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

The Department 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. Such handler is afforded the opportunity for a hearing on the petition. After the hearing the Secretary would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule finalizes an interim final rule that temporarily suspended, through November 15, 2000, provisions in § 929.125 of the rules and regulations (65 FR 42598, July 11, 2000) to shorten the sales history appeal process for the 2000/2001 marketing season. The Committee is responsible for calculating each grower's sales history on an annual basis. The appeals process includes three levels of review, a review by the appeals subcommittee of the Committee, the full Committee, and finally the Secretary of Agriculture. Due to the lateness of the season, and the numerous appeals received from growers, the Committee unanimously recommended that the review by the Committee be suspended for the 2000/2001 season. This allowed growers to take their appeals directly to the Secretary for a final decision. The Committee unanimously recommended this action at its August 28, 2000, meeting.

Section 929.48 of the order and § 929.149 of the rules and regulations describe how the Committee computes a sales history for each grower. There are different computations used depending on the number of years a grower has been producing on such acreage. The Committee has been updating growers' sales histories each season. The Committee accomplishes this by using information submitted by the grower on a production and eligibility report filed with the Committee. The Committee established a review procedure in § 929.125 of the rules and regulations for growers who disagree with the Committee's computation.

Currently, § 929.125 (65 FR 42598; July 11, 2000) provides that a grower may appeal to an appeals subcommittee within 30 days of receipt of the Committee's determination of his/her sales history. If the grower is not satisfied with the subcommittee's decision, the grower may further appeal to the full Committee. Such grower must notify the full Committee of his or her appeal within 15 days after notification of the subcommittee's decision. The Committee has 15 days to review the appeal. The grower may further appeal to the Secretary, within 15 days after notification of the full Committee's findings, if the grower is not satisfied with the Committee's decision. All decisions by the Secretary are final.

A volume regulation has been implemented for the 2000-2001 cranberry crop to address an oversupply situation currently being experienced by the industry. The Committee determined the best method of volume control to be the producer allotment program which provides for an annual marketable quantity and allotment percentage. Marketable quantity is defined as the number of pounds of cranberries needed to meet total demand and to provide for an adequate carryover into the next season. The allotment percentage equals the marketable quantity divided by the total of all growers' sales histories. The Committee is responsible for calculating each grower's sales history on an annual basis.

The appeals procedure described above could take 60 or more days to complete, and the number of appeals received for the season was large. At the Committee meeting on August 28, 2000, the appeals committee reviewed about 150 grower appeals, and more needed to be reviewed at this level.

Due to the lateness of the season, and the numerous appeals received, the Committee recommended that the review by the full Committee be suspended from the procedures to shorten the process. This was intended to allow growers to take their appeals directly to the Secretary for a final decision if they were not satisfied with the appeals subcommittee's determinations. To date all such appeals have been reviewed by the appeals subcommittee and reviewed and acted upon by the Secretary, if warranted.

The Committee recommended that the full Committee review step be temporarily suspended through November 15, 2000, to expedite the process for the current harvest. The complete procedures will be available to growers next season, if needed.

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

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

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

This rule finalizes an interim final rule that temporarily suspended provisions in § 929.125 of the rules and regulations regarding the appeals procedure for growers who disagree with their sales history determination made by the Cranberry Marketing Committee. The Committee is responsible for calculating each grower's sales history on an annual basis. The appeals process includes a review by the appeals subcommittee, the full Committee, and finally the Secretary. Due to the lateness of the season, and the numerous appeals received, the Committee recommended that the review by the full Committee be suspended from the procedures to shorten the process.

This suspension action allowed growers, who filed appeals, to know their sales histories and annual allotments sooner. Handlers need this information to plan their acquisitions throughout this crop year under volume regulation. In addition, the Committee received over 200 appeals and needed to act on them quickly to render decisions as soon as possible. To date all such appeals have been reviewed by the appeals subcommittee and reviewed and acted upon by the Secretary, if warranted.

The Committee discussed the alternative of delegating the Committee's review to the appeals subcommittee, however, such action is not authorized under the rules and regulations. The Committee also discussed not revising the rules and regulations, however, this would not have allowed growers to know their sales histories and annual allotment as promptly as possible.

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

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

Further, the Committee's meeting was widely publicized throughout the cranberry industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the August 28, 2000, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons were invited to submit information on the regulatory and informational impacts of this action on small businesses.

An interim final rule concerning this action was published in the Federal Register on September 14, 2000. Copies of the rule were mailed by the Committee's staff to all Committee members and handlers. In addition, the rule was made available through the Internet by the Office of the Federal Register. That rule provided for a 60-day comment period which ended November 13, 2000. No comments were received.

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

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that finalizing the interim final rule, without change, as published in the Federal Register (65 FR 55436, September 14, 2000) will tend to effectuate the declared policy of the Act.

The Home Mortgage Disclosure Act (HMDA; 12 U.S.C. 2801 et seq. ) requires most mortgage lenders located in metropolitan areas to collect data about their housing-related lending activity. Annually, lenders must file reports with their federal supervisory agencies and make disclosures available to the public. The Board's Regulation C (12 CFR part 203) implements HMDA.

Provisions of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (codified at 12 U.S.C. 2808(b)) amended HMDA to expand the exemption for small depository institutions. Prior to 1997, HMDA exempted depository institutions with assets totaling $10 million or less, as of the preceding year end. The statutory amendment increased the asset-size exemption threshold by requiring a one time adjustment of the $10 million figure based on the percentage by which the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPIW) for 1996 exceeded the CPIW for 1975, and provided for annual adjustments thereafter based on the annual percentage increase in the CPIW. The one-time adjustment increased the exemption threshold to $28 million for 1997 data collection.

Section 203.3(a)(1)(ii) of Regulation C provides that the Board will adjust the threshold based on the year-to-year change in the average of the CPIW, not seasonally adjusted, for each twelve-month period ending in November, rounded to the nearest million. Pursuant to this section, the Board raised the threshold to $30 million for 1999 data collection, and kept it at that level for data collection in 2000.

During the period ending November 2000, the CPIW increased by 3.4 percent. As a result, the threshold is increased to $31 million. Thus, depository institutions with assets of $31 million or less as of December 31, 2000, are exempt from data collection in 2001. An institution's exemption from collecting data in 2001 does not affect its responsibility to report the data it was required to collect in 2000.

The Board is amending comment 3(a)-2 of the staff commentary to implement the increase in the exemption threshold. Under the Administrative Procedure Act, notice and opportunity for public comment are not required if the Board finds that notice and public comment are unnecessary or would be contrary to the public interest. 5 U.S.C. 553(b)(B). Regulation C establishes the formula for determining adjustments to the exemption threshold, if any, and the amendment to the staff commentary merely applies the formula. This amendment is technical and not subject to interpretation. For these reasons, the Board has determined that publishing a notice of proposed rulemaking and providing opportunity for public comment are unnecessary and would be contrary to the public interest. Therefore, the amendment is adopted in final form.

The Gramm-Leach-Bliley Act (Pub. L. 106-102, 113 Stat. 1338 (1999)) (“GLB Act”) amended the Bank Holding Company Act (12 U.S.C. § 1841 et seq. ) (“BHC Act”) to allow a bank holding company or foreign bank that qualifies as a financial holding company to engage in a broad range of activities that the GLB Act defined as financial in nature or incidental to a financial activity. The GLB Act also provides that the Board, in consultation with the Secretary of the Treasury (“Secretary”), may determine that additional activities are financial in nature or incidental to a financial activity and, thus, permissible for a financial holding company. 1

Earlier this year, the Board, after consulting with the Secretary, requested public comment on a proposal to determine that acting as a finder is an activity that is incidental to a financial activity and, therefore, permissible for a financial holding company. 2 Under the proposal, a financial holding company could act as a finder that brings together one or more buyers and sellers of any type of products and services for transactions that the parties themselves negotiate and consummate. The proposed rule noted that the services provided by a finder could include: (1) identifying potential parties to a transaction, making inquiries as to interest, introducing and referring potential parties to each other, and arranging contacts between and meetings of interested parties; (2) conveying between interested parties expressions of interest, bids, offers, orders, and confirmations relating to a transaction; and (3) transmitting information concerning products and services to potential parties in connection with the activities described in items (1) and (2) above. To illustrate some of the services of a finder, the proposed rule included examples of specific services that a finder could provide under the proposed rule, including hosting an Internet marketplace on the finder's web site, hosting the Internet web site of a seller, and operating an Internet web site that allows multiple buyers and sellers to enter into transactions between themselves.

The proposed rule also included specific parameters designed to ensure that a finder did not engage in any nonfinancial activity. In addition, the proposed rule required a finder to use disclosures or other means to distinguish the products and services offered by the financial holding company from those offered by a third party through the finder service.

The Board received 18 public comments on the proposal. Commenters included financial holding companies and other bank holding companies; trade associations representing the banking, securities, and real estate industries; a state banking and insurance department; and a law firm.

Nearly all of the commenters supported the proposal. Many of these commenters praised the scope of the proposed rule or stated that adoption of the proposal would increase the ability of financial holding companies to compete effectively with other financial service providers in a manner consistent with the purposes of the GLB Act. Some commenters that supported the proposal suggested that the Board determine acting as finder to be a financial activity, rather than an activity that is incidental to a financial activity. Two commenters opposed the proposal, contending that it would allow financial holding companies to engage in commercial activities and would expose financial holding companies to additional risks.

Commenters also requested that the Board make certain changes to the proposed rule. For example, some commenters requested that the Board expand, modify, or clarify the examples of permissible finder services included in the proposed rule. In addition, while some commenters supported the limitations included in the proposed rule on the finder activities of financial holding companies, other commenters requested that the Board modify or eliminate some of these limitations, including the limitations that prevent a financial holding company from binding a buyer or seller to a specific transaction, negotiating the terms of a specific transaction on behalf of a buyer or seller, or engaging in any activity that would cause the company to register or obtain a license as a real estate agent or broker. One commenter urged that the limitations on real estate agency and brokerage activities be retained.

Some commenters asked the Board to provide additional guidance concerning how a financial holding company could comply with the disclosure requirements of the proposed rule. A few commenters also asked that the Board clarify that the proposed limitations on the finder activities do not apply to other activities that a financial holding company is authorized to conduct.

National banks and many state banks are permitted to act and have acted as a finder in nonfinancial transactions for many years. Opportunities to provide finder services and interest in acting as a finder have grown dramatically with advances in technology and the increased use of the Internet. Thus, banking organizations, which in the past largely have served as a finder by providing statement stuffers and other marketing materials of sellers of various products and services or by helping to identify service providers as an accommodation to customers, have begun to explore the opportunity to act as a finder electronically on a broader scale. Financial holding companies have argued that acting as a finder, particularly electronically, offers increased opportunities for financial holding companies to cross sell financial products and services or to enhance the attractiveness to customers of the financial holding company's own electronic web site. Commenters asserted that authorizing FHCs to act as a finder as proposed would facilitate competition between FHCs and nonbanking companies to provide customers with a wide range of financial services. One commenter stated that the new authority particularly would benefit FHCs affiliated with community banks, which often are knowledgeable about the business interests of third parties with whom they deal. In this way, finder services have become incidental to financial activities.

After carefully reviewing the public comments on the finder proposal, the Board has adopted a final rule that provides that acting as a finder, as defined in the rule, is an activity that is incidental to a financial activity and therefore permissible for financial holding companies to conduct. Under the GLB Act, the Board may not determine that an activity is financial in nature or incidental to a financial activity if the Secretary notifies the Board in writing that the Secretary believes the activity is not financial in nature, incidental to a financial activity, or otherwise permissible under section 4 of the BHC Act. The Secretary must notify the Board of the Secretary's determination within 30 days of receiving notice from the Board, or within such longer period as the Board may allow under the circumstances. The Board has provided the Secretary with notice of the proposed activity as required by the GLB Act and the Secretary has informed the Board in writing that the Secretary does not object to the final rule as adopted.

The Board has made a number of changes to the rule to respond to public comments and to clarify the scope of the proposed rule. These changes and the comments on particular aspects of the rule are discussed below.

The rule adds “acting as finder” to the list of activities in section 225.86 of Subpart I of the Board's Regulation Y that are financial in nature or incidental to a financial activity and, thus, permissible for a financial holding company. Bank holding companies and foreign banks that qualify as financial holding companies may engage in finder activities by using the post-transaction notice procedure described in section 225.87 of Regulation Y. Bank holding companies and foreign banks that do not qualify as financial holding companies may not engage in finder activities under the rule.

The activity of a finder is defined under the rule as bringing together one or more buyers and sellers of any product or service for transactions that the parties themselves negotiate and consummate. A financial holding company may act as a finder under the rule for financial and nonfinancial products or services that are offered or sold by third-party buyers and sellers. 3

As the Board noted in the proposal, the actual services provided by a finder in a particular transaction may vary. Under current practices, however, finders perform two principal functions—(1) locating and matching third parties that are interested in engaging in a business transaction between themselves, and (2) acting as a conduit for transaction-related information between parties that may be or are interested in conducting a business transaction between themselves.

Accordingly, the final rule provides that the services provided by a finder may include—

(1) Identifying potential parties that may be interested in engaging in a transaction between themselves;

(2) Making inquiries of third parties as to their interest in engaging in a transaction with another party;

(3) Introducing and referring potential parties to each other;

(4) Arranging contacts and meetings between interested parties;

(5) Conveying expressions of interests, bids, offers, orders, and confirmations relating to a transaction between third parties; and

(6) Transmitting information concerning products and services to potential parties in connection with the activities described in paragraphs (1) through (5) above, such as transmitting to a buyer information concerning the products and services offered by a seller or transmitting to a seller the product preferences of a buyer.

Some commenters requested that the Board clarify that a finder may act through a variety of media, including through electronic means (such as the Internet) or non-electronic means. The final rule explicitly provides that a finder may act through any means and also clarifies that a finder may perform one, all, or any combination of the permissible finder services described in the rule.

A few commenters contended that the Board should expand the rule to allow a finder to transmit or exchange any type of information between any parties. The final rule authorizes financial holding companies to transmit any type of information between potential parties to a transaction, including information about the buyer and seller and the products and services sought or offered by the buyer or seller, so long as the information is related to the proposed transaction. The Board believes that it is not appropriate to expand this authority to allow a finder to transmit between parties information that is not related to a proposed transaction. Allowing financial holding companies to provide information without limit goes beyond what is necessary to bring transacting parties together and could be interpreted to allow a financial holding company to engage in nonfinancial activities, such as operating a newspaper.

As noted above, the proposed rule included examples of specific services that a finder may provide under the rule. Commenters generally favored the Board's decision to include examples of permissible finder services in the rule but were divided on the issue of whether additional examples of permissible finder services should be provided. A number of commenters requested that the Board modify or clarify certain examples included in the proposed rule, and several commenters requested assurance that the examples included in the rule were not exhaustive.

In light of these comments, the Board has revised and reorganized the examples of permissible finder activities included in the rule to illustrate more fully the breadth of the rule. The examples included in the final rule illustrate that a finder may:

• Host an electronic marketplace Internet web site that provides hypertext or similar links to the web sites of third party buyers or sellers;

• Host the Internet web site of a buyer (or seller) that provides information concerning the buyer (or seller) and the products or services it seeks to buy (or sell) and allows sellers (or buyers) to submit expressions of interest, bids, offers, orders, and confirmations relating to such products or services;

• Host the Internet web site of a government or government agency that provides information concerning the services or benefits made available by the government or government agency, assists persons in completing applications to receive such services or benefits from the government or agency, and allows persons to transmit their applications for services or benefits to the government or agency;

• Operate an Internet web site that allows multiple buyers and sellers to exchange information concerning the products and services that they are willing to purchase or sell, locate potential counterparties for transactions, aggregate orders for goods or services with those made by other parties, and enter into transactions between themselves; and

• Operate a telephone call center that provides permissible finder services.

The rule states that the examples of permissible finder services included in the rule are illustrative and not exclusive. Furthermore, while the Board expects that financial holding companies likely will engage in finder activities through electronic means, such as over the Internet or other electronic networks, a finder may act through any means available so long as the activity complies with the requirements of the rule. Financial holding companies that are uncertain whether a proposed activity is within the scope of the rule may contact Federal Reserve staff to discuss the proposal.

The rule prevents a finder from becoming a principal in the underlying transaction. In particular, a finder may not negotiate for or bind third parties; acquire or take title to, or provide distribution services for, products and services offered or sold through the finder service; or own or operate real property used to manufacture, store, transport, or assemble products offered or sold by a third party.

Several commenters requested that the Board modify or eliminate certain of these limitations. For example, some commenters requested that the Board remove the restrictions on binding parties or negotiating transactions or, alternatively, allow a financial holding company to take such actions within parameters established by the buyer or seller. A few commenters also contended that the Board should allow a finder to acquire an ownership interest in products as a “riskless principal.” In addition, some commenters asked the Board to confirm that the restrictions included in the rule would not prevent a financial holding company from operating an electronic exchange that provides finder services and that automatically matches bids and offers submitted to the exchange, and that these restrictions would not apply to the conduct of financial activities that a financial holding company is authorized to engage in under other provisions of Regulation Y.

The Board has carefully reviewed the limitations included in the proposed rule in light of the comments received. As a general matter, the Board continues to believe that the restrictions included in the proposed rule are appropriate to ensure that a finder acts only as an intermediary in providing finder services and does not otherwise become involved in impermissible commercial activities. The Board recognizes, however, that technological developments in communications, computing, and the Internet have made the intermediary function more important and that further developments in these areas may alter the methods and manner of providing finder services. The Board intends to monitor future developments in technology, the financial services industry, and the market for finder services and to review periodically the limits in the rule to determine whether such limits continue to be necessary or appropriate.

For the foregoing reasons, the final rule continues to provide that a finder may act only as an intermediary and may not bind any buyer or seller to the terms of a specific transaction or negotiate the terms of a specific transaction on behalf of a buyer or seller. In response to comments, the final rule clarifies that these restrictions do not prevent a finder from establishing rules of general applicability governing the use and operation of the finder service. These operating rules may, for example, establish the parameters under which buyers and sellers may submit bids and offers to the finder service and the circumstances under which the finder service will match bids and offers submitted by buyers and sellers. Similarly, the finder may establish rules of general applicability that govern the manner in which buyers and sellers bind themselves to the terms of a specific transaction entered into through the finder service. Under these provisions, a financial holding company may establish and operate an electronic exchange that assists buyers and sellers to locate potential counterparties, matches buyers and sellers that submit bids and offers within specified ranges established by the rules of the exchange, and requires buyers and sellers to accept transactions matched through the exchange.

The proposed rule also stated that the proposal did not prevent a financial holding company from arranging for buyers that use its finder services to receive preferred terms from sellers so long as the terms are not negotiated as part of any individual transaction, are made available to broad categories of customers, and are provided by the seller and not the financial holding company. Commenters generally supported this provision and it is retained in the final rule.

The final rule does not authorize a financial holding company to take title to, or acquire or hold an ownership interest in, any product or service offered or sold through the finder service or provide distribution services for physical products or services offered or sold through such service. In addition, a financial holding company may not own or operate any real or personal property that is used for the purpose of manufacturing, storing, transporting, or assembling physical products offered or sold by third parties, or that serves as a physical location for the physical purchase, sale, or distribution of products or services offered or sold by third parties. These limitations are consistent with the limited role of a finder as an intermediary and distinguish a finder, for example, from a company that owns or operates a physical shopping mall, retail store, a manufacturing plant, a product distribution center, or a transport or trucking company.

The proposed rule did not authorize a financial holding company to engage in any activity that would require the company to register or obtain a license as a real estate agent or broker under applicable law. While some commenters supported this provision, others requested that the Board remove the provision from the rule or amend the rule to only prohibit financial holding companies from engaging in “general” real estate agency or brokerage activities under the rule.

The Board has not to date determined whether real estate agency or brokerage activities are financial in nature or incidental to financial activities and, thus, permissible for financial holding companies. The Board has received a request to determine that real estate agency and brokerage services are financial in nature and separately has requested public comment on a proposal that would find those activities to be financial in nature or incidental to a financial activity. 4 Accordingly, the final rule retains the limitation that prohibits a financial holding company from engaging in activities that require licensing or registration as a real estate broker. 5

As noted above, several commenters were uncertain whether the limits included in the rule applied to or restricted the conduct of other financial activities that a financial holding company is authorized to conduct. The Board confirms that authorization to act as a finder is in addition to, and separate from, the authority that a financial holding company has under other provisions of Regulation Y to conduct other financial activities. The restrictions contained in § 225.86(d)(1)(iii) apply only to the finder activities conducted by a financial holding company under § 225.86(d) of Regulation Y. These limitations do not restrict or otherwise limit the manner in which a financial holding company may conduct other activities that are permissible for a financial holding company, such as securities brokerage, insurance agency, investment advisory, or leasing activities.

In this regard, a financial holding company that acts as a finder for a buyer or seller may also provide the buyer or seller any combination of other services that are permissible under Regulation Y so long as the finder and other services are provided in accordance with any applicable limitations under the rule and Regulation Y. For example, a finder for a merchant may, in addition to acting as finder, make, acquire, broker, or service loans or other extensions of credit to or for the merchant or the merchant's customers; provide the merchant with check verification, check guaranty, collection agency and credit bureau services; provide financial investment advice to the merchant or the merchant's customers within the parameters of Regulation Y; act as a certification authority for digital signatures and thereby authenticate the identity of persons conducting business with the merchant over electronic networks; and process and transmit financial, economic, and banking data on behalf of the merchant, such as by processing the merchant's accounts receivables and debit and credit card transactions, providing the merchant with bill payment and billing services, and processing order, distribution, accounting, settlement, collection and payment information for the merchant's transactions. 6

Furthermore, a financial holding company may market and provide its own financial products and services in conjunction with acting as a finder for buyers and sellers of nonfinancial products and services. For example, a financial holding company may use its finder service to promote the company's own products and services and, in connection with that activity, may negotiate on its own behalf and bind itself to transactions.

The proposed rule required a finder to distinguish the products and services offered by the financial holding company from the products and services offered through the finder service by a third party. A number of commenters supported this disclosure requirement as an appropriate means of limiting potential customer confusion and reputational risk to financial holding companies. Some commenters requested that the Board provide additional guidance, such as sample disclosure clauses, illustrating how a financial holding company could comply with the rule's disclosure requirements.

The final rule continues to require that a finder distinguish the products or services offered by the financial holding company from those offered by a third party through the finder service. Because a financial holding company may act as a finder for third parties through varied technological means and in a wide variety of circumstances, the Board has determined not to identify specific disclosures that must or could be provided by financial holding companies. The Board expects financial holding companies to provide disclosures that, given the medium employed and type of buyers and sellers using the service ( e.g., consumers or corporations), are reasonably designed to ensure that users are not led to believe that the financial holding company is providing the products or services offered or sold by third parties through the finder service. A financial holding company could provide such notice by identifying through appropriate means those products or services that are offered or sold by the financial holding company (with a corresponding notice that all other products or services are provided by third parties), or by identifying those products or services that are offered and sold by third parties and not by the financial holding company. Financial holding companies are encouraged to tailor the content and presentation of their disclosures to suit the specific type of finder service they are providing. The Board intends to monitor the disclosure practices of financial holding companies and may provide additional guidance, such as identifying best practices in this area, as it gains experience with the finder activities of financial holding companies.

In accordance with the Regulatory Flexibility Act, the Board is required to conduct an analysis of the effect this final rule would have on small institutions. The rule authorizes all financial holding companies regardless of their size to engage in a new activity—that of acting as a finder. Moreover, the rule enables such companies to commence the new activity by using the streamlined post-transaction notice procedure authorized by the GLB Act, which is the least burdensome notice procedure available to a financial holding company. This rule therefore should enhance the ability of financial holding companies, including small ones, to compete with other providers of financial services in the United States and to respond to technological and other changes in the marketplace in which financial holding companies compete. Moreover, the comments received by the Board did not indicate that the rule would impose a burden on financial holding companies of any size.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506; 5 CFR 1320 Appendix A.1), the Board reviewed the rule under authority delegated to the Board by the Office of Management and Budget (“OMB”). The Board may not conduct or sponsor, and an organization is not required to respond to, this information collection unless it displays a currently valid OMB control number. The OMB control number is 7100-0292.

A financial holding company may engage in the finder activities authorized by this rule by providing a post-transaction notice in accordance with § 225.87 of Regulation Y. This information is mandatory to evidence compliance with the requirements of the GLB Act and Regulation Y, and the burden of the post-transaction notice requirement was reviewed in connection with the Board's adoption of § 225.87.

In addition, this rule requires a finder to distinguish the products and services offered by the financial holding company from those offered by a third party through the finder service. Provision of such disclosures, although not contained in a submission to the Board, does constitute a collection of paperwork under the Paperwork Reduction Act. Financial holding companies, of which there are approximately 450, are the respondents/recordkeepers. Board staff anticipates that the majority of the burden on financial holding companies will be a one-time burden in the first year a company engages in the finder activity, when the financial holding company must develop a mechanism to distinguish the products and services offered by the financial holding company from those offered by a third party through the finder service. The estimated one-time burden to develop such disclosures is one hour. Although financial holding companies may update their disclosures periodically, this will be a negligible burden on them. It is estimated that there will be 50 financial holding companies required to comply with the post-transaction notice with an average of 1 update per respondent each year. Therefore the total amount of annual burden is estimated to be 50 hours.

Board staff estimates that there would be nominal start up costs associated with modifying the operations of the financial holding company's finder service to provide this notice. Thus, there is estimated to be no annual cost burden over the annual hour burden.

Because the disclosures would be maintained at and provided by financial holding companies and the disclosures are not submitted to the Federal Reserve System, no issue of confidentiality arises under the Freedom of Information Act. The Board has a continuing interest in the public's opinions of its collections of information. At any time, comments regarding the burden estimate, or any other aspect of this collection of information, including suggestions for reducing the burden, may be sent to: Jennifer J. Johnson, Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets, NW., Washington, DC 20551; and to the Office of Management and Budget, Paperwork Reduction Project (7100-0292), Washington, DC 20503.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 97-20-13, Amendment 39-10240 (62 FR 65198), which is applicable to Eurocopter Deutschland Model EC135 P1 and T1 helicopters, was published in the Federal Register on September 18, 2000 (65 FR 56276). That action proposed to require replacing any stator blade assembly, part number (P/N) L 535A4201 052, with a stator blade assembly, P/N L 535A4201 053, that incorporates a reinforced base and modified riveting. That action also proposed limiting the applicability to certain serial numbered tail booms.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that 25 helicopters of U.S. registry will be affected by this AD, that it will take approximately 12 work hours per helicopter to accomplish the required actions, and that the average labor rate is $60 per work hour. The manufacturer states in its service bulletin that parts and labor will be furnished at no cost. Based on that information, there is no cost impact from the AD on U.S. operators.

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 FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 99-24-05, Amendment 39-11429 (64 FR 62973, November 18, 1999), applicable to ECD Model BO-105CB-5 and BO-105CBS-5 helicopters, was published in the Federal Register on March 13, 2000 (65 FR 13251). That action proposed to require establishing a life limit effective January 1, 2001, for the TT straps of 120 months or 25,000 flights, whichever occurs first.

After the issuance of that Notice of Proposed Rulemaking (NPRM), the FAA reevaluated the proposed requirements and determined that establishing a life limit on the TT straps should be accomplished before further flight and not by January 1, 2001, as earlier indicated. The FAA also determined that the graduated inspection criteria and the accompanying TT strap life limits specified in the current AD are no longer necessary if the proposed life limit is established.

Since those changes expanded the scope of the original NPRM, the FAA determined that it was necessary to reopen the comment period to provide additional opportunity for public comment and published a Supplemental NPRM (SNPRM) on September 20, 2000 (65 FR 56817). The SNPRM revised the NPRM by proposing to require that you establish a life limit for certain main rotor TT straps before further flight instead of by January 1, 2001, as indicated in the previous proposal. The SNPRM also proposed removing some of the requirements that were proposed previously.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that 200 helicopters of U.S. registry will be affected by this AD, that it will take approximately 16 work hours per helicopter to accomplish the required actions, and that the average labor rate is $60 per work hour. Required parts will cost approximately $10,400 per helicopter. Based on these figures, the total cost impact of the AD on U.S. operators is estimated to be $2,272,200.

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 .

The FAA requested that comments on the information collection requirements of the Service Difficulty Reporting final rule (65 FR 56191, September 15, 2000) be submitted by November 14, 2000. The FAA has received written comments from the Air Transport Association, American Airlines, Evergreen International Airlines, and Pratt & Whitney, raising questions on some of the SDR reporting requirements and indicating the potential for duplicate reporting of certain failures, malfunctions, and defects.

Also one commentator has requested that the FAA delay the effective date of the final rule until the FAA has resolved these concerns.

The SDR rule, as published, has an effective date of January 16, 2001. The FAA has determined that it will need more time to review the commenter's concerns and to develop and disseminate guidance that will assist the industry in complying with the new rule. Therefore the FAA has delayed the effective date of the final rule until July 16, 2001. The existing rules will remain in effect until the new effective date.

Since this delay of the effective date is not a new requirement and does not impose any additional burden, I find that notice and public procedure thereon are unnecessary and that good cause exists for extending the effective date on less than 30 days notice.

Sec. 151 of the Immigration Act of 1990 (IMMACT 90), Pub. L. 101-649, amended INA 101(a)(27)(C) by adding a new category of special immigrant visas for aliens who will work in a religious occupation or vocation for a religious organization in a professional or other capacity. Unlike the provision for special immigrant ministers of religion, which does not contain a sunset provision, the provisions for religious workers (as defined under INA 101(a)(27)(C)(ii)(II) and (III)), as originally enacted, required religious workers to seek to enter the United States before October 1, 1994.

On October 25, 1994, sec. 214 of the Immigration and Nationality Technical Corrections Act of 1994 (Pub. L. 103-416) amended INA 101(a)(27)(C)(ii) to extend the sunset date to before October 1, 1997.

Sec. 1 of the Religious Workers Act of 1997, Pub. L. 105-54 further extended the deadline for special immigrant religious workers to enter the United States until before October 1, 2000.

On November 1, 2000, the President signed the Religious Workers Act of 2000 (Pub. L. 106-409), extending the program for three additional years through September 30, 2003.

This rule amends 22 CFR 42.32(d)(1)(ii) by changing the date from September 30, 2000 to September 30, 2003 to conform to the statutory requirements of the Religious Workers Act of 2000.

The Department's implementation of this regulation as a final rule is based upon the “good cause” exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). As the amendment to the regulation provides a benefit to aliens by extending the special immigrant religious worker program for an additional three years, the Department has determined that it is unnecessary to publish a proposed rule or to solicit comments from the public. In view of this benefit and since the current validity date has already expired, the rule will be made effective immediately upon publication in the Federal Register .

The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will not result in the expenditure by state, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

The Department of State does not consider this rule, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and the Office of Management and Budget has waived its review process under section 6(a)(3)(A).

This regulation will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule does not impose any new reporting or record-keeping requirements. The information collection requirement (Form OF-156) contained by reference in this rule was previously approved for use by the Office of Management and Budget (OMB) under the Paperwork Reduction Act.

The Bureau finalizes its interim rules on Drug Abuse Treatment Programs (28 CFR part 550, subpart F). These interim rules implemented the Bureau's discretion under Section 32001 of the Violent Crime Control and Law Enforcement Act of 1994 (codified at 18 U.S.C. 3621(e)) to reduce the period of custody for inmates who successfully complete the treatment program.

We published the first interim rule in the Federal Register on May 25, 1995 (60 FR 27692) and we amended it by a second interim rule published on May 17, 1996 (61 FR 25122). We then published a third interim rule on this subject on October 15, 1997 (62 FR 53690). This last interim rule also made conforming amendments to the criteria for possible sentence reduction under the intensive confinement program (28 CFR 524.31(a)(3)).

On September 9, 2000, BOP published at 65 FR 56840 a proposed rule regarding “Drug Abuse Treatment Program”. By that rule, BOP proposes changes to its existing regulations concerning participation in the drug abuse education course and the residential drug abuse treatment program, part of which had been codified by the three earlier interim rules which we finalize in this document. This document, therefore, does not affect comments to the proposed rule document published at 65 FR 56840. We will consider all comments we receive on the proposed rule before we finalize it. This document only discusses comments we received on the three interim final rules we previously published in 1995, 1996 and 1997.

The first interim rule established the procedures which we would use to determine (1) eligibility for early release under 18 U.S.C. 3621(e) and (2) the length of the reduction in sentence.

To conform with the statutory provisions that possible reduction in sentence applies to an inmate convicted of a nonviolent offense, the procedures in our interim final rule stated that an inmate whose current offense falls under the definition in 18 U.S.C. 924(c)(3) of a crime of violence is excluded from early release.

Under section 924(c)(3), a crime of violence means an offsense that is a felony and has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. Staff use information in the Judgment and Commitment Order and the Presentence Investigation Report to determine if the inmate's committed offense meets this definition of crime of violence.

In exercising the Bureau's discretion to reduce a sentence, we also review the inmate's criminal history in the Presentence Investigation Report. We preclude early release for any inmate with an adult prior federal and/or state conviction for homicide, forcible rape, robbery, or aggravated assault. We selected the above categories of crimes, which are reported under the FBI Violent Crime Index, due to the extensive variations in statutes between states.

Inmates in our custody who are not serving a sentence for a federal offense (for example, INS detainees, pretrial inmates, or contractual boarders) are not eligible for early release. An inmate eligible for parole is not eligible for early release by the Bureau; however, information concerning the successful completion of a residential drug abuse treatment program by a parole-eligible inmate will be transmitted to the Parole Commission for consideration of a Superior Program Achievement Award (see 28 CFR 2.60).

Fifteen commenters objected on the grounds that the interim regulations did not extend early release to inmates serving a sentence for a non-parolable offense.

Four commenters objected to using prior convictions as a disqualifying criterion. Two of these commenters requested that if we used prior convictions as a disqualifying criterion, we should limit such use to convictions within the last fifteen years. These commenters stated that the fifteen year time limit was used in the Sentencing Commission Criminal History Category.

Two commenters recommended that inmates who completed or were in Bureau drug abuse treatment programs between the time it became known that Congress was considering the amendment to 18 U.S.C. 3621(e) and the publication of the interim rule be granted consideration regardless of any disqualifying criterion.

These commenters stated that inmate participation in the Bureau's drug abuse treatment program was motivated by the expectation that the inmate would subsequently be eligible for early release. One of these commenters recommended that some offenses should not be included under the prior conviction category, but recommended that others be included.

One commenter, the American Psychiatric Association, agreed that the program was a good idea, but expressed concern about the adequacy of transitional drug treatment programming provided at Bureau institutions. The Bureau's regulations in 28 CFR 550.59(a) required minimum participation of one hour per month for such transitional services. The Association stated that this minimum was probably not of sufficient intensity to facilitate a good outcome and recommended enhanced psychiatric consultation and the availability of a broad array of services. The comment by the American Psychiatric Association on the adequacy of transitional services became the basis for the second interim rule.

We do not have statutory authority under 18 U.S.C. 3621(e) to grant early release to an inmate who is serving a sentence for an offense committed before November 1, 1987 (commonly referred to as an “old-law” sentence).

Section 3621(e) applies to inmates serving sentences determined by Sentencing Guidelines (commonly referred to as “new-law” sentences). Some inmates with “old-law” sentences may be eligible for parole. We provide information concerning a parole-eligible inmate's satisfactory participation in our drug abuse treatment programs to the United States Parole Commission for the Commission's use in making determinations under its own regulations (see 28 CFR 2.60) on an inmate's superior program achievement.

Information regarding prior convictions is in the Presentence Investigation Report (PSI). The PSI is a court document and is subject to review by the defendant and defense counsel. In general, information in the PSI about prior convictions may be limited to the fifteen year period covered in the Sentencing Commission Criminal History Category.

If, however, the PSI contains information on prior convictions beyond the period covered in the Criminal History Category, we believe that we are acting in accordance with Congressional intent when we use the listed prior conviction as a disqualifying criterion.

We do not agree with the contention that inmates who participated in drug abuse treatment before the publication of the first interim rule should be granted early release regardless of disqualifying criteria. We must predicate early release on our implementing regulations. The regulations implement our statutory authority by defining successful completion of the drug abuse treatment program and by qualifying the exercise of the Director's discretion to reduce the sentence.

We issued the regulations as interim rules to extend the early release incentive to eligible inmates as quickly as practicable. Inmates who participate in our drug abuse treatment program clearly benefit from the program's objective of equipping the individual with the cognitive, emotional, and behavior skills necessary to choose and maintain a drug-free and crime-free lifestyle, even if they are not eligible for early release.

We recognize the importance of transitional services in drug treatment programming and agree with the American Psychiatric Association that an enhanced transitional program, such as is available in a community-based program, increases the opportunity for a good outcome. Transitional services offered within the institution are a minimum of one hour per month. Even so, we believe that successful completion of the program must include both the institutional and the community-based component.

While we may be able to increase the availability of certain transitional services at an institution, we cannot duplicate within the institution the environment of community-based transitional services (i.e., the evaluation of the inmate in conditions where the inmate is reintegrating into the community).

We therefore further amended the interim regulations to require that early release be contingent upon the inmate's completion of transitional services in a community-based program (i.e., in a Community Corrections Center or on home confinement).

One result of the revision was that an inmate who we do not place in community-based programs because of community safety or custodial considerations would not be eligible for early release. The Warden, in her/his professional discretion, decides whether to place an inmate in a community corrections center. The Warden makes the decision based on factors such as the presence of a detainer or the possibility that the inmate's placement in a community-based program would pose a danger to the public.

In implementing the second interim rule, we chose to waive the new requirement with respect to inmates with a detainer participating in the drug abuse treatment program on or before August 17, 1995. These inmates could therefore complete transitional services within the institution before being turned over to the detaining authority.

We received three comments on the second interim rule. One commenter agreed with the change being made, but objected to excluding inmates serving a sentence for a non-parolable offense.

Another commenter objected to any exclusion, stating that exclusions were not authorized under 18 U.S.C. 3621(e).

A third commenter objected on the grounds that the statute did not require transitional services. This commenter argued that we moved beyond the intent of Congress in a number of ways.

The commenter objected to the program's name (drug abuse treatment program), stating that it was offensive and contrary to the clear wording of Congress (substance abuse treatment program). The commenter argued that the statute provides for aftercare services when the participant leaves the custody of the Bureau of Prisons rather than for transitional services. The commenter maintained that requiring transitional services delayed or limited possible sentence reductions and consequently resulted in greater costs to the government. The commenter also maintained that variations in individual sentences resulted in inconsistent benefits to eligible inmates.

In June 2000, the American Psychiatric Association submitted a clarification to its original comment. In this clarification, the Association agrees with the Bureau's contention that it cannot duplicate within a prison institution the environment of community-based transitional services.

The Association, however, does think that transitional services can be established within a prison setting that can improve the outcome related to successful completion of a residential drug treatment program. The Association believes that this can be done by increasing the minimum requirement for transitional services within the institution from the original minimum of one hour per month. The Association does not mean to present an either/or choice of one hour per month within the institution or full participation in the community-based program.

The Association recommends that the rule be reviewed with respect to the importance of providing substance abuse treatment to prisoners requiring external incentives for participation.

As noted above in the response to the first interim rule, we do not have statutory authority under 18 U.S.C. 3621(e) to grant early release to an inmate who is serving a sentence for an offense committed before November 1, 1987 (commonly referred to as an “old-law” sentence).

We disagree with the assertion that 18 U.S.C. 3621(e) does not allow for exclusions. By statute, the Director of the Bureau is responsible for determining what constitutes successful completion of the program and for making the decision to reduce the period of custody. The interim rules established procedures, including qualifying criteria, for these purposes.

As for the concerns raised by the third commenter, we wish to emphasize the significance of the nomenclature change with respect to the basis for the transitional services requirement. We have statutory authority under 18 U.S.C. 3621(b) to place inmates in community-based programs such as a community corrections center. Such inmates are technically still in the custody of the Bureau. Furthermore, because the transitional services component is critical to the success of the treatment, successful completion of the “residential substance abuse treatment” program as determined by the Director of the Bureau of Prisons, per 18 U.S.C. 3621(e)(2)(A), includes both the unit-based program and the following transitional services component.

The provisions pertaining to “aftercare” in the statute are separate. Transitional services in a community-based program are an essential component of the residential substance abuse program envisioned by the statute. As for questions of cost, we do not believe that reducing costs for the government outweighs our responsibility to protect the public.

Finally, inconsistent results cited by the third commenter largely depend upon the circumstances of inmates present at the initial implementation of the interim regulations. In summary, our regulations represent our judgment as to successful completion of the program and the subsequent discretionary granting of a reduction of the time an inmate remains in custody.

As for the clarification by the American Psychiatric Association, we do not believe that it is practicable to enhance transitional services within the institution sufficiently to ensure the intended results. We acknowledge the importance of providing incentives to inmates to participate in drug abuse treatment program. To this purpose, the Bureau published a separate proposed rulemaking in the Federal Register (published in proposed form on September 20, 2000 at 65 FR 56840) to address incentives for inmates who would not receive an early release benefit.

The first interim rule attempted to define the term “crime of violence” pursuant to 18 U.S.C. 924(c)(3). Due to varying interpretations of the regulation and caselaw, the Bureau could not apply the regulation in a uniform and consistent manner.

The third interim rule sought to resolve this complication. In the third interim rule, we used the discretion allotted to the Director for granting a sentence reduction to exclude inmates whose current offense is a felony (a) that has as an element, the actual, attempted, or threatened use of physical force against the person or property of another, or (b) that involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device), or (c) that by its nature or conduct, presents a serious potential risk of physical force against the person or property of another, or (d) that by its nature or conduct involves sexual abuse offenses committed upon children. Thus, even as the Bureau concedes that offenses related to this regulation are “non-violent” offenses, the implementing statute does not mandate that all “non-violent” offenders must receive an early release. The statute merely indicates that the sentence may be reduced by the Bureau of Prisons.

As a conforming amendment, the third interim rule correspondingly revised the criteria for possible sentence reduction under the intensive confinement center program (28 CFR 524.31(a)(3)).

In the third interim rule, we also addressed the Community Corrections Regional Administrator's authority under section 550.58(c)(3) to disallow any portion of the maximum 12 month reduction for an inmate in a community-based program due to a disciplinary finding or due to program needs (for example, the inmate has not established an adequate release plan).

We received comments from approximately 150 individuals and organizations. One hundred thirty-eight individuals submitted identical comments. These commenters stated that we were using sentencing factors to label non-violent inmates as violent offenders rather than relying only on the offense of conviction.

These commenters urged that the courts should determine whether an offense was violent. The commenters also argued that inmates were being subjected to double jeopardy because an element used in the court's determination of sentence (for example, a gun enhancement) was also being used to exclude the inmates from the early release benefit.

Five other commenters objected to the requirement that transitional services must be provided in a community-based program, stating that this discriminated against aliens with INS detainers. These commenters asserted that denying the early release benefit resulted in excessive costs to the government. One of these commenters recommended that transitional services be offered in the institution, noting that the terms of an INS detainer are not intended to affect classification, work, quarters assignments, or other treatment an inmate would otherwise receive.

One commenter objected to the rulemaking on the grounds that differing circuit court decisions had resulted in inconsistent application of the policy.

Two commenters objected to the words “attempted” and “threatened” in the early release criteria (§ 550.58(a)(1)(vi)(A)). These commenters further contended that intimidation should not be considered a violent offense.

One commenter objected, arguing that the rule was an arbitrary expansion of reasonable discretion, and that we were usurping the authority and good judgment of the courts and the legislative powers of Congress. This commenter asserted that any determination of conduct indicative of a violent offense was a matter of fact for the jury's consideration.

The commenter also maintained that our discretion was directed to the proper operation of prisons and not to the determination of the length of sentences for those inmates who successfully complete the program; that Presentence Investigation Reports were for the court's use only; that possession of a weapon or involvement in a conspiracy were not violent crimes; that the program did have an economic impact because it was specially funded by Congress; that the intent of the rule was not rehabilitative, and that the Bureau refused to execute the plain meaning of the statute.

A Public Defender's Office submitted comments stating that the regulations unduly restricted eligibility for a remedial program by inappropriately expanding the class of convictions deemed violent, by excluding prisoners with previous convictions for violent crimes, and by excluding all prisoners who were not eligible to participate in community-based programs (for example, inmates with INS detainers who would be unable to receive transitional services in a community corrections center).

The National Association of Criminal Defense Lawyers and Families Against Mandatory Minimums jointly submitted their comments. These commenters expressed their support for our stated commitment to provide drug abuse treatment services to all inmates with a documented need and/or interest. In keeping with this goal, they argued that the early release incentive should be made available to the broadest population consistent with the statute. They maintained that both the statutory language and the legislative history show that Congress intended broader application than the rule allows. They objected to the use of prior convictions and to felonies being excluded under the Director's discretion (550.58(a)(1)(vi)). They argued that some prior convictions (for example, foreign convictions) were unreliable, that prior convictions are not necessarily predictive.

No comments specifically addressed the conforming changes to the eligibility criteria for the intensive confinement center or for the authority of the Community Corrections Regional Administrator.

As noted in the preamble of the third interim rule, we excluded inmates with certain felonies from receiving the early release incentive not because the offense is a “crime of violence,” but as an exercise of the Director's discretion. Thus, we are no longer classifying these offenses as a “crime of violence.”

We disagree with the assertion that our regulations raise the issue of double jeopardy. Our regulations do not impact the determination of the sentence or seek to impose an additional penalty, but instead pertain to the separate question of how we convey the sentence reduction incentive.

As noted in the response to the second interim rule, we believe that a residential treatment program requires participation in a community-based setting. Therefore, inmates who are not eligible to be placed in a community-based program (for example, inmates with INS detainers) are not eligible for early release.

As noted above, we do not believe that reducing costs for the government outweighs our responsibility to protect the public. Furthermore, while a detainer does not generally effect classification, work, quarters assignments, etc., due to concerns of a flight risk and community safety, detainers are always considered when deciding whether to place an inmate in the community.

As for the concerns raised over the effects of differing circuit court decisions, by implementing the third interim rule, we tried to address the concerns raised by various circuit courts of appeals. Thus, the previous caselaw did not address the revised interpretation of the statute. Accordingly, the Bureau again had a uniform national policy. As courts interpreted the new rule, there again arose a split in circuit court decisions which ultimately, of course, can only be resolved by the Supreme Court.

We disagree with the assertion that our rules are an arbitrary expansion of reasonable discretion and that they usurp the authority and good judgment of the courts and the legislative powers of Congress. Upon successful completion of the program, the statute notes only two conditions which the Bureau cannot breach: first, the early release incentive is available only to “non-violent” offenders; second, the incentive may not exceed one year. Congress imposed no other restrictions on the manner in which the incentive is granted. Specifically, Congress did not mandate that all eligible inmates must receive the early release incentive. The reduction in sentence is an incentive to be exercised at the discretion of the Bureau of Prisons.

The assertion that the interim rules have an economic impact because the program is specially funded is without merit. Our regulations have no direct impact on small businesses.

We also take issue with assertions that the regulations intent is not rehabilitative or that they unduly restrict eligibility for a remedial program. Our drug abuse treatment program is open to all inmates with a documented need and interest in the program. The restrictions in question pertain to the conveyance of a separate incentive at our discretion. As noted above, we instituted a separate rulemaking to establish further participation incentives for inmates who are not eligible for early release.

Accordingly, upon due consideration of the comments received, we finalize the three interim rules without change.

The Office of Management and Budget (OMB) determined that certain rules are part of a category of actions which are not “significant regulatory actions” under section 3(f) of Executive Order 12866. Because this rule falls within that category, OMB did not review it.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Under Executive order 13132, this rule does not have sufficient federalism implications for which we would prepare a Federalism Assessment.

The Director of the Bureau of Prisons, under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation. By approving it, the Director certifies that it will not have a significant economic impact upon a substantial number of small entities because: This rule is about the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds.

This rule will not cause State, local and tribal governments, or the private sector, to spend $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. We do not need to take action under the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

We want to make Bureau documents easier to read and understand. If you can suggest how to improve the clarity of these regulations, call or write to Sarah Qureshi at the address or telephone number listed above.

This document is available as an electronic file on The Federal Bulletin Board the day of publication in the Federal Register . By modem, dial 202/512-1387 and type “/GO FAC,” or call 202/512-1530 for disk or paper copies. This file is available for downloading without charge in ASCII and Adobe Acrobat® readable (*.PDF) formats. For Internet access, the address for use with the World Wide Web (Home Page), Telnet, or FTP protocol is: fedbbs.access.gpo.gov. This document and additional information concerning the programs of the Office of Foreign Assets Control are available for downloading from the Office's Internet Home Page: http://www.treas.gov/ofac, or in fax form through the Office's 24-hour fax-on-demand service: call 202/622-0077 using a fax machine, fax modem, or (within the United States) a touch-tone telephone.

Appendix A to 31 CFR chapter V contains the names of blocked persons, specially designated nationals, specially designated terrorists, foreign terrorist organizations, and specially designated narcotics traffickers designated pursuant to the various economic sanctions programs administered by the Office of Foreign Assets Control (“OFAC”). Pursuant to Executive Order 12978 of October 21, 1995, “Blocking Assets and Prohibiting Transactions with Significant Narcotics Traffickers” (the “Order”) and § 536.312 of the Narcotics Trafficking Sanctions Regulations, 31 CFR part 536 (the “Regulations”), the following 8 individuals and 8 entities are added to appendix A as persons who have been determined to play a significant role in international narcotics trafficking centered in Colombia, to materially assist in or provide financial support or technological support for, or goods or services in support of other specially designated narcotics traffickers, or to be owned or controlled by, or to act for or on behalf of, persons designated in or pursuant to the Order (collectively “Specially Designated Narcotics Traffickers” or “SDNTs”). All real and personal property in which the SDNTs have any interest, including but not limited to all accounts, that are or come within the United States or that are or come within the possession or control of U.S. persons, including their overseas branches, are blocked. All transactions by U.S. persons or within the United States in property or interests in property of SDNTs are prohibited unless licensed by the Office of Foreign Assets Control or exempted by statute. Supplementary information is added to existing SDNT entries for 16 individuals and those entries are revised in their entirety.

Designations of foreign persons blocked pursuant to the Order are effective upon the date of determination by the Director of the Office of Foreign Assets Control, acting under authority delegated by the Secretary of the Treasury. Public notice of blocking is effective upon the date of filing with the Federal Register , or upon prior actual notice.

Because the Regulations involve a foreign affairs function, Executive Order 12866 and the provisions of the Administrative Procedure Act (5 U.S.C. 553), requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date, are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.

Title XI of the Balanced Budget Act of 1997, Public Law 105-33, 111 Stat. 251, 712-731, 756-759, enacted August 5, 1997, as amended by the Omnibus Consolidated and Emergency Supplemental Appropriations Act for Fiscal Year 1999, Public Law 105-277, 112 Stat. 2681, 2681-530 through 538, 2681-552, transferred certain unfunded pension liabilities from the District government to the Federal Government. The Act requires the Federal Government to assume responsibility for payment of certain benefits that accrued on or before June 30, 1997, under the retirement plans for District teachers (Teachers Plan), police and firefighters (Police and Firefighters Plan), and for past and future benefits under the retirement plan for judges (Judges Plan). The Act also required the District government to establish replacement retirement plans that will provide retirement benefits for service after June 30, 1997, for current and future teachers, police, and firefighters.

The interim regulations implement sections 11021(1) and (2) of the Act and section 11-1570(c)(2)(A) of the D.C. Code, as amended by section 11251 of the Act. These statutes provide for, among other things, the determination of eligibility for and the amount and form of Federal Benefit Payments.

The interim regulations also implement section 11022 of the Act, which provides for the right to appeal denials of Federal Benefit Payments, in whole or in part, under the Teachers Plan and the Police and Firefighters Plan. No parallel provision in the Act or the D.C. Code exists with respect to appeal rights under the Judges Plan. To ensure uniform treatment of participants in the three plans, and in accordance with principles of fundamental fairness, the interim regulations with respect to appeal procedures shall also apply to the Judges Plan.

The interim regulations are based on the Office of Personnel Management (OPM) regulations for Civil Service Retirement with respect to similar functions. See 5 CFR 831.109-831.110. In general, the Treasury Department intends these regulations to have the same general effect as the corresponding OPM regulations.

Minor changes from the OPM regulations were necessary because of differences in the programs being administered. Under sections 8347(d) and 8461(e) of title 5 of the United States Code, OPM's retirement decisions are subject to administrative review by the Merit Systems Protection Board and the judicial review process begins in the United States Court of Appeals. Under section 11022 of the Act, a claimant whose claim for a Federal Benefit Payment has been denied (in whole or part) shall have a reasonable opportunity for a full and fair review of the decision denying such claim. The Act also vests the United States District Court for the District of Columbia with exclusive jurisdiction and venue for civil actions brought by participants or beneficiaries pursuant to the Act.

The Act provides in sections 11035(a) and (b) for the selection of a Trustee to administer the Department's responsibilities for the District retirement programs under the Act, including determining eligibility for and amount of Federal Benefit Payments. Subsection (c) of section 11035 authorizes the Trustee to subcontract with the District government or any person to provide services to the Trustee in connection with the Trustee's performance of its contract with the Department. Subsection (d) of section 11035 authorizes the Secretary to perform any function of the Trustee if the Secretary determines that, in the interest of economy and efficiency, the Secretary rather than the Trustee should perform such function. Until such time as the Secretary notifies the District that the Trustee has been directed to carry out the duties and responsibilities required under the contract or determines that the Department shall carry out those functions, section 11041(a) of the Act requires the District to continue to discharge its duties with respect to making Federal Benefit Payments. Because the District is currently making Federal Benefit determinations under section 11041(a) of the Act, and it is likely that such determinations will be made in the future by the Trustee, a subcontractor of the Trustee, or another agent of the Department, the regulations use the term “Benefits Administrator” throughout this subpart to denote the entity making Federal Benefit determinations. It should be noted, however, that the Department potentially may be the “Benefits Administrator” for the purpose of this subpart.

Subpart D establishes procedures for claims processing and appeals. All claims for Federal Benefit Payments must be filed in writing with the Benefits Administrator. The Benefits Administrator will be responsible for processing claims through the reconsideration-decision stage. The Department will decide appeals of the Benefits Administrator's reconsideration decisions if it receives a timely request to do so. Judicial review of the Department's final decision is available in the United States District Court for the District of Columbia, which has exclusive jurisdiction and venue over such appeals under section 11072 of the Act.

Pursuant to section 553(b)(3)(B) of title 5, United States Code, it has been determined that good cause exists for waiving a general notice of proposed rulemaking for this rule. Overpayments of Federal Benefit Payments must be corrected expeditiously to protect and maintain the integrity of the Trust Funds from which Federal Benefit Payments are made. Delaying implementation of these regulations could forestall efforts to correct overpayments promptly. Moreover, beneficiaries whose Federal Benefit Payments have been denied or reduced need the clear procedures provided in this rule for seeking review of such decisions. Delaying implementation of these provisions would be contrary to the public interest.

Because this interim rule is not a significant regulatory action for purposes E.O. 12866, a regulatory assessment is not required.

Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply. Moreover, the regulation will only affect the determination of the Federal portion of retirement benefits to certain former employees of the District of Columbia.

The Office published a final rule in the Federal Register of September 8, 2000 (65 FR 54604), entitled “Changes to Implement Patent Business Goals,” and a correction notice in the Federal Register of December 18, 2000 (65 FR 78958) correcting errors in the final rule. The correction notice inadvertently indicated that the processing fee for correcting inventorship in a patent under 37 CFR 1.324 is $55.00. The processing fee for correcting inventorship in a patent under § 1.324 is actually $130.00.

In rule FR Doc. 00-31958, published on December 18, 2000 (65 FR 78958), and in 37 CFR Part 1 make the following corrections:

Docket. The docket is an organized and complete file of all the information considered by the EPA in the development of this rulemaking. The docket is a dynamic file because material is added throughout the rulemaking process. The docketing system is intended to allow members of the public and industries involved to readily identify and locate documents so that they can effectively participate in the rulemaking process. Along with the proposed and promulgated standards and their preambles, the contents of the docket will serve as the record in the case of judicial review. (See section 307(d)(7)(A) of the Clean Air Act (CAA).) The regulatory text and other materials related to this rulemaking are available for review in the docket, or copies may be mailed on request from the Air Docket by calling (202) 260-7548. A reasonable fee may be charged for copying docket materials. World Wide Web (WWW). In addition to being available in the docket, an electronic copy of today's amendments will be available on the WWW through the Technology Transfer Network (TTN). Following signature, we will post a copy of these amendments on the TTN's policy and guidance page for newly proposed or promulgated rules http://www.epa.gov/ttn/oarpg. The TTN provides information and technology exchange in various areas of air pollution control. Also, a separate page on the TTN provides all the proposal and promulgation notices, support documents, and implementation information for the 1998 Pulp and Paper NESHAP http://www.epa.gov/ttn/uatw/pulp/pulppg.html. If you need more information regarding the TTN, call the TTN HELP line at (919) 541-5384.

Judicial Review. The EPA proposed these amendments to the 1998 Pulp and Paper NESHAP on January 25, 2000 (65 FR 3907). This final rule adopting the amendments constitutes final administrative action concerning that proposal. Under section 307(b)(1) of the CAA, judicial review of final rules is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by February 20, 2001. Under section 307(b)(2) of the CAA, the requirements established by today's final rule may not be challenged later in civil or criminal proceeding brought by the EPA to enforce these requirements.

Regulated Entities. Entities potentially regulated by this action include:

This list is not intended to be exhaustive. It provides a guide regarding the types of entities that we expect to regulate by this action. To determine whether this action would regulate your facility, you must carefully examine the applicability criteria in § 63.440 of the final rule. If you have questions regarding the applicability of this action to a particular situation or questions about compliance approaches, permitting, enforcement, and rule determinations, please contact the local or State air pollution control agency who has permitting authority for your facility. If you are unsure of who has the permitting authority or need additional assistance, you should contact the appropriate EPA regional office below.

Outline. The information presented in this preamble is organized as follows:

The EPA promulgated the 1998 Pulp and Paper NESHAP on April 15, 1998 (63 FR 18504), with subsequent amendments for corrections, clarifications, and to provide technical amendments.

On January 25, 2000 (65 FR 3907), we proposed amendments to the 1998 Pulp and Paper NESHAP to revise the compliance demonstration procedures for combustion devices used to control pulping vent gases and for biological treatment systems used to treat pulping condensates, and to correct minor drafting errors. The proposed amendment regarding the pulping vent combustion devices removed the requirement, in some cases, to conduct an initial performance test or to continuously monitor the temperature of the control device. Briefly, the proposed amendments for biological treatment systems: Added an alternative emission standard (minimum HAP or methanol mass removal), specified a finite list of HAP (instead of total HAP) for use in demonstrating compliance, allowed for determination of site-specific monitoring parameters, and added testing and monitoring procedures for biological treatment systems that do not meet the criteria for a “thoroughly mixed” system.

In response to the January 25, 2000 proposed amendments, we received four public comment letters from industry representatives. In developing today's final rule amendments, we considered public comment where appropriate, and we are revising the compliance demonstration procedures for combustion devices used to control pulping vent gases; revising the standards, monitoring requirements, and test methods and procedures for biological treatment systems; and correcting minor drafting errors. We are also specifying that downtime due to routine maintenance of pulping process vent control devices is included in the excess emissions allowances. Although maintenance downtime was not part of the January 25, 2000 proposed amendments, we are using this notice to clarify our intent.

In today's final rule, we are promulgating the following amendments to the 1998 Pulp and Paper NESHAP and clarifying the downtime provision for pulping vent control devices. We are amending:

• The standards for the pulping system at kraft, soda, and semi-chemical processes (§ 63.443(d)(4)) to remove the requirement, in some cases, to conduct an initial performance test or to continuously monitor the temperature of the pulping vent control device.

• The standards for kraft pulping process condensates to add mass emissions standards for biological treatment provisions (§ 63.446(e)(2)) and to refer to the procedure for measuring total HAP in § 63.457(g).

• The standards for kraft pulping process condensates (§ 63.446(i)) to add a reference to the minimum mass condensate collection option (§ 63.446(c)(3)) and to correct a minor drafting error.

• The open biological treatment system monitoring requirements (§ 63.453(j)) to allow for site-specific monitoring parameters and to clarify the quarterly performance test procedures.

• The monitoring requirements section (§ 63.453(n)) to include the reference to the site-specific biological treatment system monitoring parameters and to correct a minor drafting error.

• The open biological treatment system monitoring requirements (§ 63.453(p)) to revise the procedures for conducting the optional performance tests and clarify the timing of corrective actions taken during monitoring parameter excursions.

• § 63.454 to address recordkeeping requirements for documenting unsafe sampling conditions and the results of optional performance tests conducted in response to monitoring parameter excursions, and add corresponding reference.

• The reporting requirements section (§ 63.455(e)) to add performance testing notification requirements to be used if open biological treatment system performance test results are used to revise approved monitoring values or ranges.

• The test methods and procedures section (§ 63.457(c)(1)) to correct the reference to the liquid sampling procedures.

• The test methods and procedures section (§ 63.457(c)(4)) to add the word “open” before “biological treatment system.”

• The test methods and procedures section (§ 63.457(c)(5) and (6)) to specify the procedures for determining the minimum measurement level of HAP for a given test method.

• The test methods and procedures section (§ 63.457(g)) to specify the measurement of only four HAP for biological treatment systems.

• The test methods and procedures for open biological treatment systems (§ 63.457(l)) to remove the total HAP percent reduction procedure, to add the methanol percent reduction and mass removal procedures, to add an equation for determining the ratio of nonmethanol HAP to methanol, to add clarity to the purpose of the requirements, and to correct minor drafting errors.

• The test methods and procedures for open biological treatment systems (§ 63.457(m)) to correct references.

• The test methods and procedures for open biological treatment systems (§ 63.457(n)) to add the word “open” to the paragraph title and to correct minor drafting errors.

• The delegation of authority section (§ 63.458(b)(5)) to add a reference to the procedure for determining the minimum measurement level of HAP.

• To add monitoring procedures (appendix E) for biological treatment systems when more detailed sampling is unsafe.

• The table in part 9 that includes the currently approved information request control numbers to add the 1998 Pulp and Paper NESHAP information collection requirements.

Generally, the comments were supportive of the proposed amendments, and we have not summarized those positive comments. We received no adverse comments regarding the proposed amendment for pulping vent combustion devices; therefore, the amendment is being promulgated as proposed. Below is an overview of the major issues raised by commenters and our responses. A complete summary of major comments and responses is available in the docket and on the WWW. The ADDRESSES and SUPPLEMENTARY INFORMATION sections of this preamble contain detailed information on the docket and WWW.

The major public comments we received suggested changes and clarifications to the proposed amendments for the standards, monitoring requirements, and test methods for biological treatment systems.

Individual HAP procedure . We proposed a procedure (the “individual HAP procedure”) that can be used to demonstrate compliance of biological treatment systems on an individual HAP basis (either percent reduction or mass removal). The procedure was proposed as an alternative to demonstrating compliance by measuring total HAP. To use the procedure, you must measure the mass of the individual HAP entering and exiting the biological treatment system.

The comments stated that the proposed procedure is not viable because the outlet concentrations of the nonmethanol HAP will be below the detection limit of the test methods specified in the 1998 Pulp and Paper NESHAP. We agree with the commenter that the proposed individual HAP procedure is not viable due to lack of adequate test methods. Therefore, we are withdrawing the proposed individual HAP procedure and its associated test methods (§ 63.446(e)(2)(i) and § 63.457(l)(1) and (2) of the proposed amendments).

Minimum measurement level procedure . We proposed amendments to the test methods and procedures section (§ 63.457(c)) that added two alternative procedures for determining the minimum measurement level (MML) of specific HAP in pulping process condensate streams. The comments received stated that several clarifications and corrections to the proposed procedures were needed. We agree with the suggested clarifications and corrections, and we have revised the 1998 Pulp and Paper NESHAP accordingly.

Methanol procedure for biological treatment systems . We proposed a procedure (the “methanol procedure”) that can be used as an alternative to demonstrating compliance of biological treatment systems on an individual HAP basis. As part of the methanol procedure, you are required to measure the ratio of nonmethanol HAP (acetaldehyde, methyl ethyl ketone, and propionaldehyde) mass to methanol mass. The value of this ratio is designated in the proposed amendments as “r.” The 1998 Pulp and Paper NESHAP require total HAP measurements on a quarterly basis. We requested comments and data to determine if quarterly testing for total HAP is still warranted, or if testing for total HAP annually is adequate.

The comments received stated that an annual measurement of “r” is sufficient since the value of “r” is very low and the corresponding impact on the mass removal determinations will be small. We agree with the commenter that an annual measurement of “r” is sufficient. Therefore, we are revising the biological treatment system monitoring requirements (§ 63.453(j)(3)(ii)) to specify that the value of “r” must be determined only during the first-quarter test of each year.

Quarterly performance tests versus initial performance tests . We proposed adding a mass removal option for biological treatment systems in addition to the percent reduction standard already contained in the 1998 Pulp and Paper NESHAP. We also proposed to amend the quarterly testing and compliance monitoring requirements to make conforming revisions by replacing the term “percent reduction tests” with “performance test” or “compliance test.”

The comments received stated that the EPA should clarify that the requirements for the quarterly tests are less extensive than for the initial performance test since the quarterly tests are part of the monitoring requirements. We disagree with the comments, and we are making text changes to the quarterly testing requirements and the reporting requirements to use consistent language.

Condensate variability . We received several comments stating that the performance test and continuous monitoring procedures for the condensate collection and treatment requirements should account for inherent hour-to-hour and day-to-day variability in the amount of methanol generated in the regulated condensates. Based on the data being collected for industry condensate characterization studies, the comments stated that there is significant variability over all time scales, and the causes of methanol variability are beyond the control of the mill operator. Consequently, there is a chance that the amount of methanol collected and sent to treatment on a short-term basis can be less than that required by the standards and can lead to noncompliance, even though the pulping processes and controls are operating normally.

We agree that condensate variability is a concern in both the initial and continuous compliance demonstrations. Variability is particularly a concern for the mass removal option where compliance is based on an amount of mass collected and the performance of the control device or system.

Some comments recommended that because of the variability of methanol in condensate streams, the rule should be revised to clarify that long-term averages are necessary for demonstrating initial and continuous compliance with the condensate collection standards. While we agree that variability should be considered in establishing appropriate averaging periods, the 1998 Pulp and Paper NESHAP already provide you with flexibility in establishing the appropriate averaging periods for demonstrating initial compliance and conducting continuous compliance monitoring. Consequently, we are not changing the 1998 Pulp and Paper NESHAP text to address this issue.

We proposed mass removal standards, expressed as either individual HAP or methanol, for biological treatment systems as an alternative to the percent reduction standards. Compliance with a mass removal standard requires that the inlet HAP (methanol) mass and the performance of the treatment device be measured over the same time period. The comments recommended that the rule be revised to consider variability of inlet mass concentrations during performance tests of condensate treatment devices (i.e., steam strippers and biological treatment systems). To address short-term variability in condensates on the day the performance test is conducted, these comments recommended that the mass in condensates be based on long-term averages established prior to the date of the test.

We disagree with the comments that the mass in condensates be based on data established prior to the date of the treatment system performance test. The performance test for the treatment standard must be based on actual test data of the inlet HAP (or methanol) mass and the treatment device performance on the same time basis. However, we agree with the comments that the proposed rule amendments did not adequately account for variability during optional tests to confirm the performance of biological treatment systems during parameter excursions. Today's final rule amendments, therefore, provide some additional flexibility in conducting these tests.

Procedures for responding to parameter excursions in biological treatment systems . We proposed a modeling procedure (appendix E of 40 CFR part 63) to use during unsafe sampling conditions. The procedure would be used whenever a parameter excursion occurs during an event when it is too dangerous, hazardous, or otherwise unsafe for personnel to collect samples from an open nonthoroughly mixed biological treatment system. The procedure would be used to satisfy the daily monitoring requirements until such time as a full performance test can be conducted under safe conditions.

The comments received stated that a conflict exists between the timing of the modeling procedure and the subsequent performance test, and on initiating steps to end the parameter excursion. We are revising the monitoring requirements of the rule to clarify the timing of the modeling procedure, the performance test, and implementation of corrective actions; however, the intent of the 1998 Pulp and Paper NESHAP remains unchanged since we believe that there is no conflict in this rule requirement.

Monitoring procedures for biological treatment systems during unsafe conditions . We proposed a modeling procedure (appendix E of 40 CFR part 63) for monitoring open biological treatment systems that can be used when unsafe conditions exist in the system that would prevent personnel from conducting the sampling necessary to conduct a full performance test. The comments suggested several clarifications and corrections to the proposed modeling procedure. We agree that clarifications are needed in some of the cases identified by the commenter, and these clarifications have been added.

Performance test notifications . We proposed that the notification period for certain compliance monitoring testing be reduced from 60 days, as required by the 1998 Pulp and Paper NESHAP general provisions (§ 63.7(b)), to 15 days. This shortened notification period would be used if a mill intends to revise the allowable monitoring parameter ranges or values using data recorded during any valid subsequent performance tests required in the monitoring requirements section of the 1998 Pulp and Paper NESHAP. We received comments stating that the 15-day period was too long, and that same day notification should be allowed. We disagree with the comments, and we believe the length of the notification period (15 days) is appropriate. Consequently, the 15-day notification change is being made to the 1998 Pulp and Paper NESHAP as proposed.

Drafting errors and clarifications . We proposed several corrections to minor drafting errors identified following promulgation of the 1998 Pulp and Paper NESHAP. No comments were received regarding those proposed corrections. Therefore, the amendments for the corrections and minor drafting errors are being published as proposed. However, below are some additional corrections found since these amendments were proposed on January 25, 2000.

In the April 12, 1999 final rule interpretation and technical amendments, we inserted a new test procedure into the middle of a list of other procedures. One of those other procedures is cross referenced in another section of the rule, and we did not change the cross reference text. In today's final rule amendments, we are correcting that error by changing the cross referenced procedure text in § 63.458(b)(4), from § 63.457(c)(3)(ii) to its new location in § 63.457(c)(3)(iii). Additionally, commenters identified a drafting error in the original rule text published on April 15, 1998. We are correcting the error by changing the cross referenced text in the standards for condensate closed collection systems (§ 63.446(d)(1)), from § 63.962(b)(3)(ii)(B)( 5 )( iii ) to its correct location in § 63.962(b)( 5 )(iii).

In the January 25, 2000 proposed amendments notice, we proposed several amendments to the standards (§ 63.446(e)(2)), monitoring requirements (§ 63.453(j)), and test methods and procedures (§ 63.457(l)) used for biological treatment system. These proposed amendments allow you to comply with a percent reduction or mass removal standard using individual HAP or using methanol under certain conditions. In these proposed amendments, the following drafting errors and corrections were identified by commenters:

• The quarterly testing requirements in § 63.453(j)(3(i) contain incorrect language from the 1998 Pulp and Paper NESHAP and references to the condensate standards,

• An incorrect variable was used in the proposed amendments (§ 63.457(l)) to the test methods and procedures section, and

• The definition of “r” (the ratio of nonmethanol HAP to methanol) and the equation to determine “r” was not included in the proposed amendments (§ 63.457(l)(3) and

(4) to the test methods and procedures section. We agree with each of the drafting errors identified by the commenters, and we are revising the rule accordingly.

Control device downtime due to scheduled maintenance. In today's final rule amendments, we are clarifying that downtime associated with routine maintenance of control devices used to reduce emissions of HAP from pulping process vents is included in the excess emissions allowances. Following promulgation of the 1998 Pulp and Paper NESHAP, we received comments stating that routine maintenance of control devices should be included in the excess emission allowances, since this category of outages is not covered under the startup, shutdown, and malfunction provisions.

In the 1998 Pulp and Paper NESHAP, the excess emission allowances include periods when the control device is inoperable and when the operating parameter values established during the initial performance test cannot be maintained at the appropriate level. However, in the promulgation preamble (63 FR 18529-18530), we specifically stated that excess emission allowances did not include scheduled maintenance activities. When the 1998 Pulp and Paper NESHAP was promulgated, the EPA was considering revisions to the NESHAP general provisions that would address downtime associated with scheduled maintenance. Those revisions have not been made. Therefore, in today's final rule amendments, we are clarifying that excess emission allowances for pulping vent control devices (§ 63.443(e)) can include downtime due to scheduled maintenance activities.

This final rule amends the table of currently approved ICR control numbers issued by OMB. This final rule updates the table to list those 1998 Pulp and Paper NESHAP information requirements promulgated in 1998. We will continue to present OMB control numbers in a consolidated table format to be codified in 40 CFR part 9 of the Agency's regulations and in each CFR volume containing EPA regulations. The table lists the section numbers with reporting and recordkeeping requirements and the current OMB control numbers. This listing of the OMB control numbers and their subsequent codification in the CFR satisfy the requirements of the Paperwork Reduction Act and OMB's implementing regulations at 5 CFR part 1320. The ICR itself was subject to public notice and comment prior to OMB's approval of the ICR. Further, because amendment of the table in part 9 is technical in nature, we believe that another notice and comment period for this amendment is unnecessary. For these reasons, we believe that there is good cause under the Administrative Procedure Act (5 U.S.C. 553(b) to amend this table without prior notice and comment.

Under Executive Order 12866 (58 FR 51375, October 4, 1993), the EPA must determine whether a regulatory action is “significant” and, therefore, subject to review by the Office of Management and Budget (OMB) and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to lead to a rule that may:

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

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

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

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

The 1998 Pulp and Paper NESHAP was considered a “significant regulatory action” under Executive Order 12866. Accordingly, EPA prepared a regulatory impact analysis. These final rule amendments make technical revisions and correct inadvertent drafting errors. The OMB evaluated this action and determined it to be nonsignificant; thus, it did not require OMB review.

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

Under Section 6 of Executive Order 13132, the 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 the EPA consults with State and local officials early in the process of developing the proposed regulation. The EPA also may not issue a regulation that has federalism implications and that preempts State law unless the EPA consults with State and local officials early in the process of developing the proposed regulation.

If EPA complies by consulting, Executive Order 13132 requires EPA to provide to the OMB, in a separately identified section of the preamble to the rule, a federalism summary impact statement (FSIS). The FSIS must include a description of the extent of EPA's prior consultation with State and local officials, a summary of the nature of their concerns and the EPA's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met. Also, when EPA transmits a draft rule with federalism implications to OMB for review pursuant to Executive Order 12866, EPA must include a certification from the agency's Federalism Official stating that EPA has met the requirements of Executive Order 13132 in a meaningful and timely manner.

These final amendments to the 1998 Pulp and Paper NESHAP 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. While the 1998 Pulp and Paper NESHAP do not create mandates upon State, local, or tribal governments, EPA involved State and local air pollution control agencies in its development. Today's action does not create a mandate upon State, local, or tribal governments. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Under Executive Order 13084, the EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or if EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to OMB, 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 final rule amendments do not significantly or uniquely affect the communities of Indian tribal governments. The 1998 Pulp and Paper NESHAP do not create mandates upon tribal governments. These amendments do not create a mandate on tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply.

Executive Order 13045 (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 the EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the EPA must evaluate the environmental health or safety effects of the rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the EPA.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. The 1998 Pulp and Paper NESHAP fall into that category only in part: the minimum rule stringency is set according to a congressionally mandated, technology-based lower limit called the “floor,” while a decision to increase the stringency beyond this floor can be partly based on risk considerations.

No children's risk analysis was performed for the 1998 Pulp and Paper NESHAP rulemaking because no alternative technologies exist that would provide greater stringency at a reasonable cost, and, therefore, the results of any such analysis would have no impact on the stringency decision. Today's final rule amendments are not subject to Executive Order 13045 because they do not involve decisions on environmental health risks or safety risks that may disproportionately affect children.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year.

Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires the EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation of why that alternative was not adopted.

Before the EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

The EPA has determined that today's final rule amendments do not contain a Federal mandate that may result in expenditures of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector in any 1 year. These amendments provide additional flexibility to the 1998 Pulp and Paper NESHAP and reduce compliance costs. Therefore, these amendments are not subject to the requirements of sections 202 and 205 of the UMRA.

The RFA generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute 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 organizations, and small governmental jurisdictions.

The EPA determined that it is not necessary to prepare a regulatory flexibility analysis in connection with today's final rule amendments. These amendments will not result in increased impacts to small entities, but will provide additional flexibility to the 1998 Pulp and Paper NESHAP by adding equivalent treatment alternatives.

The EPA submitted the information requirements of the 1998 Pulp and Paper NESHAP for approval to the OMB on April 27, 1998 under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The EPA prepared an ICR document (ICR No. 1657.03), and a copy may be obtained from Sandy Farmer at U.S. EPA, Office of Environmental Information, Collection Strategies Division (2822), 1200 Pennsylvania Avenue, NW., Washington, DC 20460 or by calling (202) 260-2740. You may also request a copy by e-mail at: farmer.sandy@epa.gov or from the Office of Policy website at: http://www.epa.gov/icr. The ICR has been approved by OMB (OMB No. 2060-0387.)

These amendments to the 1998 Pulp and Paper NESHAP will have no impact on the information collection burden estimates made previously. Consequently, EPA has not revised the ICR.

Under section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, all Federal agencies are required to use voluntary consensus standards (VCS) in their regulatory procurement activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA requires Federal agencies to provide Congress, through annual reports to OMB, with explanations when an agency decides not to use available and applicable VCS.

Today's final rule amendments do not establish new or modify existing technical standards. Therefore, consideration of VCS is not relevant to this action.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the SBREFA, 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. The EPA will submit a report containing this final 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). These amendments will be effective February 20, 2001.

Throughout this document wherever “we,” “us,” or “our” are used we mean the Environmental Protection Agency.

In this action, we are approving a revised maintenance plan for the Colorado Springs CO attainment/maintenance area, that is designed to keep the area in attainment for CO through 2010, and we're also approving changes to the State's Regulation No. 13 for the removal of the requirement for the implementation of the wintertime oxygenated fuels program in the Colorado Springs area.

We approved the original CO redesignation request to attainment, a maintenance plan, and revisions to Regulation No. 13 (hereafter, Reg. 13) for the Colorado Springs area on August 25, 1999 (see 64 FR 46279) which became effective on October 25, 1999.

The Governor's May 10, 2000, submittal includes changes to the original maintenance plan that: revises the attainment year from 1993 to 1990 and provides a new 1990 attainment year inventory; revises the maintenance demonstration with a revised 2010 projected emission inventory; revises Reg. 13 to eliminate the oxygenated gasoline program in El Paso County starting with the winter season of 2000-2001; revises the transportation CO emission budgets; and revises a portion of the contingency measures plan. We have determined that these changes are approvable as further described below.

Section 110(k) of the CAA addresses our actions on submissions of revisions to a SIP. The CAA requires States to observe certain procedural requirements in developing SIP revisions for submittal to us. Section 110(a)(2) of the CAA requires that each SIP revision be adopted after reasonable notice and public hearing. This must occur prior to the revision being submitted by a State to us.

The Colorado Air Quality Control Commission (AQCC) held a public hearing for the revised Colorado Springs Carbon Monoxide (CO) Maintenance Plan on February 17, 2000. The AQCC adopted the revised maintenance plan directly after the hearing. This SIP revision became State effective on April 30, 2000, and was submitted by the Governor to us on May 10, 2000.

For the Regulation No. 13 revision, the AQCC held a public hearing to consider the changes to Regulation No. 13, that involved the elimination of the oxygenated gasoline program for El Paso County, on February 17, 2000. The AQCC adopted these changes directly after the February 17, 2000, public hearing. They became State effective on April 30, 2000, and were also submitted to us on May 10, 2000.

We have evaluated the Governor's submittal for the revised maintenance plan and changes to Regulation No. 13 and have determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA. We reviewed these SIP materials for conformance with the completeness criteria in 40 CFR part 51, appendix V and determined that the submittals were administratively and technically complete. The Governor was advised of our completeness determination through a letter from Rebecca W. Hanmer, Acting Regional Administrator, dated August 7, 2000.

EPA has reviewed the State's revised maintenance plan for the Colorado Springs maintenance/attainment area and believes that approval is warranted. The following are the key aspects of this revision along with our evaluation of each:

(a) The State changed the attainment year from 1993 to 1990 and provided a new 1990 emissions inventory.

This is acceptable as the Colorado Springs area was attaining the CO NAAQS in 1990 (based on data from 1990 and 1991 which are archived in our Aerometric Information and Retrieval System—AIRS) and this conforms to our September 4, 1992, redesignation guidance memorandum, signed by John Calcagni, Director of the Air Quality Management Division, entitled “Procedures for Processing Requests to Redesignate Areas to Attainment” (hereafter the “Calcagni memorandum”). Further, the area must show continuous attainment of the CO NAAQS from 1990 to present. We have reviewed the air quality data in AIRS from 1990 to present and have determined that the Colorado Springs area has not violated the CO standard and continues to demonstrate attainment.

(b) The State revised the projected emission inventories, out to 2010, and continues to demonstrate maintenance for the Colorado Springs area.

Revised emission projections for the years 2001, 2002, 2005, and 2010 (we note that 2015 and 2020 are also included for conformity purposes) that include all source categories (point, area, non-road, and on-road) and reflect the elimination of the oxygenated fuels program are presented in “Table 3. Carbon Monoxide Emissions for Future Years in Colorado Springs without the Oxygenated Fuels Program” of the revised maintenance plan and are archived below. All emission calculations and assumptions are provided in the State's Technical Support Document (TSD). As shown in the maintenance plan's Table 3. and in our Table III-1 below, emissions for all future projected year inventories are less than the 1990 levels. Therefore, the area continues to demonstrate maintenance for the CO standard.

(c) The State has modified Regulation No. 13 to eliminate the Oxygenated Fuels Program for El Paso County and the Colorado Springs area.

The State performed an analysis and determined that the oxygenated fuels program could be eliminated for the Colorado Springs area without jeopardizing maintenance of the CO NAAQS. This analysis was performed using EPA's MOBILE5b emission factor model and the latest transportation and planning data from the Pike's Peak Area Council of Governments (PPACG) 2020 transportation plan. The methodology and analysis were reviewed by us and we have determined they are acceptable. The results of the modeling were presented in the revised maintenance plan's “Table 1.,” “Table 2.,” and “Table 3” and are also included in our Table III-1 above. Based on our review of the State's analysis, we agree that the Colorado Springs area continues to demonstrate maintenance of the CO NAAQS and approve the elimination of the oxygenated fuels program for El Paso County and the Colorado Springs area.

(d) The State modified the Contingency Provisions section of the maintenance plan.

With the elimination of the oxygenated fuels program for the Colorado Springs area, the State revised the contingency measures list in section “E. Contingency Provisions” to now contain the reinstatement of the 2.7% oxygenated fuels program as a contingency measure that could be implemented should the Colorado Springs area violate the CO NAAQS. Also, the State removed the prior nonattainment area regulatory requirement that an enhanced inspection and maintenance program be a pre-approved contingency measure. An enhanced inspection and maintenance program now appears on the same list as the 2.7% oxygenated fuels program as possible contingency measures for consideration, adoption, and implementation should a violation of the CO NAAQS occur. We agree with the above revisions to the “Contingency Provisions” section of the maintenance plan.

One key provision of our conformity regulation requires a demonstration that emissions from the transportation plan and Transportation Improvement Program are consistent with the emissions budgets in the SIP (40 CFR 93.118 and 93.124). The emissions budget is defined as the level of mobile source emissions relied upon in the attainment or maintenance demonstration to maintain compliance with the NAAQS in the nonattainment or maintenance area. The rule's requirements and EPA's policy on emissions budgets are found in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62193-62196) and in the sections of the rule referenced above. Section C. of the revised Colorado Springs maintenance plan describes an emissions budget for on-road mobile sources. The revised section C. now states:

The State then performed calculations (in tons per day, abbreviated as “tpd”) for each of the interim years such as in the example below for 2001:

The State then did the same calculations for the other interim years and came up with potential emission budgets of; 281 tpd for 2002, 280 tpd for 2005, and 280 tpd for 2010. In order to allow for uncertainties in non-mobile source emissions, and because all interim years' emissions between 2001 and 2010 were not determined, the State took the lowest potential emissions budget of 280 tpd and further reduced this to 270 tpd to allow for potential variations in emissions and to stay below the 1990 total attainment emission level of 380 tpd. The State then set this 270 tpd on-road mobile emissions budget for 2001 and beyond. We agree with the State's calculations and allocation of the margin of safety, and therefore, we are approving this 270 tpd mobile sources emission budget for 2001 and beyond.

This 270 tpd budget was then adopted into section V.A.4.b. of the Colorado AQCC's Ambient Air Quality Standards regulation (5 CCR 1001-14); however, the emissions budget definition in the table on page 18.01 of the Colorado Ambient Air Quality Standards regulation (5 CCR 1001-14) conflicts with the language in section C. of the maintenance plan and is internally inconsistent. Section C. of the maintenance plan states that the 270 tpd emission budget applies to 2001 and beyond; the table on page 18.01 of 5 CCR 1001-14 indicates that the emissions budget is 280 tpd in 2010 and beyond. Our interpretation, based on the language of the maintenance plan and our conformity rule, is that the maintenance plan's 270 tpd emission budget applies starting in 2001 and for all following years, superseding the incorrect language in 5 CCR 1001-14.

Colorado's Regulation No. 13 is entitled “Oxygenated Fuels Program.” The purpose of revisions that were adopted by the AQCC on February 17, 2000, and submitted to us by the Governor on May 10, 2000, was to eliminate the oxygenated fuels program for El Paso County and the Colorado Springs area. EPA is allowed to approve this elimination of the oxygenated fuels program for El Paso County and the Colorado Springs area based on section 211(m)(6) of the CAA which states:

(a) The Colorado Springs area is in attainment for the CO NAAQS. EPA approved the Colorado Springs CO redesignation to attainment on August 25, 1999 (see 64 FR 46279, effective October 25, 1999). In addition, ambient air quality that have been archived in AIRS show that the Colorado Springs area has been in attainment for the CO NAAQS beginning with the period of 1990-1991 and the area has been in attainment for the CO NAAQS from that time to the present.

(b) The State has provided an adequate demonstration showing that the oxygenated fuels program is not needed to maintain the CO NAAQS for the Colorado Springs attainment area. This requirement was addressed with the State's revised maintenance plan for the Colorado Springs area. As presented in section “B. Emission Inventories and Maintenance Demonstration” of the revised maintenance plan, the State used EPA's MOBILE5b emission factor model to calculate mobile source emissions, without an oxygenated fuels program, for 2001, 2002, 2005, and 2010. For each projected year, mobile source emissions were less than the 1990 attainment year levels. When mobile source emissions were added to the other source categories for 2001, 2002, 2005, and 2010, total emissions for each year were still well below the 1990 attainment year levels. Therefore, elimination of the oxygenated fuels program will not interfere with continued maintenance of the CO NAAQS. In addition to the 1990 and 2010 region-wide inventories, the State prepared a 1990 and 2010 gridded emission inventory and evaluated projected growth in CO emissions in each grid cell. This assessment also indicated that the CO NAAQS would be maintained without an oxygenated fuels program.

Based on the above, the State concluded that the revisions to Regulation No. 13, to eliminate the oxygenated fuels program, would not jeopardize the revised maintenance plan's demonstration of maintenance for the CO NAAQS. We agree with the State's analysis provided in section “B.” of the revised maintenance plan and as further supported in the State's TSD. Therefore, we do not believe that the elimination of the oxygenated fuels program in El Paso County and the Colorado Springs area will impact the CO maintenance demonstration for the area.

In consideration of above, we have determined that we can approve the February 17, 2000, revisions to Regulation No. 13 as meeting the requirements of section 211(m)(6) of the CAA.

As noted previously, the revisions to Regulation No. 13 were adopted by the AQCC directly after a public hearing on February 17, 2000, became State effective on April 30, 2000, and were submitted to us by the Governor on May 10, 2000.

In this action, EPA is approving the revised Colorado Springs carbon monoxide maintenance plan and the revisions to Regulation No. 13.

EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective February 20, 2001 without further notice unless the Agency receives adverse comments by January 22, 2001.

If EPA receives such comments, then we will publish a timely withdrawal of the direct final rule informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this rule. Any parties interested in commenting on this rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on February 20, 2001 and no further action will be taken on the proposed rule.

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

Under Executive Order 12875, EPA may not issue a regulation that is not required by statute and that creates a mandate upon a state, local, or tribal government, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by those governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 12875 requires EPA to provide to the Office of Management and Budget a description of the extent of EPA's prior consultation with representatives of affected state, local, and tribal governments, the nature of their concerns, copies of any written communications from the governments, and a statement supporting the need to issue the regulation. In addition, Executive Order 12875 requires EPA to develop an effective process permitting elected officials and other representatives of state, local, and tribal governments “to provide meaningful and timely input in the development of regulatory proposals containing significant unfunded mandates.”

Today's rule does not create a mandate on state, local, or tribal governments. The rule does not impose any enforceable duties on state, local, or tribal governments. Accordingly, the requirements of section 1(a) of Executive Order 12875 do not apply to this rule.

Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health and 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 12084 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. Accordingly, the requirements of section 3(b) of Executive Order 13084 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 final 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 Clean Air Act 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 Clean Air Act, preparation of a flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The Clean Air Act 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). Therefore, I certify this rule will not affect a substantial number of small entities.

Under section 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, will 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 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 the publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 20, 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).)

On August 28, 2000, the District's Department of Health submitted a revision to its SIP for parallel processing. The revision to the SIP includes the addition of a new Chapter 10, Nitrogen Oxides Emissions Budget Program, to Title 20 of the District of Columbia Municipal Regulations (DCMR). On December 8, 2000, the District submitted fully adopted regulations as a supplement to its August 28, 2000 submittal. The revisions implement the Ozone Transport Commission's (OTC) September 27, 1994 Memorandum of Understanding (MOU) in the District. In accordance with the MOU, the revisions implement the District portion of a regional NO X cap and trade program that significantly reduces NO X emissions generated within the Ozone Transport Region (OTR). On October 19, 2000 (65 FR 62671), EPA published a notice of proposed rulemaking (NPR) for the District of Columbia proposing to approve the August 28, 2000 SIP revision. That NPR provided for a public comment period ending on November 9, 2000. On November 9, 2000 (65 FR 67319), EPA published a notice extending the comment period to November 20, 2000. A detailed description of these SIP revisions and EPA's rationale for approving them were provided in the October 19, 2000 NPR and will not be restated here. EPA received no comments on its proposed action to approve this SIP revision.

EPA is approving the SIP revision request submitted for parallel processing by the District's Department of Health on August 28, 2000. The SIP revision and its associated regulations were formally adopted by the District of Columbia on December 8, 2000. The District formally submitted the fully adopted regulations to EPA as a supplement to its August 28, 2000 submittal. The regulations formally adopted were exactly the same as the proposed version upon which EPA proposed approval. The SIP revision consists of the District's Chapter 10—Nitrogen Oxides Emissions Budget Program and implements the District's portion of Phase II of the OTC's MOU to reduce nitrogen oxides. Approval of this SIP revision is necessary for full approval of the attainment demonstration SIP for the Metropolitan Washington, DC ozone nonattainment area.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies 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. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). 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 (64 FR 43255, August 10, 1999), 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 Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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 . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 20, 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 to approve the District of Columbia NO X Budget Program may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

As required under Title V of the Clean Air Act (“the Act”) as amended (42 U.S.C. 7401 et seq. ), EPA has promulgated rules that define the minimum elements of an approvable state operating permit program and the corresponding standards and procedures by which EPA will approve, oversee, and withdraw approval of state operating permit programs (see 57 FR 32250 (July 21, 1992)). These rules are codified at 40 Code of Federal Regulations (CFR) part 70 (part 70). Title V directs states to develop, and submit to EPA, programs for issuing operating permits to all major stationary sources and to certain other sources.

The Act directs states to develop and submit operating permit programs to EPA by November 15, 1993, and requires that EPA act to approve or disapprove each program within 1 year after receiving the submittal. The EPA's program review occurs pursuant to section 502 of the Act (42 U.S.C. 7661a) and the part 70 regulations, which together outline criteria for approval or disapproval. Where a program substantially, but not fully, meets the requirements of part 70, EPA may grant the program interim approval. If EPA has not fully approved a program by two years after the November 15, 1993 date, or before the expiration of an interim program approval, it must establish and implement a federal program. The State of Montana was granted final interim approval of its program on May 11, 1995 (see 60 FR 25143) and the program became effective on June 12, 1995. Interim approval of the Montana program expires on December 1, 2001.

On June 13, 2000, EPA published a direct final rule in the Federal Register promulgating full approval of the Operating Permit Program for the State of Montana. See 65 FR 37049. The EPA received adverse comments on the direct final rule, which are summarized and addressed below. As stated in the Federal Register notice, if adverse comments were received by July 13, 2000, the rule would be withdrawn and timely notice would be published in the Federal Register . Therefore, due to receiving adverse comments within the comment period, EPA withdrew the final rule (65 FR 48391, August 8, 2000), and a proposed rule also published in the Federal Register on June 13, 2000 served as the proposed rule for this action. EPA will not institute a second comment period on this document.

In this rulemaking, EPA is taking final action to promulgate full approval of the Montana Operating Permit Program.

The Governor of Montana submitted an administratively complete Title V operating permit program for the State of Montana on March 29, 1994. This program, including the operating permit regulations (Title 16, Chapter 8, Sub-Chapter 20, Sections 16.8.2001 through 16.8.2025, inclusive, of the Administrative Rules of Montana (ARM)), substantially met the requirements of part 70. EPA deemed the program administratively complete in a letter to the Governor dated May 12, 1994. The program submittal included a legal opinion from the Attorney General of Montana stating that the laws of the State provide adequate legal authority to carry out all aspects of the program, and a description of how the State would implement the program. The submittal additionally contained evidence of proper adoption of the program regulations, application and permit forms, and a permit fee demonstration.

EPA's comments noting deficiencies in the Montana program were sent to the State in a letter dated October 3, 1994. The deficiencies were segregated into those that would require corrective action prior to interim program approval, and those that would require corrective action prior to full program approval. The State committed to address the program deficiencies that would require corrective action prior to interim program approval in a letter dated October 20, 1994. The State submitted these corrective actions with letters dated March 30, and April 5, 1995. EPA reviewed these corrective actions and determined them to be adequate for interim program approval.

On January 15, 1998, Montana amended its operating permit program to make the corrections identified as necessary in the May 11, 1995 Federal Register notice of final interim approval. These program amendments, recodified at Title 17, Chapter 8, Sub-Chapter 12, Sections 1201, 1210, and 1213, ARM, were approved and adopted by the Montana Board of Environmental Review on January 15, 1998. The revised program regulations adequately addressed the problems identified in the May 11, 1995 Federal Register notice as requiring corrective action prior to full program approval. The State also submitted evidence of proper adoption of the revisions to its program regulations and a revised Attorney General's opinion dated July 31, 1998. The revised program and a request for full approval were submitted to EPA in a letter from the Governor of Montana dated February 4, 1999. EPA notified Montana, in a letter to the Department of Environmental Quality (DEQ) dated April 1, 1999, of two additional changes required for final approval. The DEQ revised the administrative rules to implement the two requested changes at Title 17, Chapter 8, Sub-Chapter 12, ARM. These amendments to Sub-Chapter 12 were approved and adopted by the Board on March 17, 2000. On April 12, 2000, the Governor of Montana submitted the revised program, with proof of proper adoption, and requested full approval of its operating permit program. EPA reviewed these changes and determined that they were adequate to allow for full approval. On June 13, 2000, EPA published a direct final rule in the Federal Register promulgating full approval of the Operating Permit Program for the State of Montana. See 65 FR 37049. The EPA received adverse comments on the direct final rule and, on August 8, 2000, published withdrawal of the direct final rule approval in the Federal Register . See 65 FR 48391.

The comments received on the June 13, 2000 direct final rule in the Federal Register promulgating full approval of the Montana operating permit program, and EPA's response to these comments are as follows:

Comment 1: The commenter objected to EPA's approval of the Montana Operating Permit Program because a state regulation allows the administrative permit amendment process to be used for certain permit changes that are not listed in a regulation but that the Montana Department of Environmental Quality (“Department”) and EPA determine are similar to the listed revisions. A list of revisions that qualify for administrative permit amendment is found in Administrative Rules of Montana (“ARM”) Section 17.8.1201(1)(a) through (d). This regulation allows a source to use the administrative permit amendment process for such non-substantive changes as change in address and correction of typographical errors. The State has now added section (e), which allows “any other change which the department and EPA have determined to be similar” to the listed revisions. The commenter objected that, by allowing the Department and EPA to add other kinds of permit revisions to the list without public notice and comment, the state regulation violates EPA's regulations at 40 CFR Part 70 (“part 70 program” or “part 70 rules”).

EPA Response: The definition of “administrative permit amendment” in EPA's regulations is found in 40 CFR 70.7(d)(1). The definition provides, at § 70.7(d)(1)(vi), that an administrative permit amendment “[i]ncorporates any other type of change which the Administrator has determined as part of the approved part 70 program to be similar to those in paragraphs (d)(1)(i) through (iv) of this section” 40 CFR 70.7(d)(1)(vi). The enumerated paragraphs (i) through (iv) comprise a list of four non-substantive changes that are identical to those in the State's list in section 17.8.1201(1) (a) through (d). The comment suggests that the State cannot allow a source to use an administrative permit amendment for a change that is not on the list, unless the State first undergoes formal Title V program approval or program revision approval, with public notice and comment, to add the change to the list as a new requirement. The comment implies that “as part of the approved part 70 program” in EPA's regulation means “as part of the part 70 program approval process.”

EPA does not agree with this interpretation of our regulation. EPA believes that the correct interpretation of the phrase “as part of the approved part 70 program” refers to the fact that an unlisted change must be evaluated in the context of the approved state program to determine if it qualifies for an administrative amendment. The regulation does not require that EPA must approve a formal revision of the state program before a source can make a particular change administratively, but rather requires the State to seek EPA's approval for using the administrative permit amendment process for the change as part of a specific permitting action. EPA believes that the regulation allows the State to add to the list of non-substantive changes on a case-by-case basis, if EPA agrees that a particular permit change is of the same non-substantive nature as the enumerated list of changes that automatically qualify for administrative permit amendment. EPA's regulation thus allows exactly the kind of case-specific addition to the list contemplated in the new section of Montana's rules, ARM Section 17.8.1201(1)(e).

Montana initially proposed a regulation that would allow the state to make additions to the list without consulting EPA. EPA advised that this would not be acceptable under Title V of the Clean Air Act (“Act”), since 40 CFR 70.7(d)(1)(vi) requires that EPA must make a determination that any additional change is similar to the enumerated changes—in other words, to determine that the change is of such a trivial or non-substantive nature that the administrative permit amendment process would be appropriate. The regulation does not require that the State must submit a list of anticipated non-substantive changes to EPA for prior approval, as part of the Title V program approval process, or that the State must revise its rules and submit them for approval as a program revision whenever it encounters a non-substantive change it believes should qualify for treatment as an administrative permit amendment. The provision requires, instead, that the State must notify EPA on a case-by-case basis whenever it encounters a change it believes qualifies for the simpler administrative amendment process (rather than the more complex minor or significant permit modification process), so that EPA can decide if we agree that the change qualifies for such treatment. If we do not agree that the administration permit amendment process is appropriate for a particular permit change, we can advise the State of our disapproval at the draft permit stage of the operating permit process, or we can object to the proposed permit during our 45-day review and thus prevent the permit's issuance. If the permit has already been issued, we can require the state to re-open the permit to delete an unacceptable administrative permit amendment and instead process the change as a minor or significant permit revision.

We appreciate the concern expressed in the comment that the list should not encompass substantive permit changes. EPA would not approve as an administrative permit amendment any non-substantive change to a Title V permit. We anticipate that the authority to add to the list of administrative permit amendments will be used only infrequently.

Comment 2. a.: The commenter objected that allowing an emission threshold of five tons per year of any pollutant other than a hazardous air pollutant in the State's definition of “insignificant emission unit” exceeds the two-ton per year threshold that EPA has set in rules for federal operating permits, 40 CFR part 71 (“part 71 program” or “part 71 rules”). The commenter also stated that the two-ton per year threshold was accepted in many other states. In the Federal Register notice proposing interim approval, EPA stated that Montana would need to provide a demonstration to show why a higher threshold of five tons per year would be insignificant. See 60 FR 25143-25144 (May 11, 1995).

EPA Response: Insignificant emissions units are emitting units at a source that emit “insignificant” levels of emissions. For such units, the State may allow permit applicants to omit a full description of the units in their permit applications. However, there are several caveats. The applicant must still list the insignificant activity in its application and must include complete information about such unit if it is or may be subject to any applicable requirements. The pertinent provision of the part 70 rules provides: “the Administrator may approve as part of a State program a list of insignificant activities and emissions levels which need not be included in permit applications. However, for insignificant activities which are exempted because of size or production rate, a list of such insignificant activities must be included in the application. An application may not omit information needed to determine the applicability of, or to impose, any applicable requirement * * *.” 40 CFR 70.5(c).

This provision of the part 70 rules does not set a ceiling on the level of emissions that will be considered “insignificant.” EPA has allowed states, including Montana, to determine what the state considers to be “insignificant” for the limited purpose of omitting certain information from the permit application. The comparable section in the part 71 rules, 40 CFR 71.5(c)(11), does set such a ceiling: “Potential to emit of regulated air pollutants, excluding HAP [hazardous air pollutants] for any single emissions unit shall not exceed 2 tpy [tons per year].” 40 CFR 71.5(c)(11)(ii)(A). This numerical limit applies only to federal operating permits, however, not to state operating permits or state operating permit programs. EPA's part 71 rules establish the requirements for the operating permits that EPA issues in Indian country or anywhere else when EPA is the permitting agency. The part 71 rules do not establish minimum requirements for state operating permit programs; state programs may differ from the federal program and may still be approved as long as they meet the applicable state program requirements, which are found in 40 CFR part 70.

The Montana operating permit program differs from the federal program in this respect, but we believe it fully satisfies the program requirements of 40 CFR part 70. The part 70 rules allow permit applicants to omit certain information about “insignificant emissions units” from their permit application. Montana's rules make clear, however, that if an emissions unit is subject to an applicable requirement other than a generally applicable requirement that applies to all sources, the unit may not be considered an insignificant emissions unit, no matter what its size may be. In other words, a unit emitting five tons per year or less of a regulated pollutant may not be treated as an insignificant emissions unit, if it is subject to a unit-specific limit or a plant-wide applicability limit. Such a unit can only be considered “insignificant” if it is subject to a state-wide regulation, such as a generic limit on opacity, or to no applicable requirements at all. And if a unit emitting five tons per year or less does not qualify for “insignificant” status because it is subject to a source-specific limit, the applicant must provide all relevant information about the unit in the permit application, not simply information necessary to determine the applicability of the applicable requirement. In this respect, Montana's regulation is actually more stringent than EPA's and provides more protection for the public's right to know than EPA's regulation does. In any case, we believe there is no conflict with EPA's part 70 rules.

In response to EPA's request that the State provide justification for using a five-ton per year cut-off, the Department stated, “Experience has demonstrated that individual emitting units that are not subject to applicable requirements other than generally applicable requirements, and whose potential emissions are less than 5 tpy, have such limited impact that they can be considered insignificant.” Based on our knowledge of Montana's industrial sources, we agree with the Sates's assessment. The Department also noted that both 40 CFR part 70 and EPA's July 10, 1995 guidance memorandum entitled, “White Paper for Streamlined Development of Part 70 Permit Applications” “White Paper I”), allow states discretion in selecting an appropriate insignificance level for their Title V programs; and EPA has approved levels higher than two tons per year in some other states. We are aware of at least nine states, including Ohio, Florida, and Tennessee, and ten local permitting authorities with approved Title V programs, where EPA has allowed five tons per year as the cut-off for “insignificant” status. Some other states have a varying level depending on the pollutant (five tons per year for carbon monoxide in Washington State, for example) or an altogether different formula, based on pollutant or process, for determining insignificant levels. We conclude that Montana has adequately justified its use of five tons per year as a ceiling.

Comment 2. b.: For hazardous air pollutants, the commenter objected that Montana defines insignificant emissions as less than 500 pounds per year, whereas EPA's part 71 rules provide that the insignificance threshold for hazardous air pollutants cannot exceed 1000 pounds per year or the de minimis level established under section 112(g) of the Act, whichever is less.

EPA Response: The comment implies that the part 71 rules establish minimum requirements for state operating permit programs. They do not. State operating permit programs must satisfy the requirements of 40 CFR part 70, not 40 CFR part 71. The requirements of the two programs are not, and do not need to be, identical. In particular, the part 70 rules do not require that states adopt a particular cut-off for emissions of hazardous air pollutants from “insignificant emissions units.” Although the part 71 rules do establish a cut-off, that ceiling applies to federal operating permits only. In fact, the Montana regulation establishes a more stringent cut-off than the federal level: 500 pounds per year in ARM section 17.8.1201(22)(a)(iii), as opposed to 1000 pounds per year in 40 CFR part 71.

The commenter recognizes that a level even lower than 500 pounds per year could be established under the part 71 rules, as a determination of a de minimis increase in emissions pursuant to section 112(g)(1)(A) of the Act: To date, however, EPA has not implemented the modification provisions of section 112(g) of the Act: EPA has not published guidance under section 112(g)(1)(B) of the Act establishing de minimis levels of emission increases for purposes of applying offsets under section 112(g)(1)(A) of the Act. Therefore, the establishment of an “insignificant” level under the part 71 program which would be lower than 1,000 pounds per year, let alone 500 pounds per year, remains a merely hypothetical possibility. EPA believes that the Montana ceiling for insignificant emissions of hazardous air pollutants is more stringent than the federal requirement and will adequately protect the public interest in disclosure of information about hazardous air pollutants.

Comment 3: The commenter stated that Montana's rules still do not adequately assure that any monitoring data or other credible evidence can be used to determine compliance and for direct enforcement. The commenter expressed a concern that the wording of ARM 17.8.1213(2), which requires that any data “generated as a condition of the permit” may be used to demonstrate compliance with the conditions of the permit and may be used for direct enforcement, might be interpreted to limit evidence of noncompliance only to monitoring or testing data required by the permit.

EPA Response: EPA does not agree with the suggested interpretation of ARM 17.8.1213(2). We do not believe that the provision, by its terms or by implication, precludes the use of other kinds of evidence to show compliance or noncompliance with applicable requirements. We believe that the provision makes clear that, if the permit requires testing or monitoring, the results of such testing or monitoring may be used as evidence of noncompliance regardless of the effect of any other rule. EPA does agree, however, that Montana must develop a credible evidence rule to eliminate any possibility of ambiguity in its regulations and thus ensure that all evidence of noncompliance may be used for purposes of direct enforcement, as long as that evidence is credible. Montana is in the process of developing and adopting a credible evidence rule, several versions of which were available for public comment this past summer.

Comment 4: The commenter stated that the State must certify its ability to require annual certifications from part 70 sources regarding proper implementation of their Risk Management Plans (RMP) under section 112(r) of the Act, and must provide a compliance schedule for sources that fail to submit the required plan. EPA's full approval notice does not indicate whether this requirement was in fact met, but merely indicates that “the State will include a statement listing 40 CFR 68.215(a) as an applicable requirement in all Title V operating permits.” There is no indication that the State has in fact committed to do this or is legally authorized and obligated to do so.

EPA Response: EPA's full approval notice should have made clear that the Governor of Montana, in a letter dated February 4, 1999, made a commitment to require annual certifications from sources regarding their compliance with all program requirements related to accident prevention, emergency response, and risk management plans under section 112(r) of the Act, and to provide compliance schedules for any sources that fail to submit their required plan to EPA. The letter stated, “The department [of Environmental Quality] will include a statement listing 40 CFR 68.215(a) as an applicable requirement in all title V operating permits.” The referenced § 68.215(a) of Title 40 of the Code of Federal Regulations requires that each source subject to both section 112(r) of the Act and Title V of the Act must have, as conditions of its operating permit, a statement listing all of 40 CFR part 68 (“Chemical Accident Prevention Provisions”) as an applicable requirement, together with conditions requiring the source owner or operator to submit a compliance schedule for meeting all applicable requirements of part 68, and requiring the source to include in its annual compliance certification a statement certifying that the source is in compliance with all requirements of part 68, including the requirements for registration and submission of a risk management plan.

In particular, 40 CFR part 68 requires sources that have more than a threshold level of any regulated substance to prepare and submit an RMP. See 40 CFR 68.12(a) and 68.150. Unless the source can certify in the RMP that no member of the public would be affected by any accidental release from the source, 40 CFR part 68 further requires sources to implement a risk management system, to conduct a hazard assessment, to implement a chemical accident prevention program, to implement an emergency response program, and to include data on the implementation of these programs in the RMP. See 40 CFR 68.12(b), (c), and (d). All those requirements are included as applicable permit conditions by effect of the State's listing 40 CFR 68.215(a) in all Montana operating permits. As the Governor committed, Montana will satisfy its obligations under section 112(r) of the Act by requiring all part 70 sources to certify compliance with applicable risk management planning requirements and by developing compliance schedules for sources that have not yet submitted risk management plans to EPA. When we referred to the State's commitment in the notice proposing full approval, we should have clarified that the commitment came from the Governor, thus assuring EPA that the State would meet its statutory obligations.

Comment 5: The commenter stated that the State's revised rule on termination, revocation, and re-issuance of state permits still improperly limits the state's authority to terminate or revoke permits.

EPA Response: Section 502(b)(5)(D) of the Act requires that the permitting authority must have adequate authority to “terminate, modify, or revoke and reissue permits for cause.” The State's original version of the pertinent regulation provided that the Department could terminate, modify or revoke and reissue permits “for continuing and substantial violations.” EPA advised that this provision did not give adequate authority to the Department to terminate or alter permits for other kinds of cause: for example, to correct a material mistake in the permit or to respond to an EPA objection to a permit. Subsequently, Montana revised its rule, ARM 17.8.1210(2)(a), to say that permits could be terminated, modified, or revoked and reissued “for cause.” The State then added, “Appropriate ‘cause’ for permit termination is noncompliance with permit terms or conditions that is continuing or substantial in nature and scope.” EPA regards this added language as providing an example when a permit may be terminated in the context of an enforcement action. The specific example with respect to permit termination does not limit the State's general authority to terminate, modify, or revoke and reissue any permit for cause. In addition, we believe that the phrase “continuing or substantial in nature and scope” in the specific example is not necessarily less inclusive than the phrase “continuing and substantial violations” in the earlier version. We believe that the State's revision of the regulation has satisfied EPA's concern that the Department have adequate authority to revise or terminate permits, whenever sufficient cause exists.

In this document, EPA is granting full approval of the Montana part 70 operating permits program for all areas within the State except the following: any sources of air pollution located in “Indian Country” as defined in 18 U.S.C. 1151, including the following Indian reservations in the State: Northern Cheyenne, Rocky Boys, Blackfeet, Crow, Flathead, Fort Belknap, and Fort Peck Indian Reservations, or any other sources of air pollution over which an Indian Tribe has jurisdiction. See section 301(d)(2)(B) of the Act; see also 63 FR 7254 (February 12, 1998). The term “Indian Tribe” is defined under the Act as “any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village, which is federally recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” See section 302(r) of the Act; see also 58 FR 54364 (Oct. 21, 1993).

This rule will be effective January 22, 2001.

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

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Order 12612 (Federalism) and Executive Order 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 final 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. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

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

This rule is not subject to Executive Order 13045 because it is not an economically significant regulatory action as defined by Executive Order 12866, and it does not establish a further health or risk-based standard because it approves state rules which implement a previously promulgated health or safety-based standard.

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, 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.

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 final rule will not have a significant impact on a substantial number of small entities because part 70 approvals under section 502 of the Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because this 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.

Under section 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 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 . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 20, 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).)

Because we received comments that oppose this authorization, we are withdrawing the immediate final rule for Arizona, the Final Authorization of State Hazardous Waste Management Program Revisions published on October 27, 2000, which approved revisions to Arizona's hazardous waste rules. We stated in the immediate final rule that if we received comments that oppose authorization of the revision, we would publish a timely notice of withdrawal in the Federal Register . Subsequently, we received comments that oppose the authorization. We will address the comments received during the comment period in a subsequent final action based on the proposed rule also published on October 27, 2000, at 65 FR 64403. We will not provide for additional public comment during the final action.

This is a synopsis of the Commission's Report and Order, MM Docket No. 00-15, adopted November 29, 2000, and released December 8, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Service, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

Since Susquehanna is located within 320 kilometers (200 miles) of the U.S.-Canadian border, Canadian concurrence for the allotment of Channel 227A at Susquehanna has been requested, but not yet received. Therefore, 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 a hearing, if found by the Commission to be necessary in order to conform to the USA-Canadian FM Broadcast Agreement.”

EPAAR 1502.100 currently defines Chief of the Contracting Office (CCO) as the Office of Acquisition Management Division Directors at Headquarters, Research Triangle Park and Cincinnati. One of the two CCOs at Headquarters has overall management responsibility for the Superfund/RCRA Regional Procurement Operations Division. This CCO therefore has ratification authority for ten (10) nationwide Regional Contracting Offices. This one CCO is responsible for approval of a potentially substantial number of ratification actions. Also, EPA Service Center Managers will be given similar authority to allow for more timely processing of small dollar ratification actions in the absence of the CCO. Therefore, EPA is broadening its definition of CCO for purposes of review of ratifications only. To avoid the need for ratification actions to the maximum extent practicable, EPA has an active training program both for contracting officials and program officials who use the purchase card. In addition, EPA reports ratification actions to the Chief Financial Officer. CCOs given ratification authority by this rule will also be required to provide notice of ratification actions to the CCO that would otherwise have reviewed the ratification action. This will ensure that the appropriate management level is kept informed of the volume and nature of agency ratification actions on an ongoing basis.

This is not a significant regulatory action for purposes of Executive Order 12866; therefore, no review is required at the Office of Information and Regulatory Affairs, within the Office of Management and Budget (OMB).

The Paperwork Reduction Act does not apply because this rule does not contain information collection requirements for the approval of OMB under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501, et. seq.)

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the Agency certifies that the rule will not have a significant impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impact of this rule on small entities, small entity is defined as: (1) A small business that meets the definition of a small business found in the Small Business Act and codified at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's direct final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. This direct final rule does not have a significant impact on a substantial number of small entities. The requirements under the rule impose no reporting, record-keeping, or compliance costs on small entities.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) Public Law 104-4, establishes requirements for Federal agencies to assess their regulatory actions on State, local and Tribal governments and the private sector. This direct final rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. Any private sector costs for this action relate to paperwork requirements and associated expenditures that are far below the level established for UMRA applicability. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks (6 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 disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

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

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

This rule does not significantly or uniquely affect the communities of Indian Tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

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

This rule does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

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

Under Section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides 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 direct final rule does not have federalism implications. It will not have 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, as specified in Executive Order 13132. The rule amends the EPA Acquisition Regulation to revise the Agency definition of “Chief of the Contracting Office” for purposes of delegation of ratification authority procedures specified in FAR 1.602-3(b)(2).

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 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).