, stationary area, and nonroad mobile source categories). The State made onroad mobile estimates for 2011 using the MOBILE5a mobile source emissions model and Federal Highway Administration Performance Monitoring System traffic count data. Detailed information on the assumptions made in the inventory calculations are in EPA's TSD and in the State's submittal.

To demonstrate continued attainment, the State projected anthropogenic 1996 emissions of VOC and NO X to 2011. These emission estimates are in the tables below and demonstrate that the VOC and NO X emissions will decrease in future years. The results of this analysis show that the area is expected to maintain the air quality standard for at least ten years into the future. In fact, the emissions projections show that emissions will be reduced from 1996 levels by .6 tons of VOC and 3.3 tons of NO X per day by 2011 in the Allegan area. These emission reductions will result from the implementation of FMVCP, Federal on-board vapor recovery rules, Federal National Low Emission Vehicle and Tier 2 Regulations, Title IV NO X controls, and other federal rules expected to be promulgated for nonroad engines, autobody refinishing, commercial/consumer solvents, and architectural and industrial maintenance coatings. These estimates are conservative as they do not reflect NO X reductions that will result from EPA's October 27, 1998 (63 FR 57356) rulemaking which requires states to reduce statewide NO X emissions to address the regional transport of ground level ozone ( NO X SIP call).

The emission projections show that the emissions are not expected to exceed the level of the base year 1996 inventory during the 10-year maintenance period.

The State has committed to operate the ozone monitoring network in the Allegan area in accordance with 40 CFR part 58.

Tracking— Continued attainment of the ozone NAAQS in the Allegan area depends, in part, on the State's efforts to track continued attainment during the maintenance period. The tracking plan for the Allegan area consists of continued ambient ozone monitoring in accordance with the requirements of 40 CFR part 58.

Triggers —Michigan contends that the high concentrations of ozone monitored and modeled in the Allegan area are due to transport from upwind areas such as Chicago and Milwaukee. The State also submits that modeling to date indicates that total elimination of anthropogenic VOC and NO X emission sources in Allegan would not affect ozone concentrations in the area. The State concludes that continued maintenance of the ozone NAAQS is dependent on continued emission reductions from upwind areas. Consequently, the State identifies as the triggering event that will cause implementation of a contingency measure an actual monitored ozone violation of the NAAQS, as defined in 40 CFR 50.9, which it determines not to be attributable to transport from upwind areas. The State's redesignation request establishes that if the State monitors a violation, the State will inform EPA that a violation has occurred, review data for quality assurance, and conduct a technical analysis including an analysis of meteorological conditions leading up to and during the exceedances contributing to the violation to determine local culpability. The State will submit a preliminary analysis to the EPA and afford the public the opportunity for review and comment. The State will also solicit and consider EPA's technical advice and analysis before making a final determination on the cause of the violation. The trigger date will be the date that the State certifies to the EPA that the State air quality data are quality assured, and that the State has determined the exceedances contributing to the violation are not attributable to transport from upwind areas. The trigger date will be within 120 days after the violation is monitored.

If the EPA disagrees with the State's final determination and believes that the violation was not attributable to transport, but to the area's own emissions, authority exists under section 179(a) and 110(k), to require the area to implement contingency measures, and section 107, to redesignate the area to nonattainment.

Despite the best efforts to demonstrate continued compliance with the NAAQS, the ambient air pollutant concentrations may exceed or violate the NAAQS. Therefore, as required by section 175A of the CAA, Michigan has provided contingency measures with a schedule for implementation if a future ozone air quality problem occurs. Once the triggering event is confirmed, the State will implement one or more appropriate contingency measures. The Governor or the Governor's designee will select the contingency measure within 6 months of the triggering event. Contingency measures contained in the plan include a plastic parts coating rule, a wood furniture coating rule, and gasoline loading (Stage I vapor recovery) rules. The State will develop rules for the three measures should they be necessary to address a violation of the ozone NAAQS. The State will implement one or more of these rules within 24 months of the Governor's decision to implement a contingency measure.

In accordance with section 175A(b) of the Act, the State has committed to submit a revised maintenance SIP 8 years after the area is redesignated to attainment. Such revised SIP will provide for maintenance for an additional 10 years.

The official record for this direct final rule is located at the addresses in the ADDRESSES section at the beginning of this document. The addresses for sending comments are also provided in the ADDRESSES section at the beginning of this document. If EPA receives adverse written comments on this action, we will withdraw this final rule and address the comments received in response to this action in a final rule on the related proposed rule. We will not open a second public comment period. Parties interested in commenting on this action should do so at this time.

If we receive adverse written comments with respect to the adequacy and approval of the Allegan emissions budgets, or any other aspect of our approval of this SIP, by the time the comment period closes, we will publish a timely withdrawal of the direct final rule informing the public that the rule will not take effect. In this case, we will either respond to the comments on the emissions budgets in our final action or proceed with the adequacy process as a separate action.

Ozone SIPs are designed to satisfy the requirements of part D of the CAA and to provide for attainment and maintenance of the ozone NAAQS. This redesignation should not be interpreted as authorizing the State to delete, alter, or rescind any of the ozone emission limitations and restrictions in the approved ozone SIP. The State cannot make changes to ozone SIP regulations which will render them less stringent than those in the EPA approved plan unless it submits to EPA a revised plan for attainment and maintenance and EPA approves the revision. Unauthorized relaxations, deletions, and changes could result in both a finding of nonimplementation (section 173(b) of the CAA) and in a SIP deficiency call made pursuant to section 110(a)(2)(H) of the CAA.

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

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

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with state and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with state and local officials early in the process of developing the proposed regulation.

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the CAA do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the CAA, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The CAA forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA , 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost- effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective January 16, 2001 unless EPA receives adverse written comments by December 26, 2000.

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 23, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

In the Federal Register of October 4, 2000 (65 FR 59155), the Chemical Safety and Hazard Investigation Board published a proposed rule setting forth its proposed procedures for disclosure of records under the Freedom of Information Act (FOIA). The proposed rule provided for a 30-day comment period. No comments were received in response to the proposed rule and invitation for comments. This final rule is unchanged from the proposed rule.

These regulations implement the FOIA, 5 U.S.C. 552, as amended by the Electronic Freedom of Information Act Amendments of 1996, Public Law 104-231, 110 Stat. 3048. The Board adopts the following set of regulations to discharge its responsibilities under the FOIA. The FOIA establishes: basic procedures for public access to agency records and guidelines for waiver or reduction of fees the agency would otherwise assess for the response to the records request; categories of records that are exempt for various reasons from public disclosure; and basic requirements for Federal agencies regarding their processing of and response to requests for agency records.

The Board, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this regulation and by adopting it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Under the FOIA, agencies may recover only the direct costs of searching for, reviewing, and duplicating the records processed for requesters. Thus, fees assessed by the Board will be nominal. Further, the “small entities” that make FOIA requests, as compared with individual requesters and other requesters, are relatively few in number.

This rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, we did not deem any action necessary under the provisions of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, 109 Stat. 48.

The HHS Office of Inspector General (OIG) issued final regulations on October 26, 1999 (64 FR 57740) that established a national health care fraud and abuse data collection program—the Healthcare Integrity and Protection Data Bank (HIPDB)—for the reporting and disclosing of certain final adverse actions taken against health care providers, suppliers and practitioners, and for maintaining a data base of final adverse actions taken against health care providers, suppliers and practitioners. The final rule established a new 45 CFR part 61 to implement the requirements for reporting of specific data elements to, and procedures for obtaining information from, the HIPDB. In that final rule, an inadvertent error appeared in § 61.3—the definitions section of the regulations—and is now being corrected.

Section 61.3 expanded on previous regulatory definitions and provided additional examples of the scope of various terms set fort in the statute. In the preamble of the final rule, we reiterated that the statutory intent of the definition for the term “health plan” was not meant to be exclusive or exhaustive, and interpreted congressional use of the word “includes” in the statutory definition of this term as an indication that additional entities may be recognized as “health plans” if they meet the basic definition of providing health benefits. The preamble of the final rule stated that the statutory language indicated that Congress intended that guarantors of payment for health care items and services—including “self insured employers” who are often the subjects of health care fraud—have access to HIPDB information. As a result, in order to make the term more inclusive, we indicated our intention of modifying the fourth element defining this term to include, but not be limited to, a plan, program, agreement or other mechanism established, maintained or made available by a self insured employer or group of self insured employers. This clarifying language, however, was not properly reflected in the regulatory text that appeared in the October 26, 1999 final regulations.

To be consistent with the intent of the final rule's preamble, we are correcting the inadvertent error that appeared in § 61.3 that failed to accurately reflect the definition of the term “health plan.”

The August 17, 2000 final rule published at 65 FR 50312 (FR Doc. 00-20820) contained technical and typographical errors. Therefore, we are making the following corrections:

1. On page 50312, in the middle column, in the eighteenth and nineteenth lines, “http://www.access.gpo.gov/su-docs/aces/aces140.html” is corrected to read “http://www.access.gpo.gov/su_docs/aces/aces140.html.”

2. On page 50324, in the first column, in the twenty-ninth line, paragraph “6. Proprietary coding systems” is corrected to read, “b. Proprietary coding systems.”

3. On page 50332, in the first column, in the fourth line from the bottom, “276 comments” is corrected to read “267 comments.”

4. On page 50338, in the first column, in the twelfth line, “Title VII” is corrected to read “Title VI.”

5. On page 50358, in Table 4—Ten Year Net Savings, the figure “0.1” for Savings from Manual Transactions for Health Plans in 2007 is corrected to read “0.0.”

6. On page 50361, in the third column, section “N. Transaction Standards” is corrected as follows:

A. Paragraph N.1. is corrected to read as follows:

“Specific Impact of Adoption of the NCPDP Telecommunication Standard Implementation Guide, Version 5 Release 1 and Equivalent Batch Standard Implementation Guide Version 1 Release 0 for the Health Care Claim and Equivalent Encounter Information, Eligibility for a Health Plan, Referral Certification and Authorization, and Coordination of Benefits Transactions.”

B. In paragraph 1.a., in the sixth line, the words “encounter is” are corrected to read “encounter, eligibility, and referral certification and authorization are.”

C. In paragraph 1.a., in the third sentence, the word “claim” is removed.

D. In paragraph 1.b., in the last line of the column, the word “claim” is removed.

In the final rule, 45 CFR Part 1355 through 1357, beginning on page 4019 in the issue of January 25, 2000, make the following correction. On page 4075 in the second column, instruction 2 currently says, “Section 1355.20 is amended by revising the definition of Foster care and by adding the following definitions in alphabetical order to read as follow:” It is corrected to read, “Section 1355.20 is amended by revising the definitions of Foster care and Foster family home and by adding the following definitions in alphabetical order to read as follows:”

The existing instruction calls for “adding” a definition, rather than revising the existing definition of a foster family home. This correction is necessary to avoid two conflicting definitions from being codified in the Code of Federal Regulations.

This is a synopsis of the Commission's Report and Order, MM Docket No. 00-140, adopted November 22, 2000, and released November 24, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

This is a synopsis of the Commission's Report and Order, MM Docket No. 00-131, adopted November 22, 2000, and released November 24, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

This is a synopsis of the Commission's Report and Order, MM Docket No. 00-115, adopted November 22, 2000, and released November 24, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

In order to provide proper safety oversight of the regulated motor carrier community, the agency responsible for implementing and enforcing motor carrier safety regulations must know the characteristics of the individual motor carriers that comprise it. Section 217 of the Motor Carrier Safety Improvement Act of 1999 (Pub. L. 106-159, 113 Stat. 1748, Dec. 9, 1999) (MCSIA) directed the Secretary of Transportation to: require periodic updating, not more frequently than once every 2 years, of the motor carrier identification report, form MCS-150, filed by each motor carrier conducting operations in interstate or foreign commerce.

This IFR responds to the congressional direction.

The FMCSA and its predecessor agencies have considered the issue of requiring a motor carrier to report certain identifying and demographic information several times over the years. On June 25, 1986 (51 FR 23088), the FHWA (the agency responsible for motor carrier safety before January 2000), issued a notice of proposed rulemaking (NPRM) to establish a procedure to assign safety ratings to each motor carrier that is subject to the FMCSRs and that operates in interstate or foreign commerce. The NPRM proposed that each unrated motor carrier file a questionnaire as an initial step in the safety review process. At that time, the agency anticipated that each unrated motor carrier would complete the questionnaire within the next three years. The questionnaire would have included information such as the motor carrier's legal and trade name, its business address, whether the motor carrier conducted operations in interstate or foreign commerce, the States where the motor carrier operated, the types of cargo carried, numbers of drivers and power units operated, accident and incident experience, and proof of financial responsibility.

On December 19, 1988 (53 FR 50961), the FHWA issued a final rule requiring, among other things, that each motor carrier that had not received a safety rating from the FHWA must file a one-time Motor Carrier Identification Report, MCS-150. Each new motor carrier was required to file the form within 90 days after it began to operate. A motor carrier that received a safety rating from the FHWA did not have to file, since the agency got the information when it performed a safety review. The form served four purposes: (1) To identify motor carriers previously unknown to the FHWA; (2) to update the agency's motor carrier census [now known as the Motor Carrier Management Information System, or MCMIS]; (3) to require the motor carrier to certify that it is familiar with the FMCSRs; and (4) to assist the FHWA in setting priorities for performing safety reviews. The requirement to file the MCS-150 was codified at 49 CFR 385.21. Section 385.23 of the final rule stated that a motor carrier that failed to file the MCS-150, or provided false or misleading information could be liable for a civil or criminal penalty.

On July 17, 1989 (54 FR 29912, FHWA Docket No. MC-89-6), the FHWA published an advance notice of proposed rulemaking (ANPRM) that, among other things, requested comments on the adequacy of the one-time filing of information in the MCS-150. The agency stated that it was considering the possible use of a postcard-type form to update the information each year.

The agency listed 12 items of information that it could request a motor carrier to report and/or correct, including its name, USDOT number, address, whether the motor carrier was still operating in interstate commerce, the principal commodity transported, whether it transported hazardous materials, the number of vehicles operated (straight trucks, truck tractors, semi- or full trailers, buses), and the total number of miles operated annually in the United States. The agency reviewed the comments submitted at that time but delayed taking further action on the postcard update because the issue did not appear to demand immediate attention.

The Transportation Lawyers Association (TLA) filed a petition on March 2, 1994, requesting that the FHWA initiate a rulemaking to require motor carriers to file the MCS-150 every two years and within 20 days following a change of its name, control, ownership, or its principal place of business. The TLA also recommended that the FHWA amend the MCS-150 to include information on revenue, mileage, and accident data. On August 26, 1996 (61 FR 43816), the agency published an ANPRM concerning development of a comprehensive Motor Carrier Replacement Information/Registration System (also known as the Unified Carrier Register (UCR)). That notice responded to congressional direction in Section 103 of the ICC Termination Act (49 U.S.C. 13908). Among the many issues raised in that ANPRM, the agency asked for comment on the possibility of periodic updating of the information in the MCS-150 and other forms, and the appropriate frequency of those updates. Because the ANPRM covered a range of issues beyond the scope of the TLA petition, the agency decided neither to grant nor deny the petition, but rather to file it as a comment to that August, 1996 docket. Although several commenters addressed the question of an update cycle for the information contained in the MCS-150, their responses varied widely. Some asserted that the data should be “continuous and current,” others advocated a periodic update to take place no more often than annually, while still others believed it should be updated only on an as-needed basis. However, a number of the commenters mentioned they would like to be able to update the information online. An NPRM for the UCR is under development.

On June 16, 1998 (63 FR 32801) the FHWA published an NPRM that dealt with CMV marking. Among other things, it proposed to require each new motor carrier to submit its MCS-150 before it began to operate. The agency received no adverse comments to this provision of the NPRM. The final rule that was published on June 2, 2000 (65 FR 35287) and became effective on July 3, 2000 (to be codified at 49 CFR 390.19) requires a motor carrier to submit this form before it begins operating in interstate commerce.

The MCS-150 is a single-page report. A motor carrier must provide basic information, e.g. , name, address, telephone number, cargo classifications, any types of hazardous materials carried, numbers and types of equipment (trucks, tractors, trailers, passenger vehicles) used, number of drivers, and types of operations. A motor carrier can obtain a hard copy form from the FMCSA Office of Research, Technology and Information Management, 400 Seventh Street, SW., Washington, DC 20590, or from any of the four FMCSA Service Centers or fifty-two Division Offices. The form is printed so it may be folded and mailed, postage-paid by the FMCSA. A motor carrier can also obtain it from the Internet through the Federal Motor Carrier Safety Administration web page at: http://www.fmcsa.dot.gov/factsfigs/formspubs.htm under “DOT Number—Application Form.” The motor carrier may fill out the MCS-150 on the screen, print it, and submit it by mail or by facsimile. (A for-hire motor carrier should submit the MCS-150 along with its application for operating authority to the appropriate address shown on that form, or may submit it separately to the address mentioned on the web page.) The FMCSA is working on providing electronic filing of the MCS-150.

The FMCSA enters the information from the MCS-150 into the Motor Carrier Management Information System (MCMIS) and assigns the motor carrier a U.S. DOT identification number. The FMCSA uses the information contained in the MCMIS to track motor carrier safety performance and to assess nationwide motor carrier safety trends. The MCMIS contains motor carrier data from a variety of sources: roadside inspections, accident reports, safety and compliance reviews, and enforcement actions. Federal and State field personnel use the MCMIS to target potentially unsafe motor carriers for attention, including compliance reviews. For example, a motor carrier could be selected for a compliance review if a high percentage of its vehicles were placed out-of-service during a roadside safety inspection, or if it experienced an above average number of accidents.

The FMCSA also uses MCMIS for analytical purposes, including monitoring nationwide trends and evaluating program effectiveness. The demographic and operational information provided on the MCS-150 enables the agency to determine the safety performance of specific classes of motor carrier operations, by types of freight and passenger transportation provided, and by categories of cargoes transported. This enables the FMCSA to develop strategies to effectively address sector-specific safety issues. The information on types of passenger and freight transportation equipment operated, and the number of drivers used, facilitates the development of vehicle-type-specific safety performance information.

Motor passenger and freight transportation operations can change substantially over time. However, there currently is no requirement for most motor carriers to update this information. This severely limits the agency's ability to maintain accurate information about the motor carriers that it regulates, to gather data used to assess motor carriers' safety performance, and to assess the effectiveness of the agency's programs and activities. For-hire motor carriers, household goods freight forwarders, and property brokers are required to advise the FMCSA when there is a change in business form ( i.e., transfer of operating rights, reincorporation or merger, etc.) or a change in its legal or trade name. This requirement is codified at 49 CFR 365.413. A for-hire motor carrier may, also, at its option, notify the FMCSA if it ceases operations and wants to have its operating authority revoked.

The FMCSA's ability to address safety concerns with individual motor carriers, as well as to gauge the safety of the motor carrier industry as a whole, is dependent upon the agency's access to accurate and up-to-date carrier-specific information. The agency computes safety performance metrics based on the number of power units operated (SafeStat algorithm) to prioritize safety compliance reviews for motor carriers. (This issue was discussed in an April 1998 report, “New Entrant Safety Research,” prepared for the agency by the John A. Volpe National Transportation Systems Center, available at http://ai.volpe.dot.gov and in the docket.) Up-to-date and accurate information is also necessary for the FMCSA to be able to gauge benefits and costs of its programs and activities on the safety performance of motor carriers on a national scale. The agency believes that the initial and biennial updates required under Section 217 of the MCSIA strike a reasonable balance between the value and the cost of providing the agency with current information.

As part of its preparation for the development of a Unified Carrier Register, the FMCSA has been harmonizing data on for-hire motor carriers in the Licensing and Insurance (L&I) database (formerly maintained by the Interstate Commerce Commission) with MCMIS. The agency is also addressing the problem of incomplete MCS-150 forms. It has made good progress on both activities. However, the one-time addition of this information does not address the fundamental concern that Section 217 focuses upon: the need for regular, periodic updates to provide the best information for the agency to carry out its mission.

After careful consideration of the issues involved, the FMCSA has determined it is in the best interest of motor carrier safety to publish an IFR that will require a motor carrier to provide a biennial update of information contained in the MCS-150.

There are two reasons for requiring a motor carrier to update the information on the MCS-150 every two years, the most frequent interval authorized by Section 217 of the MCSIA. First, the two-year update cycle significantly improves the quality of the agency's data bases and its ability to optimally target inspection and enforcement resources cited under Section 3 of the MCSIA. The motor carrier industry is extremely dynamic: the number of motor carriers in the MCMIS expands by close to one percent per month. At present, more than 525,000 carriers are on file in the MCMIS system and an average of 4,200 more are added each month. The FMCSA performs quarterly assessments of its programs and activities to improve the safety of the motor carrier industry. The agency believes that an update cycle longer than two years simply will not provide the agency with the basic data it needs to perform its safety mission efficiently or effectively.

Second, recent congressional direction in the Transportation Equity Act of the 21st Century (TEA-21)(Pub. L. 105-178, 112 Stat. 107, June 9, 1998) and the MCSIA require the FMCSA to issue a number of new regulations that may have a significant impact on motor carrier safety. Some of those requirements apply to specific segments of the motor carrier industry, such as passenger transportation in CMVs designed to transport between 9 and 15 passengers, including the driver. It is critical for the agency to be able to determine the safety performance of specific categories of transportation providers. Additionally, the agency must be able to provide well-founded estimates of the potential benefits and costs of the regulations it promulgates. Having up-to-date and accurate information on the number and basic characteristics of regulated entities in critical to fulfilling this requirement.

Today's IFR requires all motor carriers to file a new MCS-150 every 24 months. However, to make the procedure simple for motor carriers and manageable for the agency, the IFR sets staggered filing dates. Each motor carrier determines the month and the year in which it must file based on its USDOT number.

The Month. If a motor carrier's USDOT number ends in 1, it must file the MCS-150 update by the end of January, and every second January afterwards; if the USDOT number ends in 2, 3, 4, 5, 6, 7, 8 or 9, the carrier must file by the end of February, March, April, May, June, July, August or September, respectively, and biennially after that; and if the USDOT number ends in 0, the update must be filed by the end of October, and every two years after that.

The Year. If the next to the last digit in the motor carrier's USDOT number is odd, the carrier must file its MCS-150 update in an odd-numbered year; if even, in an even-numbered year. For purposes of this rule, zero is considered an even number.

Section 217 restricts the frequency of MCS-150 updates to no more than every two years, which limits the burden imposed by the requirement. As the system starts-up, some relatively new carriers, however, must submit their first update less than two years after initially filing the MCS-150. For example, a carrier that submitted an MCS-150 at the end of November, 1999, and received a USDOT number ending in 97, will file an update by the end of July 2001 (the seventh month of the first odd-numbered year)—a cycle of 20 months. If a new carrier with a USDOT number ending in 53 filed its MCS-150 in August, 2000, it will have to re-file by the end of March, 2001—a cycle of about 7 months. On the other hand, the staggered update system can also produce initial cycles much longer than two years. A motor carrier that submitted its MCS-150 in January, 1999, and received a USDOT number ending in 60 would not have to update its information until the end of October, 2002 (tenth month of the first even-numbered year)—a (one-time) cycle of about 45 months. And a carrier that filed its MCS-150 ten or more years ago would have an even longer first cycle. However, after the first round of updates is complete, all motor carriers will be on a firm 24-month update schedule. Due to the minimal time and effort to update the MCS-150 and the difficulty in determining how many motor carriers will be affected by this schedule, FMCSA finds that this IFR is consistent with the intent of Sec. 217.

Special situations. There are two situations where, because of the special circumstances surrounding the need for information, a motor carrier will update the information in the MCS-150 more frequently than the two-year refiling interval specified in Section 217. They are: (1) Verifications of information made during the course of compliance reviews, and (2) a motor carrier registering its CMVs in States participating in the PRISM program.

Compliance reviews. FMCSA safety investigators must have up-to-date motor carrier information to properly perform record selection and exposure-based safety analyses when they conduct compliance reviews (CRs). For that reason, the FMCSA has had a longstanding practice of requiring safety investigators to begin the CR by asking the motor carrier to verify the information contained in its MCMIS record. Since the information obtained during a CR may lead to enforcement action, it is clearly in the interest both of the motor carrier and the agency that it be accurate. Because a CR is an audit with respect to a specific party, it is not considered an information-gathering activity subject to the Paperwork Reduction Act. The agency does not believe that requesting a motor carrier to review MCS-150 information during the course of a CR is inconsistent with the requirements of Section 217.

Motor carriers in PRISM States. The PRISM program links State commercial motor vehicle registration to the safety fitness of motor carriers. PRISM began as a mandate by Congress to explore the potential of linking the commercial vehicle registration process to motor carrier safety. The intent of Congress as stated in Section 4003 of the Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991 was to “link the motor carrier safety information network system of the Department of Transportation and similar State systems with the motor vehicle registration and licensing systems of the States” to achieve two purposes: (1) Determine the safety fitness of the motor carrier prior to issuing license plates; and (2) cause the carrier to improve its safety performance through an improvement process and, where necessary, the application of registration sanctions. The program has been authorized for national implementation under Section 4004 of TEA-21. It is a key element in the FMCSA's motor carrier enforcement and safety compliance program. The States participating in PRISM receive special grants to implement the program.

The commercial vehicle registration process of the States provides the framework for the PRISM program. It serves two vital functions. First, it establishes a system of accountability by ensuring that no one receives a license plate for a vehicle without identifying the carrier responsible for the safety of the vehicle during the registration year. Second, the use of registration sanctions (denial, suspension and revocation) serve as a powerful incentive for unsafe carriers to improve their safety performance. The vehicle registration process ensures that all carriers engaged in interstate commerce are uniquely identified through a USDOT number when they register their vehicles. The safety fitness of each carrier can then be checked prior to issuing vehicle registrations. The State can refuse to register vehicles of an unfit carrier (as defined by the FMCSRs).

The FMCSA has given PRISM States access to the MCMIS database so they may issue USDOT numbers to interstate motor carriers as part of their commercial vehicle registration requirements. In addition, PRISM States require motor carriers to annually update information similar to that contained in the MCS-150 to reflect current operations. Some States enter this information directly, others forward it to the FMCSA for data entry. As of September 1, 2000, 16 States participate in the PRISM program. By the end of September, 2001, we expect a total of 21 States to participate.

In summary, the PRISM program responds to congressional direction. It serves a specific safety purpose by preventing motor carriers with significant and persistent safety deficiencies from registering their CMVs, a fundamental requirement for operating on public highways. The FMCSA has determined that, if a motor carrier in a PRISM State files information similar to what is required in the FMCSA's MCS-150 annually with the State commercial vehicle registration office, this meets the periodic filing requirement of this rule and no additional filing with the FMCSA is necessary.

The IFR does not change the requirement of 49 CFR 390.19(e) that a motor carrier must file this information, and must not furnish misleading information or make false statements.

Until now, a motor carrier was required to file the MCS-150 once, at the time it began to operate in interstate commerce. Under the IFR, it will be required to file every 24 months. Even though the agency does not expect motor carriers to experience difficulties in complying with this new rule, it still represents a change from the status quo. The new requirement for updating the MCS-150 also requires a significant change to the FMCSA's operations and resources required to accomplish this activity. Historically, the FMCSA has received approximately 50,000 forms annually. Since the MCMIS currently contains over 500,000 unique motor carrier entries, and half of them would submit updated information each year of a 24-month update cycle, the agency's data entry and verification workload will increase by approximately 400 percent. The FMCSA has been preparing for this significant increase in activity, and expects to have the resources in place by late 2000 so it can complete the necessary planning and testing of procedures to accommodate the increased volume of data entry and verification.

In order to ease the burden on both motor carriers and the FMCSA, the new biennial update system will be distributed over the first 10 months of the calendar year. The first cycle will begin in January, 2001. Those motor carriers with an odd-number in the next-to-last digit of their USDOT number would be required to file in calendar year 2001, and those with an even number in the next-to-last digit of their USDOT number would be required to file in calendar year 2002. In each cycle, motor carriers with a USDOT number ending with the numeral 1 must file by January 31 every other year. Carriers with a number ending in 2 are to file by February 28 or 29, and so forth, through 0, the number for filing in October. During the final two months of each year, FMCSA staff will complete the necessary verification of the information filed.

For the initial phase of the implementation period, the FMCSA will allow motor carriers that would be required to file their MCS-150 by the end of January or February, 2001, to file by the end of March, 2001. The agency believes that providing this additional time is appropriate to ensure that motor carriers will have the opportunity to become aware of this new requirement, and to ensure that the agency is prepared to handle it.

The FMCSA has determined it is appropriate to make this rule effective on December 26, 2000. The Administrative Procedure Act (APA) [5 U.S.C. 551 et seq. ] allows an agency to waive the requirement for notice and comment before promulgating a rule when those procedures are “impracticable, unnecessary, or contrary to the public interest” [5 U.S.C. 553(b)].

In this case, prior notice and opportunity for comment are unnecessary. Section 217 directs the FMCSA in detail to amend 49 CFR 385.21 (now recodified as § 390.19) to require periodic updating of the MCS-150, and to complete the initial update of MCS-150 data within one year of the date of enactment of the MCSIA. Section 217 provides that periodic updates shall be required not more than biennially. This IFR simply promulgates the requirements of Section 217. It differs from the statute only in setting an orderly schedule for the updates. Resource limitations of the new FMCSA prevent it from implementing the update of more than half a million Motor Carrier Identification Reports as rapidly as Congress anticipated, yet the information is essential in meeting agency goals and the burden on filers is small. All of the substance of Section 217 is being adopted without change. Because the statutory mandate is specific, the rule follows it so closely, and the burden on motor carriers is extremely small, public comment would not be expected to provide information that would affect the outcome of the rulemaking proceeding. Accordingly, the FMCSA finds good cause to waive prior notice of and opportunity for comment on this rule.

However, the agency will consider comments received by the comment deadline in evaluating whether any changes to this IFR are needed. Since the 60-day comment period on this IFR ends before the first updated report must be filed, corrections or improvements that are brought to our attention can be incorporated into the rule early in the 2001 filing cycle. Comments received after the comment closing date will be filed in the docket and will be considered to the extent practicable. In addition to late comments, the FMCSA will also continue to file relevant information in the docket as it becomes available after the comment period closing date. Please continue to review the docket for new material.

The FMCSA has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866, and is not significant within the meaning of the Department of Transportation's regulatory policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034, February 26, 1979). The current requirement for motor carriers to file a single MCS-150 before beginning operations limits the agency's ability to maintain current information on the industry that it regulates, and to accurately gauge the safety outcomes of its programs and activities. This IFR responds to the requirement of Section 217 of the MCSIA by requiring motor carriers operating in interstate or foreign commerce to provide an update of the information filed with the FMCSA on their most recent MCS-150 no more often than every two years. As discussed in the next section, the IFR imposes so little additional burden that a full regulatory evaluation is unnecessary.

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), the agency has considered the effects of this IFR on small entities. The FMCSA is revising its requirement for filing the MCS-150 to respond to direction contained in Section 217 of the MCSIA. Motor carriers are required to file their MCS-150 updates according to a schedule determined by the next-to-last digit (whether the update would be filed during an odd-numbered or even-numbered year) and the last digit (the filing month) of their assigned USDOT number.

As of April, 2000, the FMCSA estimates there are 430,173 motor carriers operating between 1 and 20 powered units (trucks, truck-tractors, buses, and motorcoaches), and another 84,272 that operate an unspecified number of powered units.

The agency has estimated that it takes 20 minutes to complete the MCS-150 the first time it is filed. However, the agency estimates the biennial update would take considerably less time because most of the information is likely to be the same and motor carriers would already have had the experience of completing the form at least once before. For the purpose of this IFR, the agency estimates that the biennial update would take 10 minutes. The agency considers the time necessary for motor carriers to comply with this provision to be de minimis: the time requirement is estimated to be extremely small, especially in comparison to the filing of other information required from businesses in their normal course of operations. Furthermore, if the motor carrier uses the postage-paid return form provided by the agency, it will not incur costs for mailing or facsimile transmission costs. Therefore, in compliance with the Regulatory Flexibility Act, the FMCSA certifies that this rule will not have a significant economic impact on a substantial number of small entities.

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132. It has been determined that this rulemaking does not have a substantial direct effect on States, nor would it limit the policymaking discretion of the States. Nothing in this document directly preempts any State law or regulation.

Catalog of Federal Domestic Assistance Program Number 20.217, Motor Carrier Safety. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), a Federal agency must obtain approval from the Office of Management and Budget (OMB) for each collection of information it conducts, sponsors, or requires through regulations. An analysis of this rule has been made by the FMCSA, and it has been determined that it will affect the information collection burden associated with the currently-approved information collection covered by OMB Control No. 2126-0013 (formerly 2125-0544). The OMB approved the most recent update of this information collection on October 4, 1999. The approval period runs through October 31, 2002.

For a motor carrier filing an MCS-150 for the first time, the FMCSA estimates it takes approximately 20 minutes to gather the information and complete the form. The FMCSA estimates that there are approximately 50,000 new motor carriers annually who must file their initial MCS-150. Until now, a motor carrier has only been required to complete and file this form once, when it begins to operate CMVs in interstate commerce. The IFR requires a motor carrier to provide an update of the information every two years, starting January, 2001. For most motor carriers, it is likely that much of the information contained on the MCS-150 will remain unchanged. The FMCSA estimates that the updates required during calendar year 2000, and the biennial update starting January, 2001, would require 10 minutes. Because the agency is implementing a regulation that will require motor carriers to file this information more frequently, the FMCSA is required to submit this proposed collection of information, as revised, to OMB for review and approval. The FMCSA seeks public comment on this proposed information collection requirement.

An NPRM concerning CMV marking, published on June 16, 1998 (63 FR 32801) solicited public comments on these information collection requirements as a component of the NPRM action. The OMB previously received a summary of the comments that address the MCS-150. Comments were neutral to favorable; in fact, several commenters asked the FMCSA to consider requiring motor carriers to provide regular updates of information contained in the MCS-150.

Estimated Annual Reporting Burden:

 Number of respondents: 535,000 motor carriers.

 Burden hours: Biennial update: 535,000 × 50% (biennial) × 10 minutes per update = 44,583 hours; Annual initial MCS-150 filings: 50,000 × 20 minutes/60 = 16,667 burden hours. Total estimated annual burden: 61,250 hours.

The agency has analyzed this rulemaking for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) and has determined that this action does not have any effect on the quality of the environment.

This rule does not impose a Federal mandate resulting in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. 2 U.S.C. 1531 et seq.

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

This action meets applicable standards in Sections 3(a) and 3(b)(2) of E.0. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

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

On February 8, 1999, the Secretary of Commerce received a petition from Sam Wright of Olympia, Washington to list and designate critical habitat for 18 species of marine fishes in Puget Sound, Washington, under the ESA. On June 21, 1999 (64 FR 33037), the agency accepted the petition for seven of these species, including three members of the family Gadidae (gadids): Pacific cod, Pacific hake, and walleye pollock (also referred to as cod, hake, and pollock). The petitioner requested listings for “species/populations or evolutionary [sic] significant units” in Puget Sound, Washington. Under the ESA, a listing determination can address a species, subspecies, or a distinct population segment (DPS) of a species (16 U.S.C. 1532 (15)). The term “evolutionarily significant unit” is currently defined only for Pacific salmonid DPSs (56 FR 58612, November 20, 1991). Therefore, for definitions of these petitioned species, NMFS relied on the DPS framework described in the joint NMFS/USFWS policy (61 FR 4722, February 7, 1996), see “Consideration as a ‘Species’ Under the ESA” section.

To ensure a comprehensive review, NMFS requested comments from any party having relevant information concerning (1) biological or other relevant data that may help identify gadid DPSs; (2) the range, distribution, and size of these species’ populations in Puget Sound and coastal waters of Washington and British Columbia; (3) current or planned activities and their possible impact on these species; and (4) efforts being made to protect these species in Washington and British Columbia. NMFS also requested quantitative evaluations describing the quality and extent of estuarine and marine habitats for these species, as well as information on areas that may qualify as critical habitat in Washington. Although the status review focused on the petitioned populations in Puget Sound, NMFS also considered populations from the U.S. West Coast, British Columbia, and southeast Alaska because of their geographic proximity and potential relationship to gadid stocks in Puget Sound.

A NMFS Biological Review Team (BRT), comprising staff from NMFS’ Northwest Fisheries Science Center and Alaska Fisheries Science Center, has completed a review of the best available scientific and commercial information pertaining to cod, hake, and pollock from Puget Sound to southeast Alaska (NMFS, 2000). This document summarizes the principal results of this status review. Copies of the entire BRT report and other documents pertaining to this review are available upon request (see ADDRESSES ).

The following section describes briefly the general physical setting and biological attributes of cod, hake, and pollock. More detailed information can be obtained from the NMFS status review (NMFS, 2000) and species accounts contained in Miller and Lea (1972), Hart (1973), Eschmeyer et al. (1983), and Kessler (1985).

The petition focused on populations in Puget Sound, a fjord-like estuary located in northwest Washington State that covers an area of about 9,000 km2, including 3,700 km of coastline. It is subdivided into five basins or regions: (1) North Puget Sound, (2) Main Basin, (3) Whidbey Basin, (4) South Puget Sound, and (5) Hood Canal. The Georgia Basin is an international water body that encompasses the marine waters of Puget Sound, the Strait of Georgia, and the Strait of Juan de Fuca. The coastal drainage of the Georgia Basin is bounded to the west and south by the Olympic and Vancouver Island mountains, and to the north and east by the Cascade and Coast Ranges. The petition addressed only those stocks of hake and pollock in the Whidbey Basin, the Main Basin, the Hood Canal, and the South Puget Sound. The petitioner stated that fishery patterns, spawning locations, parasite markers, and tagging studies indicate the existence of three population groups within Puget Sound—one located in the Straits of Georgia and the area around Bellingham, one in eastern Strait of Juan de Fuca and Port Townsend Bay, and one in the area south of Admiralty Inlet that encompasses Hood Canal, Agate Passage, and Dalco Passage.

Hake range from Sanak Island in the western Gulf of Alaska to Magdalena Bay, Baja California, and are most abundant in the California Current System (Hart, 1973; Bailey, 1982; NOAA, 1990; Love, 1991). In addition to the abundant migratory population of Pacific hake that spawn offshore from Cape Mendocino, California to southern Baja California, several other stocks of Pacific hake have been identified, including at least two that spawn in Puget Sound, several in the Strait of Georgia, several in the west coast inlets of Vancouver Island, and a small-bodied (“dwarf hake”) off the west coast of southern Baja California (Nelson, 1969; Bailey et al. , 1982; Ermakov, 1982; Bailey and Yen, 1983; Beamish and McFarlane, 1985; Pedersen, 1985; Bollens et al. , 1992; Quirollo, 1992; Alados et al. , 1993; Methot and Dorn, 1995; Fox, 1997).

Hake may spawn more than once per season at depths between 130 and 500 m; spawning in Puget Sound occurs primarily from February through April and peaks in March (W. Palsson, Washington Department of Fish and Game (WDFW), pers. comm., 1999). Stocks in the Strait of Georgia and Puget Sound spawn adjacent to major sources of freshwater inflow, near the Frazer River in the Strait of Georgia and near the Skagit and Snohomish Rivers in Port Susan (McFarlane and Beamish, 1985; Pedersen, 1985). Eggs hatch in 4 to 6 days, depending on the water temperature. Larvae typically metamorphose into juveniles in 3 to 4 months (Hollowed, 1992). Juveniles reside in shallow coastal waters, bays, and estuaries (Dark, 1975; Bailey, 1981; Bailey et al. , 1982; NOAA, 1990; Dark and Wilkins, 1994; Dorn, 1995; Sakuma and Ralston, 1995; Smith, 1995) and move to deeper water as they get older (NOAA, 1990). Adult hake school at depths between 50 and 500 meters (m) during the day, then move to the surface and disband at night to feed (Sumida and Moser, 1980; McFarlane and Beamish, 1986; Tanasich et al. , 1991).

In Puget Sound and the Strait of Georgia, female hake mature at 4 to 5 years of age (McFarlane and Beamish, 1986) and growth ceases for both sexes at 10 to 13 years (Bailey et al., 1982). The maximum age for hake is about 20 years, but hake over age 12 are rare (Methot and Dorn, 1995). Absolute fecundity is difficult to determine because hake may spawn more than once per season. Coastal stocks have 180-232 eggs/g body weight, but Puget Sound and Strait of Georgia stocks have only 50-165 eggs/g body weight (Mason, 1986). Bailey (1982) estimated that a 28-cm female had 39,000 eggs, while a 60-cm female had 496,000 eggs.

Cod are found in continental shelf and upper continental slope waters of the North Pacific Ocean from Port Arthur, China, in the northern Yellow Sea, around the North Pacific Rim, into the Bering Sea as far north as the Chukchi Sea, and south along the North American coast to Santa Monica Bay, California (Pinkas, 1967; Hart, 1973; Bakkala et al. , 1984; Allen and Smith, 1988; Love, 1991; Stepanenko, 1995; Westrheim, 1996). Cod are also found off the east coast of Japan from Tokyo Bay to northern Hokkaido, on the west coast of Japan in the Sea of Japan, and off the coasts of the Sakhalin and Kurile Islands (Bakkala et al. , 1984; Fredin, 1985). Off North America, the southern limit of commercial cod fishing lies between Cape Flattery and Destruction Island on the Washington outer coast (Ketchen, 1961).

Cod are an important groundfish in shallow, soft-bottomed marine and estuarine habitats along the west coast (Garrison and Miller, 1982). Garrison and Miller (1982) reported that all cod life stages are found in various bays in Puget Sound and in the Strait of Juan de Fuca. Adults and large juveniles prefer mud, sand, and clay substrates, although Palsson (1990) and Garrison and Miller (1982) found adults associated with coarse sand and gravel substrates. Although cod are not considered a migratory species, individual adult cod have been found to move more than 1,000 km (NOAA, 1990; Shimada and Kimura, 1994).

Cod are single-batch spawners, releasing all ripe eggs in a single spawning event within a few minutes’ time (Sakurai, 1989; Sakurai and Hattori, 1996). Spawning occurs from late fall to early spring in Puget Sound (Garrison and Miller, 1982). Cod eggs are demersal, weakly adhesive, and usually found associated with coarse sand and cobble bottoms (Phillips and Mason 1986). Eggs and larvae are found over the continental shelf between Washington and central California from winter through summer (Dunn and Matarese, 1987; Palsson, 1990). Small juveniles (between 60 and 150 mm in length) usually settle into intertidal/subtidal habitats, commonly associated with sand and eel grass, and gradually move into deeper water with increasing age (NOAA, 1990; Miller et al. , 1976).

In British Columbia waters, 50 percent of the male cod have been reported to be sexually mature at 41-53 cm, and 50 percent of the females have been reported to be mature at 47-56 cm (Westrheim, 1996). For cod spawning near Port Townsend, both sexes mature by 2 years and 45 cm (NOAA, 1990). In general, fecundity in cod has been estimated between 225,000 and 5 million eggs per spawning female (Forrester, 1969; Alderdice and Forrester, 1971; Hart, 1973; NOAA, 1990; Palsson, 1990).

Pollock are found in the waters of the northeastern Pacific Ocean from the Sea of Japan, north to the Sea of Okhotsk, east to the Bering Sea and Gulf of Alaska, and south along the Canadian and U.S. West Coast to Carmel, California (Phillips, 1942 and 1943; Hart, 1973; Bailey et al. , 1999). Currents, eddies, and meso-scale physical coastal structures influence the distribution of their early life-history stages. The distributions of later life-history stages appear to be influenced by temperature, light, and prey abundance—variables that may change from year to year in a given area (Bailey, 1989; Swartzman et al. , 1994; Olla et al. , 1996; Sogard and Olla, 1996a,b; Brodeur et al. , 1997). Adult pollock inhabit the continental shelf and slope (Saunders et al. , 1989), though various life-history stages are capable of inhabiting nearshore areas, large estuaries (such as Puget Sound), coastal embayments, and open ocean basins, such as the Aleutian Basin of the Bering Sea (Bailey et al. , 1999). Adults have been found as deep as 366 m (Hart, 1973), but the vast majority range between 100 and 300 m. Larvae and small juveniles are generally found in the upper water column to depths of 60 m (Garrison and Miller, 1982; Bailey et al. , 1999), but have been found in a variety of habitat types, including eelgrass (over sand and mud), and over gravel and cobble substrates (Miller et al. , 1976). Pollock are not considered a migratory species, but pre-spawning adults do make relatively short journeys to regional spawning grounds (Muigwa, 1989).

During spawning, pollock apparently pair and spawn after a complex courtship (Sakurai, 1982; Baird and Olla, 1991). Females spawn several batches of eggs over a short period of time (Sakurai, 1982; Hinckley, 1987). Eggs are usually spawned in deep water and remain suspended in the water column at 100-400 m at most spawning localities (Kendall et al. , 1994), but can also be spawned in shallower waters in coastal bays. Larvae metamorphose into juveniles at a length of about 18 mm (Bailey, 1989; Grover, 1990; Merati and Brodeur, 1996). In the first year, juveniles grow about 1 mm per day, reaching 80-100 mm in length in 6 months and 120-140 mm by the end of the first year. The growth rates of juvenile and adult walleye pollock in the Georgia Basin appear to be retarded compared with pollock from coastal waters.

In western Gulf of Alaska waters, males have been reported to be sexually mature at age 3 and at a length of 29-32 cm; similarly, 3-year-old females (30-35 cm) were sexually mature (Garrison and Miller, 1982). A study by Saunders et al. (1989) reports that male pollock from coastal waters off of British Columbia reached a maximum length of approximately 50 cm by age 7, whereas male pollock from the Strait of Georgia reached a maximum length of 40 cm by age 5. Female pollock from these areas showed a similar trend, but their maximum length was a few cm longer. Fecundity estimates are not available for pollock in Puget Sound (Matthews, 1987), and it is difficult to compare fecundity between pollock from different regions because of the possibility of interannual variability within regions (Hinckley, 1987) and the lack of standardized methodology. However, some comparisons do reflect geographical differences in fecundity between the Bering Sea, Shelikof Strait, and Strait of Georgia (Miller et al. ,1986).

To qualify for listing as a threatened or endangered species, the petitioned populations of Puget Sound cod, hake, and pollock must be considered “species” under the ESA. Section 3(15) of the ESA defines a “species” to include any “distinct population segment of any species of vertebrate which interbreeds when mature.” On February 7, 1996, the U.S. Fish and Wildlife Service and NMFS adopted a policy to clarify their interpretation of the phrase “distinct population segment of any species of vertebrate fish or wildlife” for the purposes of listing, delisting, and reclassifying species under the ESA (51 FR 4722). The joint policy identifies two elements that must be considered when making DPS determinations: (1) the discreteness of the population segment in relation to the remainder of the species (or subspecies) to which it belongs; and (2) the significance of the population segment to the species or subspecies to which it belongs.

This is the first NMFS status review that attempts to apply the DPS criteria to marine fish species over a broad geographic area of the North Pacific Ocean and, as noted previously, the agency’s assessment included gadid stocks from a larger range (i.e., U.S. West Coast, British Columbia and southeast Alaska) than that petitioned. NMFS considered several kinds of information in this status review to attempt to delineate DPSs of Pacific hake, Pacific cod, and walleye pollock in Puget Sound. The first kind of information was habitat characteristics that might indicate that the population segment occupies an unusual or unique ecological setting for the species as a whole. The second kind of information was to consider geographical variability in phenotypic and life-history traits that may reflect local adaptation. Such traits may have an underlying genetic basis, but are often strongly influenced by environmental factors from one locality to another. The third kind of information consisted of mark-recapture studies, which give insight into the physical movement of individuals between areas. The fourth kind of information consisted of traits that are inherited in a predictable way and remain unchanged throughout the life of an individual. Differences among populations in the frequencies of these genetically determined traits may reflect isolation between the populations. Based on the DPS criteria described above and after assessing the best available scientific and commercial information, NMFS has identified DPSs for each of the three gadid species. The information reviewed and the resultant DPS characterizations are summarized here.

There is considerable evidence indicating that Puget Sound and Strait of Georgia stocks (inshore stocks) represent a population that is distinct from coastal populations. Hake are most abundant in the California Current system (Hart, 1973; Bailey, 1982; NOAA, 1990; Love, 1991). Coastal stocks spawn off California in the winter, then mature adults begin moving northward and inshore, following the food supply and Davidson currents (NOAA, 1990). Hake reach as far north as southern British Columbia by fall, then by late fall they begin migrating to southern spawning grounds and more offshore areas (Bailey et al. , 1982; Stauffer, 1985; Dorn, 1995; Smith, 1995). The inshore stocks follow similar migration patterns but on a greatly reduced scale (McFarlane and Beamish, 1986; Shaw et al. , 1990). Hake that spawn in the Strait of Georgia, in Puget Sound at Port Susan and Dabob Bay, and in Nootka Sound, Barkley Sound, and Sydney Inlet on Vancouver Island are essentially resident stocks, although they may undertake relatively short spawning migrations (Ware and McFarlane, 1995). Puget Sound and Strait of Georgia stocks spend their entire lives in these estuaries (McFarlane and Beamish, 1986; Shaw et al. , 1990), indicating that little intermixing occurs between these populations and their coastal counterparts.

In addition, available data show that inshore stocks have substantially slower growth rates than the coastal hake (Alverson and Larkins, 1969; Nelson and Larkins, 1970). Studies also indicate that individuals in the inshore population are substantially smaller than those in the coastal population, further suggesting discreteness between the two populations (Nelson, 1969; Beamish, 1979; Pedersen, 1985). Puget Sound stocks appear to mature at a smaller size than stocks in the Strait of Georgia (Nelson, 1969; Beamish, 1979; Pedersen, 1985), but this difference may have been caused by an intense commercial hake fishery in Puget Sound (Pedersen, 1985).

NMFS also looked at otolith morphometrics to further evaluate population discreteness. Otoliths from coastal hake were compared with those from the Strait of Georgia hake and were found to be more elongate and less concave in section (McFarlane and Beamish, 1985), and an earlier study (Anonymous, 1968) reported that otoliths from Puget Sound hake varied from those found in offshore hake. Although there were no data to allow a comparison between Strait of Georgia and Puget Sound stocks, the available evidence appears to lend further support to the hypothesis that the coastal and inshore populations are distinct.

Parasitological data also suggest that inshore hake stocks do not substantially intermingle with the coastal migratory stocks. A species of protozoan parasite is present only in the coastal stock, indicating that the parasite infected the offshore stocks after the inshore stocks had been isolated in the Georgia Basin (Kabata and Whitaker, 1981 and 1985; McFarlane and Beamish, 1985). In contrast, there is not enough information on parasite incidences to show whether Puget Sound stocks are isolated from Strait of Georgia populations.

Genetic studies indicate that inshore hake stocks are reproductively isolated from the offshore population. Samples collected from fish in or near the spawning ground (Port Susan) and during spawning show that allozyme frequencies differ significantly between the inshore and the offshore populations (Utter, 1969; Utter and Hodgins, 1969 and 1971; Utter et al. , 1970). However, there are no similar data to evaluate the degree of reproductive isolation between Puget Sound and Strait of Georgia populations.

NMFS also reviewed available data to determine if hake in Puget Sound and the Strait of Georgia occupied a unique setting within the biological species as a whole. NMFS found that these are the only hake populations to inhabit fjord-like environments. These hake spawn in deep, inshore basins that receive large freshwater inputs, a much different environment from the coastal hake that spawn 60 to 1,655 km offshore (Saunders and McFarlane, 1997).

Although NMFS could not with any certainty identify multiple populations or DPSs of hake within the Georgia Basin, the agency acknowledges the possibility that significant structuring may exist within the proposed DPS and that such structure might be revealed by new information. The agency expects to receive some new information in the near future that will likely resolve many of the uncertainties about the status and relationship of hake stocks within the Georgia Basin DPS. When this information becomes available, and as resources permit, NMFS will re-assess the configuration of this DPS.

Cod in Puget Sound have been categorized into three components by the Washington Department of Fish and Wildlife: a North Sound component located in U.S. waters north of Deception Pass (including the San Juan Islands, Strait of Georgia, and Bellingham Bay), a West Sound component (located west of Admiralty Inlet and Whidbey Island, and in the U.S. section of the Strait of Juan de Fuca— including Port Townsend), and a South Sound component (located south of Admiralty Inlet).

To determine whether the petitioned Puget Sound populations are distinct from each other (or from coastal stocks), NMFS analyzed tagging studies to determine the amount of spawning fidelity within the stocks. Although limited tagging data from Puget Sound and Strait of Georgia spawning fish indicated some spawning fidelity, the same studies also showed movement of spawning cod into other known spawning areas, suggesting a larger stock structure. Tagging studies in the eastern Bering Sea and adjacent waters found “sufficient migration to explain Grant et al. ’s (1987) findings of genetic homogeneity in cod over broad areas of the North” (Shimada and Kimura, 1994). These results support the hypothesis that Puget Sound populations are part of a larger population group.

There are very few data on genetically based population structures among Puget Sound cod. Genetic studies indicate that there is reproductive isolation between western (Asia) and eastern (North America including the Bering Sea) Pacific cod, but there is little evidence to indicate isolation among North American stocks (Grant et al. , 1987). NMFS concluded that the current genetic information suggests that Puget Sound cod are part of a larger distinct population; however, NMFS does not rule out the possibility that genetic studies of spawning fish may show a more substantial amount of genetic divergence between populations.

The Gulf of Mexico reef fish fishery is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Council and approved and implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act. The FMP is implemented by regulations at 50 CFR part 622.

NMFS’ determination of the status of a stock relative to overfishing and an overfished condition is based on both the removal of fish from the stock through fishing (the exploitation rate) and the current stock size. When the exploitation rate jeopardizes the capacity of a stock to produce its maximum sustainable yield (MSY) on a continuing basis, overfishing is occurring. The exploitation rate (i.e., rate of removal of fish from a population by fishing) is usually expressed in terms of an instantaneous fishing mortality rate (F).

Another important factor for classifying the status of a resource is the current stock level. If a stock's biomass falls below its minimum stock size threshold, the capacity of the stock to produce MSY on a continuing basis is jeopardized and the stock is said to be in an overfished condition.

Commercial red grouper landings in the Gulf of Mexico are down approximately 55 percent from the high that the U.S. fishery reached in 1982. Recreational landings in 1997 were the lowest since 1981. At one of its meetings in 1999, the Council’s Reef Fish Stock Assessment Panel (RFSAP) reviewed the 1999 scientific assessment of the red grouper stock conducted by the NMFS Southeast Fisheries Science Center (SEFSC). The RFSAP concurred with the assessment’s findings that the stock is overfished and is undergoing overfishing. Subsequent SEFSC analyses of the stock confirm that it is overfished and undergoing overfishing as discussed below.

The stock assessment conducted by the RFSAP used two different scientific models (a surplus-production model and the Age Structured Assessment Program (ASAP)) to evaluate the current condition of the red grouper stock. Both models indicated that the red grouper stock is overfished and that overfishing is occurring. The surplus production model results showed that in 1997 the red grouper biomass was approximately 20 percent of the biomass expected at MSY, and that F in 1997 was approximately two times that needed to produce MSY. Absolute estimates of MSY were approximately 11 to 12 million lb (5.0 to 5.5 million kg). The ASAP model showed that the best estimate for MSY was 8.4 million lb (3.8 million kg), which is achieved at an F of 0.27 per year. The spawning stock biomass at MSY was estimated to be 563 million lb (255 million kg). The estimated F and spawning stock biomass in 1997 was 0.88 per year and 144 million lb (65 million kg), respectively. Thus, the 1997 estimated stock biomass was 26 percent of its estimated biomass at MSY.

Both models showed an increase in F in recent years. With decreased catch, this implies a reduced abundance of red grouper. Estimated F has doubled since the late 1970's and has increased from an average of 0.3 in 1986 to 0.5 in 1997. Estimates of spawning stock biomass and recruitment have declined since at least 1985. In all model simulations, the red grouper stock is overfished, and overfishing is still occurring.

At the RFSAP’s August 2000 meeting, four additional sensitivity analyses of red grouper stock status were requested. The results of these analyses, conducted by the SEFSC, again confirmed the overfished status of the Gulf of Mexico red grouper stock.

Section 304(e) of the Magnuson-Stevens Fishery Conservation and Management Act requires that within 1 year of being notified of the identification of a stock as being overfished, the affected Regional Fishery Management Council must develop measures to end overfishing and rebuild the stock. On October 13, 2000, the Acting Regional Administrator, NMFS Southeast Region, notified the Council of the overfished status of the Gulf of Mexico red grouper and requested that the Council take appropriate action. The letter to the Council reads as follows:

Regulations governing the Maine mahogany fishery are found at 50 CFR part 648. The annual quota of Maine Mahogany quahogs is 100,000 Maine bushels (35,150 hL) for 2000.

Section 648.76(b)(1)(iv) requires the Administrator, Northeast Region, NMFS (Regional Administrator) to monitor the Maine mahogany quahog quota based on dealer reports and other available information and determine when the quota will be harvested. The Regional Administrator is further required to publish notification in the Federal Register advising the public and notifying Federal vessel and dealer permit holders that, effective on a specific date, the commercial quota for Maine mahogany quahogs has been harvested and no commercial quota is available for landing Maine mahogany quahogs for the remainder of the year. The Regional Administrator has determined, based upon dealer reports and other available information, that the commercial Maine mahogany quahog quota for 2000 has been harvested.

Therefore, effective 0001 hours, November 25, 2000, further landings of Maine mahogany quahogs in Maine by vessels issued a Maine mahogany quahog permit and not fishing for an individual allocation of ocean quahogs under § 648.70 are prohibited for the remainder of the 2000 calendar year. Effective 0001 hours, November 25, 2000, federally permitted dealers are also advised that they may not purchase Maine mahogany quahogs landed in Maine for the remainder of the calendar year from federally permitted vessels, unless they are fishing for an individual allocation of ocean quahogs.

The Maine mahogany quahog zone as defined in § 648.73(d), is closed to fishing for ocean quahogs except in those areas that are tested by the State of Maine and deemed to be within the requirements of the National Shellfish Sanitation Program and adopted by the Interstate Shellfish Sanitation Conference as acceptable limits for the toxin responsible for paralytic shellfish poisoning. Harvesting of ocean quahogs is allowed only in the areas and during the time periods specified by the Maine Department of Marine Resources as being safe for human consumption.

The regulations at § 648.76(a)(2) specify that vessels fishing under an ocean quahog individual allocation, regardless of whether they possess a Maine mahogany quahog permit, may land their catch in Maine or, consistent with applicable state law, in any other state that utilizes food safety-based procedures consistent with those used by the State of Maine for such purpose, and must comply with the requirements in §§ 648.70 and 648.75. All mahogany quahogs landed by vessels fishing in the Maine mahogany quahog zone for an individual allocation of quahogs under § 648.70 are counted against the ocean quahog allocation for which the vessel is fishing.

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

Regulations governing the ocean salmon fisheries at 50 CFR 660.409(a)(1) state that, when a quota for any salmon species in any portion of the fishery management area is projected by the Regional Administrator to be reached on or by a certain date, NMFS will, by notification issued under 50 CFR 660.411(a)(2), close the fishery for all salmon species in the portion of the fishery management area to which the quota applies, as of the date the quota is projected to be reached.

In the 2000 management measures for ocean salmon fisheries (65 FR 26138, May 5, 2000), NMFS announced that the commercial fishery for all salmon except coho in the area from House Rock, OR to Humboldt South Jetty, CA would open September 1 through the earlier of September 30 or until the 7,000-chinook quota was reached. The 7,000 chinook quota included a harvest guideline limiting landings at the port of Brookings, OR, to no more than 1,000 chinook. If this guideline was reached prior to the overall quota, the fishery would be closed north of the Oregon-California border. When the fishery is closed north of the Oregon-California border and open to the south, Oregon regulations provide that vessels with fish on board caught in the open area off California may seek temporary mooring in Brookings, OR, prior to landing in California only if such vessels first notify the Chetco River Coast Guard Station via VHF channel 22A between the hours of 0500 and 2200 l.t. and provide the vessel name, number of fish on board, and estimated time of arrival. The Regional Administrator consulted with representatives of the Pacific Fishery Management Council, the California Department of Fish and Game, and the Oregon Department of Fish and Wildlife (ODFW) on September 6, 2000. The ODFW reported that the 1,000 chinook guideline for the sub-area allocation off OR (for the area from House Rock OR to Humboldt South Jetty, CA) would be reached by the end of the day on September 6, 2000, at the current catch and landing rates.

The Northwest Regional Administrator determined that the best available information on September 6, 2000, indicated that the catch and effort data and projections supported closure of the commercial fishery in the sub-area from House Rock, OR to the Oregon-California border at midnight, September 6, 2000. The sub-area off California from the Oregon-California border to the Humboldt South Jetty, California order would remain open. Oregon State regulations would allow vessels with fish on board caught in the open area off California to seek temporary mooring in Brookings, OR prior to landing in California only if such vessels first notify the Chetco River Coast Guard Station.

The States of California and Oregon will manage this fishery in state waters adjacent to these areas of the exclusive economic zone in accordance with this Federal action. As provided by the inseason notice procedures of 50 CFR 660.411, actual notice to fishermen of this action was given by telephone hotline number 206-526-6667 and 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz.

Because of the need for immediate action to stop a fishery upon achievement of a quota, NMFS has determined that good cause exists for this notification to be issued without affording a prior opportunity for public comment because such notification would be unnecessary, impracticable, and contrary to the public the immediate interest. Moreover, because of need to stop the fishery upon achievement of a quota, the Assistant Administrator for Fisheries, NOAA finds, for good cause, under 5 U.S.C. 553(d)(3), that delaying the effectiveness of this rule for 30 days is impracticable and contrary to the public interest. These actions do not apply to other fisheries that may be operating in other areas.

This action is authorized by 50 CFR 660.409 and 660.411 and is exempt from review under Executive Order 12866.

Regulations governing the ocean salmon fisheries at 50 CFR 660.409(a)(1) state that, when a quota for any salmon species in any portion of the fishery management area is projected by the Regional Administrator to be reached on or by a certain date, NMFS will, by notification issued under 50 CFR 660.411(a)(2), close the fishery for all salmon species in the portion of the fishery management area to which the quota applies, as of the date the quota is projected to be reached.

In the 2000 management measures for ocean salmon fisheries (65 FR 26138, May 5, 2000), NMFS announced the following recreational fisheries north of Cape Falcon, Oregon: U.S.-Canada Border to Cape Alava (Neah Bay Area) opened July 3 through earlier of September 30 or subarea quota of 6,900 marked coho, with a guideline of 500 chinook; Cape Alava to Queets River (La Push Area) opened July 3 through earlier of September 30 or subarea quota of 1,700 marked coho, with a guideline of 300 chinook; Queets River to Leadbetter Pt. (Westport Area) opened July 3 through earlier of September 30 or subarea quota of 28,900 marked coho, with a guideline of 7,400 chinook, and closed through August 10 inside the area (“Grays Harbor bubble area”) defined by a line drawn from the Westport lighthouse (46°53.3' N. lat., 124°07.01' W. long.) to Buoy #2 (46°52.7' N. lat., 124°12.7' W. long.) to Buoy #3 (46°55.0' N. lat., 124°14.8' W. long.) to the Grays Harbor north jetty (46°55.6' N. lat., 124°10.85' W. long.); Leadbetter Pt. to Cape Falcon (Columbia River Area) opened July 10 through earlier of September 30 or subarea quota of 37,500 marked coho, with a guideline of 4,300 chinook. NMFS also announced the commercial fishery off the southern Oregon coast from Sisters Rocks to Oregon-California Border opened August 1 through earlier of August 31 or 1,300 chinook quota.

The Regional Administrator consulted with representatives of the Pacific Fishery Management Council, the Washington Department of Fish and Wildlife and the Oregon Department of Fish and Wildlife on August 4, 7, 9, and 16, 2000.

The Northwest Regional Administrator, NMFS (Regional Administrator), determined that the best available information on August 9, 2000, indicated that the catch and effort data and projections supported closure of 3 of the 4 recreational fisheries and the one commercial fishery. To meet preseason management objectives such as quotas and season duration, 4,000 coho from the commercial fishery from Queets River, WA, to Cape Falcon, OR were traded for 1,000 chinook from the overall recreational allocation north of Cape Falcon; and 250 coho from the U.S.-Canada Border to Cape Alava sub-area recreational quota were transferred to the Cape Alava to Queets River, WA area. Of the 4,000 coho that were traded, 3,400 coho were added to the Columbia River Area quota and 600 coho to the Westport Area quota. The troll fishery received 1,000 chinook from the recreational fisheries in the Columbia River and Westport areas, reflected in the revised Columbia River Area chinook guideline.

The recreational fishery in the area from Cape Alava to Queets River, WA closed at 2359 hours l.t., August 12, 2000, with an estimated catch of 182 chinook on a guideline of 300 and 1,932 coho on a revised quota of 1,950; the recreational fishery in the area from Queets River to Leadbetter Point, WA, closed at 2359 hours l.t., August 10, 2000, with an estimated catch of 6,349 chinook on a guideline of 7,400 and 28,841 coho on a revised quota of 29,500 (Except the Grays Harbor bubble area was open for 1 day, August 13, 2000); and the recreational fishery in the area from Leadbetter Point, WA, to Cape Falcon, OR, closed at 2359 hours l.t., August 13, 2000, with an estimated catch of 2,315 chinook on a revised guideline of 3,300 and 39,668 coho on a revised quota of 40,900. The commercial fishery in the area from Sisters Rocks, OR, to the Oregon-California border closed at 2359 hours l.t., August 11, 2000, with an estimated catch of 930 chinook on a quota of 1,300.

The best available information on August 16, 2000, supported closure of the recreational fishery in the area from U.S.-Canada Border to Cape Alava which was closed at 2359 hours l.t., August 17, 2000, with an estimated catch of 467 chinook on a guideline of 500 and 7,265 coho on a revised quota of 6,650.

The States of Washington and Oregon will manage coho and chinook fisheries in state waters adjacent to these areas of the exclusive economic zone in accordance with this Federal action. As provided by the inseason notice procedures of 50 CFR 660.411, actual notices to fishermen of these actions were given by telephone hotline number 206-526-6667 and 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz prior to these inseason adjustments.

Because of the need for immediate action to stop a fishery upon achievement of a quota, NMFS has determined that good cause exists for this notification to be issued without affording a prior opportunity for public comment because such notification would be unnecessary, impracticable, and contrary to the public interest. Moreover, because of the immediate need to stop the fishery upon achievement of a quota, the Assistant Administrator for Fisheries, NOAA finds, for good cause, under 5 U.S.C. 553(d)(3), that delaying the effectiveness of this rule for 30 days is impracticable and contrary to public interest. These actions do not apply to other fisheries that may be operating in other areas.

This action is authorized by 50 CFR 660.409 and 660.411 and is exempt from review under Executive Order 12866.