On December 21, 2000, President Clinton signed into law the Legal Immigration Family Equity Act (LIFE Act), Title XI of H.R. 5548 enacted by reference in Public Law 106-553, and the LIFE Act Amendments of 2000, Title XV of H.R. 5666 enacted by reference in Public Law 106-554. Section 1505 of the LIFE Act Amendments makes technical corrections to NACARA and HRIFA to provide that the reinstatement of removal orders under section 241(a)(5) of the Immigration and Nationality Act (Act) no longer applies to applicants for benefits under NACARA and HRIFA, and that the grounds of inadmissibility under sections 212(a)(9)(A) and 212(a)(9)(C) of the Act may be waived for aliens applying for adjustment under section 202 of NACARA and section 902 of HRIFA. The purpose of this interim rule is to make existing Department regulations conform to these new laws.

Applicants for adjustment of status under NACARA and HRIFA were originally subject to the reinstatement provisions of section 241(a)(5) of the Act. An alien subject to reinstatement of a removal order is not eligible for any relief under the Act, including waivers of any ground of inadmissibility necessary to establish eligibility for NACARA 202 or HRIFA adjustment. In addition, were such applicants found to be inadmissible under sections 212(a)(9)(A) or (C) of the Act, they would have been required to seek consent to reapply from the Attorney General in order to qualify for an exception to these grounds of inadmissibility. Because a significant number of otherwise eligible aliens were believed to be ineligible for adjustment of status under NACARA or HRIFA because of these statutory restrictions, Congress enacted the LIFE Act and its amendments to ameliorate this problem.

In accordance with the LIFE Act and the LIFE Act Amendments, the Department is amending its regulation to reflect that the grounds of inadmissibility under sections 212(a)(9)(A) and 212(a)(9)(C) of the Act may now be waived for applicants for adjustment of status under NACARA and HRIFA, and that section 241(a)(5) of the Act no longer applies to such applicants.

Sections 212(a)(9)(A) and 212(a)(9)(C) of the Act are grounds of inadmissibility relating to aliens previously removed and aliens who are unlawfully present in the United States after previous immigration violations, respectively. Section 212(a)(9)(A)(ii) of the Act provides that an alien who has been previously deported or removed, or who has departed the United States voluntarily while under an outstanding order of deportation or removal, is inadmissible for at least 10 years; section 212(a)(9)(A)(iii) of the Act provides that the Attorney General may authorize exceptions. Section 212(a)(9)(C) of the Act provides that an alien is inadmissible if he or she enters or attempts to enter without being admitted (without inspection) on or after April 1, 1997, following an order of deportation or removal, or if he or she enters or attempts to enter without being admitted (without inspection) following an aggregate unlawful presence of more than 1 year on or after April 2, 1998. The Attorney General may authorize exceptions under section 212(a)(9)(C)(ii) of the Act. An alien who is inadmissible for the applicable period set forth in sections 212(a)(9)(A) or (C) of the Act is ineligible for adjustment of status unless he or she first obtains the Attorney General's consent to reapply for admission under the exception provisions of section 212 of the Act. The exception to inadmissibility under either section 212(a)(9)(A)(iii) or (C)(ii) of the Act may be obtained if the Attorney General has given consent to the alien to reapply for admission during the applicable period.

Section 241(a)(5) of the Act provides for the reinstatement of a removal order against any alien who illegally re-enters the United States after having been removed or after having departed voluntarily under an order of removal. It also bars any alien whose removal order has been reinstated from receiving any relief under the Act, including any waivers of grounds of inadmissibility necessary for the grant of adjustment of status.

This interim rule amends the Department's regulations at 8 CFR 245.13(a)(3) to clarify that section 241(a)(5) of the Act does not apply to applicants for adjustment of status under NACARA and HRIFA. Additionally, this interim rule amends 8 CFR 245.13 and 245.15 to establish special procedures to enable such applicants to seek waivers of sections 212(a)(9) (A) and (C) grounds of inadmissibility.

The provisions of LIFE allow that an alien's inadmissibility under section 212(a)(9)(A) and section 212(a)(9)(C) of the Act may now be waived in NACARA 202 and HRIFA cases. While an otherwise inadmissible NACARA 202 or HRIFA adjustment applicant no longer has to obtain the consent of the Attorney General to reapply for admission, the LIFE Act amendments provide that in granting a waiver of these grounds of inadmissibility to NACARA 202 or HRIFA adjustment applicants, the Attorney General shall use the “standards” utilized in granting consent to reapply under sections 212(a)(9)(A)(iii) and (C)(ii) of the Act. This interim regulation provides that NACARA 202 and HRIFA applicants may apply for a waiver of any ground described in section 212(a)(9)(A) or (C) of the Act by filing a Form I-601, Application for Waiver of Ground of Excludability, with the required fee, unless that fee has been waived. NACARA 202 and HRIFA applicants may apply for a waiver of these grounds of inadmissibility while present in the United States and without regard to the normal requirement of filing a Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.

An alien who is now eligible for adjustment of status under NACARA 202 or HRIFA as a result of the LIFE Act Amendments and whose application for adjustment of status under NACARA 202 or HRIFA has been denied by the Service may file a Motion to Reopen his or her case before the Service if:

(1) The Service has not issued a Notice to Appear (Form I-862), a Notice of Referral to Immigration Judge (Form I-863), or a Notice of Certification (Form I-290C) placing the alien in proceedings that are currently pending before the immigration judge; and

(2) The alien pays the filing fee for a motion to reopen set forth in 8 CFR 103.7(b)(1) or is granted a waiver of such fee in accordance with 8 CFR 103.7(c).

Also, an alien who was in proceedings and who has been made eligible for adjustment of status under the LIFE Act Amendments to NACARA or HRIFA, but who did not apply for such adjustment by the statutory deadline of March 31, 2000, or whose proceedings before EOIR resulted in a final order following a denial by the Service or EOIR of an application for adjustment of status under NACARA or HRIFA, may seek to reopen his or her removal proceedings before the Immigration Court or the Board of Immigration Appeals, as appropriate, for the sole purpose of applying for NACARA 202 or HRIFA adjustment. The alien must file such a motion to reopen on or before June 19, 2001.

This rule does not apply to them. The legislation passed by Congress only applies to those aliens who are subject to final orders of deportation, exclusion, or removal and who applied for adjustment of status under NACARA 202 or HRIFA by the statutory deadline of March 31, 2000. The motion to reopen provisions of this rule only apply to aliens who would be subject to a reinstatement of a previous removal order under section 241(a)(5) of the Act, and/or who are inadmissible under section 212(a)(9)(A) or 212(a)(9)(C) of the Act. It should be noted that aliens who are subject to 212(a)(9)(C)(i)(I) but who have not previously applied for adjustment of status before March 31, 2000, are ineligible for the motion to reopen provisions of this rule.

Persons who are presently in proceedings before the Immigration Court or the Board and are pursuing a timely filed application for adjustment of status under NACARA 202 or HRIFA will remain within the jurisdiction of EOIR. Such pending applications shall be adjudicated by the Immigration Court or the Board in accordance with the LIFE Act Amendments to NACARA 202 or HRIFA, as appropriate.

An alien who is granted a motion to reopen under the LIFE Act Amendments to NACARA 202 or HRIFA by an Immigration Court or the Board may move to have the proceedings administratively closed for the purpose of filing with the Service an application for adjustment of status under NACARA 202 or HRIFA as amended by the LIFE Act Amendments. If the Service concurs in such a motion, the Immigration Court or the Board, as appropriate, may administratively close the proceedings for that purpose.

The Department's implementation of this interim rule upon publication in the Federal Register with a post-promulgation period of public comments is based upon the “good cause” exception found at 5 U.S.C. 553(b)(B) and (d)(3). The reason and necessity for immediate implementation is because the LIFE Act and its amendments became effective immediately upon enactment on December 21, 2000. Because the law became effective upon enactment, aliens who may otherwise be ineligible for adjustment became eligible immediately. This regulation eliminates existing bars to HRIFA and NACARA 202 benefits by implementing statutorily mandated waiver, exception, and motion to reopen provisions set forth in section 1505 of the LIFE Act amendments, which was included in the Consolidated Appropriations Act for 2001, Public Law 106-554. Publication of this interim rule with an immediate effective date will allow affected aliens to have their cases processed expeditiously.

As noted previously, an alien subject to a final order of exclusion, deportation, or removal who has been made eligible for adjustment of status under the LIFE Act Amendments to NACARA or HRIFA, but who did not apply for such adjustment by the statutory deadline of March 31, 2000, may seek to reopen his or her removal proceedings before the Immigration Court or the Board of Immigration Appeals, as appropriate, to apply for NACARA 202 or HRIFA adjustment. Such an alien must file his or her motion to reopen on or before June 19, 2001. Issuance of a proposed rule at this time would delay a final rule for several weeks, thereby denying such aliens an opportunity to file a motion to reopen before the statutory deadline. In light of all the foregoing, the Department finds that it would be unnecessary and contrary to the public interest to adopt this rule with the prior notice and comment period normally required under 5 U.S.C. 553(b).

In accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Attorney General has reviewed this rule and, by approving it, certifies that this rule will not have a significant economic impact upon a substantial number of small entities. This rule applies to individual aliens who wish to apply for adjustment of status under NACARA or HRIFA. It does not have an effect on small entities as that term is defined in 5 U.S.C. 601(6).

This rule is considered by the Department of Justice to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this regulation has been submitted to the Office of Management and Budget for review.

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. 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 is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Act of 1996, 5 U.S.C. 804. 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.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

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 1 year, and 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.

There are no new information collection requirements in this rule. Forms I-212 and I-601 have previously been approved for use by the Office of Management and Budget under the Paperwork Reduction Act. The OMB control numbers for these collections are contained in 8 CFR 299.5, Display of control numbers.

The Commission's regulations in 10 CFR part 2, Subpart J, provide for the use of an electronic information management system in the HLW repository licensing proceeding. Originally issued on April 14, 1989 (54 FR 14925), the information management system currently required by Subpart J is to have the following functions:

(1) To provide a Licensing Support Network (LSN) that allows full text search and retrieval access to the relevant documents of all parties and potential parties to the HLW repository licensing proceeding beginning in the time period before the Department of Energy (DOE) submits its license application for the repository;

(2) To provide for electronic submission of filings by the parties, as well as the orders and decisions of the Atomic Safety and Licensing Board during the proceeding; and

(3) To provide access to an electronic version of the HLW repository licensing proceeding docket for use during the hearing.

The creation of the LSN—originally called the “Licensing Support System” (LSS)—was stimulated by the requirements of Section 114(d)(2) of the Nuclear Waste Policy Act of 1982 (NWPA). This provision requires the Commission to issue a final decision approving or disapproving issuance of the construction authorization for a geologic repository for HLW within three years of the “submission” (i.e., docketing) of the DOE license application. 1 The Commission anticipated that the HLW proceeding would involve a substantial number of documents created by well-informed parties regarding numerous, complex issues. The Commission believed that the LSS could facilitate the timely NRC technical review, and the timely petitioner “discovery-type” review, of DOE's license application by providing for electronic access to relevant documents before DOE submits its license application, as well as supplant the need for the traditional discovery process used in NRC proceedings involving the physical production of these documents after the license application is docketed. In addition, the Commission believed that early provision of these documents in an easily searchable form would allow for a thorough, comprehensive technical review of the license application by all parties and potential parties to the HLW licensing proceeding, resulting in better focused contentions in the proceeding. It was also contemplated that the LSS would facilitate agency responses to Freedom of Information Act (FOIA) requests by providing the public with electronic access to relevant documents.

Originally, the LSS was conceived of as a large centralized information management system administered by what was then called the Licensing Support System Administrator. To take advantage of the advances in technology that occurred since the issuance of the original rule, the Commission revised the rule (63 FR 71729; December 30, 1998) to create the LSN that would use the Internet to link geographically dispersed sites rather than relying on a complex and expensive centralized system. The current provisions of the LSN rule require DOE and NRC to make their documentary material available in electronic form beginning thirty days after DOE's submission of its site recommendation to the President of the United States. All other participants must make their documents available in electronic form no later than thirty days after the date that the repository site selection decision becomes final after review by Congress.

Although the Supplementary Information accompanying the 1998 revised rule noted that the availability of the Internet to link geographically dispersed sites appears to have the potential to satisfy the requirements and objectives of Subpart J, no specific design for the LSN was set forth in that final rule nor were any specific performance requirements established except to specify that the overall design must be “effective and efficient.” To establish these specific design standards, on August 22, 2000 (65 FR 50937), the Commission issued a proposed revision to its rules applicable to the LSN.

The proposed amendments would:

• Establish certain minimum design standards for data structure and data transfer (“design standards”) for individual participant websites that are necessary to ensure the LSN meets its objectives and functions;

• Supplement the existing responsibilities of the LSN Administrator by making it clear that the Administrator has the authority to review participant website designs to verify compliance with the basic design standards, including the authority to allow variances from those standards. In addition, it would make clear that the LSN Administrator has the authority to issue guidance to the LSN participants on how they might best meet the design standards; and

• Clarify the timing of the participant compliance certifications.

The Commission received six comments on the proposed rule, as well as one supplemental comment from DOE clarifying some of its initial comments. Copies of those letters are available for public inspection and copying at the NRC Public Document Room, 11555 Rockville Pike, Room O-1F12, Rockville, MD, on the NRC website at www.NRC.GOV ., and in ADAMS. The comments fall into the following categories:

1. Comments on the proposed LSN design standards;

2. Comments on the proposed revisions to the responsibilities and authority of the LSN Administrator;

3. Comments on the design of the LSN site and the Regulatory Analysis; and

4. Comments on the timing of participant compliance certifications.

The Commission also received several comments on the Level One and Level Two Functional Requirements for the LSN. The Level One Functional Requirements identify all of the specific functions that the LSN must perform to achieve the requirements of the rule. The Level Two Functional Requirements provide more detailed information on how these functions will be performed. The functional requirements will eventually be issued by the LSN Administrator as guidance on the design standards. However, they were not part of the proposed rulemaking but were circulated to the LSN Advisory Review Panel (LSNARP) for preliminary review. The LSNARP is an NRC advisory committee composed of potential LSN users, chartered under the Federal Advisory Committee Act, 5 U.S.C. App. 2, to provide advice to the LSN Administrator and the Commission on technical and policy issues concerning the LSN. LSNARP comments will be addressed directly by the LSN Administrator. Copies of the functional requirements can be obtained from Dan Graser, LSN Administrator, U.S. Nuclear Regulatory Commission, Washington D.C. 20555-0001 or by email at DJG2@nrc.gov.

There were a number of general comments on the proposed design standards. Nye County, Nevada, the host county and situs jurisdiction for the potential high-level nuclear waste repository at Yucca Mountain, agreed with the need for the NRC to establish certain minimum design standards for individual participant LSN websites to avoid confusion and promote confidence in the process and the integrity of documents and data. Furthermore, the County stated that the design standards “will help us in ensuring that our site will meet the required standards.” However, the County's support for the design standards is conditioned on the Commission's stated intent to provide flexibility for a participant to deviate from any guidance developed by the LSN Administrator regarding the standards to take into account individual needs and differences, at least so long as the fundamental design requirements are met. In response to the County's concern, the Commission re-affirms its willingness to provide this type of flexibility. However, the Commission notes that the reference in the Supplementary Information to “flexibility” was made in the context of any guidance developed to implement the design standards. Regarding the standards themselves, the proposed rule would give the LSN Administrator the authority to allow variances from the standards to accommodate changes in technology or problems identified during initial operational testing of the individual participant LSN websites or the central LSN site. This authority has been carried forward into the final rule at § 2.1011(c)(6).

The Nuclear Energy Institute (NEI) noted that the proposed amendments represented a valuable tool for use in the repository licensing process and endorsed NRC's selection of the design standards. However, NEI also stated that guidance on implementation of the standards will be necessary. In response, the Commission notes that this guidance will be developed by the LSN Administrator.

DOE also was highly supportive of the proposed use of new information management technologies to make information available to interested parties. DOE stated its intent to use and continue to use web-based technology to make its publications and supporting documents promptly available. DOE also recommended clarifying the term “participant website” to read “participant LSN website,” because a participant may have websites that are not related to the LSN. The Commission agrees that this is a necessary clarification and will use the recommended term through out the rule. DOE also recommends revising the term “LSN site”, which refers to the LSN Administrator's portal site, to “central LSN site”. The Commission agrees. The Commission also notes that the term “LSN” refers to the totality of the “central LSN site” and the various participant LSN websites.

The following comments were submitted on the individual design standards:

Section 2.1011(b)(2)(i). The participants must make textual (or, where non-text, image) versions of their documents available on a web-accessible server. Web indexing software (also known as a robot, a spider, or a crawler) must be able to canvass data files and server log files on the participant server.

Several comments were received on this standard. Some of these comments raised general issues concerning the basic document submission requirements of the LSN rule regarding “textual” material and “images,” rather than specific issues about the design standard itself. To ensure that these basic requirements are fully understood, the Commission believes it would be helpful to restate those requirements at this point. To provide full text search capability for relevant documents, § 2.1003(a)(1) of the current regulations requires NRC, DOE, potential parties, parties, and interested governmental participants to provide an “electronic file ” (emphasis added) for all documentary material. For “graphic-oriented” documentary material, an “electronic image ” (emphasis added) must be provided under § 2.1003(a)(2) in lieu of the text file. Graphic-oriented material consists of such items as raw data, field notes, maps, and photographs. Any text that is embedded within this type of documentary material does not need to be separately entered in searchable full text, i.e., as an “electronic file.” Graphic-oriented material will be retrievable from the bibliographic header material submitted by the participant. The Commission has revised § 2.1003(a)(2) to clarify that a bibliographic header is required for graphic-oriented documentary material.

DOE originally commented that proposed § 2.1011(b)(2)(i) should be revised to state that “[t]he participants shall make textual and/or image versions of their documents available * * * ” This suggestion was based on the rationale that DOE has images of all documents but not the full text for any page in the document that was marked “image only.” In addition, “some participants may have native files (Word or Word Perfect), so they may not have images of textual documents. Requiring absolutely one or the other would be a problem if interpreted literally.” As noted, the current regulations require an electronic file for text documentary material and an electronic image for “graphic-oriented” documentary material. Therefore, the option of providing images only for textual material would be contrary to the Commission's requirements and to the objective of providing full text search capability. In comments submitted by DOE as a supplement to its initial comments, DOE clarified that it now has a clearer understanding of when an electronic image is to be provided (consistent with the Commission's explanation). However, DOE also stated its intent to provide online electronic images, as well as electronic “files,” of all its documents, not just for “graphic-oriented” documentary material. The Commission has no objection to this enhancement but emphasizes that it is not a requirement under the Commission's regulations.

Both DOE and NEI commented on some explanatory material in the Supplementary Information to the proposed rule on the requirements of § 2.1011(b)(2)(i). In the Supplementary Information (see 65 FR 50939), the Commission stated that this proposed standard does not affect the ability of parties or potential parties to correct or revise documents already made available on their websites, as long as:

(1) A corrected or updated document is noted as superseding a previously provided document;

(2) The previous version is not removed; and

(3) Other parties or potential parties are notified of the change.

DOE recommended deletion of this notice requirement, or at least clarification that it is acceptable to post any changes in a “notice” section of the participant's LSN website, because DOE will not have the ability to know all potential parties in order to notify them of changes. Likewise, NEI commented that this requirement needs clarification in terms of how it will be accomplished: “Will there be a central way of notifying the other parties? Will participants know whom all of the participating parties are? * * * should each participant be responsible for assuring that it is using the latest information from other participants sites?”

Although not cited in the Supplementary Information, the statements of concern are based on § 2.1004 of the current regulations which provides for amendments or additions to documents. In view of the DOE and NEI comments, the Commission is providing the following explanation of the process for amending or adding documents that should alleviate the commentors' concerns. This provision, as explained in the Supplementary Information to the original rulemaking on the Licensing Support System (54 FR 14935; April 14, 1989), was to accomplish two objectives. The first was to address the correction of any errors discovered in the previous entry of a document. In these cases, the incorrect document would remain on the system with its own bibliographic header, and the corrected version of the document would be entered as a separate document with its own bibliographic header. The bibliographic headers for each document would include references to the other document. The second objective was to provide for the entry of updated pages to a document that was already on the system but was not being issued as a new, revised “stand-alone” document. In this case, the updated pages must be entered as a separate document with a separate bibliographic header. The bibliographic header of the original document and the bibliographic header of the updated pages must reference the other document. In the case of revisions that are new “stand-alone” revisions (e.g., a “Rev. 1” document), the revised document is entered as a separate document with its own bibliographic header that notes that it is a revision of another document that is on the system. There is no need to amend the header of the original document to indicate the existence of the new “stand-alone” revision because it is anticipated that the revision will be found through the routine full text search process. With any of these changes, the participant is not required to notify all of the other parties or potential parties individually. Rather, as suggested by DOE, notice may be posted on the participant's LSN website if that site is accessible; however, at a minimum the participant must notify the LSN Administrator, and the central LSN site will notify users of the updated information through a notice on the central LSN site's webpage. The notice on the central LSN site will contain listings of changes, if any, to each participant's collection, identified by LSN accession number, with a description of what the change was, the date of the change, and why it was necessary.

Section 2.1011(b)(2)(ii). Participants would be required to make structured data available in the context of (or, under the control of) an accessible SQL (Standard Query Language)-compliant database management system (DBMS). Alternatively, the structured data may be made available in a standard database readable (e.g., comma delimited) file.

DOE recommends that the Commission explain the function of a “comma delimited” file. The Commission agrees and has revised the corresponding section of the Supplementary Information to explain that a “comma delimited file” or a “comma separated value (.csv) file” are ways to identify where the column values for each row in a particular data file begin and end so that it can be conveyed as input to another table-oriented application such as a database or spreadsheet application.

To ensure that this standard is clear, the Commission has revised this standard to substitute the term “bibliographic header” for the term “structured data.” The revised standard will read “Participants would be required to make bibliographic data available in the context of (or under the control of) an accessible SQL (Standard Query Language)-compliant database management system (DBMS). Alternatively, the structured data containing the bibliographic header information may be made available in a standard database readable (e.g., XML (Extensible Markup Language http://www.w3.org/xml/ ), comma delimited, or comma separated value (.csv) file.

Section 2.1011(b)(2)(iii). This section would require that textual material be formatted to comply with the US.ISO_8859-1 character set and be in one of the following acceptable formats: native word processing (Word, WordPerfect), PDF (Portable Document Format) Normal, or HTML (Hypertext Markup Language).

DOE initially recommended inserting “plain text” in front of “native word” when discussing the acceptable text format. Upon further reflection, DOE clarified that it was recommending the insertion of “ASCII” rather than “plain text.” The Commission agrees and the standard has been revised to read “textual material be formatted to comply with the ISO/IEC 8859-1 character set and be in one of the following acceptable formats: ASCII, native word processing (Word, WordPerfect), PDF Normal, or HTML.” Note that the Commission has substituted “ISO/IEC” as the updated reference for this standard rather than “US.ISO”.

Section 2.1011(b)(2)(iv). This section would require that image files be formatted as TIFF (Tag Image File Format) CCITT G4 for bi-tonal images or PNG (Portable Network Graphics) per [http://www.w3.org/TR/REC-png-multi.html]) format for grey-scale or color images, or PDF (Portable Document Format—Image). TIFF images are to be stored at 300 dpi (dots per inch), grey scale images at 150 dpi with eight bits of tonal depth, and color images at 150 dpi with 24 bits of color depth. Images found on participant machines will be stored as single image-per-page to facilitate retrieval of no more than a single page, or alternatively, images may be stored in a page-per-document format if software is incorporated in the web server that allows single-page representation and delivery.

DOE recommended that the Commission modify the proposed rule as follows (changes underlined): “TIFF images will be stored at 300 dpi (dots per inch) or greater, gray scale images at 150 dpi or greater with eight bits of tonal depth, and color images at 150 dpi or greater with 24 bits of color depth.” This would, in effect, establish minimum standards but allow the participants to incorporate features beyond the minimum standards. The Commission agrees with these changes and has revised the final rule accordingly.

DOE also noted that image formats can be used for textual material as well as for “non textual document materials” and recommended that the broader phrase “document materials” be substituted for the phrase “non textual document materials.” As noted previously, the current rule only requires an electronic image for “graphic-oriented” documentary material. However, nothing precludes a participant, as in fact DOE has indicated, from making its TIFF images available in addition to the searchable text file; however, a TIFF is not acceptable in lieu of a searchable text file.

In addition, DOE commented that the phrase “alternatively, images may be stored in a page-per-document format if software is incorporated in the web server that allows single-page representation and delivery” is inconsistent with the preceding phrase in the sentence that “images be stored as single image-per-page to facilitate retrieval of no more than a single page.” DOE recommends that the second phrase be revised to read “alternatively, images may be stored in an image-per-document format if software is incorporated in the webserver that allows image-per-page representation and delivery.” The Commission agrees that this correction should be made.

NEI questioned whether the standard of storing images on participant servers as single-image-per-page means that all multi-page documents need to be broken up into individual documents by page with a tracking number. If so, NEI believes this would be unduly burdensome.

In response, the Commission notes that the images in question are only for non-textual documentary information, such as maps, presentation slides/overheads, etc., so the following discussion does not apply to every textual document a participant may make available. In addition, TIFF images may be stored as a single image in a single file or with multiple images enveloped into a single file. Software utility programs are available to either select a group of single image files and wrap them into an envelope, or conversely, to take an existing envelope, open it, and pull out individual page images. Additionally, participants may use document management software that stores in multi-image format but is able to deliver single page images on request. The Commission would encourage the use of this type of software. The Commission's concern with the ability to select single image files of a page is that this capability is necessary to avoid the time and expense of a participant having to send a large number of images simply to deliver an image of one particular page. For example, consider the case of a participant searching a text file and finding a desired chart on page 237 of a 500 page document. All the user needs is one page. If the participant “owner” of that document has to send the user the entire multi-page TIFF envelope through a 14.4 bps user modem, that image file will take a substantial amount of time to load. Also, if the user is paying a long-distance remote connection charge, it will be very expensive as well as time consuming. The Commission would like to avoid imposing unnecessary burdens on the general public or on participants who do not have current state-of-technology machines and bandwidth.

The LSN Administrator, in concert with the LSNARP, will continue to examine the most effective way to resolve this issue and accommodate participants' existing systems while ensuring that image file delivery is efficient and effective. However, for the time being, the Commission is retaining the proposed standard in the final rule. The Commission is revising this standard to clarify that in addition to TIFF images, it also applies to PDF (Portable Document Format) and PNG (Portable Network Graphics) images.

Section 2.1011 (b)(2)(v): This section would require that the parties programmatically link the bibliographic header record with the text or image file it represents. Each participant's system must afford the LSN software enough information to allow a text or image file to be identified to the bibliographic data which describes it.

NEI requested the Commission to provide an actual example of this header with the final rulemaking. The LSN Administrator has included an example of header field structure, with descriptions, in the March 2001 release of the Functional Requirements.

DOE recommended that the Commission adopt the following language (changes underlined): “The participants shall programmatically link the bibliographic header record with the text and/ or image file s it represents. The bibliographic header record must contain fielded data identifying its associated objects (text and/or image) file name s and directory location s. ”

The Commission reiterates its previous statement that online availability of a bibliographic header and its associated electronic image are only required for “graphic-oriented” documentary material. In addition, the Commission is concerned that under the DOE approach, there could be multiple text and/or image files all associated with a single document and using a single bibliographic header, but logically stored under a number of file names and in multiple directory locations. Having multiple files with the same unique identifier assigned via the bibliographic header would not be acceptable. There may well be both an image and a text file associated with a given document but in those cases, there is usually an underlying Electronic Document Management System (EDMS) that controls the linkage between those associated files. The Commission believes that requiring the file name and directory locations to be placed in a bibliographic header field, as the only technically acceptable approach, restricts flexibility of the participants in designing their websites and is therefore easing that constraint; nonetheless, it is retaining the requirement that either a hyperlink in the header file to the web published document (preferably) or some other programmatic mechanism must be provided by the participants' software, procedures, or system configuration to link headers with text or image files.

Section 2.1011(b)(2)(vi). To facilitate data exchange, paragraph (b)(2)(vi) would require that participants adhere to hardware and software standards, including the following:

(A) Network access must be HTTP/1.1 [http://www.faqs.org/rfcs/rfc2068.html] over TCP (Transmission Control Protocol, [http://www.faqs.org/rfcs/rfc793.html]) over IP (Internet Protocol, [http://www.faqs.org/rfcs/rfc791.html]);

(B) Associating server names with IP addresses must follow the DNS (Domain Name System), [http://www.faqs.org/rfcs/rfc1034.html] and [http://www.faqs.org/rfcs/rfc1035.html];

(C) Web page construction must be HTML version 4.0 [http://www.w3.org/TR/REC-html40/];

(D) Electronic mail (e-mail) exchange between e-mail servers must be SMTP (Simple Mail Transport Protocol, [ http://www.faqs.org/rfcs/rfc821.html]); and

(E) Format of an electronic mail message must be per [http://www.faqs.org/rfcs/rfc822.html] optionally extended by MIME (Multimedia Internet Mail Extensions) per [http://www.faqs.org/rfcs/rfc2045.html]) to accommodate multimedia e-mail.

No comments were received on this standard. However, the Commission has eliminated the reference in § 2.1011(b)(2)(vi)(C) to version 4.0 of HTML. To avoid having to change the rule text as new versions of HTML become available and acceptable, “HTML” alone is being specified. The LSN Administrator will notify participants of the acceptability of a particular version. In addition, § 2.1011(b)(2)(vi)(E) has been revised to note that “MIME” is Multipurpose Internet Media Mail Extensions rather than Multimedia Internet Mail Extensions.

Nye County, Nevada, supported the added responsibilities being given to the LSN Administrator, particularly the authority to grant variances from the design standards and to issue guidance to participants on how best to meet those standards.

DOE commented on the authority of the LSN Administrator in proposed § 2.1011(c)(4) to identify any problems regarding the integrity of documentary material certified by a participant. In its initial comments, DOE stated that the word “fidelity” should be used rather than “integrity” because it believed that the intent of this provision is related to the documentary material being accurately represented in the LSN, not to the content or completeness of the documentary material. However, in its supplemental comments, DOE noted that “[o]n further review, the DOE has a clearer understanding that the purpose of this section * * * is to * * * ensure that information provided to the LSN is not removed or modified. The DOE agrees that the LSNA should have the authority to ensure the integrity of the document set provided to the LSN.”

In its initial comments, DOE also noted that the Supplementary Information to the proposed rule stated that “[a]ll disputes over the LSN Administrator's recommendations as to documentary material or data availability and integrity will be referred to the Pre-License Application Presiding Officer” (See 65 FR 50941). However, according to DOE, proposed § 2.1011(c)(3) only refers to “LSN availability” and not to “documentary material or data availability.” Section 2.1003 of the current regulations uses the term “availability” in the context of the obligation of participants to identify and make available documentary material. Thus “availability” not only refers to the functioning of a participant website but also to whether the requisite material has been made available. The Commission notes that proposed § 2.1011(c)(3), although referring to “LSN availability,” also includes references to “the availability of individual participant's data.” Nevertheless, the Commission has revised § 2.1011(c)(3) to be more explicit on the nature of “LSN availability.”

NEI commented on a portion of the Regulatory Analysis in which the NRC states that the recommended design needs to be “based on a proven technical solution that has been successfully implemented.” NEI requested that examples of such implementation should be provided. Examples of successful portal implementations for document management applications were provided at the February 23, 2000, LSN Advisory Review Panel meeting, as well as in documentation that was provided at that meeting. They included: http://tis.eh.doe.gov/portal/home.htm; http://www.osti.gov/EnergyFiles/ and http://igm.nlm.nih.gov/ . In addition, website locations (URLs) were included in the NRC's Business Case Analysis for the LSN, which is available via the NRC website in ADAMS at accession number ML003722758 or from the LSN Administrator. Contact Dan Graser, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001, telephone (301) 415-7401, email djg2@nrc.gov.

DOE commented that the discussion for LSN design Alternative 3 should be revised, otherwise it “could be interpreted to mean that the participant sites should be able to function independently to serve the documents to the public if the LSN site is unavailable.” The narrative that DOE was referring to stated that participant servers' versions of the document would serve as backup copies should the LSN site become inoperative (see 65 FR 50943). DOE recommended that the language be revised to read “participants servers” versions of the documents serve as backup copies by being available to the LSN Administrator to facilitate recovery of the central LSN site should the central LSN site become inoperative.” The Commission does not agree with this recommendation. The referenced design does not levy a requirement on participant servers for search and retrieval software capabilities to be made available. However, if participants elect to have search and retrieval capabilities at their websites, those capabilities could, indeed, be used in lieu of the LSN interface should the participants choose to make their external collections accessible to others besides the LSN crawler software. In both cases, the documents maintained by the participants as the source collection, whether on a server or on a transfer tape, could serve as the backup copy of the document.

NEI asked several questions regarding the portal architecture referred to in the Regulatory Analysis: “Has NRC made specific decisions with regard to the portal software (i.e.: Which one? Who makes it? What does it cost? Is it proprietary?, etc.) Does NRC intend to make such decisions in consultation with the LSNARP?”

NRC decisions on portal architecture were made in consultation with the LSNARP, as documented in the LSNARP meeting materials of October 13, 1999 and February 23, 2000. The decision on the specific products used was made based on government procurement practices used for competitive procurement to deliver an operational system meeting stated requirements. The suite of products proposed by the design contract awardee include: NT SQL Server (RDBMS); Autonomy Portal Software (text search); WhatsUpGold and WebTrends (remote monitoring). All products are subject to government approval for use in operational development contingent upon the outcome of a formal design review session. Additional information is available by contacting the LSN Administrator. Also see Section III infra , on the LSN Site Design.

There were several comments on those aspects of the proposed rule relating to the timing of participant compliance, i.e., when is a participant required to make its documentary material available and when does a participant need to certify that it has done so. All of the comments recommended tying the date of participant compliance to the DOE license application rather than to the DOE site recommendation to the President as is currently required, and as was proposed in the proposed rule. Under § 2.1003(a) and § 2.1001 of the current regulations, DOE and NRC are required to make their documentary material available beginning thirty days after DOE's submission of its site recommendation to the President; other participants no later than thirty days after the date that the repository site selection decision becomes final after review by Congress. In addition, § 2.1009 of the current regulations requires each potential party, interested governmental participant, or party to certify to the Pre-License Application Presiding Officer that the documentary material specified in § 2.1003 has been identified and made electronically available. However, the current regulations do not specify when the initial certification must be made. Although the Commission did not propose a change to the § 2.1003(a) requirement on when documentary material must be made available, the Commission had proposed a revision to § 2.1009 to clarify that the initial participant certification of compliance (“initial certification”) must be made at the time that each participant's documentary material must be made available under § 2.1003 of the rule.

The State of Nevada noted that the LSN is not related to the DOE site recommendation. Therefore, the date of availability of documentary material, and the accompanying certification, should not be tied to it. Rather, it should be tied to the DOE license application. In addition, Nevada pointed out that there is a good possibility that significant new or revised information will be developed by DOE during the period between the submission of the site recommendation and the license application. Therefore, it would be more efficient to delay certification until a time that would include the initial capture of this information. This could reduce the need for DOE and others to capture documents that might be “obsolete, invalid, or irrelevant to the license application review and hearing.” Therefore, Nevada recommended that certification be tied to some fixed period of time before the license application (e.g., six months). According to Nevada, this would ease the burden of compliance for all known and potential parties, eliminate the possibility of expending resources on unnecessary review of documents that might be superseded by the time of license application, and provide the LSN Administrator and his staff additional time to ensure that the system is properly designed and implemented using the most up-to-date technology available. Finally, Nevada recommended that the date for NRC compliance be set at the same time as DOE compliance and that all other participants must comply after DOE and NRC compliance (e.g., sixty or ninety days later).

NEI also disagreed with the Commission's proposed revisions relative to certification, and by implication, the date of initial availability of documentary material. Similar to the Nevada comments, NEI noted that the purpose of the LSN is to facilitate review of the DOE license application, not the DOE Site Recommendation. NEI recommended that the timing of initial certification for DOE be specified as “no later than six months in advance of the DOE license application.” Furthermore, NEI asserted that this time period would be “consistent with the original compliance expectation established for the LSS in 1989.” NEI recommended that NRC compliance be set at the same time as DOE compliance, and for others after DOE and NRC compliance. In summary, NEI stated that “[o]ther participants would also not be encumbered to comply before compliance would be needed. This would make the network less likely to be cluttered with irrelevant information if DOE were to need to make adjustments to its repository design for licensing as a result of comments received during or conditions placed upon it by the site recommendation process. It would also assure that participants do not confuse the site recommendation with a licensing action.”

DOE submitted comments similar to those of Nevada and NEI on this issue. While DOE stated its support for early access to information, DOE believed that there is a better way to facilitate focused contentions for the licensing proceeding and to ensure an efficient licensing process than tying DOE's certification of its documentary material to the Site Recommendation. DOE recommended that the initial certification of compliance be linked to its submission of the license application. Furthermore, DOE noted that it is “committed to ensuring that interested members of the public have a full six months in advance of its submission of the license application to review the Department's documentary material.”

DOE's rationale for its recommendation was threefold. First, its recommendation would link the initial certification to the License Application. According to DOE, this is consistent with the basic purpose of the LSN, which is to support the NRC's licensing process rather than the DOE's Site Recommendation process. Second, if certification were tied to the Site Recommendation, as it is in the proposed rule, it would be “virtually impossible” to predict how much time would be available for review of the documentary material before the license application is submitted. In contrast, tying the certification to the license application would ensure a defined period of time for review. In addition, DOE noted that it may wish to adjust or otherwise modify its license application in response to comments resulting from the Presidential or Congressional review of the site recommendation or to incorporate the results of additional scientific work that will likely take place during this period. Third, the approach will provide the necessary and appropriate flexibility for DOE to process the documentary material that will be required to be entered into the LSN, and to make it more likely that the material entered will be more fully developed and current. Accordingly, DOE recommended revising various provisions in the rule to require that the availability of documentary material, and the accompanying certification, should occur no later than six months before DOE's submission of the license application. In no event should the Commission receive the license application before six months from when DOE actually made the certification. DOE's recommendation would have NRC and other participant document availability and certification occur sixty days after DOE's certification.

In response to these comments, the Commission agrees that a balance needs to be drawn between the need to provide an adequate amount of time for participants to review the documentary material in advance of the license application and the need to be as efficient as practicable in providing this information. This latter need includes avoiding the unnecessary expense and time to DOE and other participants that may result from making documentary material available before there is some certainty that a license application will become a reality, as well as avoiding the unnecessary expense and time that may result from the provision and review of a significant number of documents that may later become irrelevant or obsolete. In terms of the consideration of an adequate amount of time for participants to review the documentary material, the Commission identified early participant access to the LSN documentary material as a desirable objective and this continues to be an important component of efforts to meet the mandated three-year timetable for conducting the NRC's licensing review, including any adjudicatory proceeding, regarding the DOE application because of the system's capacity to provide early, equitable document discovery and contention formulation for the participants. The NRC and other participants have already made substantial financial and staff resource commitments to have their document collections available, as well as the LSN website ready for the 2001 LSN operational date which was based on DOE's announced schedule. These commitments were based on the requirements for document text availability that have been a regulatory requirement since 1989.

With these considerations in mind, and before setting forth its approach on this issue, in the final rule, the Commission addresses two of the several points made by the commentors. First, in light of the many statements on “tying” the certification to the DOE site recommendation, the Commission notes that its initial selection of the submission of the site recommendation as the point for DOE and NRC to make their documentary material available was to pick a specific event to trigger the document availability requirements that would allow sufficient time for participants to review the material before DOE submitted the license application. The time period provided in the Commission's current regulations for the review of documentary material is based on the DOE site recommendation to the President because the approximately eight months of time between that event and the date specified for DOE to submit the license application under the then extant DOE schedule for the repository, was viewed by the Commission as an appropriate amount of time for pre-application review of pertinent documents. By so providing, the Commission did not intend to imply that the focus of the LSN was the review of the site recommendation. Second, as noted by several commentors, the original NRC rule on the “Licensing Support System” or “LSS” required DOE certification that it had complied with the document availability requirements no less than six months before DOE submitted the license application.

The Commission agrees that tying availability and certification to the date DOE submits (tenders) the license application is a relatively simple and straightforward approach to this issue. The Commission does not entirely agree with the comments made by Nevada, NEI, and DOE on the need to eliminate the expense and time associated with making documents available when the certainty of an actual repository license application may be speculative. The NRC would not be acting prudently if it did not begin serious preparations for the review of a possible DOE license application. Thus substantial staff and financial resources have already been committed in preparing to process such an application. The Commission likewise believes that the parties and potential parties need to prepare for a possible proceeding. The Commission is mindful of the fact that there may be revisions to the DOE site design resulting from the Presidential and Congressional review process or new scientific information gathered during that period before any DOE application. However, the Commission is also aware that the development of the DOE license application and supporting materials is an ongoing process that, given the statutory schedules and the potential complexity and scope of those materials, requires that some effort be expended before it is finally known whether an application will be received. The Commission believes that providing for a six-month period of DOE documentary material availability before DOE submits (tenders) the license application reflects an appropriate amount of pre-license application review time for participants to prepare for the licensing proceeding. The Commission thus has established the following framework on this issue in the final rule:

• DOE is required to make its documentary material available, and to provide an initial certification of compliance, no later than six months before DOE submits (tenders) the license application;

• NRC is required to make its documentary material available, and to provide an initial certification of compliance, thirty days after the DOE certification. Although the current regulations require NRC compliance at the same time as DOE compliance, under the “six months before DOE submits the license application” approach in the final rule, the NRC, like other participants, will have no certainty as to when the DOE certification will be made until it actually happens. Therefore, to eliminate unnecessary coordination effort, the NRC will be permitted to certify thirty days after the DOE certification. As explained in the next paragraph, other participants will have ninety days after the DOE certification before being required to make their documents available. Due to the fact that the NRC will have a substantial amount of documentary material, the Commission wants to ensure that the NRC material will be available as soon as practicable (i.e., thirty days) after the DOE certification;

• The other participants will be required to make their documentary material available, and to provide an initial certification of compliance, ninety days after the DOE certification;

• NRC will not accept the DOE license application for docketing until at least six months have passed since the DOE certification of compliance. Regarding this requirement, the Commission notes that the pendency of a dispute contesting some aspect of the DOE initial certification would not be a reason to delay the NRC acceptance of the DOE license application.

Delaying docketing until the requisite six-months have passed since DOE's certification of the availability of the DOE documents will mitigate the need, as described in the SUPPLEMENTARY INFORMATION for the proposed rule, for the Commission to report to the Secretary of Energy and the Congress, pursuant to section 114(e)(2) of the Nuclear Waste Policy Act, that it could not meet the three-year review required under section 114(d) of the Act because DOE was unable to comply with the LSN rule. As noted in Footnote 1, the Commission interprets the requirement in Section 114(d) of the NWPA that the Commission “shall issue a final decision approving or disapproving the issuance of a construction authorization not later than three years after the date of submission” of the license application, as three years from the docketing of the license application. 2

The Commission is also deleting from the final rule the provision in proposed § 2.1009(c) that would have required DOE to report to the Pre-License Application Presiding Officer in the event that it could not make the initial certification when required. Under the framework in the proposed rule, there was a possibility that a delay in the initial certification by DOE could substantially affect the time provided for advance review of the documentary material. Reporting to the Presiding Officer on the status of the initial certification would have been necessary and appropriate under such circumstances. In addition, under the framework in the final rule, if DOE fails to make its initial certification pursuant to Section 2.1009(b) in a timely manner, at least six months prior to tendering its application, the Commission will not docket the application until six months after initial certification. Not permitting earlier docketing will provide the six months of access to DOE documents that was intended under the provision of Section 2.1009(b). Finally, the Commission is eliminating the provision in § 2.1009(b) of the current regulations that requires the responsible official for a participant to update at twelve month intervals the intial certification that the documentary material specified in § 2.1003 has been made available. Based on the framework in the final rule, as well as the repository schedule in the NWPA, it is unlikely that there will be a need for a twelve month update.

The Commission believes that it would be useful to emphasize two points regarding the availability of documentary material:

(1) What constitutes “documentary material?”; and

(2) When are documents created after the initial certification of compliance required to be made available?

The definition of documentary material in the current regulations includes three separate classes of material, and is guided by the Topical Guidelines in NRC Regulatory Guide 3.69. The three classes of documentary material are:

(1) Any information on which a party, potential party, or interested governmental participant intends to rely and/or cite in support of its position in the HLW proceeding;

(2) Any information that is known to, and in the possession of, or developed by the party that is relevant to, but does not support, that information noted in item 1 or that party's position; and

(3) All reports and studies prepared by or on behalf of the potential party, interested governmental participant, or party, including all related “circulated drafts” relevant to the license application and the issues set forth in the Topical Guidelines regardless of whether they will be relied upon or cited by a party.

Material in any of the three classes must be made available in the LSN. The three classes encompass a broad scope of material, as appropriate for an electronic information management system that was intended to provide document discovery rights similar to that normally available in NRC licensing proceedings. 3

Documentary material created after the initial certification of compliance is expected to be made available reasonably contemporaneous with its creation, rather than stored for entry as a group at some point during the remaining time before DOE submits the license application. This concept has been part of the regulatory framework since the original LSS rule was issued in 1989 (April 14, 1989; 54 FR 14925 at 14934) and is based on the need to provide participants with early and useful access to documentary material before DOE submits the license application. As DOE noted in its comments on the proposed rule, new information will continue to be produced during the period before it submits the license application. Participants must have timely access to this material in order to prepare for the licensing proceeding. 4

The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for Germany, recently notified the FAA that an unsafe condition may exist on certain Britax Sell Gmbh & Co. OHG coffee makers, water boilers, and beverage makers. The LBA advises that there have been 10 reports of discolored wires and two reports of partially melted wires. The crimping of the presently installed Faston Terminals part number (P/N) 3-520133-2 with blue nylon insulation may be insufficient for carrying the full electrical current flowing through that terminal. The insufficient crimping could cause an increased contact resistance in the terminal. The increased contact resistance could result in an increased terminal temperature, discoloration of the insulation, and a melting of the terminal insulation.

Britax Sell Gmbh & Co. OHG has issued service bulletins (SB's) E33-4-007SB, Revision 2, dated December 4, 2000; E33-4-009SB, dated October 24, 2000; E33-4-010SB, dated October 20, 2000; E33-4-011SB, dated October 21, 2000; E33-4-012SB, dated October 24, 2000; E33-4-013SB, dated October 23, 2000; E33-4-014SB, Revision 1, dated November 6, 2000; E33-4-015SB, dated October 23, 2000; and E33-4-016SB, Revision 1, dated November 6, 2000; that specify procedures for replacing the wires on temperature limiters installed on certain P/N water boilers, coffee makers, and beverage makers. The LBA classified these service bulletins as mandatory and issued AD 2000-379 in order to assure the airworthiness of these products in Germany.

These appliances are manufactured in Germany and are used on airplanes that are type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the LBA has kept the FAA informed of the situation described above. The FAA has examined the findings of the LBA, reviewed all available information, and determined that AD action is necessary for products of this type design that are used on airplanes certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other appliances that are used on aircraft registered in the United States, this AD is being issued to prevent a fire in the galley compartment due to inadequate crimping of the electrical terminal contact pins, which could result in smoke in the cockpit and cabin and loss of control of the airplane. This AD requires an inspection for discoloration or melting of the wires, and if discolored or melted, the replacement of wires on the temperature limiters installed on certain water boilers, coffee makers, and beverage makers with P/N's that are listed in this AD. The replacements must be done in accordance with the service bulletins described previously.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES . All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NE-58-AD.” The postcard will be date stamped and returned to the commenter.

This final rule does not have federalism implications, as defined in Executive Order 13132, because it would 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. Accordingly, the FAA has not consulted with state authorities prior to publication of this final rule.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to all McDonnell Douglas Model DC-9-32 series airplanes modified per Supplemental Type Certificate SA4371NM was published in the Federal Register on February 15, 2001 (66 FR 10380). That action proposed to require an inspection to determine if certain ground wires on the water heater of each lavatory are installed, and corrective action, if necessary.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to 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.

There are approximately 30 airplanes of the affected design in the worldwide fleet. The FAA estimates that 20 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $1,200, or $60 per airplane.

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

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

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

The Securities and Exchange Commission (“Commission”) today is adopting amendments to rule 1 [17 CFR 257.1], 1 regarding the preservation and destruction of records of registered public utility holding companies and of mutual and subsidiary service companies, under the Public Utility Holding Company Act of 1935 [15 U.S.C. 79] (“Holding Company Act”).

Federal law requires registered public utility holding companies and their mutual or subsidiary service companies to make and keep books and records. 2 The recordkeeping requirements are a key part of the Commission's public utility holding company regulatory program because they allow us to monitor the operations of companies and to evaluate their compliance with federal law. The recordkeeping rule currently permits records to be preserved and maintained using storage media such as paper, magnetic tape, and microfilm. In light of the advances in information technology since the rule was promulgated in 1984 and in particular the rapid changes in technology in recent years, we believe that we should revise the standards for permissible recordkeeping media to allow the use of current electronic recordkeeping and storage resources in maintaining required records. 3 Moreover, because the proposed amendments do not specify the use of any particular technologies, they allow for the adoption of new technologies in the future. Finally, we are also interpreting rule 1 to be the exclusive means by which companies can comply with the recordkeeping provisions of the Electronic Signatures in Global and National Commerce Act (“Electronic Signatures Act,” “Act,” or “ESIGN”).

Last year, Congress passed the Act to facilitate the use of electronic records and signatures in interstate and foreign commerce. 4 Consistent with the purpose and goals of the Electronic Signatures Act, we are amending the Holding Company Act rules to expand the circumstances under which companies may keep their records on electronic storage media. We are also updating our recordkeeping rules and amending them for clarification. The amendments are designed to update rule 1 to reflect and accommodate companies' use of modern information technology resources to maintain and index records.

The Commission is amending rule 1 to permit companies to keep their records in an electronic format. We also proposed to clarify the obligation of companies to provide copies of their records to Commission examiners, and to incorporate terminology used in electronic recordkeeping rules under the Securities Exchange Act of 1934 into rule 1. 5 We received six comment letters addressing the proposal. 6 Commenters supported the proposed amendments, and we are adopting them substantially as proposed, with a few changes in response to concerns expressed by commenters.

We are expanding the variety of formats that companies may use to maintain required records to include electronic and micrographic storage media. Under the revised rule 1, companies are permitted to maintain records electronically if they establish and maintain procedures: (i) To safeguard the records from loss, alteration, or destruction, (ii) to limit access to the records to authorized personnel, the Commission, and directors of the company, and (iii) to ensure that electronic copies of non-electronic originals are complete, true, and legible. 7

We are also amending the rules to clarify the obligation of companies to provide copies of their records to Commission examiners. The amendments make clear that companies may be requested to promptly provide (i) legible, true, and complete copies of records in the medium and format in which they are stored, and printouts of such records; and (ii) means to access, view, and print the records. 8

We are not adopting a proposed amendment that would have stated that records are to be provided in no case more than one business day after a request. 9 Some commenters were concerned that such an amendment could preclude companies from agreeing to a schedule of record production with the examination staff to produce certain documents immediately and other documents, that are not immediately accessible, on a delayed basis. We agree that such arrangements when entered into and performed in good faith by the examined entity can facilitate the examination process. While the “promptly” standard imposes no specific time limit, we expect that a company would be permitted to delay furnishing electronically stored records for more than 24 hours only in unusual circumstances. At the same time, we believe that in many cases companies could, and therefore will be required to, furnish records immediately or within a few hours of request.

In addition, commenters raised concerns that the amendment requires companies to maintain duplicate copies of records. We wish to clarify that this requirement only applies to records stored on electronic or micrographic media. It is not a requirement for records kept in any other type of media. These duplicates may be maintained in any media form.

Under the Electronic Signatures Act, an agency's recordkeeping requirements may be met by retaining electronic records that accurately reflect the information set forth in the record, and remain accessible to all persons who are entitled to access, in a format that can be accurately reproduced. 10 The Act allows us to interpret this provision pursuant to our authority under the Holding Company Act. 11 Our interpretation of the Electronic Signatures Act must be consistent with the Act and not add to its requirements. 12 The interpretation must be based on findings that (i) our interpreting regulations are substantially justified; (ii) the methods selected to carry out our purposes are substantially equivalent to the requirements imposed on records that are not electronic records and will not impose unreasonable costs on the acceptance and use of electronic records; and (iii) the methods selected to carry out our purposes do not require, or accord greater legal status or effect to, the implementation or application of a specific technology or technical specification for performing the functions of creating, storing, generating, receiving, communicating, or authenticating electronic records or electronic signatures. 13 The Electronic Signatures Act explicitly authorizes agencies to interpret the Act's electronic recordkeeping provisions to specify performance standards to assure accuracy, record integrity, and accessibility of electronically retained records. 14

The Railroad Retirement Board is an independent agency in the executive branch of the United States Government which is charged with the administration of the Railroad Retirement Act (45 U.S.C. 231 et seq. ) and the Railroad Unemployment Insurance Act (45 U.S.C. 351 et seq. ). Use of agency seals is governed by 18 U.S.C. 701 which prohibits the use of agency seals except as authorized under regulations made pursuant to law. This proscription is intended to protect the public against the use of a recognizable assertion of authority with intent to deceive ( U.S. v. Goeltz, 513 F.2d 193 (C.A. Utah 1975), cert. den. 423 U.S. 830). The regulations of the Railroad Retirement Board previously did not include provisions for the authorization of use of the Agency's seal. The Board is adding Part 369 to its regulations to explain when use of the Board's seal is permitted.

The Board published this rule as a proposed rule on January 3, 2001 (66 FR 314-315) and invited comments by March 5, 2001. No comments were received. Accordingly, the proposed rule is adopted as a final rule without change.

In order to comply with the President's June 1, 1998 memorandum directing the use of plain language for all proposed and final rulemaking, the regulatory paragraphs introduced by the above rule changes have been written in plain language.

This rule concerns agency management and is not a regulation as defined in Executive Order 12866. Therefore, no regulatory impact analysis is required. There are no information collections associated with this rule.

On August 23, 1978, ATF published Treasury Decision ATF-53 (43 FR 37672, 54624) revising regulations in 27 CFR part 4. These regulations allow the establishment of defined viticultural areas. The regulations also allow the name of an approved viticultural area to be used as an appellation of origin in the labeling and advertising of wine.

On October 2, 1979, ATF published Treasury Decision ATF-60 (44 FR 56692) which added a new part 9 to 27 CFR, providing for the listing of approved American viticultural areas. Section 4.25a(e)(1), Title 27, CFR, defines an American Viticultural Area (AVA) as a delimited grape-growing region distinguishable by geographical features, the boundaries of which have been recognized and defined in subpart C of part 9. Section 4.25a(e)(2) outlines the procedure for proposing an AVA. Any interested person may petition ATF to establish a grape-growing region as a viticultural area. The petition should include:

(a) Evidence that the name of the proposed viticultural area is locally and/or nationally known as referring to the area specified in the petition;

(b) Historical or current evidence that the boundaries of the viticultural area are as specified in the petition;

(c) Evidence relating to the geographical features (climate, soil, elevation, physical features, etc.) which distinguish the viticultural features of the proposed area from surrounding areas;

(d) A description of the specific boundaries of the viticultural area, based on features which can be found on United States Geological Survey (U.S.G.S.) maps of the largest applicable scale; and

(e) A copy (or copies) of the appropriate U.S.G.S. map(s) with the boundaries prominently marked.

ATF received a petition under the direction of J. Richard Sanford (Sanford Winery) which was written by Wesley D. Hagen (Vineyard Manager of Clos Pepe Vineyards), on behalf of viticulturists and vintners working in Santa Barbara County, California. The petition, which was signed by 22 people, 14 of whom are local wine grape growers, proposed to establish a viticultural area surrounded by but separate from the Santa Ynez Valley AVA of California to be known as “Santa Rita Hills.” The boundary of the viticultural area encloses an estimated area slightly greater than forty-eight (48) square miles and contains approximately 500 acres of planted varietal winegrapes. Currently two (2) wineries and seventeen (17) vineyards exist within the Santa Rita Hills area. Two additional vineyards are being developed.

On September 11, 1998, ATF published a notice of proposed rulemaking, Notice 866, in the Federal Register , soliciting comments on the proposed vitucultural area.

ATF received a total of 35 comments concerning this petition. Eleven letters of support from various persons familiar with the proposed AVA were submitted with the petition. These letters of support included industry “experts,” vintners, consultants, local politicians (such as the Chair for the Santa Barbara County Board of Supervisors and the Mayor of the city of Lompoc), and viticulturists. Seven of the eleven comments were from persons who had also signed the petition. All 11 comments attested to the uniqueness of the area, its distinctive characteristics (geological, geographic, and climatic) and the local recognition of the area by the proposed name.

ATF received 24 comments that opposed the establishment of the Santa Rita Hills AVA. Most of these commenters were foreign/international importers and distributors. The opposition in each response revolved around the similarity of the proposed name to an already established “Santa Rita” brand of wine from Chile.

There is already a well known and established “Santa Rita” vineyard and winery located in Chile, Vina Santa Rita, which was founded in 1880 and is known worldwide. Vina Santa Rita is a public company whose shares are traded on the Santiago Stock Exchange. This “Santa Rita” winery is the second largest winery in Chile, with consumer brand recognition in the Chilean wine industry. Large sums of money have been invested by both the “Santa Rita” winery in Chile and various importers and distributors worldwide to advertise and promote the “Santa Rita” (Chile) brand.

The opposing commenters contend that the establishment of a “Santa Rita Hills” viticultural area would confuse wine consumers who already associate the name “Santa Rita” with the Chilean wine. One commenter stated that, since the names are phonetically identical (sans the last word “Hills”), a product labeled of a “Santa Rita Hills” appellation may be seen as a variety of the Chilean “Santa Rita” as the Chilean “Santa Rita” is surrounded by hills and mountains. Also, since both names would refer to the same product (wine), the likelihood of consumer confusion would increase.

The opponents believe Chile's “Santa Rita” owns a U.S. trademark and, therefore, the establishment of the “Santa Rita Hills” viticultural area would result in an infringement of the “Santa Rita” registered mark under the Lanham Act.

The opponents’ view is that the establishment of a “Santa Rita Hills” AVA would violate the U.S. obligations under the Paris Convention and General Agreement on Tariffs and Trade (GATT), including Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The name “Santa Rita Hills” is locally and/or nationally known as referring to the specified area through maps, land records, reports, and various texts. These records show the Santa Rita area dating back to 1845 (35 years prior to the founding of the Santa Rita winery in Chile). The Californian Santa Rita title was accredited and confirmed in the U.S. Patent Book “A” on June 25, 1875.

The “Santa Rita” name is also used, and ATF approved, as a brand name on other wines not from Chile. According to documents found in ATF's label files, the “Santa Rita” name has been used on wines from Italy and the United States. This includes the use of the name “Santa Rita” on wines from Longoria, a winery in the Santa Rita Hills area whose proprietor, Richard Longoria, submitted a letter of support as well.

Wines from the “Santa Rita Hills” area have been recognized viticulturally and enologically as distinct by world-renowned writers and mentioned as such in wine literature. Supporting documentation shows that the area has a cool climate and soils more conducive to growing “Region One” cool-climate grape varietals whereas the surrounding Santa Ynez Valley AVA provides a warmer climate and soils for “Region Two” grape growing varietals. This distinction results in different wine varietals from each region.

The region of Santa Rita Hills is recognized viticulturally and enologically for producing world class cool-climate grapes such as Pinot Noir and Chardonnay, because of the unique climatic and geographical influences of the area.

ATF is satisfied that the petitioner provided evidence that the name “Santa Rita Hills” is locally known as referring to the area specified in the petition. In the exhibits and maps furnished with the petition, there are numerous references to both “Santa Rita” and “Santa Rita Hills.”

Evidence submitted with the petition relating to name includes:

(a) The U.S.G.S. Lompoc, Lompoc Hills, Los Alamos, and Santa Rosa Quadrangle maps used to show the boundaries of the proposed area use the name “Santa Rita Hills” to identify the area.

(b) The U.S.G.S. Water-Resources Investigations Report 970-4056 (Evaluation of Ground Water Flow and Solute Transport in the Lompoc Area, Santa Barbara County, California) discusses the “Santa Rita Upland Basin.” The report indicates that “Santa Rita” is a recognized geological, geographical, and hydrological appellation in Santa Barbara County, California.

(c) An excerpt, “From the Missions to Prohibition,” in the publication Aged in Oak: The Story of the Santa Barbara County Wine Industry (1998), provided by the petitioner shows the vineyards and wineries in Santa Barbara County prior to 1900 include the name “Santa Rita.”

(d) The text provided by the petitioner from History of Santa Barbara County (1939) states, “Following the secularization of the Mission La Purisma, the rest of the valley was broken up into seven great ranchos granted to private owners. They were Santa Rosa, Santa Rita, Salsipuedes, La Purisima, Mission Vieja, Lompoc and a portion of the Jesus Maria.” (Italics added for emphasis.)

The Land Records of Santa Barbara County from the U.S.G.S. furnished by the petitioner show the Santa Rita area dating back to 1845. According to this information, Santa Rita was established as a recognized political and geographical region when a land grant for Santa Rita was made to Jose Ramon Malo from Spanish governor Pio Pico on April 12, 1845. The title was accredited to Jose Ramon Malo on June 25, 1875 by President Ulysses S. Grant as confirmed in the U.S. Patent Book A. (Pertinent pages are shown as exhibits to the petition.) The patent issued included 13,316 acres within the boundary of the Santa Rita Land Grant.

The names “Santa Rita” and “Santa Rita Hills” are both well documented in the petition and are both supported by written comments evidencing local recognition of the name as referring to the area specified in the petition. ATF finds that the name “Santa Rita Hills” is appropriate to identify the viticultural area based upon evidence submitted with the petition, including commenters' support of the name “Santa Rita Hills” to describe the viticultural area and U.S.G.S maps identifying the area as “Santa Rita Hills”.

As to potential confusion between a product labeled with a “Santa Rita Hills” AVA and wines labeled with the name “Santa Rita,” a similar issue was raised when ATF was presented with a petition to establish a “Madera” AVA back in 1984. Some commenters to the petition, including the Portuguese Embassy, objected to the appellation of “Madera” due to possible confusion with the Portuguese island of Madeira which had produced world famous wine for over 500 years. The commenters were concerned that the use of the appellation”Madera” would cause possible confusion with Madeira wine (a class and type of dessert wine). ATF had previously recognized Madeira as a class and type of wine and as a semi-generic wine designation with geographical significance. When used as a class and type designation, Madeira had to be qualified with an appellation of origin if the wine was not from the island of Madeira.

Although ATF recognized the similarity in the names “Madera” and “Madeira,” ATF ruled in favor of the petitioner. All evidence showed that the proposed AVA was locally and nationally known as “Madera” thus meeting the requirement in 27 CFR 4.25a(e)(2)(I). In addition, ATF did not see any consumer confusion between “Madera” and “Madeira” wine when “Madera” was used as an appellation of origin on domestic wines.

In the present case, while ATF also recognizes the similarity between the name of the viticultural area “Santa Rita Hills” and the name “Santa Rita” in Chile, ATF is satisfied that the petition meets all of the requirements of 27 CFR 4.25a. Evidence submitted with the petition amply supports the local recognition of the name “Santa Rita Hills.” In addition, ATF does not foresee a likelihood of consumer confusion between the “Santa Rita Hills” AVA and other geographic areas of the same name. Numerous labels bearing the name “Santa Rita” in one form or another have already been approved (from the United States, Chile, and Italy) dating from 1980, and ATF is aware of no reported consumer confusion as to the respective products' origins.

As to objections to the use of the name “Santa Rita Hills” based upon potential violations of the Lanham Act and insofar as it implements U.S. obligations on trademarks under the Paris Convention, GATT, and TRIPS, these issues are matters of private dispute that do not restrict ATF's authority to establish a viticultural area under the Federal Alcohol Administration Act (“FAA Act”), 27 U.S.C. 205(e).

It is ATF's position that the rights granted by registered trademarks under the Lanham Act do not foreclose the right to use the same or similar names on an alcohol beverage label under the FAA Act. In determining whether to establish a viticultural area of a particular name that is identical or similar to a trademarked name, ATF considers whether the criteria set forth in section 4.25a are met, whether the rulemaking record supports the use of the name for the designated area, and whether the use of such name would be deceptive or likely to create a misleading impression as to the product's origin. The existence of a trademark is one factor in determining whether the use of a particular name is misleading to consumers.

In the case of the name “Santa Rita Hills,” ATF finds that Federal registration of the term “Santa Rita” under the Lanham Act does not limit ATF's authority to establish a viticultural area known as “Santa Rita Hills.” First, as previously indicated, the petition satisfies the requirements of 27 CFR 4.25a. Second, no evidence in the rulemaking record or otherwise based on our experience in administering and enforcing the use of viticultural area designations, indicates that the name “Santa Rita Hills” would be misleading under the standard of the Federal Alcohol Administration Act, 27 U.S.C. 205(e)(1). As previously stated, numerous labels bearing the name “Santa Rita” in one form or another have already been approved (from the United States, Chile, and Italy) and there has been no evidence or other indication that establishes that consumers are confused as to the respective products' origins.

The fact that imported products are required to state the words “Imported by” followed by the name and address of the party responsible for importation would, in the case of a product with a “Santa Rita Hills” appellation, signal to consumers that the product is domestically produced rather than Chilean in origin. The fact imported products are also required by Customs regulations to state the words “Product of _” followed by the country of origin, further identifies the origin of imported products to consumers, as distinct from domestic products. Likewise, the fact that domestic products are required to indicate the name and address of the bottler or packer, minimizes the likelihood of confusion between a “Santa Rita Hills” wine and a product of Santa Rita in Chile or any other place.

Finally, under trademark law, the mere existence of a trademark does not necessarily preclude others from indicating the geographic origin of their products where the name is used in a descriptive sense rather than a trademark sense. In the case of a “Santa Rita Hills” viticultural area, the name would be used on a label in a descriptive sense, to describe the product's appellation under the FAA Act.

ATF has determined that, under the “misleading” standard of the FAA Act, the use of the name “Santa Rita Hills” for this viticultural area is not likely to mislead the consumer. However, to the extent that a trademark holder believes that the depiction of a viticultural area name that contains all or part of a trademark results in an infringement, then that holder may pursue an infringement action to prevent and restrain the use of that viticultural area name by a winery on a wine label. The holder of the trademark would have to establish the likelihood of confusion based on the standard in the Lanham Act and the circumstances surrounding the presentation of the viticultural area name on the label. In cases where the trademark holder succeeds in establishing an infringement, then the ability to enjoin the continued use of that name by the winery ensures that the first in time right and exclusivity of rights of the trademark holder are protected. It must be noted that, in approving the name Santa Rita Hills for this viticultural area, ATF is not making any determination on whether the use of this name constitutes an infringement under the Lanham Act.

It should be emphasized that the Santa Rita winery in Chile will not necessarily be precluded from using the designation “Santa Rita” as a brand name on wine labels following issuance of this regulation. Pursuant to 27 CFR 4.39(i), a brand name of geographical significance may be used if it previously appeared on labels approved prior to July 7, 1986, and if the wine is also labeled with an appellation of origin (or some other statement which the Director finds to be sufficient to dispel the brand name's geographic connotation). Thus, the name “Santa Rita” may be used as a brand name where the wine meets the appellation requirements of the regulations and is labeled in a way that satisfies the regulatory requirements. As always, all labels are reviewed on a case-by-case basis to determine whether any particular label is likely to mislead consumers, including as to the origin of the product.

Finally, the comments raise questions about the application of the Paris Convention and the Agreement on Trade Related Aspects of Intellectual Property. Trademark rights mandated by these international obligations are implemented under the Lanham Act. Accordingly, any private rights in this area are available for pursuit as provided for by that Act.

In consideration of the above, ATF is adopting the name “Santa Rita Hills” in this final rule. ATF finds that the name “Santa Rita Hills” is appropriate to identify the viticultural area based upon all of the evidence in the petition and comments.

The “Santa Rita Hills” AVA is located in Northern Santa Barbara County, California, east of Lompoc (U.S. Highway 1) and west of Buellton (U.S. Highway 101). Precise boundaries can be found on the five (5) U.S.G.S. Quadrangle maps (7.5 minute series originally dated 1959) submitted with the petition. On these maps, the Santa Rita Hills are the dominant central features of the area with its transverse (east/west) maritime throat stretching from Lompoc to a few miles west of the Buellton Flats. The Santa Rosa Hills to the south and the Purisima Hills to the north isolate the proposed area geographically and climatically.

Again, the U.S.G.S. Water-Resources Investigations Report 970-4056 describes the Santa Rita Upland Basin as being “in hydrologic continuity with the Lompoc Plain, Lompoc Upland and Buellton Upland basins, but separated from the Santa Ynez River alluvium by non-water-bearing rocks.” It goes on to state, “[a]n ongoing U.S.G.S. study treats the Santa Rita Valley as a separate unit * * *” and “* * * the eastern surface drainage divide between Santa Rita and Lompoc basins was used as a ground-water divide by the U.S.G.S.”

The climatic features of the viticultural area and thus the varietals grown therein, set it apart from the Santa Ynez Valley AVA, which borders the viticultural area. The Santa Ynez Valley area east of U.S. Highway 101 is characterized by higher temperatures than the “Santa Rita Hills” AVA to the west, which has a cool climate and is thus more conducive to growing “Region One” cool-climate winegrape varietals. By contrast, the eastern area of the Santa Ynez Valley, a “Region Two” growing area, provides a warmer climate and is well known for the production of varietal winegrapes such as Cabernet Sauvignon, Cabernet Franc, Merlot, Sauvignon Blanc, Mourvedre, and other varietals that require a significantly higher temperature (degree days) for adequate ripening. The “Santa Rita Hills” AVA, to the west of U.S. Highway 101, is better known for varietals such as Chardonnay and Pinot Noir, which are the predominant winegrapes there. In addition, ambient temperature and evapotranspiration rates during veraison and ripening are disparate for the two adjacent viticultural locales. The average post-veraison ripening temperature is 14.7° F hotter within the Santa Ynez Valley AVA than in the “Santa Rita Hills” AVA to the west. Similarly, the heating degree day differential (with the base of 50° F) between the two areas is 61 heating degree days, indicating an annual 92 heating degree days in the western Lompoc boundary and an annual 153 heating degree days in the eastern Cachuma Lake boundary. These temperature differences are the result of a unique set of topographical, geological and climatic influences, particularly coastal in origin.

The “Santa Rita Hills” AVA is situated within the clearly defined east/west transverse maritime throat, and thus is susceptible to the ocean's cooling influence. This enables diurnal ocean breezes direct access to the coastal valleys between the Purisima Hills and the Santa Rosa Hills, which house the AVA. The coastal influence is not nearly as pronounced in the Santa Ynez Valley east of U.S. Highway 101 and the Buellton Flats. In addition, the proximity of the AVA to the Pacific Ocean fills the hills and valleys of the “Santa Rita Hills” AVA in the late night and early morning hours with coastal fog. This intensifies the cool-climate influence on varietal winegrape production between the geological boundaries of the Purisima Hills and the Santa Rosa Hills.

The soils of the Santa Rita Hills are broken down from an array of geological parent material, with the most common types being loams, sandy loams, silt loams, and clay loams. These soils are based on large percentages of dune sand, marine deposits, recent alluvium, river wash, and terrace deposits, which are shown on maps provided in the exhibits of the petition. Soil samples collected from selected sites within the “Santa Rita Hills” AVA and the adjacent Santa Ynez Valley AVA show a distinct difference resulting from a high percentage of alluvial and marine sand within the Santa Rita Hills area. While the soil samples from the “Santa Rita Hills” AVA show higher percentages of sand, silt and sandy loams, the soil samples from the eastern Santa Ynez Valley show a higher percentage of gravelly and clay loams. Also, soil analysis test results from several vineyards in the proposed “Santa Rita Hills” AVA conducted by various labs in the area support the distinct soil data claims.

The topography of the “Santa Rita Hills” AVA is distinct and isolated from the rest of the Pacific Coast, the Central Coast, and the Santa Ynez Valley east of U.S. Highway 101 and the Buellton Flats. The AVA is demarcated by the east-west ranges of the Purisma Hills on the north and the Santa Rosa Hills on the south, framing Santa Rita Hills. When surveying the land within Santa Rita Hills to determine what locales would be the outer “edges,” the petitioner states the following was taken into account: viticultural viability (primarily hillside and alluvial basin plantings) and the coastal influence suitable for cool-climate still winegrape production. The actual topography of the “Santa Rita Hills” AVA is an oak-studded, hill-laden maritime throat that runs east to west, a few miles east of Lompoc to a few miles west of Buellton Flats. The coastal influence enters from the west, through Lompoc, and abruptly loses its influence at the eastern boundary, as demarcated on the enclosed U.S.G.S. maps. Elevations within the proposed boundary range from near sea-level to ridge-line 1800 feet above sea level.

ATF believes that the above statements relating to climate, soil, and topography are supported by the petition and distinguish the geographical features of the viticultural area from surrounding areas. Accordingly, ATF is establishing the “Santa Rita Hills” AVA as described below.

The boundary of the “Santa Rita Hills” AVA may be found on the five (5) 1:24:000 scale U.S.G.S. Quadrangle 7.5-Minute Series maps included with the petition. The boundary is described in § 9.162.

The provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(j)) and its implementing regulations, 5 CFR part 1320, do not apply to this Treasury Decision because no requirement to collect information is imposed.

It is hereby certified that this regulation will not have a significant economic impact on a substantial number of small entities. Any benefit derived from the use of a viticultural area name is the result of the proprietor's own efforts and consumer acceptance of wines from a particular area. No new requirements are imposed. Accordingly, a regulatory flexibility analysis is not required.

It has been determined that this regulation is not a significant regulatory action as defined in Executive Order 12866. Accordingly, this regulation is not subject to the analysis required by this Executive Order.

The author of this document is Joyce A. Drake, Regulations Division, Bureau of Alcohol, Tobacco and Firearms.

Previously, ATF received a request to vary from the regulations in 27 CFR part 18, Production of Volatile Fruit Flavor Concentrate. This request was to allow the transfer of volatile fruit-flavor concentrate (VFFC) that is unfit for beverage use for further processing from one proprietor of a volatile fruit concentrate plant to another. The current regulation regarding transfer of volatile fruit-flavor concentrate (27 CFR 18.54(a)) does not provide for such a transfer.

Another current regulation (27 CFR 18.51) allows the transfer to a producer's premises of “processing material” that is produced elsewhere subject to certain restrictions and recordkeeping requirements. However, the definition of “processing material” (27 CFR 18.11) does not include concentrate that is intended for further processing. Furthermore, the regulation at 27 CFR 18.56 allows only a VFFC proprietor to receive shipments of returned concentrate previously shipped by such proprietor.

Consequently, ATF proposed to amend the regulations in 27 CFR 18.56 to allow such transfers subject to the existing recordkeeping and reporting requirements of 27 CFR 18.56 (Notice No. 823, 61 FR 30017). At this time, ATF also solicited comments concerning other changes to part 18. Specifically, ATF requested comments about whether to allow facilities to be operated alternately as a VFFC plant, a distilled spirits plant, a bonded winery or other regulated facility.

ATF is adopting the proposed regulations to allow VFFC proprietors to transfer, for further processing, volatile fruit-flavor concentrate that is unfit for beverage use. This change in the regulations allows VFFC proprietors greater flexibility without jeopardizing the revenue.

In response to our request for other possible changes in Notice 823 (61 FR 30017), Distilled Spirits Council of the United States (DISCUS) supported the proposal for temporarily alternating VFFC plant with a distilled spirits plant, bonded wine cellar or other regulated facility. As a result, we have written regulations to allow facilities to be operated alternately as a VFFC plant, a distilled spirits plant, or a bonded wine cellar. We believe that limiting alternations between a VFFC and a distilled spirits plant or a bonded winery should address the present needs of all proprietors. However, ATF will consider any future request to alternate a VFFC plant with other regulated facilities.

In addition, DISCUS recommended that the Bureau “streamline” the evidence required for such alternations by using batch records. Under the provisions of the Internal Revenue Code (IRC), each type of regulated operation (for example, a distilled spirits plant, bonded wine cellar or volatile fruit-flavor concentrate plant) is subject to separate and distinct regulatory requirements. These regulatory requirements have been tailored to the particular operation being conducted in order to protect the revenue. Where particular premises are being alternated, ATF has found that the notice of alternation of premises is necessary to protect the revenue and is not unduly burdensome on businesses. The notice identifies the portion of the premises being alternated and identifies the operations that will occur and the specific time during which they will occur. Without this information, ATF would, at best, have difficulty in determining which type of operation was occurring at any particular place or time. Also, batch records would not necessarily allow ATF to verify records, reports, tax returns, and bonds that are required to be filed under the IRC regulations, thus presenting a jeopardy to the revenue. Accordingly, ATF opposes the use of batch records to evidence alternation of premises.

In accordance with the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), it is hereby certified that this final rule will not have a significant impact on a substantial number of small entities. This final rule liberalizes the regulations related to volatile fruit-flavor concentrate plants. Accordingly, a regulatory flexibility analysis is not required. As required by 26 U.S.C. 7805(f), a copy of this final rule was sent to the Chief Counsel for Advocacy of the Small Business Administration. No comments were received.

It has been determined that this final rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, a regulatory assessment is not required.

The collections of information contained in this final rule have been reviewed and approved under the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(j)). The Office of Management and Budget (OMB) has issued control number 1512-0046 for this collection of information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB.

The additional collection of information in this regulation is in 27 CFR 18.39, 18.40 and 18.42. This information is required to make sure that a proprietor of a volatile fruit-flavor concentrate plant is properly qualified to alternate to a distilled spirits plant or a bonded wine cellar, and to record alternations of premises. ATF uses this information to ensure that persons are qualified and that operations are conducted in accordance with law and regulations. The collection of information is mandatory. The likely respondents may include small businesses or organizations.

ATF estimates the burden of qualification and recordkeeping at ten (10) additional respondents and an additional one hour per respondent. ATF estimates that the total annual reporting and/or recordkeeping burden under control numbers 1512-0046 is 40 hours.

This final rule relieves restrictions on the operations of volatile fruit-flavor concentrate plants by allowing certain transfers of high-proof concentrate unfit for beverage use and providing for the alternation of VFFC plants with distilled spirits plants or bonded wine cellars. Consequently, it is exempt from the delayed effective date provisions of 5 U.S.C. 553(d).

The principal author of this document is Robert Ruhf, Regulations Division, Bureau of Alcohol, Tobacco and Firearms.

On April 6, 2001, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulations; Jamaica Bay and Connecting Waterways, New York, in the Federal Register (66 FR 18221). We received no comments in response to the notice of proposed rulemaking. No public hearing was requested and none was held. Pursuant to 5 U.S.C. 553, good cause exists for making this regulation effective in less than 30 days after publication in the Federal Register . The Coast Guard discussed the advance notification periods with all known waterway users likely to be impacted by this change in operating regulations prior to publication of the notice of proposed rulemaking and none objected. In fact, local waterway users have voluntarily complied with the advance notice requirement since April 30, 2001. The NPRM specified that we anticipated that the final rule would become effective less than 30 days following publication. Any delay encountered in this regulation's effective date would be unnecessary and contrary to the public interest since immediate action is needed to perform this lengthy project during the spring, summer and fall months when ambient air temperatures and environmental conditions permit effective sand blasting and painting.

The Beach Channel Railroad Bridge, at mile 6.7, across Jamaica Bay has a vertical clearance of 26 feet at mean high water and 31 feet at mean low water. The existing regulations require the draw to open on signal at all times.

The bridge owner, the New York City Transit Authority, asked the Coast Guard to temporarily change the drawbridge operation regulations to require at least a twenty-four hours advance notice be given to open the Beach Channel Railroad Bridge for thirty-one weeks on each Monday, Wednesday and Friday in order to facilitate structural repairs and painting at the bridge. The Coast Guard contacted all known waterway users to advise them of the proposed closures. No objections or negative comments were received in response this closure.

The Coast Guard received no comments in response to the notice of proposed rulemaking. The effective date of this final rule will be changed to the date of signature of this final rule as the weekend closure dates contemplated in the NPRM have already passed. This change will reduce rather than enlarge the duration of the temporary final rule.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). This conclusion is based on the fact that the bridge will still continue to open daily for navigation.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This conclusion is based on the fact that the bridge will still continue to open for navigation daily.

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

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

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

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

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

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

The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (32)(e) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation because promulgation of changes to drawbridge regulations have been found to not have a significant effect on the environment. A written “Categorical Exclusion Determination” is not required for this final rule.

This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

On March 2, 2001, we published a notice of proposed rulemaking (NPRM) entitled Safety Zone: Triathlon, Ulster Landing, Hudson River, NY in the Federal Register (66 FR 13030). We received no letters commenting on the proposed rule. No public hearing was requested, and none was held.

The Coast Guard is establishing a permanent safety zone for the annual Hudson Valley Triathlon swim on the Hudson River. The safety zone encompasses all waters of the Hudson River, in the vicinity of Ulster Landing, bound by the following points: 42°00′03.7″N, 073°56′43.1″W; thence to 41°59′52.5″N, 073°56′34.2″W; thence to 42°00′15.1″N, 073°56′25.2″W; thence to 42°00′05.4″N, 073°56′41.9″W (NAD 1983); thence along the shoreline to the point of beginning.

The safety zone is effective annually from 6 a.m. until 9 a.m. on the first Sunday after July 4th. The safety zone prevents vessels from transiting a portion of the Hudson River. It is needed to protect swimmers and boaters from the hazards associated with 500 swimmers competing in a confined area of the Hudson River. Recreational vessels can still transit to the east of the zone during the event and will not be precluded from mooring at or getting underway from recreational piers in the vicinity of the zone. Commercial vessels will be precluded from transiting the area because the safety zone encompasses about 800 yards of Barrytown Reach and there is no viable alternative route. No vessel may enter the safety zone without permission from the Captain of the Port, New York.

Special Local Regulations have been published for this event in 33 CFR 100.121 for 7 a.m. to 9 a.m. on the same date. The location of this event was moved 3.5 nautical miles north in the summer of 2000 to the new location in the northern area of Barrytown Reach. A Temporary final rule was required for the 2000 event. This new location encompasses about 800 yards of Barrytown Reach and is about 1,000 yards smaller than the permanent area in 33 CFR 100.121.

This safety zone covers the minimum area needed and imposes the minimum restrictions necessary to ensure the protection of all swimmers and vessels. Public notifications will be made prior to the event via the Local Notice to Mariners.

The Coast Guard received no letters commenting on the proposed rulemaking. No changes were made to this rulemaking.

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

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

This safety zone temporarily closes a portion of the Hudson River to vessel traffic; however, the impact of this regulation is expected to be minimal for the following reasons: This is an annual marine event currently published in 33 CFR 100.121; this safety zone will close a smaller portion of the Hudson River during this event; this zone is only 3.5 miles north of the current zone; the event is limited in duration; the event occurs early on a Sunday morning, which historically is a time when there is less commercial traffic transiting the area; advance advisories will be made to allow the maritime community to schedule transits before and after the event; the event has been held for 4 years in succession and is therefore anticipated annually; and recreational vessels may still transit to the east of the zone during the event and will not be precluded from mooring at or getting underway from recreational piers in the vicinity of the zone.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Hudson River during the time this zone is activated.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: this is an annual marine event currently published in 33 CFR 100.121; this safety zone will close a smaller portion of the Hudson River during the event; the event is limited in duration; it is expected that no more than 1 or 2 commercial vessels will be affected by this event early on a Sunday morning; advance advisories will be made to allow the maritime community to schedule transits before and after the event; the event has been held for 4 years in succession and is therefore anticipated annually; and recreational vessels may still transit to the east of the zone during the event and will not be precluded from mooring at or getting underway from recreational piers in the vicinity of the zone.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. However, we received no requests for assistance from small entities.

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

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

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

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

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. A rule with tribal implications has a substantial direct effect on one or more Indian tribe, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph 34(g), of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation. This rule fits paragraph 34(g) as it establishes a safety zone. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES .

As part of its review of the Schedule for Rating Disabilities (38 CFR part 4), VA published a proposal to amend that portion of the Schedule pertaining to liver disabilities. The proposed rule was published in the Federal Register on August 7, 2000 (65 FR 48205). Interested persons were invited to submit written comments on or before October 6, 2000. We received comments from the Disabled American Veterans and one VA employee.

In the preamble of the proposed rule, we proposed to delete diagnostic code 7313 but inadvertently did not include this change in the amendatory instructions portion of the document. No comment was made on this proposed change which is now reflected in the final rule.

One commenter questioned our proposal to provide percentage evaluation levels of 10, 30, 50, 70, and 100% for diagnostic code 7312 (cirrhosis of the liver, primary biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis) and levels of zero, 10, 20, 40, 60, and 100% for diagnostic codes 7345 (chronic liver disease without cirrhosis (including hepatitis B, chronic active hepatitis, autoimmune hepatitis, hemochromatosis, drug-induced hepatitis, etc., but excluding bile duct disorders and hepatitis C)) and 7354 (hepatitis C (or non-A, non-B hepatitis)). The commenter felt all of these conditions should have the same evaluation levels because the symptom criteria are almost identical.

We do not adopt the comment for the following reasons. The symptom criteria for cirrhotic and non-cirrhotic liver diseases are not nearly identical. The evaluation criteria proposed for cirrhotic diseases (diagnostic code 7312) are based on largely objective signs, symptoms, and complications of cirrhosis, such as jaundice, weakness, weight loss, ascites, hepatic encephalopathy, and hemorrhage. The evaluation levels for cirrhotic diseases have not been changed, except for the addition of the 10 percent rating recommended by our consultants. The evaluation criteria proposed for non-cirrhotic diseases (diagnostic codes 7345 and 7354) are based primarily on specific signs and symptoms of hepatitis or other chronic liver disease without cirrhosis, such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain. Alternatively, non-cirrhotic liver disease and hepatitis C may be rated or on an alternative set of criteria based on incapacitating episodes if it will result in a higher evaluation. VA proposed in the Federal Register on February 24, 1996 (62 FR 8204) to also rate intervertebral disc syndrome based on incapacitating episodes. To maintain internal consistency in the rating schedule, we are using the same percentage evaluation levels that we proposed for rating intervertebral disc syndrome when it is based on incapacitating episodes. The evaluation levels for cirrhotic diseases, however, are not based on incapacitating episodes. Accordingly, we do not believe using the same levels of evaluation for such diseases is appropriate, and we have not adopted the commenter's suggestion.

The same commenter suggested that we provide criteria for diagnostic code 7312 based on incapacitating episodes, as we have done for hepatitis or other chronic liver disease without cirrhosis.

Cirrhosis results in liver scarring and progressive liver damage that eventually leads to liver decompensation with the complications of hemorrhage, encephalopathy, ascites, or jaundice. Treatment is aimed at preventing the progression of liver damage, but it cannot reverse it, because it is permanent. Since cirrhosis does not have an overall episodic course, although its complications may occur intermittently once it has reached the decompensated stage, an alternative set of criteria based on incapacitating episodes is not appropriate, and we have not adopted this suggestion.

Section 4.112 currently addresses weight loss in general terms for purposes of application to § 4.114. We proposed to revise this section by defining these terms in more detail and referencing them to the individual's “baseline weight.” For example, we proposed to define “substantial weight loss,” as meaning a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer. One commenter recommended that we include some guidance for determining baseline weight because a small variation in the way the baseline weight is determined could make a material difference in the disability rating assigned.

In response to this comment, we have added a sentence to § 4.112 defining “baseline weight” as the average weight for the two-year-period preceding onset of the disease. This will assure that the usual weight over a reasonable period of time before the disease began is the basis of determining subsequent weight loss.

We proposed to revise the criteria for evaluating residuals of injury to the liver (diagnostic code 7311) from rating under the criteria for peritoneal adhesions to rating as adhesions of peritoneum (diagnostic code 7301), cirrhosis of liver (diagnostic code 7312), or chronic liver disease without cirrhosis (diagnostic code 7345), depending on the specific residuals. One commenter stated that individuals may have both liver damage and peritoneal adhesions, and that we should therefore indicate that these residuals should be separately evaluated and then combined, rather than evaluating based on only one type of residual.

We agree that this should be clarified, and have revised the criteria to “Depending on the specific residuals, separately evaluate as adhesions of peritoneum (diagnostic code 7301), cirrhosis of liver (diagnostic code 7312), and chronic liver disease without cirrhosis (diagnostic code 7345).”

One commenter suggested we alter the order of presentation of the criteria and punctuation for diagnostic code 7312 at the 100-percent evaluation level from “With one of the following refractory to treatment: ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), or; with persistent jaundice, generalized weakness, and substantial weight loss” to “With persistent jaundice, generalized weakness, and substantial weight loss; or with one of the following refractory to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis).” The commenter recommended similar punctuation changes under diagnostic codes 7345 and 7354.

For the sake of clarity, we have rearranged the order of the criteria under diagnostic code 7312, but prefer to retain the comma and semicolon to distinguish the criteria. We have used this method of punctuation in other sections of the rating schedule ( e.g. 38 CFR 4.88b, diagnostic code 6314 and 38 CFR 4.104, diagnostic code 7000) to emphasize a clear separation of alternative criteria and wish to be consistent in punctuation. A change here might imply a difference in meaning that we do not intend. We have not adopted the suggested punctuation changes for diagnostic codes 7345 and 7354 for the same reasons.

One commenter felt that, in the proposed criteria for a 100-percent evaluation under diagnostic code 7312, it was unclear whether the word “persistent” modifies all 3 manifestations in the phrase “persistent jaundice, generalized weakness, and substantial weight loss,” and suggested that we clarify.

There was no intent that “persistent” modify all three nouns. To assure clarity, we have revised that phrase each time it appears to read “generalized weakness, substantial weight loss, and persistent jaundice.”

One commenter expressed concerns about the criteria under diagnostic codes 7345 and 7354 for a 100-percent evaluation. The criteria we proposed are: “Near-constant incapacitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain).” For a 60-percent evaluation, we proposed: “Incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly, or; with daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly.” The commenter felt that the term “incapacitating symptoms” under the 100-percent evaluation criteria has essentially the same meaning as “incapacitating episodes” at other levels of evaluation, and that a veteran would have to be bedridden to meet the criteria for a 100-percent evaluation. The commenter said this does not conform to 38 U.S.C. 1155, which states that the rating schedule must be based on the average impairment of earning capacity.

A note under diagnostic codes 7345 and 7354 in the proposed rule defines the term “incapacitating episodes” for purposes of those codes. That definition is necessary because there is no generally understood meaning of “incapacitating episodes” as it is used for evaluation purposes. We have therefore defined the term to mean episodes of sudden onset and limited duration, but severe enough to require bed rest and treatment by a physician. As used in the rating schedule, the term “near-constant incapacitating symptoms” refers to symptoms that, because of their severity and persistence, render the average individual unable to work. The word “incapacitating” is defined as “to make unable or unfit; esp., to make incapable of normal activity; disable.” (Webster's New World Dictionary, Third College Edition, 681). Therefore, the term “incapacitating symptoms” does not require bed rest. To eliminate any possible confusion, however, we have changed the term “near-constant incapacitating symptoms” at the 100-percent level to “near-constant debilitating symptoms.” Use of the analogous term “debilitating” will eliminate any possible confusion that might arise from the use of the terms “incapacitating episodes” and “incapacitating symptoms.”

The same commenter objected to the retrospective nature of the criteria for diagnostic codes 7345 and 7354 when evaluation is based on incapacitating episodes on the grounds that a veteran might have to endure financial hardship for twelve months or more before being adequately compensated.

In the great majority of cases, veterans with non-cirrhotic liver disease will be evaluated using the criteria based on signs and symptoms of liver disease. Using those criteria does not require a 12-month period of observation before assigning an evaluation because they are based on current medical evidence of the chronic severity of the disease. The criteria based on incapacitating episodes, although they will be used infrequently, provide an avenue for a potentially higher evaluation. It will often not be necessary to wait 12 months in order to rate a veteran based upon incapacitating episodes if, for example, the medical evidence of record indicates how many episodes the veteran has experienced in the previous 12 months, or if there are incapacitating episodes of sufficient duration to allow the assignment of a higher evaluation than one based on symptoms, even though they have occurred over a less than 12-month period. However, in order to indicate more clearly that using signs and symptoms is the primary method of evaluating the severity of these diseases, we have reversed the order of the two sets of alternative criteria for diagnostic codes 7345 and 7354 so that signs and symptoms, i.e. , the primary basis of evaluation, comes first.

As an extension of the comment objecting to the retrospective nature of the criteria for diagnostic codes 7345 and 7354, the same commenter said that more frequent ratings would be needed in these cases in order to achieve stable evaluations.

As we explained above, most veterans will be rated on the basis of the signs and symptoms of liver disease, and these are not likely to change rapidly because the course of these liver diseases is commonly slow and prolonged, at least until the latter stages of disease. Most persons with non-cirrhotic liver disease and hepatitis C experience a steadily declining course. Periods of incapacitating episodes followed by substantial improvement or rapid decline would be very unusual. Given the course of these diseases, it is unlikely that re-evaluations would be needed more frequently than with other disabilities, and we have made no change based on this comment.

The same commenter urged that a better way (other than using incapacitating episodes as the basis of evaluation) be found to evaluate the severity of diseases that are characterized by recurring exacerbations. The commenter suggested no alternative method of evaluating recurring exacerbations. We believe that evaluating them based on incapacitating episodes is a fair and reasonable way to assess them, and will promote consistency across the rating schedule, in that different diseases will be rated at the same level if they result in the same duration of periods of incapacitation.

VA appreciates the comments submitted in response to the proposed rule. Based on the rationale stated in the proposed rule and in this document, the proposed rule, is adopted with the changes noted above.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

The Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. The reason for this certification is that this amendment would not directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

This regulatory amendment has been reviewed by the Office of Management and Budget under the provisions of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993.

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

The EPA is approving revisions to the particulate matter emissions regulations for Illinois Cereal Mills in Marion County, Indiana. IDEM submitted the revised regulation on August 2, 2000 as an amendment to its SIP.

The revisions are the relaxation of one annual emission limit for a boiler and the tightening of another limit for the head house portion of a grain elevator. These SIP revisions result in no change in the overall PM emissions from the Illinois Cereal Mills, Incorporated facility.

Indiana has revised two long-term PM emissions limits for sources at Illinois Cereal Mills, Incorporated. Indiana has increased the annual emissions limit for the Cleaver Brooks Boiler from 0.7 tons per year (TPY) to 1.0 TPY, measured as total suspended particulate (TSP). Indiana has also decreased the annual emissions limit for the Head House Suction (Point #18) from 6.3 TPY to 6.0 TPY of TSP. The short-term emissions limits remain unchanged at 0.014 pounds per million British thermal units (lb/MMBtu) of energy input for the Cleaver Brooks Boiler and 0.030 grains per dry standard cubic foot (gr/dscf) of gas flow for the Head House Suction.

The general criteria used by the EPA to evaluate such intra-facility emissions trades, or “bubbles,” under the Clean Air Act and applicable regulations are set out in the EPA's December 4, 1986, Emissions Trading Policy Statement (ETPS) (see 51 FR 43814). Illinois Cereal Mills' particulate emissions trade qualifies as a “de minimis” trade. The qualification for a “de minimis” trade is that the sum of particulate matter emissions increases, looking only at sources with increasing emissions, totals less than 25 TPY. The only increasing source, the Cleaver Brooks Boiler, has an emissions increase of 0.3 TPY particulate matter. Indiana did submit a modeling analysis, even though it was not required for this trade. The results of the modeling show zero air quality impact when considering only increased emissions from the Cleaver Brooks Boiler. Both of the modeled annual and 24-hour maximum PM concentration impacts were less than 0.1 micrograms per cubic meter (μg/m 3 ) for the five years modeled.

This SIP revision should not result in any change in particulate matter emissions from Illinois Cereal Mills. Qualifying for a de minimis trade means that the amount of emissions being increased is less than EPA designated significance levels found in 40 CFR 51.18(j)(1)(x) and 40 CFR 51.24(b)(23)(i). The modeling analysis submitted by the State demonstrates that there should be zero impact on all areas from modifying the particulate emissions limits. This SIP revision will not have an adverse effect on air quality.

The EPA is approving, though direct final rulemaking, revisions to the particulate matter emissions regulations for Illinois Cereal Mills of Marion County, Indiana. The State of Indiana, in 326 Indiana Administrative Code 6-1-12(a), has changed the annual emissions limits for Illinois Cereal Mills (Plant ID 0020). For the Cleaver Brooks Boiler (Point ID 01), Indiana increased the limit from 0.7 to 1.0 TPY. Indiana decreased the emissions limit on the Head House Suction (Point ID 18) from 6.3 to 6.0 TPY.

We are publishing these actions without a prior proposal because we view these as noncontroversial revisions and anticipate no adverse comments. However, in the “Proposed Rules” section of today's Federal Register , we are publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on July 30, 2001 without further notice unless we receive relevant adverse written comment by July 2, 2001. If the EPA receives adverse comment, we will publish a final rule informing the public that this rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. The EPA does not intend to institute a second comment period on this action. Any parties interested in commenting on these actions must do so at this time.

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 (Pub. L. 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective July 30, 2001 unless EPA receives adverse written comments by July 2, 2001.

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 July 30, 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).)

Throughout this document “we,” “us,” or “our” means EPA.

Today's action approves the removal of a provision from Title 33 LAC, chapter 5, section 504, that treated NO X as a precursor to ozone in current ozone nonattainment areas. This makes the regulation consistent with earlier actions by EPA to exempt NO X as an ozone precursor. This exemption was based on modeling that demonstrated that additional NO X reductions would not contribute to attainment of the National Ambient Air Quality Standard (NAAQS) for ozone in the current nonattainment areas. In addition, we are approving several administrative revisions that are non-substantive in nature and do not alter the meaning of this rule.

The State of Louisiana submitted to EPA two separate rule revisions to Title 33 of the LAC, chapter 5, section 504. The base rule was initially approved by EPA on October 10, 1997 (see 62 FR 52948). The first revision to section 504 was submitted to EPA on May 9, 1997, and was approved by EPA on January 5, 1999 (see 64 FR 415). The second revision to section 504, which this action will act upon, was submitted to EPA on July 25, 1997, as 1996 General SIP revisions. The July 25, 1997, submittal was adopted by the State of Louisiana previous to the adoption of the May 9, 1997, submittal. However, since the revisions were submitted out of sequence, EPA first approved the May 9, 1997, submittal. Today's action approves the chapter 5, section 504, portion of the 1996 General SIP revisions which were adopted on December 20, 1995, and submitted to EPA on July 25, 1997, by the Governor of Louisiana. The EPA will act on the remainder of the July 25, 1997, submittal in a separate action.

The EPA has exempted NO X precursors to ozone based on a demonstration that additional NO X reductions would not contribute to attainment of the NAAQS for ozone in the current nonattainment areas. The EPA previously approved the exemption (under section 182(f) of the Act) of NO X requirements for the serious ozone nonattainment area of Baton Rouge  1 on January 26, 1996 (see 61 FR 2438). The EPA approved the exemption of NO X requirements for the marginal ozone nonattainment area of Lake Charles (Calcasieu Parish) on May 29, 1997 (see 62 FR 29072). 2

Section 182(f) of the Act sets forth the presumption that NO X is an ozone precursor unless the Administrator makes a finding of nonapplicability or grants a waiver pursuant to criteria contained in that subsection. Specifically, section 182(f) provides that requirements applicable for major stationary sources of volatile organic compounds shall apply to major stationary sources of NO X , unless otherwise determined by the Administrator, based upon certain determinations related to the benefits or contribution of NO X control to air quality, ozone attainment, or ozone air quality. In the revised rule, NO X has been removed based on a demonstration that additional NO X reductions would not contribute to attainment of the NAAQS for ozone in the current nonattainment areas.

The EPA has exempted major sources located in ozone nonattainment areas in Louisiana from applicable NO X control requirements of section 182(f) of the Act based upon NO X waivers previously approved by EPA. The EPA is approving revisions to section 504 which make the State regulation consistent with those previously approved waivers. We note that pursuant to section 182(f) of the Act those previously approved waivers are conditional and may be rescinded. Therefore, section 504 may again need to be modified if the previously approved waivers are rescinded. By letter from Governor Foster to EPA dated March 5, 2001, the State has indicated that it is in fact considering a request for recission of the waiver. Despite such, however, EPA must first act on the State's prior request for a NO X waiver and any regulations that the State adopted to implement such NO X waiver pursuant to section 110(k) of the Act. For a detailed analysis of this rule, a Technical Support Document is included in the public docket at the addresses listed above.

The EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the “Proposed Rules” section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if relevant adverse comments are received. This rule will be effective on July 30, 2001 without further notice unless EPA receives relevant adverse comments by July 2, 2001.

If EPA receives relevant adverse comments, then EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. The EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

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 (Pub. L. 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 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 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 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. The 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. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective July 30, 2001 unless EPA receives adverse written comments by July 2, 2001.

Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 30, 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) of the Act.

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

Throughout this document wherever “we,” “us” or “our” are used we mean EPA.

We are approving, as a SIP revision, changes made to the Commonwealth of Virginia's regulations for fuel burning equipment. The SIP revisions consist of new definitions and additional wording to clarify that the fuel burning regulations under the Commonwealth's regulations found at 9 VAC 5-40-880, 9 VAC 8-40-890, 9 VAC 5-40-900, 9 VAC 5-40-940, and 9 VAC 5-40-1040 apply to stationary combustion turbines but not to stationary internal combustion engines. Definitions for each of these types of equipment have been added to 9 VAC 5-40-890, Definitions. Some minor additional changes in wording are also included in the revisions along with additional clarification of when permits may be needed at a facility.

The revisions clarify which sources are covered under the Fuel Burning Equipment Rule. The revisions indicate that the provisions of 9 VAC 5 Chapter 40 related to Emission Standards for Fuel Burning Equipment do not apply to stationary internal combustion engines. The definition of fuel burning equipment has been revised to indicate clearly that stationary combustion turbines are considered to be fuel burning equipment. Two new definitions have been added to the rule at 9 VAC 5-40-890. One defines a “stationary combustion turbine” as any air breathing internal combustion engine consisting of an air compressor, combustion chamber, and a turbine wheel. The definition of a “stationary internal combustion engine” is an engine in which fuel is burned within a machine in which energy is converted directly into mechanical motion or work. The energy is used directly for the production of power, locomotion or work. Internal combustion engines include, but are not limited to, diesel engines, gasoline engines, and diesel pumps. In addition to these clarifications of applicability, 9 VAC 5-40-1040 has been revised to indicate that permits may be needed for the operation of a facility.

The changes regarding the definition of fuel burning equipment only clarify the current interpretation of the regulations. They do not make the regulations any more or less stringent. The revisions, therefore, have no direct environmental effects in and of themselves. They do provide the public and industry with a better understanding of the type of equipment regulated under this rule.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1997, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. * * *” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1997 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.” Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, state audit privilege or immunity law.

We are approving revisions to the Virginia SIP subumitted by the Virginia Department of Environmental Quality on March 27, 2000. The revisions to 9 VAC 5 Chapter 40 pertaining to Fuel Burning Equipment clarify the applicability to stationary combustion turbines and also clarifies when permits may be needed. We are publishing this action without prior proposal because we view this as a noncontroversial revision and anticipate no adverse comments. However, in the “Proposed Rules” section of today's Federal Register , we are publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on July 30, 2001 without further notice unless we receive adverse comment by July 2, 2001. Should we receive such comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting on this action must do so at this time.

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 (Pub. L. 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 July 30, 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 regarding revisions to the Virginia Fuel Burning Equipment Rule may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

The ADAMHA Reorganization Act of 1992, Public Law 102-321, was enacted on July 10, 1992. That Act transferred the National Institute on Alcohol Abuse and Alcoholism (NIAAA), the National Institute on Drug Abuse (NIDA), and the National Institute of Mental Health (NIMH) to NIH, effective October 1, 1992, and provided for the administration of treatment and service programs under a newly created Substance Abuse and Mental Health Services Administration (SAMHSA). In order to avoid confusion between the ADAMHA Minority Access to Research Careers (MARC) program and the NIH MARC program, the name of the ADAMHA program was changed to Career Opportunities in Research Education and Training (COR). Currently, the MARC program is administered by the National Institute of General Medical Sciences (NIGMS) and the COR program is administered by the NIMH. NIH is revising paragraph (g) of § 66.102 of the existing regulation to reflect this name change and the current organization locations of the respective programs.

Subsequently, the National Institutes of Health Revitalization Act of 1993, Public Law 103-43, was enacted on June 10, 1993. Provisions of that Act necessitate that NIH make changes in both Subparts A and B of the current regulations governing the NRSA program.

Section 1601 of Public Law 103-43 directs the Secretary of Health and Human Services (HHS) to conduct the NRSA program in a manner that will result in the recruitment of women and individuals from disadvantaged backgrounds (including racial and ethnic minorities) into fields of biomedical or behavioral research and the provision of research training to women and those individuals. The United States House of Representatives report accompanying the NIH Revitalization Act of 1993 suggested that NIH consider the possibility of permitting part-time research training for women to keep them from losing training experience while having child care responsibilities. We are revising paragraph (b) of § 66.103 of the current NRSA regulations and adding a new paragraph (c) to permit individuals, in cases of disability or pressing family need, part-time research or training. Additionally, we are amending paragraph (a) of § 66.103 by changing the word “application” to read “the award” to reflect the current policy with regard to eligibility requiring that a recipient must be lawfully admitted to the United States for permanent residence at the time of the award rather than at the time of application.

Section 1602 of the NIH Revitalization Act of 1993 substantially modifies the service payback obligation under the NRSA program. Under provisions of the new law, only individuals in the first twelve months of postdoctoral training incur a payback obligation. Additionally, individuals may pay back this obligation by engaging in service for an equal period of health-related research or health-related teaching; or, if individuals receive an NRSA for more than twelve months, each month beyond 12 months will count toward satisfaction of the repayment obligation. We are amending § 66.105 by revising paragraphs (a), (b), and (c); revising § 66.110 in its entirety; amending § 66.111 of subpart A by revising paragraph (a)(1), the introductory language of paragraph (b), and paragraph (b)(4); and amending § 66.205 of subpart B by revising paragraphs (a)(1) and (b) to reflect these changes in the payback obligation. Additionally, we are amending paragraph (a)(2) by changing the word “application” to read “the award” in order to reflect the current policy with regard to eligibility requiring that a recipient must be lawfully admitted to the United States for permanent residence at the time of the award rather than at the time of application. We are amending paragraph (b) of § 66.205 by changing the reference to “§ 66.106(d)” to read “§ 66.106(e)” to correct an error in the current text.

In § 66.112, subpart A, we are removing the reference to the regulations pertaining to inventions and patents at 45 CFR parts 6 and 8 to reflect the rescinding of parts 6 and 8, effective on October 22, 1996 (61 FR 54743); and we are amending the references to the regulations pertaining to debarment and suspension at 45 CFR part 76 and the guidelines for research involving recombinant DNA molecules to comply with Federal Register format requirements. Additionally, we are amending the title of § 66.112 to reflect that policies, as well as regulations, are referenced in that section.

In § 66.207, we are amending the reference to the regulations pertaining to the administration of grants at 45 CFR part 74, the reference to the regulations pertaining to debarment and suspension from eligibility for financial assistance at 45 CFR part 76, and the reference to the guidelines for research involving recombinant DNA molecules to comply with Federal Register format requirements. Also, we are adding a reference to the regulations to ensure objectivity in PHS-funded research at 42 CFR part 50, subpart F, to reflect their applicability to NRSA research training grants and direct fellowship awards.

Additionally, we are revising the Authority section and the references to section 472 of the Public Health Service Act and the United States Code [42 U.S.C. 2891-1] in § 66.101, § 66.102(d), § 66.105(b), § 66.106(a)(2), § 66.201, and § 66.206(a)(3) to reflect the correct citations.

Finally, we are amending § 66.104 by adding the word “and” immediately following the word “resources” in paragraph (b)(5) to correct an error in the current text.

We announced our intentions to make these changes to the regulations in a notice of proposed rulemaking (NPRM) published in the Federal Register on June 30, 1999 (64 FR 35119). No comments were received. Consequently, the regulations are the same as those proposed in the NPRM.

We provide the following statements as information for the public.

The Department strongly encourages all grant recipients to provide a smoke-free workplace and to promote the nonuse of all tobacco products and reminds that Public Law 103-227, the Pro-Children Act of 1994, prohibits smoking in certain facilities that receive Federal funds in which education, library, day care, health care, and early childhood development services are provided to children.

Executive Order 12866, Regulatory Planning and Review, requires that all regulatory actions reflect the costs and benefits they generate, and that they meet certain standards, such as avoiding the imposition of unnecessary burdens on the affected public. We reviewed the rule as required under Executive Order 12866 and deemed it within the scope of the definition of the term “significant regulatory action” contained in section 3(f) of the Order. Consequently, we submitted the rule to the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA) for the pre-publication review required for all regulatory actions deemed “significant” under the Order.

The Regulatory Flexibility Act (5 U.S.C. chapter 6) requires that we analyze regulatory actions to determine whether they create a significant impact on a substantial number of small entities. The Secretary certifies that the changes in the NRSA program regulations would not have a significant economic impact on a substantial number of small entities and, therefore, a regulatory flexibility analysis, as defined under the Regulatory Flexibility Act, is not required.

Executive Order 13132, Federalism, requires that we consult with State and local government officials in the development of regulatory policies with federalism implications. We received the rule as required under the Order and determined that it does not have any federalism implications. The Secretary certifies that the changes in the NRSA program regulations will not have an effect on the States or on the distribution of power and responsibilities among the various levels of government.

The rule does not contain any information collection requirements that are subject to OMB approval under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).

The Catalog of Federal Domestic Assistance (CFDA) numbered program affected by this rule is: 93.186 National Research Service Awards-Health Service Research Training.

On January 17, 2001, FRA published a final rule revising the Federal safety standards governing braking systems and equipment used in freight and other non-passenger railroad train operations. See 66 FR 4104. The effective date of the rule is May 31, 2001. See 66 FR 9906 (February 12, 2001). In response to the final rule, FRA received several petitions for reconsideration requesting that FRA either amend or clarify the final rule in various ways. Organizations filing petitions included the Association of American Railroads (AAR) (this petition was filed jointly with the American Short Line and Regional Railroad Association), the Brotherhood of Locomotive Engineers, the American Public Transportation Association, and the Rail Passenger Car Alliance. Unfortunately, these petitions are not available on line at the Department of Transportation's centralized Docket Management System Web site because this proceeding originated well before that system was created. They are available, of course, at FRA's docket office or by contacting the contact person shown above. (FRA's docket office is located at 1120 Vermont Avenue, NW., Room 7051, Washington, DC FRA's Docket Clerk, Ms. Ivornette Nelson, may be reached by telephone at (202) 493-6030 or by facsimile at (202) 493-6068.)

Collectively, the petitions raise approximately 25 issues, although some of the more important issues have subsidiary questions. The issues cover a wide gamut, including the requirement to equip locomotives with dynamic brake indicators, documentation and timing of training, the maximum distance that extended-haul trains may travel between inspections, and the meaning of certain language in the final rule. The fact that there are many issues that various organizations desire FRA to reconsider is not surprising, given the complexity of the final rule and the large number of issues it addresses. FRA will give each of these issues full consideration and issue a subsequent document explaining how it has addressed each issue and making any necessary amendments to the final rule. FRA hopes to issue such a comprehensive document concerning all issues raised in the petitions during the summer of 2001, but to the extent any particular issues require more time to resolve, the agency may address those separately at a later date.

Of the many issues raised in the petitions, only one issue concerns a provision for which the compliance date is scheduled to be May 31, 2001. This document concerns that issue. AAR's petition sought reconsideration of a provision requiring certain information about the testing of a two-way end-of-train (EOT) device to be provided to a locomotive engineer. The final rule requires that, if the person conducting the test of the two-way EOT is someone other than a member of the train crew, the locomotive engineer must be notified of the name of the person conducting the test and a record must be maintained, in the cab of the controlling locomotive, containing the name of that individual See 66 FR 4210, § 232.409(c). Under the provisions of the final rule, the compliance date for this and other requirements of Subpart E is May 31, 2001. See 66 FR 4193, § 232.1(b), and document on delay of effective date, 66 FR 9906 (February 12, 2001). To allow FRA an opportunity to respond to this issue without imposing a burden on the industry that might soon be withdrawn if the petition is granted, this document delays the compliance date of this specific requirement, from May 31, 2001, until further notice. If the petition is not granted with respect to that issue, the document explaining that decision will set a new compliance date for that provision. If the petition is granted, of course, there will be no need for any compliance date.

FRA emphasizes that this delay of compliance date applies only to the requirement to provide and retain the name of the person conducting the inspection of a two-way EOT device. The delay does not apply to the provisions for notification and retention of the other information regarding the inspection of a two-way EOT device required by the final rule. See 66 FR 4210, § 232.409(c). Nor does the delay apply to any other provision of the final rule, including other provisions addressed in AAR's petition and the petitions filed by other organizations. None of those other issues on which reconsideration is sought involves provisions having a compliance date in the near future. FRA anticipates resolving those petitions long before the compliance dates set forth in the final rule, which for most provisions is April 1, 2004.

This rule is issued under the authority of both the Endangered Species Act (ESA) (16 U.S.C. 1531 et seq. ) and the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq. ).

The National Marine Fisheries Service published a proposed rule (65 FR 39336, June 26, 2000) that would have prohibited the approach by any person, by any means, with certain exceptions, within 200 yards (yds) (182.8 meters (m)) of a humpback whale, Megaptera novaeangliae, in waters within 200 nautical miles (370.4 km) of the coast of Alaska. The proposed rule prohibited approaches by any means, including by interception (e.g., placing the vessel in the path of the humpback whale so that the whale surfaces within the buffer zone), and prohibited the disruption of normal behavior or prior activity of a whale. Changes from the proposed rule and reasons for those changes are discussed below.

The preamble to the proposed rule discussed species distribution and abundance, whale watching activity in Alaska and the impact of vessel traffic on whales. Please refer to the preamble to the proposed rule (65 FR 39336) and the accompanying Environmental Assessment (EA) for further background on the implementation of protective measures around humpback whales off Alaska.

The primary objective of limiting approaches around humpback whales is to minimize disturbance that could adversely affect the individual animal and to manage the threat to these animals caused by whale watching activities.

The potential for harm to humpback whales from vessel traffic has increased in recent years as the human environment in coastal Alaska has changed. Whale watching has increased in popularity and substantially more vessels are operating from several coastal communities in southeast Alaska and in southcentral Alaska (see EA). In addition, humpback whales are generally distributed throughout coastal waters during the summer months. Intensive feeding activity often keeps these whales in the same or general locations for extended periods of time. These localized aggregations of feeding humpback whales are easily accessible from a number of coastal communities.

This combination of factors may make humpback whales off Alaska particularly vulnerable to pressure from increasing vessel-based human activities. As a result, NMFS has determined that precautionary measures must be taken to protect the humpback whale.

The humpback whale is listed as endangered under ESA. Implementation of protective regulations is consistent with and under the authority of both the ESA and the MMPA. Section 11(f) of the ESA provides NMFS with broad rulemaking authority to enforce the provisions of the ESA. In addition, section 112(a) of the MMPA provides NMFS with broad authority to prescribe regulations that are necessary to carry out the purposes of the statute (see proposed rule for further details).

NMFS proposed to prohibit approaches within 200 yds (182.8 m) of a humpback whale, by any means, including by interception, within 200 miles of the coast of Alaska. NMFS also proposed to prohibit the disruption of normal behavior or prior activity of a whale. In response to comments received during the public comment period NMFS is making the following changes in the final rule for this action:

NMFS is (1) prohibiting approaches within 100 yds (91.4 m) instead of the 200 yd (182.8 m) distance as outlined in the proposed rule; (2) implementing a “slow, safe speed” requirement within proximity of a humpback whale; and (3)creating exemptions for vessels limited in their ability to maneuver; commercial fishing vessels lawfully engaged in actively setting, retrieving or closely tending commercial fishing gear; and state, local or Federal government vessels operating in the course of official duty. Details of these changes are discussed below.

In this final rule NMFS prohibits anyone, with exceptions, from approaching by any means, including by interception, within 100 yds (91.4 m) of any humpback whale within 200 nautical miles of Alaska, or within inland waters of the state. “Inland waters” refers to the navigable waters of the United States shoreward of the navigational demarcation lines dividing the high seas from harbors, rivers, and other inland waters of the United States (33 U.S.C. 2003(o)).

NMFS proposed a 200-yd (182.8-m) minimum approach distance in the proposed rule. NMFS received a number of comments (11 of 42) that specifically opposed the 200-yd (182.8-m) approach distance. Commenters stated that the distance was a significant departure from the 100-yd distance established in the Marine Mammal Viewing Guidelines (Guidelines). Commenters also noted that the 200-yd (182.8-m) distance was inconsistent with the 100-yd (91.4-m) distance established for approaches to humpback whales in Hawaii.

NMFS has decided to implement a 100-yd (91.4-m) distance to maintain consistency with the published Guidelines and with the regulations that exist for viewing humpback whales in Hawaii. Also, compliance will be essential to effective implementation of these regulations. Currently the industry is operating under the 100-yd (91.4-m) guideline. This distance is generally recognized as the minimum approach distance for waters around Alaska. Consistency with this guideline should contribute substantially towards achieving industry compliance.

NMFS is also implementing in the final rule a “slow, safe speed” requirement when a vessel is near a humpback whale. A large number of commenters (17 of 42) responding to the proposed rule requested that NMFS implement speed restrictions. The request for implementation of a speed limit was the prevailing comment received during the public comment period. Laist et al. (2001), in a study of worldwide occurrences of whales struck by ships, indicated that most lethal or severe injuries to whales struck by vessels occurs by ships traveling 14 knots (kts) or faster. The authors recommend that in areas where special caution is needed to avoid such events, measures to reduce the vessel speed below 14 kts may be beneficial.

While Laist et al. (2001) indicate that most lethal or severe injuries are caused by ships 80 meters long or longer, the potential also exists for smaller vessels traveling at fast speeds to injure a whale. This could be particularly the case for some of the coastal areas in waters off Alaska where whale density is high, whale surfacings unpredictable, and vessel traffic great.

NMFS believes that some form of speed restrictions should be imposed to reduce the likelihood of mortality or injury to a whale in the event of a vessel/whale collision. Implementation of a specific speed limit (e.g., less than 14 kts) throughout the state or even in local, specifically designated areas was, however, considered problematic from an enforcement and practical perspective. Practical impediments to using specific speed limits include the fact that “clutch-in speed” of vessels varies. For some vessels, the “clutch-in speed” may be greater than 10 kts. Practically as well as for enforceability, a safe speed standard, rather than a strict nautical mile-per-hour standard is appropriate.

NMFS is, therefore, implementing a requirement for “slow, safe speed” when a vessel is near humpback whales. In this situation, the U.S. Coast Guard recommends that operational guidance for vessels use language that mariners are familiar with, understand and accept by convention. This means application of “safe speed” as defined in the Inland Navigational Rules and the International Regulations for Preventing Collisions at Sea 1972 (COLREGS)(33 U.S.C. 2006 and 33 U.S.C. 1602, respectively). Implicit here is the recognition that mariners must adjust speeds to accommodate hazards that they may encounter during the course of operations. NMFS is extending this application to vessels operating around humpback whales.

Operation at a “slow, safe speed” will allow vessels sufficient time to vary course and speed to reduce the potential for a strike. The COLREGS Rule 6 defines operation such that “every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions.” A slow safe speed around whales will provide enhanced safety to the whale, the vessel and the passengers onboard the vessel.

NMFS notes that particular “hot spots” of concern in coastal Alaska contain higher concentrations of whales and vessel traffic. These areas are generally focal areas for whale watching activity as well as major thoroughfares for large ship traffic.

While NMFS is implementing the requirement for a slow, safe speed for all waters off Alaska when near a humpback whale, NMFS encourages vessel operators to pay particular attention to maintaining a slow, safe speed in areas of high whale density. Some of these areas include parts of Southeast Alaska such as Frederick Sound; Chatham Strait; North Pass, which is between the north end of Shelter Island and the south end of Lincoln Island near Juneau; Point Adolphus, near Gustavus; and the Sitka Sound area. Reduced speeds in these areas will likely minimize the potential for collisions and reduce the likelihood of serious injuries or mortalities should an inadvertent collision occur.

Three additional modifications in the final rule from the proposed rule were made: (1) an exemption for commercial fishing vessels while commercial fishing, (2) an exemption for vessels limited in their ability to maneuver, and (3) an exemption for state, local and Federal government vessels operating in the course of official duty. These exemptions have been included in response to public comment and due consideration by NMFS.

NMFS is exempting commercial fishing vessels lawfully engaged in actively setting, retrieving or closely tending commercial fishing gear. For purposes of this regulation commercial fishing means taking or harvesting fish or fishery resources to sell, barter or trade. Commercial fishing does not include commercial passenger fishing operations (i.e., charter operations or sport fishing activities).

Commercial fishing vessels are not actively seeking whales. Commercial fishermen usually avoid setting gear close to whales to prevent injury to the whale and damage to the fishing gear. In some instances commercial fishing vessels may find themselves, while actively fishing, in close proximity to a humpback whale. Fishing operational requirements may preclude these vessels from adhering to the approach prohibition without compromising their gear or catch. Therefore, NMFS is exempting these vessels while they are fishing.

NMFS is specifically not exempting commercial fishing vessels in transit. Commercial fishing vessels in transit should be able to abide by the approach restrictions in the same way as other transiting vessels or those purposefully approaching humpback whales. Abiding by these regulations should not cause commercial fishermen in transit significant alterations in their path or the time taken to get to a fishing ground to set or to retrieve gear.

NMFS is exempting vessels limited in their ability to maneuver. Certain vessel types and some vessels in certain situations may find it necessary to closely approach a humpback whale to maintain safe operating conditions. Limitations in maneuverability could pose hazards to the vessel should it be required to adhere to the whale approach regulations. The primary motivation for this exemption is vessel and personal safety. Some examples of vessels that may be restricted in their ability to maneuver and who may be able to claim this exemption are tugs pulling large barges, vessels with deep draft that may encounter problems maneuvering in narrow and/or shallow passageways, vessels laying cable or other similar vessel types or situations.

Finally, NMFS is also exempting state, local and Federal government vessels operating in the course of official duty. The activities of these vessels are often critical to important safety missions or other activities that require that they closely approach a humpback whale. Examples of this type of operation may be Coast Guard vessels engaged in a search and rescue operation, military ships undertaking activities critical to national security, local or state government enforcement or safety operations, research vessels, or vessels engaged in disentangling a humpback whale or other marine mammals. These examples are not meant to be exhaustive. There may be other situations in which vessels limited in their ability to maneuver or state, local or Federal government vessels would be exempt from approaches within 100 yds (91.4 m) of a humpback whale. A requirement of any of the above-mentioned exemptions is that any person who claims the applicability of an exception to the approach regulations has the burden of proving that the exemption applies.

Section 10(e) of the ESA provides an exemption to the Section 9 “take” prohibition for Alaska Natives harvesting threatened or endangered species for subsistence purposes. While humpback whales are not currently harvested off Alaska, nothing in this regulation is intended to affect the rights of Alaska Natives under the exemption provided in Section 10(e).

NMFS received 42 letters of comment in response to a request for comments in the proposed rule. Many letters contained similar comments and are consolidated. Response to comments addressing significant issues and requiring a reply are summarized below.

Comment 1: Eleven (of 42) commenters supported making the 100-yd (91.4-m) approach distance in the current Alaska Marine Mammal Viewing Guidelines the regulatory approach distance.

Response: NMFS concurs. Please see preamble to the final rule for further explanation on this change from the proposed rule.

Comment 2: Twelve commenters supported the 200-yd (182.8-m) proposed approach distance.

Response: While some comments supported the proposed 200-yd (182.8-m) approach limit, NMFS believes that maintaining consistency with regulations governing approaches to humpback whales in Hawaii, as well as with the Guidelines already established for waters off Alaska is important.

Comment 3: Seventeen commenters supported the inclusion of speed limits in regulations. Some suggested a speed limit range of 10-14 knots.

Response: NMFS concurs that some measure of restricting speed is necessary. Laist et al. (2001) showed a critical threshold speed of 14 kts below which serious injury and mortality of whales struck by vessels was minimized. The implementation of a specific speed limit is problematic from a practical and enforcement standpoint. However, to minimize the chance of whale/vessel collisions and the potential for serious injury or mortality NMFS is requiring that vessels maintain a slow, safe speed in proximity to a humpback whale. See the preamble to the final rule for further details.

Comment 4: NMFS did not do enough public outreach on the regulations. In general more public outreach is needed. Commercial operators should be included in the process of creating regulations.

Response: NMFS conducted extensive public outreach upon publication of the Marine Mammal Viewing Guidelines (Guidelines) in 1996. NMFS distributed the Guidelines brochures widely throughout Alaska, both in their original versions and later as they were revised. Public meetings were also held in key coastal communities around the state to increase public awareness of and compliance with the Guidelines. NMFS has met regularly with interested industry groups to discuss marine mammal viewing and the Guidelines. In addition, prior to the development of the proposed rule NMFS solicited input statewide. NMFS contacted the public, industry, environmental groups and other interested parties, through a direct mailout letter as well as through paid advertisements in coastal newspapers throughout the state.

Comment 5: A combination of measures would be more effective than merely having an approach distance; i.e., combine approach distances with speed and time limits around animals and limits on number of vessels permitted within a certain radius of a humpback whale.

Response: In the final rule NMFS combined a minimum approach distance with a general speed restriction. A combination approach has advantages in that it is more comprehensive. However, enforcement of detailed combinations is difficult. As a result, NMFS has chosen to implement some of these measures as regulations and retain the other measures as guidelines. The Marine Mammal Viewing Guidelines, which contain some of the other measures mentioned in the comment, will remain in place as additional guidance for vessel behavior around humpback whales as well as around other marine mammal species. The Guidelines present a comprehensive approach to appropriate marine mammal viewing by combining measures such as minimum approach distances, time spent with an animal and general suggestions for vessel-, air- and land-based operations.

Comment 6: NMFS must dedicate sufficient resources to enforcement to make the regulations work.

Response: The Alaska Enforcement Division (AED) of the NMFS is dedicated to protecting all of the living marine resources in Alaska. Enforcement of the regulations promulgated under the MMPA and the ESA has been, and will continue to remain a priority, which is balanced with other priorities, for the AED. The AED recently purchased six patrol vessels that are capable of safely operating in any waters in Alaska where humpback whale watching is likely to occur. These resources provide increased capability for Special Agents and Enforcement Officers to prevent violations from occurring by providing transportation to coastal communities to educate the general public, to respond to reports of violations, and to enforce regulations.

Comment 7: NMFS should develop a permit or certification system. This could either be a government permit system or an industry-developed certification program. NMFS should consider granting some privileges to those with certification or a permit.

Response: Several private industry groups within the state have discussed and/or attempted to implement an industry-based certification program for whale watching activities within the state. This kind of effort is likely to improve voluntary compliance.

A government permit system may be more problematic. It would require a certain infrastructure that NMFS is not able to support at this time. A limited entry permit system may be warranted at some point; however, further analysis and discussions would be needed prior to consideration of a limited entry permit system. As mentioned in the EA, this type of system presents significant issues of equity in deciding the criteria for admission.

A permit system that simply provides a means to register vessels engaged in whale watching activity would, however, provide a better means to understand the nature of the industry.

Should a permit or certification program be considered in the future, NMFS would consider all aspects of implementation, including whether or not the granting of privileges to permittees should occur.

Comment 8: NMFS should exempt certain vessel classes or vessel types such as fishing vessels, those in the course of official duty (e.g., for the U.S. government), those limited in their ability to maneuver, or sport trollers. Other commenters suggested that no vessels should be exempt, particularly kayaks.

Response: NMFS agrees with the suggestion to exempt certain vessel types and vessels under certain circumstances. NMFS has incorporated into the final rule an exemption for commercial fishing vessels lawfully and actively engaged in setting, retrieving or closely tending their gear; vessels limited in their ability to maneuver; and state, local and federal government vessels during the course of official duty. Please see the section above on Changes from the Proposed Rule for further details on these exemptions.

NMFS agrees that vessels such as kayaks should not be exempt from the 100-yd (91.4-m) prohibition or be subject to some lesser distance. While kayaks, because they are small and virtually silent, could possibly approach whales closer than 100 yds (91.4 m) without causing a disturbance, empirical data does not exist to support such a conclusion. NMFS believes that a conservative approach of requiring all whale watch vessels (including kayaks) to adhere to the 100-yd (91.4-m) approach restriction provides the appropriate degree of protection. Further, allowing different classes of vessels to approach at different distances would make enforcement extremely difficult.

NMFS has not exempted other sport fishers such as trollers. Recreational fishers often also watch whales and could therefore cause undue disturbance to these animals. Sport fishers should be in a position to abide by the approach prohibition.

Comment 9: Many commenters noted that they have seen a rapid increase in the charter fleet numbers in recent years.

Response: NMFS agrees. Comprehensive data on the number of vessels engaged in whale watching or conducting wildlife charters are, however, difficult to obtain. The best available information indicates that the charter boat industry has increased substantially in the last 10 years.

Comment 10: Commenters suggested that a distance regulation might not be the most effective measure to protect whales. This regulation would also place a burden on those who know the whales the best, i.e. the whale watching industry.

Response: The intent of any whale watch regulation is to provide protection to the animals being viewed. A distance regulation can be an effective, practical and enforceable tool to manage vessel activity in the presence of whales. A distance regulation creates a buffer zone around the whale. This buffer zone should provide protection from disturbance caused by close approaches. It is also easily understandable for the public and easily enforceable.

While those involved in the whale watch industry may have significant experience with whale behavior this does not obviate the fact that vessel presence and proximity may affect the behavior of the whale. Thus, because the objective of whale watch vessels is to get relatively close to a whale the regulations on approaches would minimize the potential for harm by limiting this encroachment.

Comment 11: NMFS should include avoidance measures for those instances when the vessel operator finds him/herself closer than the minimum approach distance to the whale.

Response: Instances may occur in which a vessel finds itself within the minimum approach distance of a whale. This is most likely to occur when a whale approaches a vessel. NMFS considered the implementation of avoidance measures for these circumstances in the development of the proposed regulations. NMFS concluded that requiring vessels to engage in avoidance measures could cause more disturbance than if vessels remained in their original position.

In tightly constrained areas of coastal Alaska, with potentially many vessels observing a whale at the same time, the requirement for avoidance measures may cause vessels to constantly be in motion as whales shift locations. As a result, avoidance measures have the potential to cause greater disturbance to the animals being viewed and could be dangerous to both the whales and the vessel.

Comment 12: More strict regulations will have a negative economic impact on charter operators. Customers will be disappointed by not being able to get closer to the whales and this will result in damage to business.

Response: NMFS has chosen to implement the status quo minimum approach distance specified in the Guidelines. Thus, the final regulation for approaches will not be more strict than the current recommendation. Because we are not differing from the status quo, the promulgation of regulations should not significantly alter customer satisfaction or participation in whale watch activities.

Comment 13: NMFS should extend the regulations to cover all whales. Untrained observers cannot be expected to distinguish among species.

Response: The different species of baleen whales could potentially be confused by inexperienced observers. However, the distribution of baleen species in Alaska and the patterns of whale watch traffic are such that most whale watch activity is conducted largely on humpback whales as the primary baleen species. Whale watch vessels in specific locations may encounter gray or fin whales. However, in locations where these other two species occur the vessel operators and naturalists are generally well-versed in species identification. NMFS chose to focus these regulations on interactions with humpback whales because of the local distribution patterns of this species and the concern over the greater pressure placed on this species by whale watch vessels.

Comment 14: NMFS should require that dedicated lookouts be posted on vessels.

Response: Dedicated whale watching vessels are the focus of this regulation to minimize impacts to humpback whales. These vessels typically have dedicated naturalists onboard searching for whales for their clients. Other than recreational vessels, for which it would not be practical to require dedicated lookouts, most vessels transiting coastal Alaska waters will have pilot house personnel who are actively scanning the water for hazards to navigation, including large cetaceans.

Comment 15: NMFS is targeting one group (charter operators) whose overall numbers are few compared to all boats on the water.

Response: While the number of whale watch charter vessels may be few compared to the overall number of vessels operating in coastal Alaska, charter boats, by the nature of their operation, have the greatest interaction with, and, therefore, the greatest potential to cause harm to, humpback whales. The intent of the regulation is to manage vessels interacting around humpback whales so that disturbance and harm to this species is minimized.

Comment 16: NMFS did not adequately justify the approach distance of 200 yds (182.8 m) over 100 yds (91.4 m) in the proposed rule.

Response: The proposed rule and the accompanying EA give details supporting the proposed implementation of a 200-yd (182.8-m) versus a 100-yd (91.4-m) minimum approach distance. In this final rule NMFS is implementing a 100-yd (91.4-m) minimum approach distance; therefore further explanation for a 200-yd (182.8-m) minimum approach distance is moot.

Comment 17: Where are cases of non-compliance documented?

Response: The Office of Enforcement records all complaints received by that office concerning non-compliance with the Guidelines or the MMPA and ESA. The Protected Resources Division in the Alaska Region also keeps on file any report of non-compliance received by that office.

Comment 18: One commenter noted observations of blatant violations of the Marine Mammal Viewing Guidelines and supports implementation of regulations.

Response: NMFS acknowledges that non-compliance with the Guidelines occurs. The regulations implemented here are designed to protect the whales and to provide an enforcement tool to respond to situations of non-compliance.

Comment 19: Current laws and guidelines are working well in places that one commenter visits.

Response: NMFS acknowledges that in some situations the Guidelines may be adequate to manage interactions with humpback whales. While compliance with the Guidelines may occur in some localized areas, universal compliance does not occur. The preamble to the proposed rule and the accompanying EA provide greater detail with respect to the inadequacy of the Guidelines.

Comment 20: One commenter suggested that a prohibition on interception of whales (leapfrogging) may make people pursue whales.

Response: NMFS reminds readers that pursuit is prohibited under the ESA.

Comment 21: The proposed rule did not provide an explanation of the link between a change in a whale’s behavior as caused by a vessel and the biological significance of such a change.

Response: NMFS interprets biological significance to mean a change in vital rate parameters. The potential for vessel traffic to affect whales can occur on two levels: 1) short-term behavioral changes that disturb the animal or 2) long-term effects that result in changes to vital rates (e.g., reproductive or survival rate). The latter type of studies necessarily entails long-term observations and are difficult to conduct. Very few studies, if any, have examined the question of the long-term effects to whales by vessel approaches.

In addition, short-term studies indicate that changes occur in humpback whale behavior in response to vessel approaches. The ESA and the MMPA prohibit the “take” of a marine mammal. “Take” is defined in part to include any act of pursuit, torment or annoyance which has the potential to disturb a marine mammal in the wild by causing disruption of behavioral patterns. NMFS believes the results of the short-term studies indicate that conservation measures should be taken before any potential long-term effects occur.

Consistent with the definition of “take” and the associated prohibition on “take,” NMFS is implementing these regulations to prevent disturbance of humpback whales that may be caused by disruption of behavioral patterns. In addition, the precautionary principle would dictate that NMFS take action to protect a species based on the information that we have that shows that vessel traffic can cause changes in a whale’s behavior.

Comment 22: Further research is needed before implementing regulations.

Response: NMFS acknowledges that more research would be beneficial. However, the absence of a greater body of knowledge does not preclude the adoption of protective measures. The ESA generally requires NMFS to use the best available information in managing protected species. NMFS believes sufficient information is available to support this action. NMFS may revise protection efforts accordingly if future research demonstrates that additional or different means of protection are needed.

Comment 23: One commenter supported the application of the precautionary principle in protecting whales.

Response: NMFS agrees. In addition to the data available on the effects of vessel traffic on whales, NMFS believes that the application of the precautionary principle in this situation is warranted.

Comment 24: Several commenters suggested that NMFS turn the current Marine Mammal Viewing Guidelines into regulations.

Response: This final rule implements the 100-yd (91.4-m) minimum approach distance as recommended in the Guidelines. The Guidelines contain other measures to protect humpback whales, as well as other marine mammals, and these measures will remain as guidelines to supplement the regulations.

Comment 25: Few good statistics exist on the number of charter vessels operating in Alaska. Related to this, one commenter noted that NMFS provided totals of vessels registered in the state but did not break out those vessels operating on inland lakes and rivers.

Response: NMFS agrees that limited information is available on charter vessels operating in Alaska. Charter vessels must obtain a business license and a Coast Guard passenger license but they are not required to indicate anywhere that they do, or do not, engage in whale watching activity. As a result, a comprehensive picture of those vessels operating as whale watch charters in the state is not available. Specific operating patterns and locations of operation are also not available. In addition, in some locations trailered vessels may be used on the ocean, in rivers and on lakes and not exclusively in one water body.

Comment 26: The table on vessel collisions in the proposed rule did not identify the types of vessels that struck humpback whales; therefore it is hard to determine what kind of vessel is causing the problem.

Response: The summary statistics of vessel strikes in Alaska originated from the Alaska Region stranding database. The numbers presented in Table 1 of the EA are minimum estimates as not all collisions are reported. These reports are also opportunistic and often provide minimal specific information. The potential exists for all vessel types to collide with a whale. NMFS wants to ensure that no vessel collisions with whales occur. The measures implemented by this regulation should minimize the potential for any vessel to collide with a whale.

Comment 27: NMFS should keep the regulations as simple as possible.

Response: NMFS acknowledges the merit of making the regulations as simple as possible, provided that they are effective in protecting the whales. Simplicity enhances enforcement as well as compliance.

Comment 28: Does NMFS have general guidelines that it recommends for viewing whales?

Response: The Alaska Region has general Marine Mammal Viewing Guidelines published on our Regional website at www.fakr.noaa.gov. These Guidelines are also available in brochure format from the Alaska Region (see ADDRESSES ).

Comment 29: The prohibition on interception in the proposed rule would preclude any vessels from being in front of a whale which would affect educational opportunities.

Response: The prohibition on interception does not preclude vessels from being in front of a whale. The interception prohibition, does, however, preclude vessels from repositioning themselves to intercept the path of a whale as the whale moves. While educational opportunities are an important component of whale watching, the regulations are designed foremost to address the protection of the humpback whale. The specific position of the vessel in relation to the orientation of the whale should not have an impact on educational opportunities.

Comment 30: Whales react to sound, not proximity of a vessel, and NMFS should limit sound production.

Response: Whales may react to sound as well as to the physical proximity of a vessel. Management of vessel approaches to humpback whales should result in the reduction of sound in the proximate environment. The actual management of sound itself would be difficult to accomplish on a practical level. Managing sound production would ultimately require a better understanding of the effect of sound on the whale and would also entail performance standards or specifications for engine construction and sound output. This type of measure would place significant burden on current and future vessel construction. NMFS provides further details on the issue of sound management in the accompanying EA.

Comment 31: In the proposed rule documents NMFS does not provide support to their contention that “critical feeding activity may be interrupted by close approaches.”

Response: NMFS emphasizes the use of the word “may” in the statement as quoted here. It logically follows that given the demonstration that vessel activity causes changes in whales’ behavior (see EA for details), that a whale engaged in feeding behavior may be affected by vessel activity.

Comment 32: In citations provided in the proposed rule NMFS notes that an effect of vessel presence was seen at 400 m distance from a whale but does not mention an effect at 200 m.

Response: The study by Baker and Herman (1989), to which this comment refers, showed an effect on whale behavior from vessels as close as 400 m and as far away as 4000 m. The authors did not indicate that the 200-m distance was tested in their study. However, if a whale reacts to a vessel that is 400 m away, presumably it is also likely to react to a vessel that is closer than that distance. A distance of 400 m was not proposed in the rule because it would have appreciably diminished the viewing experience. NMFS seeks to find a balance between protecting the humpback whale and allowing opportunities for whale watching to occur.

Comment 33: One commenter asserted that 200 yds (182.8 m) seems excessive.

Response: NMFS outlined its justification for the 200 yd (182.8 m) proposal in the proposed rule and accompanying EA. At this time NMFS declines to expand on this justification because the final rule will implement a 100-yd (91.4-m) approach distance.

Comment 34: NMFS should elaborate on why the 200-yd (182.8-m) rule would provide the greatest benefit to the environment, the whales, and their prey.

Response: See response to Comment 33.

Comment 35: One commenter requested that NMFS elaborate on the statement provided in the proposed rule documents that “the perception by many people is that whale watching vessels approach too closely to marine mammals.”

Response: NMFS has received general comments from the public that whale watch vessels get close enough to the whales to cause a disturbance. While not all individuals have accurate knowledge of how close a vessel comes to a whale, the general public is often in a position to observe the activities of whale watch vessels and the resultant behavior of whales on a routine basis. Based on these observations, many people, including those in the industry and those familiar with boat operation, and with whale behavior in Alaska, have expressed the view to the Alaska Region that vessels are operating too closely to the whales, resulting in disturbance to the animals.

Comment 36: A commenter stated that it is important not to generalize the results of whale/vessel interactions from one area or habitat type to another.

Response: NMFS recognizes that some variation in whale response may exist under different circumstances. However, NMFS has utilized the best available data to support the decision, including data from a study of humpback whales in Glacier Bay National Park and Preserve, which is within the larger area affected by this final rule. The data from that study demonstrate behavioral changes in whales in response to vessel proximity. Given the direct relevance of this study to the animals that are to be protected, consideration of these data are appropriate in formulating management strategies for Alaska.

Comment 37: One commenter asserted that the statement in the EA that “whales exhibit a great degree of site fidelity on their feeding grounds” is misleading. The commenter asserts that humpback whale site-fidelity occurs with respect to large-scale population structure site fidelity and not on a smaller site-specific scale.

Response: Humpback whales returning to Alaska to feed exhibit site-fidelity on a regional basis (i.e., generalized feeding area fidelity such as returns to southeast Alaska) as well as on a more localized site-specific basis (i.e., they feed specifically off of a certain point of land) (Straley 1994, J. Straley, pers. comm. ). Regional site fidelity occurs with animals who return to the same general feeding areas of, for example, Southeast Alaska, Prince William Sound or the Kodiak area. Site-specific fidelity does occur on a more local level (J. Straley, pers. comm. ). For example, some animals return repeatedly to the same limited stretch of coastline near Pt. Adolphus or Glacier Bay to feed. A similar kind of site-fidelity occurs for other areas within a greater feeding region.

Comment 38: One commenter supported the discontinuation of whale watch activities if these activities invoke a dramatic change in the whales’ behavior.

Response: NMFS concurs. However, no evidence exists that whale watching has resulted in a “dramatic” change in whale behavior. Current statutory language does prohibit an activity that disturbs or causes changes in normal behavior. Current regulations are intended to manage whale watch vessels so that these vessels do not cause changes in the whales’ behavior, i.e., disturb or “take” a whale. NMFS believes that the new regulations will allow appropriate whale watching to occur without disturbing the animals.

Comment 39: NMFS does not make accommodations for situations in which whales approach a vessel.

Response: NMFS specifies in the preamble to the proposed rule, and in the accompanying EA, that should a whale approach a vessel within the minimum approach distance, NMFS would not require the vessel to undertake avoidance measures. NMFS recognizes that situations occur in which the whales approach the vessel under their own volition. For reasons outlined in Comment 11, NMFS is not requiring vessels to undertake avoidance measures in such instances.

Comment 40: No evidence has been presented that the Marine Mammal Viewing Guidelines, when complied with, are insufficient for minimizing disturbance to the whales.

Response: Compliance with the Guidelines should result in minimizing disturbance to whales. However, sufficient non-compliance occurs to the extent that NMFS believes that regulatory measures are necessary. The new regulatory measures are consistent with the Guidelines. These combined measures should provide protection to humpback whales.

Comment 41: The proposed distance will make photo-identification data impossible to collect. The commenter notes that bona fide researchers should have NMFS research permits but that whale watchers can make a valuable contribution to such studies.

Response: NMFS did not adopt the proposed distance of 200 yds (182.8 m) and instead adopted a distance of 100 yds (91.4 m), the same distance as the voluntary guidelines. Therefore, the NMFS regulation should not have any effect on the status quo collection of photo-identification data.

The Administrator, Alaska Region, NMFS, determined that this rule is necessary for conservation and management and is consistent with the Endangered Species Act and the Marine Mammal Protection Act.

NMFS prepared a final regulatory flexibility analysis (FRFA). A copy of this analysis is available from NMFS (see ADDRESSES ). A summary of the FRFA follows:

(1) Vessel-based disturbance of humpback whales is currently a problem in waters off Alaska. The MMPA and ESA prohibit the “take,” including harassment, of humpback whales and other marine mammals. Recognizing harassment potential, from the perspective of the vessel operator, and proving a case of harassment, from the enforcement perspective, is often difficult. NMFS, Alaska Region, therefore, implemented Marine Mammal Viewing Guidelines to provide a structure for voluntary action to prevent disturbance to marine mammals, including humpback whales, in waters off Alaska. Voluntary compliance is not achieving the Agency’s conservation and management objectives. The measures implemented by this final rule will provide protection from harassment to humpback whales. (For additional detail, refer to Section 3.1 of the EA).

(2) The public commented that a regulation stricter than the 100-yd (91.4-m) voluntary guideline, such as the proposed 200-yd (182.8-m) restriction, could diminish passengers’ satisfaction with the whale watch tour and hence future clientele. However, the agency has chosen to implement a 100-yd (91.4-m) minimum approach distance, which is the same as the present voluntary guidelines and which, therefore, would not affect business in the manner perceived.

(3) Although whale watching activities have been going on for some time in some areas of Alaska, the pressure has been at a level much lower than that which exists currently. Although not comprehensive, some data on the whale watch industry are available. Commercial Fisheries Entry Commission (CFEC) of the State of Alaska gathers data on charter vessels. These data represent the number of vessels in Alaska that register as charter fishing vessels. Some of the fishing charter fleet also offer whale watch charters; the CFEC statistic does not, however, include those vessels that conduct exclusively whale watching charters. In 1998, 3,670 vessels were registered as charter fishing vessels, an increase of 212 percent from 1988 (CFEC 1999). While this is not a direct measure of the universe of whale watching charters, the overlap between the charter fishing industry and the whale watching charter industry indicates that the number of charter vessels that could potentially interact with humpback whales is growing. This statistic also shows a significant increase in the charter industry over the last 10 years.

The U.S. Coast Guard state vessel registration program records all vessels under 5 net tons operating in Alaska waters. Data from 1999 indicate a total of 34,353 active vessels. This includes 2,171 commercial passenger vessels, 4,809 commercial fishing vessels, 660 rental vessels, 24,462 pleasure vessels and 1,226 in the “other” category. Some portion of the commercial passenger vessels are used for whale watching activities. Most of the remaining vessels could potentially interact with whales; the degree of interaction is likely to be minimal, except perhaps for pleasure craft whose operation can be directed at humpback whales. The majority of the 34,353 vessels, however, likely operate in coastal waters, overlapping to some extent with the range of the humpback whale. Although NMFS does not have information on specific vessel use patterns, the number of vessels that could interact with humpback whales has increased substantially in recent years and is likely to continue to grow.

The impact of the current level of viewing pressure, or an increased viewing pressure, may not be fully understood for many years. The risk of harm to the species from a possible delay in detecting a long-term negative response to increased pressure provides impetus to implement measures on a precautionary basis to manage vessel interaction with humpback whales in waters off Alaska.

Quantitative data from potentially affected vessel operators are not available for NMFS to precisely determine whether the affected industry sectors are small entities or not. These data are not available because the charter industry is largely unregulated and no statistics are recorded on the nature of charter operations. A qualitative assessment of the types of vessels that would be impacted indicates that the dedicated whale watch and charter vessels would be most probably directly impacted and also most likely are “small entities,” consistent with the SBA definitions.

For purposes of the FRFA, all whale watch vessels are conservatively assumed to be “small entities” within the meaning of the Regulatory Flexibility Act.

(4) The rule does not contain reporting, recordkeeping and other compliance requirements.

(5) Instead of a 200-yd (182.8-m) minimum approach distance, NMFS has chosen to implement a 100-yd (91.4-m) minimum approach distance which is the same as the present voluntary guidelines, and which would, therefore, minimize to the maximum extent possible any negative economic impact that may have occurred under the proposed rule. The industry asserts that it complies with the present 100-yd (91.4-m) voluntary guideline. Accordingly, the 100-yd (91.4-m) mandatory approach distance should have no effect on the industry. Although a variety of less restrictive measures were examined, none were selected because they would not have provided an appropriate level of protection for the whales. A variety of more restrictive measures were examined, including the proposed 200-yd (182.8-m) approach restriction, and while they would have provided a greater level of protection for the whales, they were rejected because they would have caused a greater cost to the industry.

This rule has been determined to be not significant for purposes of Executive Order 12866.

Endangered and threatened species, Reporting and record keeping requirements.

The Atlantic tunas fisheries are managed under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act (ATCA). ATCA authorizes the Secretary of Commerce (Secretary) to implement binding recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT). The authority to issue regulations under the Magnuson-Stevens Act and ATCA has been delegated from the Secretary to the Assistant Administrator for Fisheries, NOAA (AA).

This temporary rule responds to certain comments on Atlantic HMS permits received in conjunction with comments received on the 2001 proposed initial quota specifications and general category effort controls (66 FR 17520, April 2, 2001). The comments on permits addressed timely activation of the automated Atlantic tunas and HMS Charter/Headboat vessel permit system and the May 15 deadline and permit category selection. NMFS has contracted the Atlantic tunas and HMS Charter/Headboat vessel permitting system to a private company, and, due to technical difficulties, there has been a delay in issuing 2001 vessel permits. In previous years vessel owners have been able to apply for new, or renew existing, permits well in advance of the May 15 permit category change deadline and prior to the start of the fishing year on June 1. The May 15 permit category change deadline is intended to prevent vessel operators from fishing in more than one category in a single fishing year.

Vessel owners have commented that, due to the delay in activation of the permit system, they have not had enough time before the permit category change deadline. This temporary rule extends the deadline to change permit categories to May 31 for 2001 only. For 2002, and beyond, the deadline reverts to May 15. This regulatory change allows vessel owners an additional 2 weeks to change permit categories prior to the beginning of the 2001 fishing season. By allowing vessel owners to choose the most appropriate category, before the start of the fishing year, this measure will further the domestic management objectives for the Atlantic tuna fisheries and maintain the objective of preventing vessel operators from fishing in more than one category in a single fishing year.

NMFS is undertaking this action as a temporary rule without prior notice and an opportunity for public comment because of the immediate need to extend the deadline. Vessel operators wishing to change fishing categories should renew permits as soon as possible prior to the revised deadline of May 31, through the automated permitting system at 1-888-872-8862 or through the internet at http://www.nmfspermits.com. No requests for changes to Atlantic tunas permit categories will be accepted after 11:59 p.m. on May 31, 2001. After the deadline, vessel operators who have not renewed permits for 2001 will be allowed to renew only in the same category as that issued in 2000.

Please note that regulations require that Atlantic tunas permits be carried on board the vessel and be displayed to dealers purchasing tunas. Therefore, changes in permit category are not effective until the new permit has been issued and is carried on board the vessel. Upon receipt of a new Atlantic tunas permit, any previously issued Atlantic tunas permit is rendered invalid.

This temporary rule is published under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. , and ATCA, 16 U.S.C. 971 et seq. The AA has determined that the regulations contained in this temporary rule are consistent with the HMS Fishery Management Plan, the Magnuson-Stevens Act, and the 1998 ICCAT recommendation (ICCAT Rebuilding Program).

Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid OMB control number.

This temporary rule restates, without change, a collection of information requirement subject to the PRA and approved by OMB under Control Number 0648-0327. The burden associated with Atlantic tunas vessel permits is estimated at 30 minutes per initial permit application and 6 minutes per renewal, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES ).

This temporary rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The Pacific halibut bycatch allowance for the GOA trawl deep-water species fishery, which is defined at § 679.21(d)(3)(iii)(B), was established by the Final 2001 Harvest Specifications and Associated Management Measures for the Groundfish Fisheries Off Alaska (66 FR 7276, January 22, 2001) for the second season, the period April 1, 2001, through June 10, 2001, as 300 metric tons.

In accordance with § 679.21(d)(7)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the second seasonal apportionment of the 2001 Pacific halibut bycatch allowance specified for the trawl deep-water species fishery in the GOA has been caught. Consequently, NMFS is prohibiting directed fishing for the deep-water species fishery by vessels using trawl gear in the GOA. The species and species groups that comprise the deep-water species fishery are: all rockfish of the genera Sebastes and Sebastolobus , deep water flatfish, rex sole, arrowtooth flounder, and sablefish.

Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to prevent exceeding the second seasonal apportionment of the 2001 Pacific halibut bycatch allowance specified for the trawl deep-water species fishery in the GOA constitutes good cause to waive the requirement to provide prior notice opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(3)(B) and 50 CFR 679.20(b)(3)(iii)(A), as such procedures would be unnecessary and contrary to the public interest. Similarly, the need to implement these measures in a timely fashion to prevent exceeding the second seasonal apportionment of the 2001 Pacific halibut bycatch allowance specified for the trawl deep-water species fishery in the GOA constitutes good cause to find that the effective date of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The Pacific halibut bycatch allowance for the GOA trawl shallow-water species fishery, which is defined at § 679.21(d)(3)(iii)(A), was established by the Final 2001 Harvest Specifications and Associated Management Measures for the Groundfish Fisheries Off Alaska (66 FR 7276, January 22, 2001) for the second season, the period April 1, 2001, through June 10, 2001, as 100 metric tons. The GOA trawl shallow-water species fishery was closed under § 679.20(d)(7)(i) on March 27, 2001 (66 FR 21886, May 2, 2001) and reopened on May 21, 2001 (66 FR 28679, May 24, 2001).

In accordance with § 679.21(d)(7)(i), the Administrator, Alaska Region, NMFS, has determined that the second seasonal apportionment of the 2001 Pacific halibut bycatch allowance specified for the trawl shallow-water species fishery in the GOA has been caught. Consequently, NMFS is prohibiting directed fishing for species included in the shallow-water species fishery by vessels using trawl gear in the GOA, except for vessels fishing for pollock using pelagic trawl gear in those portions of the GOA open to directed fishing for pollock. The species and species groups that comprise the shallow-water species fishery are: Pollock, Pacific cod, shallow-water flatfish, flathead sole, Atka mackerel, and “other species”.

Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to prevent exceeding the second seasonal apportionment of the 2001 Pacific halibut bycatch allowance specified for the trawl shallow-water species fishery in the GOA constitutes good cause to waive the requirement to provide prior notice opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(3)(B) and 50 CFR 679.20(b)(3)(iii)(A), as such procedures would be unnecessary and contrary to the public interest. Similarly, the need to implement these measures in a timely fashion to prevent exceeding the second seasonal apportionment of the 2001 Pacific halibut bycatch allowance specified for the trawl shallow-water species fishery in the GOA constitutes good cause to find that the effective date of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

This action is required by § 679.21 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2001 A season Pacific cod TAC apportioned to vessels catching Pacific cod for processing by the offshore component in the Central Regulatory Area is 1,815 metric tons (mt) as established by the Final 2001 Harvest Specifications and Associated Management Measures for the Groundfish Fisheries Off Alaska (66 FR 7276, January 22, 2001).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the A season amount of the Pacific cod TAC apportioned to vessels catching Pacific cod for processing by the offshore component of the Central Regulatory Area of the GOA will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 1,565 mt, and is setting aside the remaining 250 as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels catching Pacific cod for processing by the offshore component in the Central Regulatory Area of the GOA.

Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to prevent exceeding the amount of the 2001 A season Pacific cod TAC specified for the offshore component constitutes good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(3)(B) and 50 CFR 679.20(b)(3)(iii)(A), as such procedures would be unnecessary and contrary to the public interest. Similarly, the need to implement these measures in a timely fashion to prevent exceeding the 2001 A season Pacific cod TAC specified for the offshore component in the Central Regulatory Area constitutes good cause to find that the effective date of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

This action is required by § 679.20 and is exempt from review under E.O. 12866.