The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for the Federal Republic of Germany, recently notified FAA that an unsafe condition may exist on certain DG Flugzeugbau Models DG-500 Elan Series, DG-500M, and DG-500MB sailplanes. The LBA reports an incident where a Model DG-500 sailplane experienced notably higher elevator control stiffness during an aerobatic flight. This situation was the result of the outer aluminum tube moving and slipping within the elevator control support stand.

If the elevator control support stand permits the outer aluminum tube to move, the pilot's capability to use full elevator control deflection could be limited, which could require increased force in moving the elevator control. This could lead to an uncontrolled flight condition.

We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain DG Flugzeugbau Models DG-500 Elan Series, DG-500M, and DG-500MB sailplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on September 21, 2000 (65 FR 57113). The NPRM proposed to require you to visually inspect the elevator control system for proper movement; obtain and incorporate a repair scheme if improper movement is found; and modify and install resin thickened cottonflock reinforcements to the elevator control system as a way to increase the stiffness of the elevator control support stand.

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

After careful review of all available information related to the subject presented above, we have determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We determined that these minor corrections:

We estimate that this AD affects 10 sailplanes in the U.S. registry.

We estimate the following costs to accomplish the inspection and modification:

The compliance time of this AD is to accomplish the inspection “within the next 30 calendar days after the effective date of this AD” and to accomplish the modification “within the next 120 days after the effective date of this AD.”

We have established the compliance in calendar time instead of hours time-in-service (TIS) because the unsafe condition described by this AD is not directly related to sailplane operation. The chance of this situation occurring is the same for a sailplane with 10 hours time-in-service (TIS) as it would be for a sailplane with 500 hours TIS. Calendar time for compliance will assure that the unsafe condition is addressed on all sailplanes in a reasonable time period.

The German AD requires the inspection before next flight and the modification within 45 days of the effective date of the German AD. We do not have justification to require the inspection before next flight. We use compliance times such as this when we have identified an urgent safety of flight situation. We believe that 30 calendar days will give the owners or operators of the affected sailplanes enough time to have the inspection accomplished without compromising the safety of the sailplanes.

The 120-calendar day compliance time for the modification gives the owners/operators of the affected sailplanes enough time to adequately schedule the work to coincide with other maintenance activities.

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

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

The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom, recently notified the FAA that an unsafe condition may exist on all British Aerospace HP137 Mk1 and Jetstream series 200 airplanes. The CAA reports instances of delamination and corrosion of the vertical stabilizer skin. Such damage resulted in cracks around the rivet holes.

If not detected and corrected, a damaged vertical stabilizer skin could lead to failure of the vertical stabilizer with consequent airplane controllability problems.

We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all British Aerospace HP137 Mk1 and Jetstream series 200 airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on September 26, 2000 (65 FR 57748). The NPRM proposed to require you to inspect the vertical stabilizer skin for disbonding, corrosion, cracks, and loose rivets, and repair any vertical stabilizer skin where discrepancies are found.

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

After careful review of all available information related to the subject presented above, we have determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We determined that these minor corrections:

We estimate that this AD affects 85 airplanes in the U.S. registry.

We estimate the following costs to accomplish the inspection:

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to all Learjet Model 35, 35A, 36, and 36A series airplanes was published in the Federal Register on June 8, 2000 (65 FR 36391). That action proposed to require revision of the Airplane Flight Manual (AFM) to add procedures for donning the flightcrew oxygen masks when the cabin altitude warning horn is activated. That proposal was intended to prevent incapacitation of the flightcrew due to lack of oxygen and consequent loss of control of the airplane due to absence of AFM procedures for donning the flightcrew oxygen masks when the cabin altitude warning horn is activated.

The FAA has determined that the identified unsafe condition is adequately addressed by Step 1 (donning the oxygen mask following a cabin high altitude warning) of the AFM revision under paragraph (a) of the proposed AD. In line with that determination, it is no longer necessary to include Steps 2 through 12 of paragraph (a). The FAA has revised paragraph (a) of the final rule accordingly.

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

One commenter states that it opposes the adoption of the proposal, as well as the FAA's continued efforts to use rulemaking to address “operational” concerns. The commenter contends that airworthiness directives should only address corrective actions that specifically identify product flaws that create an unsafe condition. In particular, the commenter maintains that the unsafe condition demands an “operational” as well as an educational concern. The commenter further states that its primary concern with the proposal is that, in the accidents and incidents reports where incapacitation of the flightcrew was due to hypoxia, the root design or mechanical flaw has not been identified. The commenter concludes that a pilot's failure to don an oxygen mask raises “operational” concerns that have nothing to do with the specific problems concerning the continued airworthiness of the product in question. From these comments, the FAA infers that the commenter requests that the proposed AD be withdrawn.

The FAA does not concur that the proposed AD should be withdrawn. The purpose of an AD is to correct an identified unsafe condition in products, regardless of where the unsafe condition is located or what it is caused by. The current AFM does not contain procedures to don oxygen masks when the cabin altitude aural warning is activated. The FAA considers that the lack of such procedures constitutes an unsafe condition and, as such, must be corrected. In essence, the requirement to revise the AFM to add procedures to don oxygen masks when the cabin altitude warning is activated serves to protect the flying public from the consequences of the unsafe condition. The AD also serves to protect the manufacturer from the liability that would be faced should the unsafe condition not be corrected.

One commenter requests that the proposed emergency descent procedures be revised to specify that the flightcrew (1) don the oxygen mask; (2) level off (stabilize) the aircraft; and (3) verify loss of cabin pressure. The commenter suggests that if loss of cabin pressure is verified, the flightcrew should continue with the remainder of the emergency procedures. The commenter states that the purpose of adding these steps would be to ensure that the procedures, as proposed, do not lead the flightcrew to a possible overreaction. The commenter concludes that the suggested additional steps would provide clear direction for the flightcrew when the cabin altitude warning horn activates.

The FAA does not concur with the request to add procedures specifying that, immediately after donning the oxygen masks, the flightcrew level off the aircraft and verify loss of cabin pressure. As explained previously, the FAA has determined that, other than donning the oxygen masks, it is unnecessary to add further requirements to the Emergency Procedures Section of the AFM. The current FAA-approved AFM appears to take a conservative approach to cabin high altitude emergency procedures and specifies that the flightcrew perform an emergency descent. Furthermore, the FAA has not identified any unsafe conditions associated with those specific AFM procedures. The FAA has, however, forwarded the commenter's suggestions to the manufacturer for its consideration.

One commenter, the manufacturer, requests that the title of the emergency procedures be revised to also address the condition where the flightcrew notices a high cabin altitude before the warning horn sounds. The commenter suggests that the following words be added to the title: “* * * or Cabin Altitude Exceeds 10,000 feet.”

The FAA finds that the suggested additional words will clarify and specify emergency procedures for a possible situation, and will encourage proactive flightcrew action. Therefore, the FAA concurs with the commenter's request, and has revised paragraph (a) of the AD accordingly.

One commenter, the manufacturer, also requests that two new notes be added to clarify the proposed requirements of paragraph (a) after Step 10 and Step 12.

The FAA does not concur. Since all steps except Step 1 of paragraph (a) of the proposal have been removed (as explained previously) from the proposed AD, it is unnecessary to provide further clarification of the other steps.

Two commenters request that the proposal include a requirement that the oxygen bottle in the cockpit be redesigned to show oxygen bottle pressure and not system pressure. Additionally, one of those commenters requests that the oxygen bottle clearly indicate that the system is “on” during preflight.

The FAA does not concur that this AD should require redesign of the oxygen bottle system. The FAA finds that a properly conducted preflight of the oxygen masks will establish and verify the correct gauge that reads bottle pressure, and ensure that the oxygen bottle valve is properly positioned. Additionally, the required flow check will not work if the oxygen bottle is turned off since all oxygen would have been released from the system. The actions required in this AD are intended to sufficiently address the stated unsafe condition.

Since redesign of the oxygen bottle system was not specified in the proposal, to require such redesign in this AD would be to mandate requirements without benefit of opportunity for public comment. Since the FAA has received no reports of any unsafe conditions associated with the design of the indicating system or bottle pressure system, it is not considering further rulemaking at this time. However, the FAA has forwarded this suggestion to the manufacturer for its consideration.

One commenter requests that the applicability be revised to include Learjet Model 23, early Model 24, and Model 25 series airplanes. The commenter states that the oxygen and pressurization systems on these airplanes are similar to the airplane models cited in the applicability of the proposed AD.

The FAA does not concur that additional airplane models should be added to the applicability of this AD. The FAA acknowledges that the oxygen and pressurization systems on those airplanes are similar to the Learjet Model 35 and 36 series airplanes. However, if those airplane models were added to the applicability of this AD, additional time for opportunity to comment would be required. The FAA finds that to delay this action would be inappropriate in light of the identified unsafe condition. If information is received that points to an unsafe condition on the Learjet Model 23, Model 24, or Model 25, the FAA will consider further rulemaking. The FAA will forward the commenter's suggestion to the airplane manufacturer.

One commenter requests that the FAA identify all flight conditions in which an emergency descent is not required subsequent to donning oxygen masks, and clearly present the appropriate instructions in the final rule. The commenter notes that the proposed AD specifies that, regardless of the existing flight conditions, the flightcrew perform an emergency descent upon activation of the cabin altitude warning. The commenter points out that it is possible for the cabin altitude warning horn to activate during flight conditions that would not require an emergency descent and landing.

The FAA does not concur that identification of all flight conditions in which an emergency descent is not required is necessary. The FAA considers that the manufacturer has taken a prudent and conservative approach in establishing the current emergency descent procedures, which specify emergency descent is necessary regardless of flight conditions. However, for the reasons explained previously, other than donning the oxygen masks, the FAA has removed the requirement to complete additional emergency descent procedures from this final rule. Therefore, no change to the final rule is necessary in this regard.

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

There are approximately 739 Learjet Model 35, 35A, 36, and 36A series airplanes of the affected design in the worldwide fleet. The FAA estimates that 500 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $30,000, or $60 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

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

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

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

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

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

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

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

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

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

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

The FAA has determined that this regulation only involves an established body of technical regulations for which regulation and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

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

This amendment to part 97 is effective upon publication of each separate SIAP as contained in the transmittal. The SIAP's contained in this amendment are based on the criteria contained in the United States Standard for Terminal Instrument procedures (TERPS). In developing these SIAPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports.

The FAA has determined through testing that current non-localizer type, non-precision instrument approaches developed using the TERPS criteria can be flown by aircraft equipped with a Global Positioning System (GPS) and or Flight Management System (FMS) equipment. In consideration of the above, the applicable SIAP's will be altered to include “or GPS or FMS” in the title without otherwise reviewing or modifying the procedure. (Once a stand alone GPS or FMS procedure is developed, the procedure title will be altered to remove “or GPS or FMS” from these non-localizer, non-precision instrument approach procedure titles.)

The FAA has determined through extensive analysis that current SIAP's intended for use by Area Navigation (RNAV) equipped aircraft can be flown by aircraft utilizing various other types of navigational equipment. In consideration of the above, those SIAP's currently designated as “RNAV” will be redesignated as “VOR/DME RNAV” without otherwise reviewing or modifying the SIAP's.

Because of the close and immediate relationship between these SIAP's and safety in air commerce, I find that notice and public procedure before adopting these SIAP's are, impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

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

The meeting will be held on December 11, 2000, from 9 a.m. to 12 p.m., at the FAA 3rd Floor Auditorium, Washington, DC. The agenda will include:

1. SDR Reporting Requirements

2. SDR Guidance Materials

Attendance is open to the interested public, but will be limited to the space available. The public must make arrangements by December 6, 2000, to present oral statements at the meeting. If you are in need of assistance or require a reasonable accommodation for the meeting please contact the person listed under the heading FOR FURTHER INFORMATION CONTACT . In addition, sign and oral interpretation can be made available at the meeting, as well as an assistive listening device, if requested 10 calendar days before the meeting. Arrangements may be made by contacting the person listed under the heading FOR FURTHER INFORMATION CONTACT .

This order addresses the requests for rehearing and clarification of the Commission's final rule (Order No. 607) revising its regulations governing off-the-record communications between persons outside the Commission and the Commission and its employees. 1 The general framework established by the rule remains the same. This order does, however, grant rehearing and clarification in instances where the suggested changes will improve the new procedures and contribute to ensuring that the final rule fulfills its intention to permit fully informed decisionmaking while ensuring the integrity of the Commission's decisionmaking process.

In promulgating Order No. 607, the Commission recognized that its prior ex parte regulations had been difficult to interpret and apply, both by its own staff as well as private parties. As the result of a public conference held in March 1992, a general consensus developed favoring a revised rule that would provide the Commission, the public, the industries it regulates and interested governmental bodies with a clearer statement of what communications are prohibited and when the prohibitions apply. Additionally, the Commission recognized the benefits of enhancing its access to information from Federal and state agencies and other interested persons to the extent consistent with law and fair process.

On September 16, 1998, the Commission issued a Notice of Proposed Rulemaking (NOPR) to revise its procedural rules concerning communications between the Commission and its employees and persons outside the Commission. 2 The NOPR requested comments on the proposed changes to the Commission's procedural rules governing such communications. 3 Thirty-two commenters, representing the hydropower, electric power, and natural gas pipeline industries, as well as state and Federal resource agencies, filed comments generally supporting adoption of the rule as proposed in the NOPR.

The final rule promulgated by the Commission was based on the fundamental APA principles that are the foundation for the ex parte prohibition, and furthers the basic tenets of fairness: (1) a hearing is not fair when one party has private access to the decision maker and can present evidence or argument that other parties have no opportunity to rebut;  4 and (2) reliance on “secret” evidence may foreclose meaningful judicial review. 5 The final rule sets out when communications between the Commission and Commission staff and persons outside the Commission may take place off the record, and when such communications must take place on the record. The final rule also provided specific directions on how both prohibited and exempted off-the-record communications will be handled by the Secretary's office and how public notice of such communications will be made.

The final rule prohibits off-the-record communications made in a “contested on-the-record proceeding,” defined as “any proceeding before the Commission to which there is a right to intervene and in which an intervenor disputes any material issue, or any proceeding initiated by the Commission on its own motion or in response to a filing.” Proceedings not covered by this rule include informal ( i.e. , notice and comment) rulemaking proceedings under 5 U.S.C. 553; investigations under part 1b of the Commission's regulations; any other proceeding not having a “party or parties,” as defined in Rule 102 of the Commission Rules of Practice and Procedure;  6 and any proceeding in which no party disputes any material issues.

The final rule articulated seven exemptions to the general prohibition against off-the-record communications relevant to the merits of proceedings at the Commission: (1) communications expressly permitted by rule or order; (2) certain communications related to emergencies; (3) communications agreed to by all parties; (4) written communications from non-party elected officials; (5) certain communications with other Federal, state, local and Tribal agencies that are not parties; (6) certain communications related to preparation of National Environmental Policy Act (NEPA) documentation; and (7) communications with individual non-party landowners. Additionally, the final rule established notice and disclosure requirements for both prohibited and exempted communications, as well as sanctions for noncompliance with the rule.

Timely requests for rehearing and/or clarification of Order No. 607 were filed by Chevron Pipe Line Company (Chevron); Edison Electric Institute (EEI); Indicated Shippers;  7 Interstate Natural Gas Association of America (INGAA); Southern Company Services, Inc. (SCSI); and the United States Department of the Interior (Interior). Their requests for rehearing and/or clarification will be addressed below. The topic headings in the discussion section generally track those used in Order No. 607. In addition, the Commission, upon further consideration, has identified several implementation issues that require clarification of the rule, as discussed below.

In the final rule, the Commission defined a “contested on-the-record proceeding” in Rule 2201(c)(1)(i) as follows:

However, the general rule prohibiting off-the-record communications goes on to state that it applies to, inter alia, “[c]omplaints initiated pursuant to rule 206 from the date of the filing of the complaint with the Commission.”  9

A. On rehearing, Chevron states that there is “clear contradiction” between these provisions, in that Rule 2201(c)(1)(i) as promulgated apparently does not include a complaint proceeding as a “contested on-the-record proceeding” until a response is filed, while Rule 2201(d)(1)(iii) prohibits ex parte communications from the date of the filing of the complaint. 10 Chevron requests that the Commission amend the definition of Rule 2201(c)(1)(i) to specifically include a complaint pursuant to Rule 206.

The Commission grants rehearing on this issue. We will resolve this inconsistency by amending Rule 2201(c)(1)(i) to read as follows:

B. Chevron also argues on rehearing that the definition established by Order No. 607 for “off-the-record communication” is too broad because it does not take into account that the Commission's complaint regulations “allow both a complainant and a respondent to file information with the Commission that is not served on other parties to the proceeding pending execution of a protective agreement.”  11 Chevron proposes that the Commission remedy this situation by adding an additional exemption to Rule 2201(e) for documents and information filed with the Commission with a request for privileged treatment, but not served on a party pending the execution of a protective agreement.

The Commission denies Chevron's request for rehearing on this issue. Rule 2201(e)(1)(i) specifically provides an exemption from the ex parte prohibitions of the rule for “[a]n off-the-record communication permitted by law and authorized by the Commission.”  12 Because requests for privileged treatment in a complaint proceeding are authorized by the Commission's regulations, it follows that they fall within this exemption and do not violate the ex parte rule. We further observe that a party requesting privileged treatment of documents under the Commission's rules, 18 CFR 388.112, is required to file a public version of any document for which such treatment is sought. Thus, the public will have notice of any such filing, which is consistent with the public notice provisions for exempt off-the-record communications established by Order No. 607, and can request access to the privileged information subject to the terms of an appropriate protective order. 13

C. Interior argues on rehearing that Rule 2201(c)(1)(i) should require the Commission to provide notice that the ex parte rule has been triggered in specific proceedings. According to Interior, relying on the parties to determine whether the rule applies, based on whether an intervention renders a proceeding contested, is arbitrary and unduly burdensome.

The Commission denies rehearing. We do not believe that the rule places an undue burden on a person to ascertain from the face of a motion to intervene filed in a proceeding whether it is a mere formality or raises issues so as to render a proceeding “contested.” Under the Commission's regulations “[a]ny motion to intervene must state, to the extent known, the position taken by the movant and the basis in fact and law for that position.”  14 Further, any person who is uncertain of the significance of a particular motion to intervene can avoid the application of the ex parte rule simply by making his or her communication on the record.

The final rule established that “[p]rocedural inquiries, such as a request for information relating solely to the status of a proceeding,” are not considered communications that are “relevant to the merits” of a proceeding for purposes of rule. 15 In discussing this provision in Order No. 607, we observed:

A. On rehearing, Indicated Shippers object that this discussion represents a “prohibition against timing communications * * * [that] will chill if not eliminate altogether legitimate inquiries into the timing of a Commission decision in a contested matter.”  17 According to Indicated Shippers, this conclusion is contrary to the APA's exclusion of requests for status reports from its definition of prohibited ex parte communications, 18 as well as judicial and Commission precedent. 19 Indicated Shippers also believe that the Commission's position runs afoul of the stated goal of Order No. 607 to increase flexibility in communications.

The Commission denies rehearing. We reject the contention that this aspect of Order No. 607 or our interpretation of it runs afoul of either the APA or the precedent on which the Indicated Shippers rely. First, nothing in the APA is contrary to our view that a request for expedited action must be made on the record to properly lie before the Commission. The APA does not prohibit an agency from taking such a measure to ensure the orderly processing of its dockets. Neither, for that matter, does Gulf Oil or Iroquois . 20

Furthermore, status reports, as referred to by the statute, refer to reports about events that have already occurred, not requests for future action by an agency. Nothing in the APA requires an agency to provide status reports to persons making such requests. In this regard, we observe that the Commission has a specific rule that the nature and timing of its proposed actions are “confidential and shall not be divulged to anyone outside the Commission.”  21

B. While the NOPR had proposed an exemption for certain staff communications concerning compliance matters where the compliance issue is not a subject of the rehearing, the final rule did not include such an exemption. Rather, Rule 2201(c)(5)(iii) provides that “relevant to the merits” does not include “[c]ommunications relating to compliance matters not the subject of an ongoing proceeding.”  22

Interior and Indicated Shippers object to the fact that the final rule does not cover communications concerning compliance with an order while a request for rehearing of the order is pending. Indicated Shippers allege that as it now stands, the parties who engage in such communications “will have determined on their own, without notice or opportunity for challenge, that the compliance issue raised in the communication is unrelated to the rehearing issues.”  23 In a similar vein, Interior complains that there may be “legitimate disputes” whether a compliance matter is the subject of an on-going proceeding, and that “[t]he integrity of the Commission's processes” should not be left to the judgment of licensee and Commission staff. 24

The Commission denies rehearing on this issue. 25 In our view, it is both necessary and appropriate to rely on the judgment of decisional staff to properly resolve such questions. Indeed, the premise of the ex parte rule is that staff members will exercise their professional judgment in these matters. We believe that Rule 2201(c)(5)(iii) adequately balances our goal of permitting fully informed Commission decisions while ensuring the integrity of the decisional process.

The final rule exempts from its purview (and does not require disclosure of) off-the-record communications “permitted by law and authorized by the Commission.”  26 In Order No. 607, the Commission interpreted this exemption as being limited to a situation in which there is “specific statutory authority permitting or directing interagency consultations to take place on an ex parte basis.”  27 The Commission concluded that the Endangered Species Act (ESA) does not specify that the interagency consultations it requires take place on an ex parte basis, and that such consultations thus do not fall under the purview of this exemption.

Interior requests rehearing on this issue, claiming that the Commission neither cited authority nor provided an analysis for its limitation of Rule 2201(e)(1)(i)'s exemption to statutes specifically permitting ex parte communications. Interior asserts that as with interagency consultations under NEPA, off-the-record communications subject to disclosure would “support the goals” of the ESA, facilitate statutorily-required consultation between agencies, and accord sufficient weight to the “unique roles” of the consulting agencies and their relationship with the Commission. 28

The Commission denies Interior's request for rehearing. As discussed in the NOPR as well as Order No. 607, 29 limiting the exemption for off-the-record communications expressly permitted by rule or order to situations where there is specific statutory authority for such ex parte contacts is fully consistent with the APA. There is nothing in the ESA that suggests that required consultations should occur ex parte , and, as a matter of practice, the Commission has found that conducting interagency consultations in noticed meetings has not interfered with ESA compliance.

As Order No. 607 discussed, we view the process under NEPA as providing its own procedural assurances of notice, opportunity for comment, and record development, thus justifying a separate exemption to permit the Commission to develop an environmental record consistent with NEPA procedures. The ESA does not require the same opportunities for notice and comment. We will continue to have ESA consultation subject to notice. We have found this practice workable, and we are committed to making it as effective as possible. Finally, we note that the rule includes an exemption permitting off-the-record consultations in certain circumstances with non-party agencies under the ESA and other statutes. 30

(2) Off-the-Record Communications Related to Emergencies

Order No. 607 established an exemption for off-the-record communications “made by a person outside of the agency related to an emergency,” subject to the disclosure requirement of 385.2201(g). 31 In promulgating this exemption, we acknowledged the concern of some commenters that permitting off-the-record communications during economic emergencies could have an adverse effect on regulated markets in the context of a contested proceeding, and agreed that such emergencies could be dealt with by the Commission's investigative powers. Nonetheless, we concluded that “especially with regard to emergencies affecting a regulated entity's ability to deliver energy, it is imperative that, in the face of an emergency, it may initiate communications” with the Commission without fear of violating the prohibition on off-the-record communications. 32

A. Indicated Shippers request rehearing of our decision to include off-the-record communications regarding economic emergencies (as opposed to such physical emergencies as natural disasters and equipment failures) within this exemption. Indicated Shippers assert that Order No. 607 fails to address “the problems inherent in defining when an economic situation is harmful to a participant in a contested proceeding, and when it is an ‘emergency.’ ”  33 They also argue that modern communications capabilities render it “difficult to envision an economic emergency” that would preclude a party in a contested proceeding from filing an emergency communication and serving it on the parties. 34

The Commission finds the Indicated Shippers' reasoning on this issue persuasive. We therefore hold that Rule 2201(e)(1)(ii) does not apply to emergencies that are solely economic in nature, but only to physical emergencies involving injury or threat of injury to persons, property or the environment. We further clarify that this exemption does not apply only to such disasters as earthquakes, floods and explosions, but to any physical emergency at a regulated facility or project or a facility that provides regulated services (such as electric generation and transmission facilities). Emergency actions may be necessary at a hydroelectric project, for example, to protect turbine blades from injury, to provide emergency flows to protect some species of fish in the case of a clogged minimum flow pipe, or to draw down a reservoir in case of extreme high flow events. Similarly, emergency actions might be necessary to protect the reliability of the electric transmission grid. Thus, we will amend the text of the final rule to limit this exemption to physical emergencies, and to clarify that it applies to any physical emergency at a regulated facility or a facility that provides a regulated service.

B. Upon reflection, the Commission believes that another aspect of Rule 2201(e)(1)(ii) requires revision. Under the emergency exemption as promulgated by Order No. 607, a member of Commission staff could be in violation of the final rule if, for example, he or she must telephone a hydroelectric licensee to resolve emergency flow conditions at a project while a licensing action is pending where such flow conditions are at issue. While emergency situations occurring during the license or certificate processes are not the norm, the Commission believes that it makes sense to ensure that the communications between the staff and the regulated parties are free and open in such situations, regardless of who happens to initiate the communication. Of course, any communication under this exemption, whether made from inside or outside of the agency, is subject to the disclosure requirement of Rule 2201(g)(1) and will be placed in the decisional record.

We therefore will amend 18 CFR 385.2201(e)(1)(ii) to delete the language “made by a person outside the agency.”

Under Rule 2201(e)(1)(v), certain off-the-record communications between the Commission and other governmental agencies are permitted, subject to disclosure:

SCSI, EEI and Interior request rehearing on different aspects of this exemption. At the outset, however, the Commission believes a change in the language of subpart (A) is necessary to clarify our intent that, as to requests for information made by the Commission or Commission staff, the request itself is not covered by the rule because it is not relevant to the merits of a contested proceeding. However, any response to such a request is covered by the rule, subject to this exemption and the disclosure requirement. We will therefore change the language of subpart (A) to refer to “an oral or written response to a request for information made by the Commission or Commission staff.”

A. Both SCSI and EEI take issue with the idea that the Commission “shares jurisdiction” with resource agencies under the FPA.

We grant rehearing of the contention of SCSI and EEI that the Commission does not “share jurisdiction” with resource agencies under the licensing provisions of the FPA. Rather, it is more accurate to refer to non-party agencies that have regulatory responsibilities with respect to particular matters before the Commission, and we will amend the regulatory provision accordingly.

B. Additionally, SCSI and EEI generally object to Rule 2201(e)(1)(v), arguing that off-the-record communications with non-party agencies should be prohibited in licensing proceedings. More specifically, SCSI argues that this exemption, even with disclosure, exceeds the Commission's statutory authority and violates the ex parte provisions of the APA “by creating a blanket exemption allowing non-party, governmental agencies not otherwise authorized by law to make prohibited off-the-record communications.”  36 According to SCSI, the APA does not provide “a generic exemption for interested officials” of governmental agencies, who must be considered “interested persons outside the agency” to whom the APA's ex parte provisions thus apply. 37

The Commission denies the requests for rehearing of SCSI and EEI that this exemption cannot stand. We believe that the fact that this exemption is subject to the disclosure requirement protects the due process rights of parties to a proceeding. We disagree that this procedure, with its disclosure requirement, runs afoul of the APA. While such officials of non-party agencies may be “interested persons” for purposes of the APA, the disclosure process established by the rule sufficiently protects the rights of the parties to a contested proceeding from jeopardy, while recognizing the need for cooperation between governmental agencies and the development of cohesive government policy. We believe this approach is consistent with the court's view in PATCO :

In our view, the final rule's exemption for non-party agencies, subject to a disclosure requirement, is such a common-sense approach to balancing the competing interests at issue here. In this context, it also bears emphasis that our experience with the rule in the year since it has been promulgated indicates that the Commission staff has been prompt in submitting notices of exempt or prohibited communications to the Secretary's office, thus ensuring timely disclosure to affected parties.

C. SCSI believes that the disclosure requirement is insufficient in that agencies can later become parties to a proceeding, and suggests that Rule 2201(e)(1)(v) gives them “strategic advantages * * * to wait to subject themselves to the strictures of Rule 2201 by intervening formally at the last possible minute.”  39 EEI expresses similar concerns.

We do not believe such concerns are warranted. Under Rule 214(d) of the Commission's Rules of Practice and Procedure, the existing parties to a contested proceeding have an opportunity to oppose a motion for late intervention, and the decision whether to grant such a motion is a matter committed to the Commission's sound discretion, based on, inter alia , whether the movant can demonstrate good cause to be permitted to intervene late, and whether permitting late intervention might result in prejudice to the existing parties. 40 This procedural mechanism provides a sufficient safeguard against an agency attempting to unfairly manipulate the system. 41

D. Finally, Interior challenges this provision of the ex parte rule from the opposite perspective, arguing that the Commission should expand the exemption for off-the-record communications to include agencies that are parties to contested proceedings. Interior asserts that the Commission “provided no basis for its assertion that the public interest does not favor the free flow of information when an agency is also a party.”  42

The Commission denies rehearing. We believe that such an approach conflicts with fundamental fairness contemplated by the restrictions on ex parte communications established by the APA. Moreover, we find that such an approach adds little to the free flow of information that can occur on the record, while threatening to prejudice, or to appear to prejudice, the due process rights of other parties to a contested proceeding.

The final rule includes a specific exemption (subject to disclosure) for certain communications relating to NEPA documents:

SCSI and INGAA seek rehearing of certain aspects of this exemption.

A. SCSI attacks the exemption's application to preparation of an EA in cases where the Commission solicits public comment on the ground that “[p]ublic participation does not justify or support exempting communications related to the preparation of an EA (whatever that might encompass).”  44 SCSI also objects to the exemption permitting off-the-record communications in assessing whether an applicant has complied with all relevant environmental statutes during the term of its license.

We deny SCSI's request for rehearing on this issue. In our view, the exemption strikes an appropriate balance: The rights of the parties to a licensing proceeding are adequately protected by the combination of public participation in the EA and EIS process and the disclosure requirement for the off-the-record communications, while at the same time the exemption promotes communications which “may assist in the development of sound environmental analysis.”  45

B. SCSI further contends that allowing the off-the-record communications to be exchanged until the issuance of the final EA or EIS is unfair to the parties in a contested licensing proceeding because “more often than not” those documents are issued simultaneously with the Commission's final order. 46 In SCSI's view, this limits a party to seeking rehearing or reconsideration of substantive issues, procedures “wholly unsuited for submitting substantive evidence and argument that the applicant was in compliance with any or all relevant statutes.”  47 INGAA likewise expresses concern that pursuant to this provision, “information that may affect either the EIS or the EA will not be disclosed to all parties in a timely manner.”  48

The Commission is cognizant of the concerns raised by SCSI and INGAA that parties must have adequate time to respond once off-the-record communications are disclosed. However, we see no need to grant rehearing with respect to Rule 2201(e)(1)(vi)'s exemption for NEPA-related documents on this basis. Rather, the Commission does not anticipate that such timing problems will arise in licensing proceedings, because we will not issue an order without first giving the applicant ample opportunity to respond to an off-the-record communication relied upon in the order. In most cases, this opportunity will be provided by the Commission's issuing a final NEPA document with its description and responses to comments prior to the issuance of a final order. Where the final NEPA document and the final order are issued simultaneously, the staff will ensure that disclosure of off-the-record communications is completed in advance. Finally, a request for rehearing is always available to a party as a due process safeguard in the event that a problem arises with respect to timely disclosure that the Commission has not foreseen in promulgating this rule.

C. Rule 2201(g), governing disclosure of exempt off-the-record communications, establishes an exception to the disclosure requirement where the “communication was with a cooperating agency as described in 40 CFR 1501.6, made under paragraph (e)(1)(v) of this section [relating to off-the-record communications to or from non-party agencies]”  49

EEI, INGAA and SCSI seek rehearing concerning this provision, contending that while the Commission stated in Order No. 607 that the exemption is limited to cooperating agencies under NEPA, the rule as promulgated contains no such limitation.

The provision at 40 CFR 1501.6 is a Council on Environmental Quality Regulation dealing expressly with NEPA and the role of cooperating agencies in the NEPA process. The Commission clarifies that the term cooperating agency as used in Rule 2201(g) is limited, by definition, to the context of NEPA. 50

The final rule established a requirement that the Secretary of the Commission issue a public notice, at least as often as once every 14 days, concerning the receipt of any off-the-record communications, whether prohibited or exempt. 51 For prohibited communications, the notice will disclose the particulars of the communication (identity of the maker, date of receipt by the Commission, docket number of the proceeding to which it relates), and state that the communication will not be considered by the Commission. 52 For exempt off-the-record communications which fall under Rule 2201(g), the Secretary is only required to list the communications or summaries of the communications.

EEI, Indicated Shippers and SCSI contest certain aspects of these provisions on rehearing.

A. EEI asserts that while the preamble to the rule in Order No. 607 indicated that notice of exempt off-the-record communications would include “prompt electronic notice through an electronic service list,” the text of Rules 2201(f) and (g) does not reflect that copies of off-the-record communications, or even notice of such communications, will be individually served on the parties to the proceeding. 53 EEI requests the Commission to clarify that under the rule such communications “will be promptly and directly served on the parties, or at least that the documents will be promptly posted on the Commission's website and the parties will be promptly notified on an individual basis.”  54

The Commission rejects EEI's request. The text of the final rule limits public notice to that made by the Secretary's office and does not require individual service to parties in a proceeding. Rather, notice of off-the-record communications will be placed on the public record in the Federal Register . To the extent the language in the preamble on which EEI relies appears to indicate a contrary view, we hereby disavow that language.

B. EEI asserts that mere posting by the Secretary every 14 days “may not be rapid enough” notice in “time sensitive proceedings.”  55 SCSI makes a related argument, contending that the 14-day notice provision provides insufficient time to allow a hydroelectric license applicant to respond to exempt communications to or from a non-party agency under Rule 2201(e)(1)(v)(A). 56

The Commission rejects the arguments of EEI and SCSI that the notice provisions of the rule are insufficient. The Commission continues to believe, as discussed in the preamble to the final rule, that the posting of prohibited or exempt communications at least every 14 days will provide sufficient notice. All prohibited and exempt communications covered by the rule will be available in the Commission's electronic records system in the affected docket as soon as they are processed by the Secretary's office. Parties to proceedings may routinely check the dockets in the proceedings if they are concerned that a 14-day notice will not provide sufficient time.

In any event, the Commission observes that the rule establishes the minimum required notice, and that it will resolve individual situations on a case-by-case basis. Thus, if the Commission believes that the 14-day notice period is insufficient in a particular case, it retains the discretion to have the Secretary post the information on a more timely basis, or even to provide personal notice to the parties in the rare circumstances where, in its judgment, this is necessary to prevent prejudice to the participants in a proceeding governed by the ex parte communications rule.

C. Indicated Shippers assert that the notice disclosing an ex parte communication should identify the recipient of a communication, which it believes could be significant information for parties considering whether to seek to have the recipient recused. We reject as unnecessary Indicated Shippers' request that the rule be amended to require disclosure of the identity of the recipient of an off-the-record communication as unnecessary. As a general matter, written ex parte communications will ordinarily include the names of the sender and the addressee, as would a memorandum or written summary memorializing an oral off-the-record communication. More importantly, we do not agree that such information is of crucial significance to the parties. Under the rule, such off-the-record communications will be placed in the administrative record of a proceeding for all to see. In any event, in the case of a prohibited communication, the remedy protecting the interests of the affected parties is for the Commission not to rely on the communication in reaching its decision.

Upon reflection, the Commission believes that it would be helpful to clarify that the reference to “person” in the definition of the “General rule prohibiting off-the-record communications” employed the definition of “person” found in the general definitions applicable to the Commission's Rules of Practice and Procedure, which excludes the Commission and its employees. 57 As the rule now stands, it states that

We are changing the references to “person” to “person outside the Commission,” to make clear that the rule applies only to communications between those outside the agency and the Commission's decisional employees. Communications within the Commission are generally governed by the separation of functions rule. 59

The Commission recognizes that both the ex parte rule as well as the separation of functions rule have an impact on the manner in which it will conduct its market monitoring and oversight responsibilities. As our market monitoring and oversight program evolves, with the transition of energy industries to competitive markets, the Commission may in the future determine that changes in either or both of these rules are necessary in order for it to adequately conduct these responsibilities.

We further observe that while the rule uses the term “off-the-record” interchangeably with “ ex parte ,” there are situations where “off-the-record” communications are clearly not of an ex parte nature and not prohibited by the rule. For example, technical and settlement conferences under Subpart F of the Commission's regulations are off the record in that no transcript is kept, but all parties receive notice and can attend. Because discussions at these conferences are open to all participants, they are not barred by the rule. The rule does apply, however, to any private or “sidebar” conversations between participants and Commission staff that are relevant to the merits of pending contested matters, occurring during the course of the conference.

Additionally, we have made a few minor editorial changes in the regulatory text for the sake of clarity.

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

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

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

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

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

Changes to Order No. 607 made in this order on rehearing will become effective on January 2, 2001.

On January 25, 1999, a temporary regulation (TD 8811) relating to disclosure of return information to the Bureau of the Census was published in the Federal Register (64 FR 3631). A notice of proposed rulemaking (REG-121806-97) cross-referencing the temporary regulations was published in the Federal Register for the same day (64 FR 3669). No public hearing was requested or held. No written or electronic comments responding to the notice of proposed rulemaking were received. Accordingly, the proposed regulations are adopted as revised by this Treasury decision, and the corresponding temporary regulations are removed.

The regulations proposed by REG-121806-97 are adopted by this Treasury decision without revision and are discussed below.

Under section 6103(j)(1) of the Internal Revenue Code, upon written request from the Secretary of Commerce, the Secretary is to furnish to the Bureau of the Census (Bureau) tax return information that is prescribed by Treasury regulations for the purpose of but only to the extent necessary in structuring censuses and national economic accounts and conducting related statistical activities authorized by law. Section 301.6103(j)(1)-1 of the regulations provides an itemized description of the return information authorized to be disclosed for this purpose. Periodically, the disclosure regulations are amended to reflect the changing needs of the Bureau for data for its statutorily authorized statistical activities.

The amendments adopted by this Treasury decision authorize IRS personnel to disclose additional items of return information that have been requested by the Secretary of Commerce, and to delete certain items of return information that are enumerated in the regulations but that the Secretary of Commerce has indicated are no longer needed.

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

The principal author of these regulations is Jamie Bernstein of the Office of Associate Chief Counsel, Procedure & Administration (Disclosure & Privacy Law Division). However, other personnel from the IRS and Treasury Department participated in their development.

The release to be deleted from the NPL is: Route 940 Drum Dump Site located in Pocono Summit, Monroe County, Pennsylvania.

EPA published a Notice of Intent to Delete (NOID) the Route 940 Drum Dump Superfund Site from the NPL on August 14, 2000 in the Federal Register (65 FR 45013). The closing date for comments on the NOID was September 14, 2000. EPA did not receive any comments on the proposed deletion. Therefore, no responsiveness summary is necessary for attachment to this Notice of Deletion.

The EPA identifies releases which appear to present a significant risk to public health, welfare or the environment, and it maintains the NPL as the list of those sites. Releases on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund Response Trust Fund (Fund). Pursuant to § 300.425(e)(e) of the NCP, any release deleted from the NPL remains eligible for Fund-financed remedial actions in the unlikely event that conditions at the Site warrant such action.

Deletion of a release from the NPL does not affect responsible party liability or impede agency efforts to recover cost associated with response efforts.

The modified base flood elevations are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified base flood elevation determinations are available for inspection is provided.

Any request for reconsideration must be based upon knowledge of changed conditions, or upon new scientific or technical data.

The modifications are made pursuant to Section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR Part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified base flood elevations are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities.

The changes in base flood elevations are in accordance with 44 CFR 65.4.

This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

The Associate Director, Mitigation Directorate, certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the National Flood Insurance Program. No regulatory flexibility analysis has been prepared.

This interim rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

The modified base flood elevations are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified base flood elevation determinations are available for inspection is provided.

Any request for reconsideration must be based on knowledge of changed conditions, or upon new scientific or technical data.

The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified base flood elevations are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities.

The changes in base flood elevations are in accordance with 44 CFR 65.4.

This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

The Associate Director for Mitigation certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

This interim rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

The Federal Emergency Management Agency (FEMA or Agency) makes final determinations listed below of base flood elevations and modified base flood elevations for each community listed. The proposed base flood elevations and proposed modified base flood elevations were published in newspapers of local circulation and an opportunity for the community or individuals to appeal the proposed determinations to or through the community was provided for a period of ninety (90) days. The proposed base flood elevations and proposed modified base flood elevations were also published in the Federal Register .

This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67.

The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and Flood Insurance Rate Map available at the address cited below for each community.

The base flood elevations and modified base flood elevations are made final in the communities listed below. Elevations at selected locations in each community are shown.

This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

The Associate Director, Mitigation Directorate, certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because final or modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778.

This is a summary of the Commission's Report and Order, MM Docket No. 99-288, adopted November 8, 2000, and released November 17, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Services, Inc., 1231 20th Street, NW., Washington, DC 20036, (202) 857-3800, facsimile (202) 857-3805.

This is a synopsis of the Commission's Report and Order, MM Docket No. 00-113, adopted November 8, 2000, and released November 17, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 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.

Channel 290A can be allotted to Little Valley in compliance with the Commission's minimum distance separation requirements, with respect to all domestic allotments, without the imposition of a site restriction, at coordinates 42-15-08 NL; 78-48-20. The allotment, however, is short-spaced to Station CHRE-FM, Channel 289B, St. Catherines, Ontario, Canada. Canadian concurrence, as a specially-negotiated short-spaced allotment was requested in September, 2000, but has not yet been received. Little Valley is located within 320 kilometers (200 miles) of the U.S.-Canadian border. However, rather than delay any further the opportunity to file applications for this channel, we will allot Channel 290A to Little Valley at this time. If a construction permit is granted prior to the receipt of formal concurrence in the allotment by the Canadian Government, the construction permit will include the following condition: “Operation with the facilities specified herein is subject to modification, suspension, or termination without right to hearing, if found by the Commission to be necessary in order to conform to the USA-Canadian FM Broadcast Agreement.”

This is a synopsis of the Commission's Report and Order, MM Docket No. 00-128, adopted November 8, 2000, and released November 17, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 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.

NAFO has established and maintains conservation measures in its Regulatory Area that include one effort limitation fishery as well as fisheries with total allowable catches (TACs) and member nation quota allocations. The principal species managed are cod, flounder, redfish, American plaice, halibut, capelin, shrimp, and squid. At the 2000 NAFO Annual Meeting, the United States received fish quota allocations for three NAFO stocks and an effort allocation for one NAFO stock to be fished during 2001. The species, location, and allocation (in metric tons or effort) of these U.S. fishing opportunities are as follows: