The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay certification of the airplane and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance; however, the FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions in light of the comments we receive.

If you want the FAA to acknowledge receipt of your comments on these special conditions, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On June 5, 2002, Haycock & Associates LLC, 2558 Rittenour Court, Blacklick, Ohio, applied for a Supplemental Type Certificate (STC) to modify Dassault Aviation Mystere Falcon 50 (Falcon 50) aircraft. The Falcon 50 is a small transport category airplane. The Falcon 50 airplanes are powered by three Honeywell (Garrett) TFE-731-3-1C turbofans, and have a maximum takeoff weight of 38,800 pounds (40,780 pounds with Service Bulletin F50-191). This airplane operates with a 2-pilot crew and can hold up to 19 passengers. The modification incorporates the installation of Universal Avionics Systems Corporation EFI-640 Electronic Flight Instruments. The EFI-640 displays are replacements for the mechanical heading (HSI) and attitude (ADI) instruments. The avionics/electronics and electrical systems installed in this airplane have the potential to be vulnerable to high-intensity radiated fields (HIRF) external to the airplane.

Under the provisions of 14 CFR 21.101, Amendment 21-69, effective September 16, 1991, Haycock & Associates LLC must show that the Falcon 50 as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A46EU, or the applicable regulations in effect on the date of application for the change. Subsequent changes have been made to § 21.101 as part of Amendment 21-77, but those changes do not become effective until June 10, 2003. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations included in the certification basis for the Falcon 50 airplanes include 14 CFR 21.29; 14 CFR part 25 effective February 1, 1965, as amended by amendments 25-1 through 25-34; § 25.255, as amended by amendment 25-42; §§ 25.979(d) and (e), as amended by amendment 25-38; § 25.1013(b)(1), as amended by amendment 25-36; § 25.1351(d), as amended by amendment 25-41; and § 25.1353, as amended by amendment 25-42. In addition, the certification basis includes Special Conditions 25-86-EU-24, and additional requirements listed in the type certificate data sheet that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations (i.e., part 25, as amended) do not contain adequate or appropriate safety standards for the Dassault Aviation Mystere Falcon 50 airplanes modified by Haycock & Associates LLC because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, these Falcon 50 airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

Special conditions, as defined in 14 CFR 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.101(b)(2), Amendment 21-69, effective September 16, 1991.

Special conditions are initially applicable to the model for which they are issued. Should Haycock & Associates LLC apply at a later date for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under the provisions of § 21.101(a)(1), Amendment 21-69, effective September 16, 1991.

As noted earlier, the Dassault Aviation Mystere Falcon 50 airplanes modified by Haycock & Associates LLC will incorporate dual Electronic Primary Flight Displays that will perform critical functions. This system may be vulnerable to high-intensity radiated fields external to the airplane. The current airworthiness standards of part 25 do not contain adequate or appropriate safety standards for the protection of this equipment from the adverse effects of HIRF. Accordingly, this system is considered to be a novel or unusual design feature.

There is no specific regulation that addresses protection requirements for electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive avionics/electronics and electrical systems to command and control airplanes have made it necessary to provide adequate protection.

To ensure that a level of safety is achieved that is equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Dassault Aviation Mystere Falcon 50 airplanes modified by Haycock & Associates LLC. These special conditions require that new avionics/electronics and electrical systems that perform critical functions be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.

With the trend toward increased power levels from ground-based transmitters, plus the advent of space and satellite communications coupled with electronic command and control of the airplane, the immunity of critical avionics/electronics and electrical systems to HIRF must be established.

It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance with the HIRF protection special condition is shown in accordance with either paragraph 1 or 2 below:

1. A minimum threat of 100 volts rms (root-mean-square) per meter electric field strength from 10 kHz to 18 GHz.

a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.

b. Demonstration of this level of protection is established through system tests and analysis.

2. A threat external to the airframe of the field strengths indicated in the table below for the frequency ranges indicated. Both peak and average field strength components from the table are to be demonstrated.

The FAA has recently been advised of failed tests of spoiler actuator assemblies due to failure of the solenoid-operated shut-off valve (SOV) on McDonnell Douglas Model 717-200 airplanes in service and during final assembly. Analysis by the manufacturer indicates that these solenoids contain high electrical resistance, which can be detected only during a spoiler return-to-service (RTS) test. The cause of the high resistance is under investigation. The presence of high electrical resistance in the solenoid is considered a latent failure. The combined failure of the solenoid-operated SOV and the spoiler actuator will cause a single spoiler panel hardover, and could result in reduced controllability of the airplane.

The FAA has reviewed and approved Boeing Alert Service Bulletin 717-27A0025, dated June 11, 2002, which describes procedures for repetitive tests to determine the electrical resistance within the solenoid of the inboard and outboard spoiler actuator assemblies. Operators may choose to perform either a spoiler actuator RTS test or a spoiler system RTS test. Corrective actions for any failed test include replacing the spoiler actuator assembly with a new spoiler actuator assembly, and correcting all faults in the centralized fault display system (CFDS).

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design, this AD is being issued to detect and correct conditions associated with high electrical resistance in the solenoid of the spoiler actuator assembly, which, in combination with the failure of a spoiler actuator, could result in reduced controllability of the airplane. This AD requires accomplishment of the actions specified in the alert service bulletin described previously.

This is considered to be interim action until final action is identified, at which time the FAA may consider further rulemaking.

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 shall 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.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

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 rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-147-AD.” The postcard will be date stamped and returned to the commenter.

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.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it 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 .

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

The FAA has received reports of low rudder pedal forces caused by a broken inner spring in the rudder feel and centering unit on some Boeing Model 737-600, -700, -700C, -800, and -900 series airplanes. The rudder feel and centering unit has two springs—an inner spring and an outer spring. Investigation of the broken springs revealed an incorrect manufacturing process used on a specific batch of inner springs. The outer springs were processed in separate lots, and no outer spring failures have been reported. Further investigation revealed broken inner springs on three delivered and four undelivered airplanes. In each case, the reduced rudder pedal centering force was caused by a failed inner spring. A preflight controls check conducted by the flight crew will detect reduced pedal force, which would indicate the failure of either spring. In the event that both the inner and outer springs fail, the pedal feel and centering forces will be lost. This condition, if not corrected, could result in pilot-induced oscillation and consequent loss of control of the airplane.

The FAA has reviewed and approved Boeing Alert Service Bulletin 737-27A1259, dated May 30, 2002. The alert service bulletin describes procedures for repetitive rudder pedal force tests to measure the pedal force, and repetitive inspections of the rudder feel and centering unit to determine if an inner spring is loose or broken. Operators may choose to do either the test or the inspection. The alert service bulletin also describes procedures for replacing the spring assembly on the rudder feel and centering unit with a new assembly, and adding the suffix “R” to the serial number to indicate that the spring assembly was replaced. Replacing the spring assembly is considered corrective action for incorrect pedal force or a loose/broken inner spring, and eliminates the need for the repetitive tests/inspections. The alert service bulletin also specifies that operators submit replaced spring assemblies and identifying information to the manufacturer. Accomplishment of the actions specified in the alert service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design, this AD is being issued to prevent reduced rudder pedal feel and centering force, which, combined with failure of the outer spring of the spring assembly, could result in pilot-induced oscillation and consequent loss of control of the airplane. This AD requires accomplishment of the actions specified in the alert service bulletin described previously, except as discussed in the following section.

This AD also requires that operators send replaced spring assemblies to Boeing. According to the alert service bulletin, receipt of all replaced spring assemblies will ensure that discrepant springs have been removed from service. However, since the alert service bulletin was issued, Boeing has advised that the replaced spring assemblies submitted by operators will be examined for the type and level of damage sustained, so that further action based on the findings may be developed if appropriate.

This AD includes Model 737-600 series airplanes. In the alert service bulletin, this model was identified in the Summary (“EFFECTIVITY”), but apparently inadvertently omitted in paragraph 1.A.1.

In addition, the applicability of this AD includes airplanes having line numbers 948 through 1108. The effectivity of the alert service bulletin includes those same airplane line numbers—but “with some exceptions.” Those exceptions include four airplanes that Boeing has since advised should be included in the service bulletin effectivity. Those four airplanes have line numbers between 948 and 1108 and are therefore subject to the requirements of this AD.

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 shall 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.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification ( e.g., reasons or data) for each request.

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 rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-159-AD.” The postcard will be date stamped and returned to the commenter.

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.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it 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 certain Dornier Model 328-100 and 328-300 series airplanes was published in the Federal Register on April 5, 2002 (67 FR 16331). That action proposed to require replacement of the bolts with new bolts with wirelocking on the Support One of the rudder spring tab.

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.

The FAA estimates that 53 Model 328-100 series airplanes and 20 Model 328-300 series airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. Required parts will be supplied by the manufacturer at no cost to the operators. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $4,380, 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 .

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

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 certain Boeing Model 777 series airplanes was published in the Federal Register on January 4, 2002 (67 FR 541). That action proposed to require inspection of certain aft axle pivot pins of the main landing gear (MLG) for heat damage and either reworking of damaged pins or replacement of damaged pins with new pins.

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

One commenter requests that the FAA revise paragraph (a)(2) of the proposed AD because the description of one of the appropriate inspection methods as a “magnetic particle inspection” is incomplete. The commenter states that the term should be changed to “metallurgical inspection.”

We partially concur with the commenter's request. We acknowledge that the magnetic particle inspection is only one part of the inspection procedures described in Figure 2 of Boeing Special Attention Service Bulletin 777-32-0029, dated May 18, 2000. However, we find that the term “metallurgical inspection” is also not fully descriptive or inclusive of all of the steps in the inspection process. For clarification of the acceptable inspection methods, we have revised the wording of paragraph (a)(2) of this final rule to state that the required inspection “must be done either by the Barkhausen Noise Inspection method for chromium-plated parts, or by following all of the procedures in Figure 2 of the service bulletin (including nital etching and a magnetic particle inspection), in accordance with the service bulletin.”

One commenter requests that we revise paragraph (a)(2)(ii) of the proposed AD to allow installation of a serviceable aft axle pivot pin. The commenter states that this paragraph is confusing because it may be interpreted to allow installation only of the same aft axle pivot pin removed from the MLG or a new pin. The commenter would like to be allowed to remove the existing pin, and install either a new pin or a pin that has been inspected in accordance with the proposed AD.

We concur that both paragraphs (a)(2)(i) and (a)(2)(ii) of this AD need to be clarified as the commenter describes. It is not our intention to prohibit installation of a serviceable pin that has been inspected. Therefore, we have revised paragraphs (a)(2)(i) and (a)(2)(ii) of this final rule to allow installation of a new or serviceable aft axle pivot pin in the MLG. We have also revised the Summary section of this AD accordingly.

One commenter requests that we extend the compliance time for the follow-on inspection for heat damage of any aft axle pivot pin with an EGL prefix, which would be required by paragraph (a)(1)(ii) of the proposed AD. The commenter states that operators should be allowed to remove and inspect the pins at the next maintenance opportunity, rather than “prior to further flight,” as long as the action is done within the 18-month compliance time.

We concur that we need to clarify the compliance time for the follow-on removal and inspection of the aft axle pivot pin described in paragraph (a)(1)(ii) of this AD. Inspecting an affected aft axle pivot pin for heat damage within 18 months after the effective date of this AD is acceptable for compliance with this AD. We have revised paragraph (a)(1)(ii) of this AD to clarify our intent.

One commenter suggests that we revise paragraph (a)(1) for clarification. The commenter states that an operator was confused by the applicability of that paragraph, “For airplanes which have line numbers 1 through 68 inclusive (designated as Group 1 airplanes in the service bulletin) and on which the aft axle pivot pin of the MLG has been replaced prior to the effective date of this AD.” The operator interpreted this as meaning that the paragraph applies to airplanes with line numbers (L/Ns) 1 through 68 and higher. The commenter suggests a comma after the parenthetical phrase. We concur and have revised paragraph (a)(1) accordingly.

One commenter requests that we revise the proposed AD to provide credit for airplanes on which the actions in Boeing Special Attention Service Bulletin 777-32-0029 were accomplished before the effective date of the AD. The commenter notes that, in the service bulletin, the manufacturer recommends compliance within 18 months after service bulletin release. Thus, many operators have already done the inspections in the service bulletin. The commenter states that the wording of the proposed AD would require operators that have already complied with the proposed requirements to request an alternative method of compliance (AMOC).

For similar reasons, the same commenter requests that we remove the airplane with L/N 1 from the applicability of this AD. The commenter points out that the “Group 1” inspection described in the service bulletin was accomplished on this airplane before it was delivered, and no subject aft axle pivot pin was found.

We do not concur that any change is necessary. We give credit for actions accomplished before the effective date of an AD by means of the phrase “Compliance: Required as indicated, unless accomplished previously,” which appears in every AD. If an operator's maintenance records show conclusively that the aft axle pivot pin installed on an airplane has been inspected per the referenced service bulletin and found to be acceptable, no further action is required.

Specifically with regard to the airplane with L/N 1, though that airplane may have been delivered with a pin that is not subject to this AD, it is possible that a subject pin could be installed on that airplane after delivery. Therefore, L/N 1 must be included in the applicability of this AD, so that it is subject to paragraph (b) of this AD, the “Spares” paragraph, which prohibits installation of a subject aft axle pivot pin unless it has been inspected per this AD.

We have made no change to the final rule related to these requests.

One commenter requests that we eliminate the inspection specified in paragraph (b), the “Spares” paragraph, of the proposed AD. The commenter states that the proposed requirement would impose an unnecessary inspection on all aft axle pivot pins with an “EGL” prefix, rather than only the suspect pins. The commenter notes that Boeing Special Attention Service Bulletin 777-32-0029, dated May 18, 2000, was issued to address a finite number of pins, which were manufactured between November 1996 and October 1999. The commenter states that the root cause of the defect in this set of pins was identified and the supplier has corrected its process accordingly. The commenter is concerned about forcing operators to inspect pins produced after the process was corrected in October 1999.

Similarly, a second commenter requests that we revise paragraph (b) of this AD to exempt aft axle pivot pins purchased from the manufacturer after the release date of Boeing Special Attention Service Bulletin 777-32-0029. The commenter notes that pins purchased from the manufacturer after the release of the service bulletin should not be subject to the identified unsafe condition. The commenter indicates that the manufacturer has advised that it is not necessary to inspect such pins.

We do not concur with these requests. While we have learned that the manufacturer is working to develop a method of tracking the subject pins, no such system is currently in place, so it is possible that some of the subject pins may have been procured as spares. Thus, we find it necessary to require inspection of any aft axle pivot pin having a serial number with the prefix “EGL.” If a system is in place to track the pins, operators may request approval of an alternative method of compliance in accordance with paragraph (c) of this AD. No change to the final rule is necessary in this regard.

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

There are approximately 263 Model 777 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 73 airplanes of U.S. registry will be affected by this AD, that it will take approximately 4 work hours 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 $17,520, or $240 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 .

Austro Control, which is the airworthiness authority for Austria, notified the FAA that an unsafe condition may exist on certain SN's of Bombardier-Rotax GmbH type 912 F, 912 S, and 914 F series reciprocating engines, that have been converted to a single valve spring arrangement. Austro Control advises that they have received reports of several cracks on valve spring retainers in-service. It has been discovered that during the starting procedure a delayed purging of the lubrication system could occur, which may result in cracking of the valve spring retainer. This condition can occur if one or more hydraulic valve tappets lose their oil prime and fill with air. This is possible at first engine run or at oil change. This condition can be caused by improper purging of the lubrication system, non-compliance of starting and warming up instructions, unsuitable motor oil, or lack of maintenance. A detailed crack detection of the affected valve spring retainers is very difficult and would have to be performed repeatedly. Due to this fact, all affected engines must be equipped with reinforced valve spring retainers that are more resistant to cracking.

Bombardier-Rotax GmbH has issued Mandatory Service Bulletin (MSB) No. SB-912-022/SB-914-011, dated March, 2001, that specifies procedures for replacement of valve spring retainers P/N 854.182. The Austro Control classified this service bulletin as mandatory and issued AD No. 108, in order to assure the airworthiness of these Bombardier-Rotax GmbH engines in Austria.

This engine model is manufactured in Austria and is 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 Austro Control has kept the FAA informed of the situation described above. The FAA has examined the findings of the Austro Control, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other Bombardier-Rotax GmbH 912 F, 912 S, and 914 F series reciprocating engines of the same type design, this AD is being issued to prevent cracking of the valve spring retainers resulting in possible engine failure while in-flight. This AD requires replacement of valve spring retainers, P/N 854.182, on engines with the single valve spring configuration, with new-reinforced valve spring retainers, P/N 854.184. The actions must be done in accordance with the service bulletin 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 action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NE-17-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 .

The FAA has received several reports of cracked horizontal stabilizer attachment fittings on certain Barry Aviation, LLC Model PZL-Krosno KR-03A “Peregrine” (Puchatek) sailplanes. Polish manufacturer PZL-Krosno previously held the type certificate for these sailplanes.

Metallurgical analysis of one fitting indicated fatigue as the cause of the incidents. In 1993, PZL-Krosno issued a design note to specify the installation of horizontal stabilizer attachment fittings that had a flange of 3 millimeters (mm) thick instead of 1.5 mm thick.

All reports of cracked horizontal stabilizer attachment fittings incorporated horizontal stabilizer attachment fittings with a flange of 1.5 mm thick.

Cracked horizontal stabilizer attachment fittings, if not prevented, could result in the horizontal stabilizer separating from the sailplane with consequent loss of control of the sailplane.

The following service information relates to this subject:

The FAA has reviewed all available information, including the service information referenced above; and determined that:

This AD requires you to inspect to ensure that the correct horizontal stabilizer attachment fittings are installed, install the correct fittings if necessary, and incorporate a “NO LIFT” placard to the vertical stabilizer.

Because the unsafe condition described in this document could result in the horizontal stabilizer separating from the sailplane with consequent loss of control of the sailplane, we find that notice and opportunity for public prior comment are impracticable. Therefore, good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule and was not preceded by notice and opportunity for public comment, FAA invites your comments on the rule. You may submit whatever written data, views, or arguments you choose. You need to include the rule's docket number and submit your comments to the address specified under the caption ADDRESSES . We will consider all comments received on or before the closing date specified above. We may amend this rule in light of comments received. Factual information that supports your ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether we need to take additional rulemaking action.

We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. You may view all comments we receive before and after the closing date of the rule in the Rules Docket. We will file a report in the Rules Docket that summarizes each FAA contact with the public that concerns the substantive parts of this AD.

If you want us to acknowledge the receipt of your written comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 2002-CE-30-AD.” We will date stamp and mail the postcard back to you.

These regulations 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, FAA has determined that this final rule does not have federalism implications under Executive Order 13132.

We have 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 (otherwise, an evaluation is not required). A copy of it, if filed, may be obtained from the Rules Docket.

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 certain Airbus Model A330 and A340 series airplanes was published in the Federal Register on May 23, 2002 (67 FR 36119). That action proposed to require revising the Limitations Section of the FAA-approved Airplane Flight Manual (AFM) to ensure the flightcrew is advised of the proper procedures in the event of uncommanded movement of a spoiler during flight.

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.

After careful review of the available data, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that 5 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 AFM revision, 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 $300, 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 .

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 99-26-06, Amendment 39-11465 (64 FR 71280, December 21, 1999), which is applicable to Pratt & Whitney JT8D models -209, -217, -217A, -217C and -219 turbofan engines was published in the Federal Register on February 14, 2002 (67 FR 6890). That action proposed to require lower initial inspection thresholds for CCOC's part numbers (P/N's) 500023801, 797707, 807684, and 815830 installed in any JT8D model -209, -217, -217A, -217C, or -219 turbofan engines in accordance with PW JT8D Alert Service Bulletin (ASB) No. A6359, Revision 2, dated July 31, 2000 or PW JT8D ASB A6359, Revision 3, dated August 31, 2001.

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

One commenter states the FAA understates the economic impact to the operators by not accounting for ancillary costs realized when an engine is disassembled to remove a part, and that there are concurrent service bulletin requirements when adopting the one-piece CCOC.

The FAA partially agrees. The indirect costs associated with this AD are not directly related to this rule, and, therefore, are not addressed in the economic analysis for this rule. A full cost analysis for each AD, including such indirect costs, is not necessary since the FAA has already performed a cost benefit analysis when adopting the airworthiness requirements to which these engines were originally certificated. A finding that an AD is warranted means that the original design no longer achieves the level of safety specified by those airworthiness requirements, and that other required actions are necessary, such as inspections of existing CCOC's and replacement with a one-piece CCOC. Because the original level of safety was already determined to be cost-beneficial, these additional requirements are needed to return the engine to that level of safety and do not add any additional regulatory burden. Therefore, a full cost analysis would be redundant and unnecessary. However, the incorporation of the one-piece case does require additional modifications that were not incorporated in the original proposal economic analysis. That is, 15 additional work hours are required to install the one-piece case which adds an additional $1,152,000 to the cost of the AD making the estimated total $61,388,800.

One commenter requests acknowledgement or exclusion of Tables 3 and 3A of PW JT8D ASB No. A6359 as containing all of the serial numbered CCOC's with part number 797707. This would avoid possible confusion regarding the use of the tables.

The FAA agrees and since the tables are not inclusive of all part numbers, a Note 2 is added to the final rule to exclude Tables 3 and 3A.

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

Since publication of the proposal, PW has issued PW JT8D SB No. 6291, Revision 4, dated May 30, 2002. The only change in PW JT8D SB No. 6291, Revision 4, is an address revision for PW receipt of the JT8D combustion chamber outer case (CCOC).

There are approximately 2,624 Pratt & Whitney JT8D models -209, -217, -217A, -217C and -219 turbofan engines of the affected design in the worldwide fleet. The FAA estimates that 1,280 engines installed on airplanes of U.S. registry will be affected by this AD, that it will take approximately 2.5 work hours per engine to perform the required inspections, and 15 additional work hours to install the one-piece case, and that the average labor rate is $60 per work hour. Required parts will cost approximately $46, 910 per engine. The 15 additional work hours do change the estimated total cost of the AD to the US operators. Based on these figures, the total cost of the AD on U.S. operators is estimated to be $61,388,800.

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.

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 the 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 by contacting the Rules Docket at the location provided under the caption ADDRESSES .

Federal Register Document 02-14980 published on Thursday, June 13, 2002 (67 FR 40592), modified Class E Airspace at St. Ignace, MI. The document should have “established” Class E airspace at St. Ignace, MI. This action corrects that error.

Accordingly, pursuant to the authority delegated to me, the modification of the Class E airspace area as published in the Federal Register Thursday, June 13, 2002 (67 FR 40592), (FR Doc. 02-14980), is corrected as follows:

1. On page 40592, Column 3;

a. Under the heading, correct “Modification of Class E Airspace; St. Ignace, MI” to read “Establishment of Class E Airspace; St. Ignace, MI”.

b. Under summary, line 1, correct “modifies” to read “establishes”.

c. Under summary, starting on line 10, correct “modifies existing controlled airspace” to read “establishes controlled airspace”.

2. On page 40593;

a. Column 1, under supplementary information, line 2, correct “modifies” to read “establishes”, and starting on line 5, eliminate the words “by modifying existing controlled airspace”.

Federal Register Document 02-5627, Airspace Docket No. 01-AGL-18, published on Monday, March 11, 2002 (67 FR 10841), established Class E Airspace at Flint, MI. An error in the summary and legal description for the Class E airspace for Flint, MI, was published. An incorrect radius was printed. The action corrects that error.

Accordingly, pursuant to the authority delegated to me, the errors in the summary and legal description for the Class E airspace, Flint, MI, as published in the Federal Register Monday, March 11, 2002 (67 FR 10841), (FR Doc. 02-5627), are corrected as follows:

1. On page 10841, Column 3, in the summary, correct “4.4-mile radius” to read “5.0-mile radius”.

This document concerns amendments to part 177 of the Customs Regulations (19 CFR part 177) regarding the issuance of binding administrative rulings to importers and other interested persons with regard to prospective and current transactions arising under the Customs and related laws. Rulings, determinations, or decisions under specific statutory authorities provided for in the Customs Regulations other than in part 177 (for example, in part 133 for enforcement actions regarding intellectual property rights, in part 174 for protests, and in part 181 for advance rulings under the North American Free Trade Agreement) are not affected by this document.

On December 8, 1993, the President signed into law the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057). Title VI of that Act contained provisions pertaining to Customs Modernization and thus is commonly referred to as the Customs Modernization Act or “Mod Act.” The Mod Act included, in section 623, an extensive amendment of section 625 of the Tariff Act of 1930 (19 U.S.C. 1625) which, prior to that amendment, simply required that the Secretary of the Treasury publish in the Customs Bulletin, or otherwise make available to the public, any precedential decision with respect to any Customs transaction within 120 days of issuance of the decision. The regulations in part 177 currently incorporate the terms of 19 U.S.C. 1625 as they existed prior to enactment of the Mod Act.

The Mod Act amendment of section 1625 involved the following specific changes: (1) The existing text was designated as subsection (a), and in new subsection (a) the “120 days” publication time limit was changed to “90 days” and the text was modified to refer to “any interpretive ruling (including any ruling letter, or internal advice memorandum) or protest review decision;” (2) a new subsection (b) was added to provide for administrative appeals of an adverse interpretive ruling and interpretations of regulations prescribed to implement rulings; (3) a new subsection (c) was added to set forth specific procedures for the modification or revocation of interpretive rulings or decisions or previous treatments by Customs; (4) a new subsection (d) was added to provide that a decision that proposes to limit the application of a court decision must be published in the Customs Bulletin together with notice of opportunity for public comment prior to a final decision; and (5) a new subsection (e) was added to provide that the Secretary of the Treasury may make available in writing or through electronic media all information which contains instructions, requirements, methods or advice necessary for importers and exporters to comply with the Customs laws and regulations.

The new subsection (c) provisions require publication, in the Customs Bulletin and with opportunity for public comment, of any proposal to modify (other than to correct a clerical error) or revoke a prior interpretive ruling or decision which has been in effect for at least 60 days or which would have the effect of modifying the treatment previously accorded by Customs to substantially identical transactions, require that interested parties be given not less than 30 days after the date of publication to submit comments on the proposed ruling or decision, and require that, after consideration of any comments received, a final ruling or decision be published in the Customs Bulletin within 30 days after the closing of the comment period, with the final ruling or decision to become effective 60 days after the date of its publication.

On July 17, 2001, Customs published in the Federal Register (66 FR 37370) a notice of proposed rulemaking setting forth proposed amendments to part 177 of the Customs Regulations which included amendments to Customs procedures in response to the changes made by section 623 of the Mod Act as well as organizational and substantive changes to clarify current administrative practice and otherwise improve the layout and readability of the present regulatory texts. The proposed changes involved principally the following areas: (1) The issuance of rulings and other written advice on prospective transactions; (2) the appeal of such rulings after issuance; (3) the modification or revocation of rulings on prospective transactions or of protest review decisions or of treatment previously accorded by Customs to substantially identical transactions; (4) the limitation of court decisions; (5) the issuance, appeal, and modification or revocation of internal advice decisions on current transactions; and (6) the treatment of requests for confidential treatment of business information submitted to Customs in connection with a request for written advice. Included in these proposed changes was a restructuring of part 177 under which new subpart A would consist of an overview section and a definitions section, new subpart B would concern prospective rulings, new subpart C would concern the internal advice procedure, new subpart D would deal with the disclosure of confidential business information, and present subpart B would be redesignated as subpart E.

The July 17, 2001 notice of proposed rulemaking prescribed a 60-day period for the submission of public comments on the proposed regulatory changes. On August 28, 2001, Customs published a notice in the Federal Register (66 FR 45235) extending the public comment period for an additional 30 days, that is, until October 17, 2001. A total of 18 commenters responded to the solicitation of comments in the notice of proposed rulemaking.

The comments received by Customs were almost uniformly opposed to the organizational and substantive changes set forth in the notice of proposed rulemaking. Based on this overwhelmingly negative response, and because most of the changes proposed by Customs were discretionary in nature, that is, they were developed by Customs to address internal administrative concerns of Customs rather than statutory mandates, Customs has decided, with one exception, to withdraw those proposed changes rather than proceed with a final rule. This means that any future action taken by Customs in regard to those withdrawn proposals will be in the form of a new notice of proposed rulemaking that will provide an opportunity for public comment before final action is taken on the proposals.

The one exception to withdrawal of the proposed changes concerns proposed § 177.21, which would implement the 19 U.S.C. 1625(c) provisions regarding the modification or revocation of prospective rulings, internal advice decisions, protest review decisions, and previous treatment of substantially identical transactions. For the reasons explained below, Customs has determined that it is essential to proceed with implementation of the terms of 19 U.S.C. 1625(c) through appropriate regulatory standards.

Under the framework set forth by the Supreme Court in Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc. , 467 U.S. 837 (1984), which was applied by the Court to Customs Regulations in United States v. Haggar Apparel Co. , 526 U.S. 380 (1999), a regulation promulgated by an administrative agency, if it represents the agency s statutory interpretation that fills a gap or defines a term in a way that is reasonable in light of the legislature's revealed design, must be given controlling weight and thus will receive judicial deference. The need for regulatory standards is particularly acute regarding the modification and revocation provisions of 19 U.S.C. 1625(c) in order to (1) Provide an appropriate regulatory basis for administrative procedures that Customs applies under the statute following passage of the Mod Act provisions, (2) provide guidance regarding the meaning of the statutory terms, in particular, the meaning of the term “treatment,” (3) clarify the relationship between the procedures under 19 U.S.C. 1625(c) and other legislative, judicial or administrative actions that have the same effect as a modification or revocation under that statutory provision, and (4) prescribe standards for the application of the statutory modification or revocation effective date provisions to Customs transactions.

As explained in detail in the preamble to the July 17, 2001, notice of proposed rulemaking, proposed § 177.21 was drafted in order to set forth the Customs interpretation and application of the statutory modification and revocation provisions. That proposed text engendered a significant number of comments, which are discussed below. In addition, Customs performed an internal review of the proposed text after the close of the comment period (1) To determine whether additional clarification of the Customs position regarding the modification or revocation of treatments was necessary beyond any changes suggested by the commenters and (2) as a consequence of the decision not to proceed with the proposed restructuring of part 177, to assess the manner in which the proposed § 177.21 text could best be included within the existing part 177 regulatory framework. The decisions taken as a result of that internal review are reflected in the discussion of the additional changes to the regulatory texts which follows the comment discussion.

Of the 18 commenters who responded to the solicitation of comments on the proposed part 177 changes, 14 provided one or more specific comments on the proposed § 177.21 text. The comments are discussed below.

Comment: Five commenters took issue with the statement in the first sentence of proposed § 177.21(a) that a prospective ruling or an internal advice decision or a holding or principle covered by a protest review decision may be modified or revoked if found to be in error or not in accord with the current views of Customs. Three of these commenters argued that the regulations need more specific criteria (rather than only “if found to be in error or not in accord with the current views of Customs”) in order for Customs to modify or revoke current rulings: Modification or revocation should be limited to situations where there has been a change in the law, or where the previous interpretation of Customs is construed to be erroneous as a matter of law, and not merely because Customs changes its mind. Another commenter stated that modification or revocation of rulings or decisions found to be “not in accord with the current views of Customs” should be limited to purely administrative positions and should not include derogation of a court ruling or other higher authority, because Customs cannot take a “current view” contrary to a higher authority, and the commenter suggested that this point should be clarified in the final regulations. One commenter stated that the words “not in accord with the current views of Customs” are too vague and should be replaced by a statement that the authority of Customs to modify or revoke is limited to situations where there are two or more inconsistent rulings, because this is how the words in question have historically been applied. Finally, one commenter pointed out that, even under the level of deference adopted in United States v. Mead Corp. , 121 S. Ct. 2164 (2001), Customs is entitled to deference only if it has provided a well-thought-out position, and this standard is not reflected in this proposed provision.

Customs response: Customs first notes that the phraseology in question, that is, “in error or not in accord with the current views of Customs,” does not constitute a new regulatory standard but rather merely reflects a standard that has existed in the regulations for many years under 19 CFR 177.9(d)(1). Moreover, while the proposed § 177.21 text was intended to carry out the terms of 19 U.S.C. 1625(c) as added by section 623 of the Mod Act, it is noted that the statutory amendment did not create new substantive standards that Customs must apply in deciding whether to modify or revoke a ruling, etc., but rather merely imposed certain procedural safeguards regarding modification or revocation actions. Therefore, Customs believes that the submitted comments are directed primarily to historical Customs practices rather than to new statutory standards imposed by the Mod Act changes. This being said, Customs in part agrees and in part disagrees with the points made by these commenters.

Customs agrees that, as a basic principle, a ruling, etc., should be modified or revoked if it is “erroneous as a matter of law,” and, for that reason, the regulatory text in question continues to provide that, “if [a ruling is] found to be in error,” modification/revocation authority will be exercised. The suggestion that Customs might modify or revoke a ruling for other than legal reasons is incorrect. All proposed modifications/revocations issued under 19 U.S.C. 1625(c) will be based upon the current views of Customs regarding the proper interpretation of the law.

The modification or revocation of a ruling or decision has always involved a purely administrative position, and nothing in the proposed regulatory texts purported to change that fact or to otherwise suggest that a modification or revocation might be in derogation of an applicable court decision or other higher authority. However, Customs believes that inclusion in the regulations of a statement on this point is unnecessary.

Customs does not agree that the words “not in accord with the current views of Customs” have historically been applied in modification or revocation cases only where there are two or more inconsistent rulings. The phrase in question has been applied by Customs in a variety of different circumstances not involving inconsistent rulings, including circumstances in which all extant rulings on a particular issue are consistent but legally incorrect. Therefore, the statement suggested by the commenter should not be included in the regulatory text.

Finally, Customs does not believe that the issue of deference under the Mead case is appropriate for treatment in this regulatory context. The Mead case concerned the degree to which the courts may give deference to rulings issued by Customs, which is a function of the ruling itself and not the regulations under which the ruling is promulgated. The granting of deference is a matter for the courts to decide and is not a proper subject for these regulations.

Comment: Two commenters questioned whether the intent of referring to “prospective” rulings, as opposed to “interpretive” rulings as used in the statute, is intended to give greater breadth to the notice and comment regulation. If only related to prospective rulings, these commenters questioned how it can apply to internal advice rulings, which are considered current transactions, or to protest review decisions, which involve entries already liquidated. As to the reference to coverage of the regulation to protest review decisions, these commenters expressed uncertainty regarding how Customs intends to implement 19 U.S.C. 1625(c). They stated that they suspect that the new regulation is nothing more than an embodiment of existing practice whereby Customs Headquarters issues a section 1625 notice and comment when a holding or principle reflected in a previous protest review decision is modified or revoked, either by the issuance of a prospective ruling, or internal advice or protest review decision. The commenters felt that the interaction between the administrative rulings regulations, 19 CFR part 177, and the protest regulations, 19 CFR part 174, is highlighted by the comments here and, because of this, they expressed the belief that it would be appropriate for Customs simultaneously to revise part 174 as well.

Customs response: In the preamble portion of the July 17, 2001, notice of proposed rulemaking Customs gave two reasons for referring to prospective rulings in the proposed § 177.21 text ( see 66 FR 37374). First, the chosen terminology reflects a decision Customs has taken to use a prospective ruling as the means for carrying out a modification or revocation referred to in the statute or in the present regulatory text. Second, as regards what may be the subject of a modification or revocation, the reference to “prospective” (rather than “interpretive”) rulings was intended to ensure coverage of all rulings issued under new Subpart B. Thus, under the proposed text, only a prospective ruling issued under Subpart B (and not, for example, an internal advice decision issued under proposed Subpart C) could effect a modification or revocation. In light of the decision not to proceed with the organizational changes set forth in the proposed rulemaking, Customs has reconsidered the use of the word “prospective.” Accordingly, the regulatory text will follow the statutory language and refers to “interpretive” rulings, which includes internal advice decisions.

As regards the commenters' concerns regarding the relationship between part 174 and part 177, they are correct that the proposed regulatory text in effect embodies present administrative practice except for the fact that, as explained above, Customs uses an interpretive ruling (but not an internal advice decision and not a protest review decision) as the modifying or revoking vehicle. With regard to the suggestion that parts 174 and 177 be revised simultaneously, Customs does not believe that this would be appropriate given the separate statutory bases for the two parts and the narrowed focus of this final rule document. However, the current administrative procedure will continue as regards the modification or revocation of a holding or principle contained in a protest review decision, and Customs at an appropriate future date will propose conforming changes to the part 174 texts to refer to the procedures embodied in the part 177 texts.

Comment: Customs should not modify or revoke any ruling in a manner that is adverse to an interested party unless the original ruling is clearly wrong, such as where a new law is passed, a provision in the HTSUS has been enacted, or a new court decision has been issued.

Customs response: Customs does not disagree with the suggestion that a ruling that is “clearly wrong” should be modified or revoked, and, for that reason, Customs retains in the regulatory text the authority to propose a modification/revocation if a ruling is found to be in error. Moreover, the commenter appears to entirely misconstrue the scope of both the statute and the proposed regulatory text. The Mod Act changes reflected in the 19 U.S.C. 1625(c) procedures were directed to discretionary decisions taken by Customs on its own initiative under its administrative authority and were not intended to affect legislative, judicial or other actions over which Customs has no control. It was for this reason that Customs included paragraph (d) of proposed § 177.21 which lists exceptions to application of the notice requirements of paragraphs (b) and (c). The “clearly wrong” standard as suggested by the commenter would be too restrictive and contrary to the legislative intent.

Comment: It should be more difficult for Customs to revoke an existing ruling, because importers need to be able to rely on rulings in order to plan their business. While the fact that a hardship can result from a sudden revocation of a ruling is not a new issue, it was recently raised in Heartland By-Products, Inc. v. United States of America and United States Beet Sugar Association, Slip Op. 99-110 (CIT 1999). Based on a ruling obtained from Customs that classified a sugar syrup in a tariff provision to which the tariff rate quota system of the U.S. sugar program did not apply, Heartland in 1997 invested $10 million in a syrup importing and refining operation. Subsequently, domestic sugar manufacturers sought a reclassification of Heartland's syrup and Customs in 1999 published a notice of its intent to revoke the Heartland ruling, the effect of which would have been to raise the tariffs Heartland would have to pay by more than 7000 percent, thereby effectively forcing Heartland to shut down its operation. The Court of International Trade in its decision determined that Customs reclassification of the sugar syrup was arbitrary, capricious and an abuse of discretion.

Although Heartland is an extreme example, the sudden revocation of a ruling may raise important reliance issues. Due to the similarity between Internal Revenue Service private letter rulings and Customs rulings (in particular as regards their applicability only to the persons who requested them and as regards their validity only to the extent that the facts are correct), the sense of fair play that applies to IRS rulings (that is, that once issued, a ruling can be acted on with reliance and thus should not be disturbed) should also apply to Customs rulings. Moreover, based on a basic notion of fairness, the doctrine of equitable or regulatory estoppel should apply to, and thus should be a bar to, the revocation of rulings, particularly where a party has relied on a ruling to its detriment. Another possible solution to the detrimental reliance issue would be to adopt a binding declaratory ruling procedure similar to the declaratory judgment used by the courts, with the declaratory ruling being binding on Customs so that Customs could not change its position once the recipient has acted in reliance on the ruling. Another solution to detrimental reliance might be to apply administrative equity principles involving hardship exceptions (when a substantial hardship on the petitioner would result), fairness exceptions (when a rule is unreasonable when applied to the petitioner) and policy exceptions (when the goal or purpose of the rule can be achieved by other means).

Customs response: Customs does not believe that the decision of the Court of International Trade in the Heartland case cited by this commenter serves as a proper example for the various points made by the commenter, because that decision was reversed by the United States Court of Appeals for the Federal Circuit in Heartland By-Products, Inc. v. United States and United States Beet Sugar Association, 264 F.3d 1126 (2001) and because that litigation remains pending as Heartland filed a petition for Supreme Court review on April 3, 2002.

While Customs would agree with the general proposition that importers need to be able to rely on rulings issued under part 177 in order to plan their business, that reliance has never been an absolute right. Section 177.9(a) of the Customs Regulations (19 CFR 177.9(a)), which predated the statutory changes made by the Mod Act, provides, among other things, that a ruling letter issued by Customs under part 177 is binding on all Customs personnel in accordance with the provisions of that section until modified or revoked and, in the absence of a modification or revocation which affects the principle of the ruling, may be cited as authority in the disposition of transactions involving the same circumstances. Thus, even before the Mod Act changes to 19 U.S.C. 1625, reliance on rulings was a qualified right.

With regard to the suggestions that it should be more difficult for Customs to revoke an existing ruling, that a hardship results from a “sudden” revocation of a ruling, and that principles of detrimental reliance, fair play, equitable or regulatory estoppel, binding declaratory rulings, and administrative equity should be applied, Customs believes that the public notice and comment and delayed effective date provisions of 19 U.S.C. 1625(c) reflect the full extent to which Congress believes that these principles should apply to Customs rulings. Accordingly, it would be inappropriate for Customs to adopt additional regulatory standards that might be inconsistent with the limited procedural safeguards established by Congress in the statute.

Comment: Three commenters argued that, as a matter of fairness and due process, Customs should publish a notice and allow public comment also in cases in which 60 days have not passed since issuance of the ruling. Another commenter, after referring to the 60-day period during which no notice or comment period is contemplated, stated that the regulations should be clarified so that no notice or comment period will apply only in cases involving clerical errors because a change to the substance or logic of a decision should be subject to public notice and comments.

Customs response: The proposed regulatory text follows the statute in providing for public notice and comment procedures only in the case of a modification or revocation of a ruling that has been in effect for 60 or more days. That 60-day period was included in the Mod Act changes to section 1625 and, in Customs view, represents an implicit statement by Congress on the issue of fairness and due process when there is a change to the substance or logic of a ruling.

With regard to clerical errors, proposed § 177.21(d)(2)(i) follows the statute in providing that no publication (and thus no public notice and comment) is required if the modifying ruling corrects a clerical error.

Comment: One commenter suggested that, although the concept of distinguishing between rulings that have been in effect for less than 60 calendar days and those in effect for 60 or more calendar days is appropriate, proposed § 177.21(e)(1), which addresses rulings or decisions in effect for less than 60 days, should be modified to address a situation in which a person obtains a prospective ruling and orders goods in reliance on it, because that person should not have the ground rules changed with respect to goods that are covered by bona fide long-term contracts or are already ordered and/or en route to the United States on the date of issuance of the modification or revocation but that are actually imported on or after the date of issuance of the modification or revocation. Along a similar line, another commenter stated that proposed § 177.21(e)(1) fails to take into account the situation where an importer orders goods in reliance upon a ruling or decision only to have it modified or revoked without notice and opportunity to comment: the regulations should address this type of situation because to not do so could potentially result in a great hardship to an importer who dutifully followed a reasonable course of action.

Customs response: Customs believes that the issues of good faith reliance and potential hardship have been addressed by Congress in the changes to section 1625 made by the Mod Act. Congress expressly chose to make a distinction between rulings in effect for less than 60 days (for which public notice and comment and delayed effective date requirements do not apply in the case of a modification or revocation) and rulings in effect for 60 days or more (in which case modification or revocation is subject to public notice and comment and delayed effective date requirements). The provisions of proposed § 177.21(e)(1) merely reflect this distinction as regards the effective date for a modification or revocation of a ruling that has been in effect for less than 60 days.

In the preamble portion of the July 17, 2001, notice of proposed rulemaking Customs stated that it was proposing “to eliminate the principle of detrimental reliance (which was a purely regulatory creation) from the Part 177 texts because the Mod Act statutory amendments regarding the modification or revocation of rulings and previous treatment (including the provision for a delayed effective date) accomplish essentially the same purpose and therefore should be viewed as replacing it.” In view of this stated position, Customs does not believe that it would be appropriate to reinsert the concept of detrimental reliance in response to these comments. Furthermore, introduction of a detrimental reliance standard would be contrary to the regime created by Congress in the statute.

In particular with regard to prospective rulings issued under Part 177, the terms of section 1625(c) implicitly encourage members of the trade community to exercise prudence in signing contracts before receipt of a needed ruling or during the 60-day period after issuance of the ruling, because there is always a possibility that the issued ruling will conflict with the expectations under the contract or will be modified or revoked to the recipient's detriment without advance notice during the 60-day period after issuance. The same need for prudence would apply in the case of a long-term contract signed more than 60 days after the issuance of a ruling because of the possibility that a later modification or revocation of the ruling could compromise the terms of the ongoing contract, and in this case the fact that the public notice and comment and delayed effective date provisions under section 1625(c) were followed might afford minimal benefit to the ruling recipient as regards his contractual obligations. Moreover, Customs would suggest that ruling recipients could mitigate the negative effect of a modification or revocation both during and after the 60-day period by including escape clauses in their contracts which would provide a way out if Customs modified or revokes a ruling.

Finally, the commenters observations appear to be directed to situations in which a modification or revocation has a negative impact on the interests of the ruling recipient. However, there could be circumstances in which the modification or revocation militates in the favor of the ruling recipient.

Comment: Four commenters stated that reliance on publication of a proposed modification or revocation only in the Customs Bulletin creates a potential problem because there have been significant delays in distributing the Customs Bulletin beyond the normal 2-week delay and thus there is not sufficient time to respond to the proposed change. Therefore, these commenters suggested that Customs should commit to posting all proposed modifications or revocations at an Internet-accessible location, and two of these commenters suggested as an alternative that Customs should allow more time to comment. Two other commenters opined that the 30-day period for commenting is too short, and one of these commenters argued that a period of at least 60 days should be allowed for submitting comments on a proposed modification or revocation.

Customs response: Publication in the Customs Bulletin must remain the publication standard for legal purposes, including for purposes of establishing the start of the comment period, because that is the procedure prescribed in the statute. However, in recognition of the delays associated with Customs Bulletin publication and distribution, Customs has adopted two additional “heads up” procedures to alert interested parties to the impending modification or revocation action. One of these procedures involves posting the notice of the proposed modification or revocation on the Customs Internet web site. The other procedure involves writing to all parties identified in the notice of proposed action as recipients of the ruling or decision or treatment that is the subject of the proposed modification or revocation.

With regard to the 30-day comment period, which represents the minimum standard required by the statute, Customs did not opt for a longer period for several reasons. First, a longer comment period would only serve to delay the adoption of a final modification or revocation and thus would interfere with another important mission of Customs which is to ensure proper application of the law at the earliest practicable date. Second, the additional “heads up” procedures mentioned above typically take place several days before Customs Bulletin publication and thus have the practical effect of extending the comment period by providing advance notice of the proposed action. Third, Customs does not believe that a longer period is needed, particularly in view of the fact that the affected parties already are generally knowledgeable regarding the issue raised in the proposed modification or revocation and therefore should not require an extended period of time in which to prepare a response to the proposed action.

Comment: Four commenters argued that the notice and comment provisions should not apply in the case of a ruling that is the subject of an appeal under proposed § 177.20 if transactions covered by the ruling have been held in abeyance pending a favorable decision on the appeal, because the ruling has not been applied to an actual transaction and thus should not be considered to be in effect for purposes of the 60-day period after which the notice and comment procedure is required.

Customs response: Customs does not agree with the premise that underlies the position of these commenters, that is, that a ruling is not considered to be in effect if it has not been applied to an actual transaction. On the contrary, as stated in present § 177.9(a) and as repeated in proposed § 177.19(a), a ruling is generally effective on the date of issuance (a principal exception to this general rule would be a modifying or revoking ruling to which the statutory 60-day delayed effective date applies). Thus, the fact that an appeal of a ruling is pending does not delay the effective date of the ruling and therefore does not delay the running of the 60-day period after which a ruling may be modified or revoked only after the statutory public notice and comment procedures have been completed. Moreover, the position of Customs regarding the application to current transactions of a ruling undergoing an appeal was made clear in proposed § 177.20(e) which provided that the filing of an appeal “will not result in a suspension of liquidation in the case of current transactions” (while Customs might decide to delay liquidation pending a decision on the appeal, the decision to do so would be made based on operational considerations that are not a function of the part 177 texts).

Comment: Two commenters complained that Customs appears to be requiring that people come forward and advise Customs that they have a ruling when they are not specifically identified in the published notice, but the statute did not intend that such a burden be imposed on the public.

Customs response: Customs believes that these commenters have misread the proposed regulatory text. Proposed § 177.21(b)(1), which concerns publication of the proposed action, provides in this regard that the notice will refer to all previously issued rulings that Customs has identified as being the subject of the proposed action and will “invite” any member of the public who has received another ruling involving the issue that is the subject of the proposed action to advise Customs of that fact. Nowhere does the regulatory text require a member of the public to respond to the notice. Moreover, proposed § 177.21(b)(2), which concerns the notice of final action, specifically provides that publication of a final modifying or revoking notice will have the effect of modifying or revoking “any” ruling that involves merchandise or an issue that is substantially identical in all material respects to the merchandise or issue that is the subject of the modification or revocation, including a ruling “that is not specifically identified in the final modifying or revoking notice.” Therefore, an unidentified ruling recipient does not have to respond to the notice in order for the modification or revocation to apply to his ruling.

Customs further notes that even though a response to the notice of proposed modification or revocation is not required, there may be circumstances in which an affected ruling recipient not identified in the notice would prefer to respond to the notice. A response to the notice would mean that the ruling recipient would receive a final written decision on the proposed modification or revocation directly from Customs. Moreover, this would facilitate the exercise of the ruling recipient's option under proposed § 177.21(e)(2)(ii) to have the position reflected in the modification or revocation applied to his transactions upon publication of the final notice in the Customs Bulletin rather than 60 days thereafter.

Comment: Three commenters noted that the statute imposes a responsibility on Customs to publish notice and allow for comment when it contemplates modification or revocation of rulings. Thus, these commenters argued that it is incumbent upon Customs to identify the relevant rulings, either those directly involved or those affecting substantially identical merchandise or issues. The commenters believe that imposition of this burden on the importing community is antithetical to the role of Customs in the partnership created by “informed compliance,” and it imposes an impossible burden on the importing community which must speculate as to which rulings are covered. The commenters further complained that reference in current modification or revocation notices imposing an obligation on importers to come forward and speculate whether their rulings are “substantially similar” or risk being found not to have exercised “reasonable care” is again antithetical to the concept of “informed compliance,” whereby Customs must clearly state its position so that the public knows what is expected of it.

Another commenter similarly argued that requiring the public to report to Customs rulings that are potentially affected by a proposed modification represents an onerous burden and puts importers in an impossible situation because proposed modifications do not specify the practice or position that is being altered: typically, there is a clear change in classification but there is no clear identification of the practice or policy being changed, and thus it requires gross speculation on the part of importers.

Customs response: As pointed out in the preceding comment response, there is no requirement that a ruling recipient come forward in response to a notice of proposed modification or revocation. Therefore, Customs does not agree with the commenters that the proposed regulatory text imposes an onerous or impossible burden on the importing community. When Customs determines that a proposed modification or revocation action is appropriate, Customs first endeavors to identify all rulings that would be affected by the proposed action so that they may be identified in the notice of the proposed action. It must be recognized, however, that a review of the available records may not disclose all existing affected rulings—hence the invitation in the proposed regulatory text for other ruling recipients to come forward.

Customs also disagrees with the suggestions that the notices of proposed modification or revocation do not clearly state the position of Customs and do not clearly identify the practice or policy that is being changed. Customs believes that the published notices of proposed modification or revocation are, by-and-large, clear and complete on these points. What may not be clear is the extent to which the proposed action would affect rulings not identified in the notice that appear to be similar or related to the identified ones but that involve varying degrees of differences in the factual patterns or issues identified in the proposal. It is not possible for the notice of proposed modification or revocation to be definitive in this area because what is involved is essentially a judgment call requiring a determination on a case-by-case basis. Moreover, it should be noted that while Customs issues thousands of rulings each year, the average importer receives only a handful of rulings during a given year; therefore, the importer is in a far better position to assess the impact of a proposed modification or revocation on the handful of its rulings than is Customs which is required to employ a much wider frame of reference. The invitation to the public to participate at the proposal stage, which also includes an opportunity to comment on the proposed action, can also serve as a mechanism for obtaining clarification on this type of issue.

As concerns the comments regarding reasonable care, Customs notes that the exercise of reasonable care by importers at the time of entry is a requirement under section 484(a) of the Tariff Act of 1930, as amended (19 U.S.C. 1484(a)), and therefore is not a direct function of the ruling modification or revocation process under 19 U.S.C. 1625(c) and the proposed part 177 regulatory texts. Nevertheless, there is a connection between the exercise of reasonable care at the time of entry and the ruling modification or revocation process in that an importer who has a ruling that has been modified or revoked could be liable for a penalty under section 592 of the Tariff Act of 1930, as amended (19 U.S.C. 1592), for failure to exercise reasonable care if he continues to enter his merchandise in accordance with the modified or revoked ruling after the modification or revocation has taken effect. This is the basic point of publishing modification or revocation proposal notices. Of course, the determination of whether an importer has failed to exercise reasonable care must be made on a case-by-case basis based on an assessment of all relevant factors, and it is for this reason that the proposed modification or revocation notice refers to “the rebuttable presumption of lack of reasonable care on the part of the importer or its agents” for failure to follow the result reflected in the notice.

Comment: One commenter claimed that the relationship between proposed § 177.21(c) and 19 U.S.C. 1315(d) is not clear because the notice provisions of the regulation are inconsistent with those of the statute, because the statute speaks of an established and uniform practice, and because, even though proposed § 177.21(d)(1)(viii) suggests that the provisions of proposed § 177.21 are inapplicable, there is an element reminiscent of a “simultaneous equation” associated with the two provisions (the commenter asked in this regard whether, for example, Customs is attempting to state that a two-year period immediately prior to publication is insufficient to establish a uniform practice). This commenter argued that, therefore, the purpose of § 177.21(c) is unclear.

Customs response: Customs believes that the purpose of proposed § 177.21(c) is clear: it implements the terms of 19 U.S.C. 1625(c) as regards the modification of treatment previously accorded by Customs to substantially identical transactions, which is subject to the same public notice and comment and delayed effective date requirements that apply in the case of a modification or revocation of a ruling or decision that has been in effect for 60 or more days. It does not implement or otherwise affect established and uniform practices referred to in 19 U.S.C. 1315(d) which were the subject of proposed new § 177.22.

The relationship between proposed § 177.21(c) and 19 U.S.C. 1315(d) involves separate statutory and regulatory contexts (the 19 U.S.C. 1315(d) provisions are presently dealt with in the Customs Regulations in 19 CFR 177.10(c)), and therefore they operate independently of each other. The notice and delayed effective date provisions are different in the two statutes (one provides for publication in the Federal Register and specifies a 30-day delayed effective date and the other prescribes publication in the Customs Bulletin and a 60-day delayed effective date). Therefore, the two provisions cannot operate simultaneously, and it was for this reason (as well as for purposes of administrative efficiency) that Customs provided in proposed § 177.21(d)(1)(viii) that the publication and issuance requirements set forth in paragraphs (b) and (c) of proposed § 177.21 do not apply if a modification or revocation in effect results from publication of a final ruling regarding a change of established and uniform practice under 19 U.S.C. 1315(d). The 2-year period for a treatment prescribed in proposed § 177.21(c) has no bearing on whether an established and uniform practice exists within the meaning of 19 U.S.C. 1315(d), and, furthermore, the standards for determining whether a treatment exists differ from those that apply in determining whether there is an established and uniform practice in that in the latter case the uniformity must be nationwide for all Customs transactions involving the issue in question. Accordingly, there is no “simultaneous equation” as regards the statutory or regulatory provisions of these two programs.

Comment: Five commenters argued that “treatment” should not be restricted to the classification of merchandise, because other areas (for example, valuation, country of origin marking, entry, and carriers) also involve treatments. Along the same line, another commenter suggested that the definition of “treatment” as relating to the “classification of imported merchandise” should be changed to refer to “a consistent pattern involving imported merchandise” because not including other issues is unwarranted and is not a reasonable interpretation of 19 U.S.C. 1315(d).

Customs response: For the reasons stated in the preceding comment response, Customs does not agree with the suggested connection between “treatments previously accorded” under proposed § 177.21(c) which implements 19 U.S.C. 1625(c) and “established and uniform practices” under 19 U.S.C. 1315(d). However, Customs agrees with the main point made by these commenters that “treatment” should not be limited to decisions involving the classification of imported merchandise. The regulatory text set forth in this final rule document has been modified accordingly.

Comment: Five commenters objected to the statement in proposed § 177.21(c)(1)(ii) that a person may not claim as a treatment the treatment that Customs accorded to transactions of another person. These commenters made the following specific points in support of the proposition that a person should be able to claim as a treatment the treatment accorded to transactions of another person:

1. In light of the official doctrine of uniformity, it is unacceptable that treatment accorded to transactions of another importer should not be considered at all: so long as sufficient data of the importations of other importers is provided, those importations should be relevant in determining whether a treatment exists.

2. Customs should abandon the notion that treatment is personal and should retain the standard in the current regulation, § 177.9(e), which describes “modifying the treatment previously accorded by the Customs Service to substantially identical transactions of either the recipient of the ruling letter or other parties,” because, as Customs noted in the notice of proposed rulemaking, Congress modeled section 1625(c) on that current regulation.

3. The proposed limitation of treatment to those who received the treatment will render section 1625(c)(2) virtually meaningless since Customs has no means to identify specific parties who may have received a prior treatment and thus would not be required to publish a decision which modifies a prior treatment.

4. If this definition of treatment is retained, the effect will be negative for both Customs and the import community because it will increase the burden on both since it will serve to reinforce the requirement that importers seek their own binding rulings and not take the risk of relying on a ruling issued to another party.

Customs response: Customs remains of the view that, for purposes of 19 U.S.C. 1625(c)(2) and the regulatory provisions thereunder, “treatment” must have reference only to the transactions of the person who is claiming the existence of the treatment and therefore cannot be claimed by a person who has had no transactions that have been the subject of the treatment under consideration.

Customs recalls that the Mod Act changes reflected in the text of 19 U.S.C. 1625(c) were included at the insistence of the trade community to ensure that there would be a statutory protection against abrupt changes made by Customs without adequate prior notice, particularly where the change is to a ruling or decision issued by Customs, or to a pattern of actions taken by Customs on import transactions, on which a party has reasonably relied in pursuing its Customs transactions. Implicit in the Mod Act statutory changes was the idea that reasonable expectations created by the actions of Customs were entitled to some protection from subsequent actions taken by Customs. Thus, 19 U.S.C. 1625(c)(1) refers to the modification or revocation of “a prior interpretive ruling or decision which has been in effect for at least 60 days” and 19 U.S.C. 1625(c)(2) refers to the modification of “the treatment previously accorded by the Customs Service to substantially identical transactions.”

For reasons of practicality, Customs disagrees with the suggestion of one of the commenters that importations of other importers should be relevant in determining whether a treatment exists so long as sufficient data regarding those importations is provided. In this regard, Customs notes that the proposed regulatory text in § 177.21(c)(1)(iii) set forth detailed requirements regarding the information that must be provided to Customs in connection with a claim that a treatment exists (for example, entry numbers and quantities and values of the imported merchandise) so that Customs may make an appropriate determination on the claim. This type of entry information is treated by Customs as confidential business information that is not disclosed to the public, and therefore it would not be available to parties who are not privy to the transactions in question. Accordingly, persons attempting to rely on a treatment accorded to another person's transactions would be unable to meet the requisite burden of proof set forth in the proposed regulatory text. In fact, in many cases a person would not even know of the other person's transactions or would not be able to determine with certainty that the other person's transactions are substantially identical to his own.

With regard to the comment that Customs should abandon the notion that treatment is personal and rather retain the standard in present § 177.9(e), Customs believes that the commenter has misread the present text. That regulatory provision, which the commenter correctly notes was in part the genesis of the statutory “treatment” provision added by the Mod Act, refers to “treatment previously accorded * * * to substantially identical transactions of * * * other parties.” The words “other parties” clearly relate only to parties who had transactions that received the treatment in question and not to parties who did not have transactions that received the treatment. Therefore, Customs believes that the proposed text is entirely consistent with the present § 177.9(e) text in making a clear connection between the person whose transactions received the treatment and the person who is claiming the treatment. Further, to grant a ruling or treatment universal applicability, as the commenter is proposing, would elevate each ruling or treatment to the level of an established and uniform practice and thus would render the provisions of 19 U.S.C. 1315(d) redundant and a nullity.

Customs disagrees with the commenter who alleged that the limitation of treatment to those who received the treatment will render the statutory provision meaningless because Customs will not be able to identify specific parties who received a treatment and thus will not be required to publish a decision modifying the treatment. Customs did recognize that there would be instances in which Customs is not aware, prior to issuance of a contemplated prospective ruling, that the ruling would have the effect of modifying or revoking a previous treatment, and this type of scenario was directly addressed in proposed § 177.21(c)(2)(ii). Under the proposed text, an unidentified treatment recipient would have the opportunity to write to Customs after the issuance of the ruling and obtain the protections afforded by the public notice and comment and delayed effective date provisions if an adequate case regarding the existence of the treatment is made.

The argument regarding the potential increased burden on Customs and the import community is not persuasive, for two reasons. First, even if the commenter's assumption were correct, the possibility of an increased burden on the government and on the private sector is not a sufficient basis for reaching a regulatory result that is not in accord with the underlying statutory text. Second, the decision of an importer whether to seek its own binding ruling or rely on a ruling issued to another party is a private business decision that has no effect on the issue of what constitutes a treatment.

For the above reasons, Customs believes that treatments under 19 U.S.C. 1625(c)(2) must relate to expectations created on the basis of a track record involving transactions of the person claiming the existence of the treatment.

Comment: The proposed regulatory provisions regarding the modification or revocation of previous treatments are at variance with the decision of the U.S. Court of International Trade in Precision Specialty Metals, Inc v. United States, 116 F.Supp. 2d 1350 (2000), in particular as regards what constitutes a “treatment”. In this regard, the Precision case simply states that a treatment may pertain to any “decision” made by Customs and, therefore, the provisions for a 2-year treatment period and for according diminished weight in the case of merchandise of smaller quantities or value and no weight in the case of informal entries are contrary to the judicially created standard. Moreover, as regards the 2-year treatment period, this requirement is unnecessary because importers who create the 2-year schedule will simply request the information from the Office of Strategic Trade in Customs under the Freedom of Information Act and, upon receipt of the information in Microsoft Access format, the importer would simply send the information back to Customs.

Customs response: The Precision Specialty Metals case involved a review of a denial by Customs of a protest against a decision of Customs to deny drawback on 38 entries of stainless steel trim and scrap. One of the issues addressed by the court was whether the payment of drawback on 69 previous entries of stainless steel scrap was a “treatment” under 19 U.S.C. 1625(c) which, if so, would mean that the decision on the protest was invalid if Customs had not first published a proposed and final modification or revocation of that treatment as required by the statute. However, Customs notes that the decision cited by the commenter (referred to in this comment discussion as Precision I ) did not involve a substantive ruling on the treatment issue because the court concluded that the importer had not presented the court with sufficient record evidence to conclude that all required elements of section 1625(c) were satisfied: the Court of International Trade addressed the merits of the treatment issue in a subsequent decision involving the same parties and the same 38 entries, Precision Specialty Metals, Inc v. United States, Slip Op. 01-148, decided December 14, 2001 (referred to in this comment discussion as Precision II ). Nevertheless, the court in Precision I, in reciting the criteria that the court would use in analyzing the importer's claim for relief under section 1625(c), stated that “[t]he term ‘treatment’ looks to the actions of Customs, rather than its ’position’ or policy,” and that the term “treatment” is “distinct from the terms ‘ruling’ and ‘decision’ ” which are covered elsewhere in section 1625(c). The Precision I court then stated: “This construction would recognize that importers may order their actions based not only on Customs' formal policy, ‘position,’ ‘ruling’ or ‘decision’, but on its prior actions. This construction furthers the stated legislative intent underlying § 1625(c).”

In Precision II , the court specifically found that, in connection with “pre-liquidation reviews” of three of the earlier 69 drawback entries that were eventually liquidated for the full amount of drawback claimed, Customs had asked the importer for additional information and documentation on the exports involved. In response, the importer furnished Customs with additional information and documentation which showed that the exported material was stainless steel scrap. The court further found that the facts set forth in a stipulation of facts agreed to by the parties were sufficient to resolve the factual issues outlined in Precision I so that the court could resolve the “treatment” issue on a motion for summary judgment. The court, in concluding that the actions of Customs gave rise to a treatment under section 1625(c), specifically noted “the consistent trail of correspondence and submissions in which Precision and its agents describe the entries on which drawback was granted as ’scrap” and reiterated its holding in Precision I that “treatment” looks to the actions of Customs rather than a “position” or “policy” of Customs.

Based on the facts that were under review in Precision I and Precision II , Customs does not agree with the commenter's assertion that the proposed regulatory text is contrary to the standard set forth by the court. On the contrary, it is the position of Customs that the proposed regulatory standard is consistent with the court cases because it requires an actual action on the part of Customs (as distinguished from non-action on the part of Customs, for example, when an entry is liquidated automatically without Customs review or when an entry is liquidated by operation of law under 19 U.S.C. 1504). Moreover, as in the case of the three entries for which Customs purposely requested, received, and reviewed additional information bearing on the issue at hand in Precision II , the proposed regulatory text requires that Customs actually do something of significance in order to create a treatment (as distinguished from cases in which Customs gives at most cursory attention, such as informal entries and entries of small value or quantity). Therefore, the proposed regulatory text stands for the proposition that, in order for a person to be eligible for the protection afforded under 19 U.S.C. 1625(c)(2), that person must be able to make a showing that Customs took a conscious, intentional and knowledgeable action that created an impression that could give rise to an expectation as regards future action by Customs. Customs believes that this is entirely consistent with the facts involved in Precision II .

Customs remains of the view that the principle reflected in the proposed text is necessary because it reflects the reality in which Customs operates. With over 18 million formal entries filed each year, almost all of which are filed electronically and the majority of which are not accompanied by invoices, Customs simply does not have the resources to review every transaction and at the same time facilitate the movement of goods in international trade. In the absence of a reasonable limitation on the circumstances in which a treatment may arise for section 1625(c) purposes as set forth in the proposed regulatory text, Customs believes that a number of potential negative consequences could result either separately or together: Customs would have to monitor all Customs transactions of whatever type arising over the preceding two years before issuing a ruling or decision to determine if section 1625(c) procedures are necessary; the number of times in which Customs must initiate section 1625(c) procedures would increase drastically; the entry and liquidation process would suffer significant delays; and/or the prospective ruling and internal advice procedures would be scaled back or eliminated in their entirety. All of the foregoing results would be inconsistent with the objectives of the Mod Act and importers' responsibilities under 19 U.S.C. 1484(a).

As regards the 2-year period prescribed in the proposed regulatory text, Customs pointed out in the preamble portion of the July 17, 2001, notice of proposed rulemaking that the proposed definition of “treatment” was drawn in part from the text of present § 177.9(e) which concerns the use of delayed effective dates in the case of ruling letters covering transactions or issues not previously the subject of ruling letters and which have the effect of modifying the treatment previously accorded by Customs to substantially identical transactions. Customs expressed in this regard the belief that use of the present regulatory standards in this new regulatory text was appropriate because, given the similarity in language, it seemed clear that the present regulation served as the model for the subsequently enacted statutory text except that application of a delayed effective date was now mandated. Customs also in that preamble stated the view that all provisions regarding detrimental reliance should be removed from the Part 177 texts because they were superseded by the section 1625(c) provisions. These remain the views of Customs. Consequently, the 2-year period set forth in the proposed text, which reflects the period prescribed in the detrimental reliance provision for treatments in present § 177.9(e) is appropriate and should be retained. Finally, as regards the commenter's assertion regarding the use of the Freedom of Information Act to obtain the information to provide to Customs covering the 2-year period, Customs does not believe that importers will effectively be able to do this because Customs does not retain the necessary information in such a way that it would on its face demonstrate the existence of a treatment.

Comment: One commenter argued that Customs should adopt a reasonable standard for determining whether a “treatment accorded substantially similar transactions” exists. Customs should not follow through with its attempt to limit the standard for determining whether there has been such treatment. This commenter also asserted that the requirement that only entries actually reviewed by Customs (as opposed to entries liquidated by operation of law, through bypass or other automatic liquidation procedure) will count is irrational. Another commenter claimed that the limitation of treatment to instances in which Customs made a deliberative decision, usually requiring a physical examination of goods, is not adequately justified by Customs and is as objectionable as the suggestion that, where there is a no change liquidation, there is no Customs decision to protest.

Customs response: For the reasons stated in the preceding comment response, Customs believes that the proposed text set forth a reasonable standard for determining whether a “treatment” exists, and Customs further suggests that the rationality of that approach is supported by the holding in Precision I that “treatment” looks to the actions of Customs. Similarly, Customs believes that the preceding comment response adequately justifies the deliberative decision standard reflected in the proposed text. Finally, the comment regarding no change liquidations and protest decisions involves a separate statutory and regulatory context and therefore is inapposite.

Comment: Based on the regulations as proposed, importers and other interested parties have little or no ability to require Customs to examine specific transactions. The review of transactions is the responsibility of Customs. Accordingly, the term “treatment” should include all importations, not just those which Customs has actually examined.

Customs response: While Customs generally agrees with the first two statements of this commenter, Customs disagrees with the commenter's conclusion. As indicated earlier in this comment discussion, Customs must deal with a very large number of import transactions each year and must at the same time facilitate international trade. It is simply impossible for Customs to facilitate trade and at the same time review all import transactions. Accordingly, Customs has adopted procedures, such as selectivity and bypass, which are intended to strike a workable balance between these two competing goals. As a result, the vast majority of import transactions do not receive Customs review. Since those unreviewed transactions receive no action on the part of Customs, they should not be considered to constitute a “treatment” within the meaning of 19 U.S.C. 1625(c).

Comment: Three commenters complained that the burden of proof to show a treatment (a listing by entry number, quantity and value, port of entry, and date of final action by Customs) is too great. Moreover, these commenters suggested that if Customs is not totally uniform in its treatment, the proposed regulations would appear to excuse Customs from a finding that there is a treatment triggering rights to the public.

Customs response: Customs disagrees with the comment regarding the alleged burden, for two reasons. First, the regulatory standard reflected in the proposed text follows the text of present § 177.9(e)(2) in this regard, and Customs is not aware that importers have had particular difficulty in meeting the burden of showing reliance on previous treatment under that provision. Second, the proposed regulatory standard appears to be consistent with the evidence of treatment on substantially identical transactions that the court in Precision I deemed appropriate for section 1625(c) purposes. The court noted in this regard that the plaintiff did not meet the necessary burden when it failed to provide information regarding the dates, ports and nature of the earlier transactions and a clear description of the merchandise at issue.

With regard to the issue of uniformity, several points should be noted. First, reference in the regulatory text to a “consistent pattern” in the definition of “treatment” was intended to apply only to the person claiming the treatment and not to actions of Customs involving substantially identical transactions of other persons. Moreover, there is nothing in the proposed text that requires 100 percent consistency. Customs avoided imposing a strict 100 percent requirement in recognition of the fact that a finding of reliance on a previous treatment could be reasonable even if the pattern of treatment was not entirely consistent, for example, where the actions of Customs were consistent over the entire 2-year period in all ports for a significant number of entries except for a relatively small number of isolated exceptions. On the other hand, Customs does not believe that a person should be able to claim the existence of a treatment for section 1625(c) purposes when there is no consistency in the pattern of actions by Customs, that is, when the general pattern is that different results have been reached in different ports, because the different actions of Customs can give rise to no expectation on the part of the importer regarding the specific treatment that his transactions will receive from Customs. Further, it should be noted that, in actual practice, Customs has never denied a claim of treatment based solely on an importer not having had 100 percent consistent treatment: each determination has been based on consideration of all the relevant facts involved.

Comment: Three commenters argued that, in determining whether a treatment exists, Customs should not disregard outright informal entries or other entries where there is less scrutiny. These commenters noted that informal entries are allowed for low value shipments but that there are certain informational requirements for these low value shipments which allow Customs to use selectivity criteria to review those shipments, and they therefore suggested that informal entries should not be disregarded. Similarly, these commenters asserted that just because Customs does not choose to examine certain merchandise does not mean that the action of Customs in liquidating entries is entitled to no weight. With regard to the statement that little weight will be given for treatment purposes to transactions that have small quantities or values, another commenter noted that test transactions are legitimate importations and that for some kinds of merchandise, such as machines, small quantities are the norm.

Customs response: As already pointed out in this comment discussion, the key issue in determining whether a treatment exists is whether, and if so the manner in which, Customs has taken action on past transactions. The reference in the proposed text to informal entries was made in a context in which there is no examination or review, and therefore the regulatory text would not preclude the consideration of informal entries on which Customs took specific action such as an examination of the merchandise or a detailed review of the supporting entry documentation. Moreover, the mere fact that Customs does not examine the merchandise does not mean that an action leading to a treatment cannot occur, because other actions by Customs, such as a review of the entry documentation or a request for additional information from the importer, can constitute adequate evidence of the existence of a treatment. Similarly, there is nothing in the proposed text that would preclude the consideration of “test transactions,” and Customs further notes that transactions involving low quantity merchandise such as machines may be appropriate for consideration under the proposed text because their value probably would be significant and thus might warrant the specific attention of Customs. Finally, it should be noted that Customs has cooperated with importers and their counsel on “test transactions” or “test shipments” in resolving Customs transaction issues. It would be disingenuous of importers to “blind-side” Customs by using these test shipments as a basis for claiming that a “treatment” exists rather than advising Customs that a valid Customs transaction issue exists which warrants examination.

Comment: Customs should delete from § 177.21 paragraph (d)(1) which sets forth exceptions to the notice requirements.

Customs response: Customs is firmly of the opinion that paragraph (d)(1) of the proposed text should be retained in its entirety for the reasons stated in the preamble portion of the July 17, 2001, notice of proposed rulemaking, and Customs notes that the commenter provided no justification for its suggested change. The paragraph (d)(1) provisions are intended to avoid redundancy and to provide exceptions in the case of changes not occasioned by actions taken by Customs. The proposed text thus implicitly recognizes the true purpose of the section 1625(c) provisions which was only to protect importers and others from sudden actions taken by Customs. This intent was recognized in Precision II where the court, in discussing the relevant legislative history, noted the statement in Senate Report No. 103-189 that “importers have a right * * * to expect certainty that the Customs Service will not unilaterally change the rules without providing importers proper notice and opportunity for comment.” There is nothing in the statute or its legislative history that would suggest that Congress intended that the procedural safeguards set forth in section 1625(c) would apply in the case of rulings, decisions or treatments of Customs that are affected by subsequent laws passed by Congress or by subsequent actions taken by the President or other Executive Branch agencies or by subsequent decisions by the courts or by collateral public notice and comment procedures pursued by Customs under other authority. Rather, Customs believes that the opposite conclusion must be reached, and in this regard Customs notes that in Sea-Land Service, Inc. v. United States , 239 F.3d 1366 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit upheld the conclusion of the Court of International Trade that, where Customs made decisions as a result of a court decision that established a statutory interpretation that in effect modified or revoked previous Customs decisions, the notice and comment requirements of section 1625(c) did not apply and would serve no purpose because Customs was bound by the court decision and had no discretion to modify the court decision and thus would be unable to respond to any comments it received.

Comment: Proposed § 177.21(d) appears to be inclusive. However, proposed § 177.21(d)(1)(iv) should be amended by adding the words “overturns or” after “which.”

Customs response: Customs believes that the suggested change would result in a redundancy and therefore would not improve the text. The proposed text refers to a judicial decision “which has the effect of overturning the Customs position” in order to cover not only Customs positions that are directly affected by the judicial decision (for example, where a specific Customs ruling or decision is subjected to judicial review) but also cases in which the issue decided by the court has a substantive effect on rulings, decisions or treatments of Customs that are not directly at issue in the litigation. The suggested change in wording would appear to set forth a distinction without a difference (in other words, a judicial decision that “overturns” something equally has the “effect of overturning” that thing). Accordingly, no change should be made in this regard. This conclusion would comport with the facts and result under the Sea-Land case referred to in the preceding comment response.

Comment: Customs should not adopt the position that petitions filed under 19 U.S.C. 1516 can be decided using the procedures of 19 U.S.C. 1625(c) if the petition is filed by a domestic party, Customs agrees with the position of the domestic party, and there is an outstanding ruling in conflict with this position. If a domestic party files under section 1516, Customs is obligated to decide the issue under that statute and to provide all involved parties with the procedural safeguards dictated in that statute. Customs should not subvert the provisions of section 1516 by substituting procedures established by section 1625.

Customs response: The comment relates to paragraph (d)(1)(v) of proposed § 177.21 which provides that the publication and issuance requirements of paragraphs (b) and (c) will not apply in circumstances in which a decision is published in the Federal Register as a result of a petition by a domestic interested party pursuant to 19 U.S.C. 1516. Customs explained in the preamble to the July 17, 2001, notice of proposed rulemaking that this provision was included because Customs did not believe that sound administrative practice would be well served by repeating in a 19 U.S.C. 1625(c) procedure what was already accomplished in a 19 U.S.C. 1516 context. Since the proposed regulatory text refers to, and therefore does not preclude, use of the 19 U.S.C. 1516 procedure, the commenter's stated concern does not relate to the wording of the regulatory text.

Rather, the commenter s concern appears to be directed to the related discussion in the preamble to the July 17, 2001, notice of proposed rulemaking regarding the procedures Customs would follow in those infrequent cases that could potentially give rise to both statutory procedures. Customs stated in this regard that the following internal approach had been developed to avoid any possible conflict between the two procedures: (1) If Customs agrees with the position presented by a domestic interested party under 19 U.S.C. 1516, Customs will then attempt to determine whether there is an extant ruling, internal advice decision, protest review decision or treatment that is in conflict with that position and, if it is determined that a conflict exists, then Customs will initiate the 19 U.S.C. 1625(c) modification or revocation procedure; or (2) if the position of Customs differs from the position of the domestic interested party and that party contests the Customs position, the matter will be resolved in accordance with the 19 U.S.C. 1516 publication procedures. The commenter appears to take issue with the first alternative procedure to the extent that it indicates that Customs would pursue a modification or revocation under section 1625(c) in lieu of an action under section 1516.

Customs believes that the alternative procedures outlined in the preamble to the July 17, 2001, notice of proposed rulemaking promote needed administrative flexibility and efficiency. Accordingly, Customs believes that the procedures outlined in the preamble to the July 17, 2001, notice of proposed rulemaking are appropriate and therefore should be retained.

In view of the significant number of comments submitted on the issue of treatments under the proposed § 177.21(c) text, and based on further review of this issue, Customs has determined that some other changes, in addition to those mentioned in the above comment discussion, should be incorporated in the regulatory text adopted in this final rule document. These additional changes, which Customs believes are necessary to address issues raised by the commenters or to otherwise clarify the intent behind the proposed text, involve the following:

1. The second sentence of paragraph (c)(1) has been revised to read “[t]he following rules will apply for purposes of determining under this section whether a treatment was previously accorded by Customs to substantially identical transactions of a person.” This change results in the removal of the definition of “treatment” in favor of a sequence of subparagraphs ((i) through (iv)) that set forth all operative standards for determining whether paragraph (c) applies. The reference at the end to identical transactions “of a person” is intended to reflect the necessary connection between the transactions and the person claiming the treatment.

2. Subparagraph (i)(A), which has no direct counterpart in the proposed text, provides that there must be evidence to establish that there was “an actual determination by a Customs officer” regarding the facts and issues involved in the claimed treatment. This is intended to clarify the point made in the above comment discussion that, as supported by the conclusion reached by the court in Precision II , there must be some review or other action on the part of Customs. The words “actual determination” are intended to clarify that there must be a conscious, intentional, purposeful act by a Customs officer, as distinguished from a result that arises out of an involuntary event such as an automatic liquidation or a liquidation by operation of law.

3. Subparagraph (i)(B), which also has no direct counterpart in the proposed text, provides that there must be evidence to establish that the Customs officer making the actual determination “was responsible for the subject matter” on which the determination was made. This provision is a corollary to the subparagraph (i)(A) requirement and is necessary to ensure that actions taken by Customs officers that create treatments for section 1625(c) purposes involve the exercise of proper authority and supervisory control and thus accurately represent the policy of Customs. In other words, Customs believes that it would not be appropriate for a person to rely on the advice of a Customs officer for treatment purposes if that Customs officer has no official responsibility for, and therefore no particular competence in, the issue at hand (for example, a drawback liquidator should not be relied upon for advice regarding country of origin marking requirements). This position is consistent with the facts involved in Precision I and Precision II and with the result reached by the court in Precision II in that the action taken by Customs that resulted in the creation of the treatment was taken by Customs officers assigned to a Customs office, that is, a drawback unit/office, specifically designated for the purpose of liquidating drawback entries.

4. Subparagraph (i)(C) follows the 2-year period provision contained in the proposed text but incorporates a number of changes. The new text provides that there must be evidence to establish that over a 2-year period “preceding the claim of treatment” (rather than “prior to publication of the notice”) Customs “consistently applied that determination on a national basis” (rather than requiring “a consistent pattern of decisions”) as reflected in liquidations of entries or reconciliations “or other Customs actions” with respect to “all or substantially all of that person's Customs transactions involving materially identical facts and issues.” The “preceding * * *” language merely reflects that the time the claim is made (which, under paragraph (c)(2)(ii) could occur after publication of the notice of proposed modification or revocation), rather than the date of publication of the notice by Customs, is more relevant in identifying the 2-year period for purposes of protecting the treatment rights of a person. The language that replaced the reference to a “consistent pattern of decisions” is intended (1) to avoid any uncertainty as regards what a “pattern” is, (2) to reflect the principle that, as pointed out in the comment discussion above and as reflected in the action taken by Customs on the 69 entries discussed by the court in Precision II , more is needed than merely a determination, that is, Customs must do something beyond making the determination, such as apply the determination in the liquidation of entries, and (3) to ensure that a treatment does not result from a geographically narrow application of a determination that is different from the action taken by Customs on that person's substantially identical transactions at other locations. The addition of the reference to “other Customs actions” is intended to clarify that Customs actions that can give rise to a treatment are not limited to liquidations. The words “all or substantially all” are intended to reflect the point made in connection with the above comment discussion that 100 percent consistency is not required for purposes of finding that a treatment exists with regard to a person's Customs transactions. Finally, the words “materially identical facts and issues” were included to clarify what is meant by the words “substantially identical” when used with reference to transactions in the introductory text of paragraph (c)(1).

5. At the end of subparagraph (ii), which repeats much of proposed paragraph (c)(1)(i), the words “import specialist review” have been replaced by “Customs officer review” to reflect the fact that review actions that can create treatments are not limited to actions of Customs import specialists.

6. Subparagraph (iii)(A) provides that Customs will not find that a treatment was accorded to a person's transactions if the person's own transactions were not accorded the treatment in question over the prescribed 2-year period. This provision represents a restatement, without substantive change, of the principle reflected in proposed paragraph (c)(1)(ii) that treatment is personal.

7. Subparagraph (iii)(B) provides that Customs will not find that a treatment was accorded to a person's transactions if the issue in question involves the admissibility of merchandise. This provision has no direct counterpart in the proposed text and has been added to clarify the existence of the essential rule that the admissibility of merchandise is always determined at the time of importation and therefore cannot be the subject of a treatment for purposes of section 1625(c). The reason for this should be clear: in the case of merchandise that is not admissible (for example, because the merchandise has been found to exceed an applicable quantitative limit or has been found to constitute prohibited merchandise), an importer should not be allowed to continue to enter the merchandise in the United States in contravention of the applicable law regarding its non-admissibility merely because Customs has failed to follow the publication procedures under section 1625(c).

8. Subparagraph (iii)(C) provides that Customs will not find that a treatment was accorded to a person's transactions if the person made a material false statement or material omission in connection with a Customs transaction or in connection with the review of a Customs transaction and that statement or omission affected the determination on which the treatment claim is based. This provision has no direct counterpart in the proposed text and has been added to ensure that a person cannot profit from the section 1625(c) treatment provisions in circumstances in which the claimed treatment rests on a false premise resulting from an act or omission on the part of the person claiming the treatment. Customs believes that this rule is an appropriate expression of principles of equity and fair play.

9. Subparagraph (iii)(D) provides that Customs will not find that a treatment was accorded to a person's transactions if Customs advised the person regarding the manner in which the transactions should be presented to Customs and the person failed to follow that advice. This provision has no direct counterpart in the proposed text. It has been added because Customs believes that it would be inconsistent with the reliance and consistency principles that underlie the treatment provisions for a person to claim a treatment that is inconsistent with specific advice provided by Customs. Moreover, even if Customs officers have taken determinative action on the person's individual transactions that is inconsistent with the advice provided elsewhere by Customs, the person should have no expectation that Customs will continue to take those inconsistent actions in the future.

10. Subparagraph (iv) repeats the text of proposed paragraph (c)(1)(iii) regarding the burden of proof as regards the existence of the previous treatment but with the following changes: (1) In the first sentence, the words “burden of proof” have been replaced by “evidentiary burden” to avoid an overly strict standard; (2) in the second sentence, reference is made to “materially” (rather than “substantially” ) identical transactions to align on the language used in subparagraph (i)(C) as discussed above; and (3) at the end of the second sentence, the words “and, if known, the name and location of the Customs officer who made the determination on which the claimed treatment is based” have been added to specify other information, if available, that a person may use to convince Customs that the claimed treatment exists. In addition a third sentence has been added to the proposed text to provide that, in cases in which an entry is liquidated without any Customs review, the person claiming a previous treatment must be prepared to submit to Customs written or other appropriate evidence of the earlier actual determination of a Customs officer that the person relied on in preparing the entry and that is consistent with the liquidation of the entry. Customs believes that this provision, which is related to the standard under subparagraph (i) that there must be a determination of Customs that has been applied to transactions, is necessary in order to enable persons to demonstrate the existence of a treatment when no specific determination was made on the person's individual transactions (an example would be where Customs issued a prospective ruling to another person and the person claiming the treatment followed that ruling in entering his identical merchandise and Customs liquidated those entries as entered and without review-presentation of the ruling to Customs would satisfy the regulatory standard).

11. Finally, at the end of the notice procedures in paragraph (c)(2)(i), the text regarding written confirmation has been simplified by referring to confirmation sent to each person identified as having had substantially identical transactions.* * *” This change conforms the text to current administrative practice.

In light of the decision discussed earlier in this document to proceed with a final rule only as regards those proposed Part 177 regulatory changes that relate to the modification/revocation provisions of 19 U.S.C. 1625(c), the proposed § 177.21 text must have a new section designation in order to appear properly within the existing Part 177 structure. Accordingly, Customs in this final rule document has designated the new modification/revocation section as § 177.12 (with a consequential redesignation of present § 177.12 as § 177.13) so that it will appear after both the provision that deals with the issuance of prospective rulings (§ 177.8) and the provision that concerns the issuance of internal advice decisions (§ 177.11), because issued prospective rulings and internal advice decisions may be the subject of a modification or revocation under the new section. In addition, some minor conforming changes have been made to the wording of paragraph (a) of new § 177.12 to reflect the fact that the other structural changes to Part 177 contained in the July 17, 2001, notice of proposed rulemaking are not being adopted in this final rule document.

In addition, this final rule document makes a number of conforming changes to other existing sections within part 177 as a consequence of the addition of new § 177.12. These changes are as follows:

1. In the second sentence of paragraph (b)(2)(ii)(B) of “§ 177.2, the reference to “§ 177.12” has been changed to read “177.13.”

2. The heading of § 177.9 has been revised to remove the reference to modification or revocation which will no longer be “treated” in that section.

3. The last sentence of paragraph (a) of § 177.9 has been revised to reflect the proper reference to the new modification and revocation provisions and to refer to the Federal Register (rather than the Customs Bulletin) which is the publication medium mentioned in the referenced § 177.10(e).

4. The first sentence of paragraph (c) of § 177.9 has been revised to include exception language when the public notice and comment provisions of new § 177.12 apply.

5. Paragraph (d) of § 177.9 has been removed because it concerns the modification or revocation of ruling letters and therefore is entirely superseded by the provisions of 19 U.S.C. 1625(c) and new § 177.12.

6. Paragraph (e) of § 177.9, which concerns ruling letters modifying past Customs treatment of transactions not covered by ruling letters, has been removed because it also is entirely superseded by the provisions of 19 U.S.C. 1625(c) and new § 177.12. It remains the position of Customs that these paragraph (e) provisions formed the basis for the statutory treatment provision, and in this regard the following was stated in the July 17, 2001, notice of proposed rulemaking (at 66 FR 37375) in discussing the definition of “treatment” in proposed § 177.21(c)(1):

7. Within § 177.10, which concerns the publication of decisions, the following changes have been made: (1) Paragraph (b), which concerns the establishment of a uniform practice by publication of a ruling in the Customs Bulletin, has been removed; (2) paragraph (c) has been revised: in order to remove the reference to a change of position in the paragraph heading; in order to remove the second sentence of paragraph (c)(1) which concerns Federal Register publication and public comment regarding a ruling that contemplates a change of practice resulting in the assessment of a lower rate of duty; in order to remove the third sentence of paragraph (c)(1) which concerns rulings resulting in a change of practice but no change in the rate of duty; and in order to remove paragraph (c)(2) which concerns Federal Register publication and public comment regarding a contemplated ruling that has the effect of changing a position of Customs; and (3) the first sentence of paragraph (e), which concerns effective dates, has been revised to include exception language regarding modifications and revocations under new § 177.12. The changes to paragraphs (b) and (c) are substantively similar to changes reflected in the proposed revised Part 177 texts contained in the July 17, 2001, notice of proposed rulemaking. Customs explained in the preamble to that document in regard to those changes that, except in the case of an established and uniform practice where the proposed regulatory text was directly based on 19 U.S.C. 1315(d), it was proposed to remove all references to “uniform practice” or “practice” from the Part 177 texts. The principal reason for this was that the statutory and regulatory modification/revocation standards of 19 U.S.C. 1625(c) and proposed § 177.21 had rendered these provisions redundant or otherwise unnecessary. Customs would further add that a failure to make these changes in § 177.10(b) and (c) in this final rule document will give rise to conflicts with the new § 177.12 procedures, not only in regard to the vehicle for publication ( Federal Register versus Customs Bulletin) but also with regard to the circumstances in which publication of the contemplated ruling is required and when it would take effect. Since the new § 177.12 provisions devolve from a direct statutory mandate, Customs believes that they must take precedence.

Finally, although not directly related to 19 U.S.C. 1625(c) and new § 177.12, Customs notes that paragraph (a) of present § 177.10 and paragraph (b)(7) of present § 177.11 refer to publication or other availability within 120” days, whereas 19 U.S.C. 1625(a), which applies equally to prospective rulings and to internal advice decisions, requires publication or other availability within 90” days. In addition, paragraph (a) of present § 177.10 in two places refers to a precedential decision whereas 19 U.S.C. 1625(a) and new § 177.12 use the word interpretive. The regulatory texts in question have been amended in this final rule document to align on the statute and new regulatory text.

Accordingly, based on the comments received and the analysis of those comments as set forth above, and after further review of this matter, Customs believes that the proposed regulatory amendments regarding the modification and revocation of rulings, decisions, and treatments and regarding the publication of decisions should be adopted as a final rule with certain changes as discussed above and as set forth below. This document also includes an appropriate update of the list of information collection approvals (see the Paperwork Reduction Act portion of this document below) contained in § 178.2 of the Customs Regulations (19 CFR 178.2).

This document does not meet the criteria for a “significant regulatory action” as specified in E.O. 12866.

Pursuant to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), it is certified that these amendments will not have a significant economic impact on a substantial number of small entities. The regulatory amendments primarily represent a clarification of existing statutory and regulatory requirements. Accordingly, the amendments are not subject to the regulatory analysis or other requirements of 5 U.S.C. 603 and 604.

The collection of information contained in this final rule has been reviewed and approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1515-0228. 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 collection of information in part 177 of the Customs Regulations is required in connection with the consideration of requests for, and issuance of, rulings or other written advice from Customs regarding the application of the Customs and related laws to current or future transactions, in connection with modifications or revocations of prior Customs rulings or treatments, or in connection with the issuance of country-of-origin advisory rulings and final determinations relating to Government procurement. Failure to provide the required information may preclude issuance of the requested advice by Customs or may preclude the application of the requested relief or other action by Customs. The likely respondents are individuals and business or other for-profit institutions, including partnerships, associations, and corporations, and their authorized agents.

The estimated average annual burden associated with the collection of information under part 177 is 10 hours per respondent or recordkeeper. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be directed to the U.S. Customs Service, Information Services Group, Office of Finance, 1300 Pennsylvania Avenue, NW., Washington, DC 20229, and to OMB, Attention: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503.

The principal author of this document was Francis W. Foote, Office of Regulations and Rulings, U.S. Customs Service. However, personnel from other offices participated in its development.

On May 30, 2002, we published a notice of proposed rulemaking (NPRM) entitled “Security Zones; Captain of the Port Buffalo Zone” in the Federal Register (67 FR 37748). We did not receive any letters commenting on the proposed rule. No public hearing was requested, and none was held.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The permanent security zones being established by this rulemaking are smaller in size than the temporary security zones currently in effect. By immediately implementing the smaller zone size, we will be relieving some of the burden placed on the public by a larger security zone.

On September 11, 2001, the United States was the target of coordinated attacks by international terrorists resulting in catastrophic loss of life, the destruction of the World Trade Center, and significant damage to the Pentagon. National security and intelligence officials warn that future terrorists attacks are likely.

This regulation proposes to establish four permanent security zones: (1) Nine Mile Point and Fitzpatrick Nuclear Power Plants; (2) Ginna Nuclear Power Plant; (3) Moses-Saunders Power Dam; and, (4) Long Sault Spillway Dam.

These security zones are necessary to protect the public, facilities, and the surrounding area from possible sabotage or other subversive acts. All persons other than those approved by the Captain of the Port Buffalo, or his designated representative, are prohibited from entering or moving within this zone. The Captain of the Port Buffalo, or his on scene representative, may be contacted via VHF Channel 16 for further instructions before transiting through the restricted area. In addition to publication in the Federal Register , the public will be made aware of the existence of these security zones, exact locations, and the restrictions involved via Local Notice to Mariners and Broadcast Notice to Mariners.

No comments were received and no changes are being made from the proposed rule in this 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 exempted it from review 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). The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), 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 security zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will not obstruct the regular flow of commercial traffic and will allow vessel traffic to pass around the security zone. In addition, in the event that is may be necessary, prior to transiting commercial vessels can request permission from the Captain of the Port Buffalo to transit through 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. No comments or questions were received from any small businesses.

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.).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not affect 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 would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action, therefore it does not require a Statement of Energy Effects under Executive Order 13211.

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

On May 22, 2002, we published a notice of proposed rulemaking (NPRM) entitled Security Zones; Captain of the Port Chicago Zone, Lake Michigan, in the Federal Register (67 FR 35939). We received six letters commenting on the proposed rule. No public hearing was requested, and none was held.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . In response to the terrorist attacks on September 11, 2001, the Coast Guard implemented temporary security zones around critical facilities throughout the U.S. Some of those facilities included nuclear power plants, water intake cribs, and Navy Pier. Security zones around these facilities helps protect against the subversive type of activity that resulted in the World Trade Center and Pentagon attacks. Since the temporary security zone will expire on August 1, 2002, in order to continue ensuring security at these nuclear power plants, water intake cribs, and Navy Pier, this final rule must be implemented prior to the August 1, 2002 expiration. As such, it is necessary to make this rule effective less than 30 days after publication.

On September 11, 2001, the United States was the target of coordinated attacks by international terrorists resulting in catastrophic loss of life, the destruction of the World Trade Center, and significant damage to the Pentagon. National security and intelligence officials warn that future terrorist attacks are likely. To protect from such, this regulation will establish permanent security zones on the navigable waters of the Des Plaines River, the Kankakee River, the Rock River, and Lake Michigan.

These security zones are necessary to protect the public, facilities, and the surrounding area from possible sabotage or other subversive acts. All persons other than those approved by the Captain of the Port Chicago, or his authorized representative, are prohibited from entering or moving within the zones. The Captain of the Port Chicago may be contacted via VHF Channel 16 for further instructions before transiting through the restricted area. The Captain of the Port Chicago's on-scene representative will be the patrol commander. In addition to publication in the Federal Register , the public will be made aware of the existence of these security zones, exact locations and the restrictions involved via Local Notice to Mariners and the Broadcast Notice to Mariners.

During the public comment period, the Coast Guard received 6 comments on the proposed rulemaking. Three comments were concerned that the Donald C. Cook Nuclear Power Plants security zone would exclude fishermen from a good fishing area. Nuclear power plants are critical infrastructures throughout the country, providing electricity to millions of homes and cities. In addition, the plants pose a significant radiological hazard should their structural integrity be compromised. The Captain of the Port Chicago has determined that the best practice to ensure the safety of these facilities is to provide a clear area in which no vessels or persons are allowed access without specific permission from the Captain of the Port Chicago.

One comment stated concern that the security zones around Navy Pier and the Jardine Water Filtration Plant did not include the northside of the plant. Commenter concerned for the Commonwealth Edison vault that supplies electrical power to the Jardine Water Filtration Plant being directly above the waters edge. The Captain of the Port Chicago has taken under advisement and after review has determined that the present security zone boundaries are adequate for the current threat condition.

One comment received from the Palisades Nuclear Power Plant requesting changes to the security zone coordinates to match their northern and southern shoreline boundaries. The commenter noted that the current security zone for the Palisades Nuclear Power Plant did not match where their security barriers are placed, and for enforcement purposes recommended the change. The Coast Guard concurs with this comment and has identified the new northern and southern coordinates as 42°19′31″ N, 086°18′50″ W (northern shoreline), 42°19′07″ N, 086°19′05″ W (southern shoreline).

One comment recommended that the Navy Pier Southside Security zone be changed to only 150 feet from the Southern side to allow recreational boaters a place to turn around, helping to alleviate congestion southeast of Navy Pier due to heavy vessel traffic waiting for the Chicago Lock. The Captain of the Port Chicago has determined that the present risk levels justify total elimination of the Navy Pier Southside security zone.

This Final 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 exempted it from review 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). The Coast Guard expects the economic impact of this proposal to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this final 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 final rule would not have a significant economic impact on a substantial number of small entities.

These security zones will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will not obstruct the regular flow of commercial traffic and will allow vessel traffic to pass around the security 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 this final rule so that they can better evaluate its effects on them and participate in the rulemaking process. No comments or questions were received from any small businesses. 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 final rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this final rule under Executive Order 13132, Federalism, 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) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this final rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

This final 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 final rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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.

We have analyzed this final rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.

We have considered the environmental impact of this final 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.

On June 12, 2002, EPA published final revisions to various provisions in 40 CFR parts 72 and 75 (67 FR 40394). Based on a review of the final published package, EPA has identified certain technical errors in those revisions that are corrected through this notice.

As published, the final revisions to particular provisions in 40 CFR part 75 contain errors or omissions that may prove to be misleading and need to be clarified. The reason for these changes are as follows:

1. The appendices to 40 CFR part 60 provisions that contain test methods and specifications referenced in part 75 were reformatted, with significant section renumbering, on October 17, 2000 (65 FR 61743). In the June 13, 2001 proposed revisions to Part 75, EPA proposed to remove a requirement to use only the versions of certain test methods in appendices to 40 CFR part 60 that were effective as of 1995, 1996 or 1997, i.e. the revisions would remove the restriction on the use of the most current, reformatted version of these Part 60 provisions ( see 66 FR 31995-96, June 13, 2001). The June 12, 2002 final rule promulgated the revisions as proposed. However, the final revisions failed to make necessary conforming changes to the part 60 cross references that appear in part 75. The corrections in this notice update the part 60 cross references in part 75 to be consistent with the part 60 revisions. These corrections affect §§ 72.2 and 75.22, Appendix A, sections 1.1, 1.2, 6.5.6, 6.5.6.2, and 6.5.6.3, and Appendix E, section 2.1.2.1.

2. In § 75.16(e)(1), this notice corrects an omission in the amendatory language to add the word “rate” after “heat input.” This correction is consistent with the proposed rule changes and changes to other subparagraphs in § 75.16(e).

3. In § 75.19(c)(1)(iv)(H), EPA revised the introductory text to clarify that the provisions apply only to units with “add-on” controls or dry-low NO X technology. EPA had intended to repeat the words “add-on” in subparagraph (H)( 3 ) for consistency and clarity, and adds those words as part of this correction notice.

4. In § 75.19(c)(3)(ii)(G), there was a mistake in the amendatory language which suggested that the entire paragraph was being amended when in fact the reproduced text for that paragraph made clear that only a new sentence was being added. This correction notice reproduces the full section with the new sentence added at the end of the previously existing text. This correction also is consistent with the proposed rule revisions for this paragraph.

5. In § 75.19(c)(3)(ii)(H), a phrase used in various places in § 75.19 was mistakenly worded, and is corrected in this notice.

6. In § 75.21(a)(7), the amendatory language specifies that certain text is to be added after certain words in the paragraph, but those words appear twice in the paragraph. To clarify the amendatory language, this correction reproduces the applicable sentence in its entirety.

7. In § 75.33(c)(7), this notice corrects a typographical error that occurred (a regulatory cross reference and the concluding period were left off the end of the paragraph).

8. In § 75.71, EPA had intended to revise the section title, consistent with the proposed rule revisions, but the amendatory language did not specify a change in the title to the section, and thus the title published in the June 12, 2002 Federal Register was not modified as intended (and as shown in the proposed rule revisions). This notice specifies the changes to the section title.

9. In Appendix B, section 2.3.2, paragraphs (d) and (f), EPA added language to account for units that are based on operating levels rather than load levels. However, amendatory language was dropped inadvertently that would have added the words “(or operating level)” after each occurrence of the words “load level” in Appendix B, section 2.3.2, paragraphs (d) and (f). The words “load level” do appear in the current text of these paragraphs, so this correction adds the applicable parenthetical phrase. This correction also is consistent with the proposed rule changes to these paragraphs.

10. In Appendix D, section 2.1.6.4, paragraph (a)(1), the revisions added a new second sentence but the amendatory language mistakenly failed to direct that the punctuation at the end of the existing text in the paragraph be changed from a semicolon to a period. This correction fixes that grammatical error.

11. In Appendix D, section 2.3.3.2, third sentence, this notice corrects an omission (the words “or default SO 2 emission rate” should be inserted as applicable to the use of Equation D-5).

12. In Appendix D, the preamble to the final revisions indicates that compliance with certain provisions is not required until July 1, 2003 ( see 67 FR 40417). However, the rule text discussed in the final preamble was mistakenly omitted. This notice corrects that error by adding an asterisk after “Gas Total Sulfur Content” in the first column of Table D-6, and adding the following footnote to the Table: “*Required no later than July 1, 2003.”

13. In Appendix F, section 2.3, this notice corrects a typographical error (the label for Equation F-3 was mistakenly omitted). This correction is consistent with the proposed rule changes.

For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this table could also be affected. The North American Industrial Classification System (NAICS) codes are provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

1. Electronically . You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. On the Home Page select “Laws and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/.

2. In person . The Agency has established an official record for this action under docket control number OPP-2002-0057. The official record consists of the documents specifically referenced in this action, any public comments received during an applicable comment period, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period, is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

You may submit your comments through the mail, in person, or electronically. To ensure proper receipt by EPA, it is imperative that you identify docket control number OPP-2002-0057 in the subject line of the first page of your response.

1. By mail . Submit your comments to: Public Information and Records Integrity Branch (PIRIB), Information Resources and Services Division (7502C), Office of Pesticide Programs (OPP), Environmental Protection Agency, Ariel Rios Bldg., 1200 Pennsylvania Ave., NW., Washington, DC 20460.

2. In person or by courier . Deliver your comments to: Public Information and Records Integrity Branch (PIRIB), Information Resources and Services Division (7502C), Office of Pesticide Programs (OPP), Environmental Protection Agency, Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA. The PIRIB is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

3. Electronically . You may submit your comments electronically by e-mail to: opp-docket@epa.gov, or you can submit a computer disk as described above. Do not submit any information electronically that you consider to be CBI. Avoid the use of special characters and any form of encryption. Electronic submissions will be accepted in WordPerfect 6, Suite 8, or ASCII file format. All comments in electronic form must be identified by docket control number OPP-2002-0057. Electronic comments may also be filed online at many Federal Depository Libraries.

Do not submit any information electronically that you consider to be CBI. You may claim information that you submit to EPA in response to this document as CBI by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public version of the official record. Information not marked confidential will be included in the public version of the official record without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under FOR FURTHER INFORMATION CONTACT .

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide copies of any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.

5. Provide specific examples to illustrate your concerns.

6. Offer alternative ways to improve the final rule or collection activity.

7. Make sure to submit your comments by the deadline in this final rule extension.

8. To ensure proper receipt by EPA, be sure to identify the docket control number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and Federal Register citation.

On Feburary 25, 2002, March 19, 2002, and May 7, 2002, NRDC filed objections with EPA regarding final rules establishing certain tolerances under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, for the following seven pesticides:

(1) Imidacloprid;

(2) Mepiquat;

(3) Bifenazate;

(4) Zeta-cypermethrin;

(5) Diflubenzuron;

(6) Halosulfuron methyl; and

(7) Pymetrozine.

NRDC's objections concern a number of issues under section 408 of the FFDCA including the additional 10x safety factor for the protection of infants and children and aggregate exposure to pesticide chemical residues. In the Federal Register of June 19, 2002, 67 FR 41628 (FRL-7167-7), the Agency announced the availability of, and sought public comment on these objections. EPA has received a request to extend the comment period. An extension was requested due to the broad nature of the NRDC objections documents and the large number of issues raised. The requestor felt that an extension to the comment period would give all interested parties the opportunity to develop detailed and comprehensive comments on these issues. The objections are available on EPA's website at http://www.epa.gov/fedrgstr/EPA-PEST/2002/June/Day-19/p15465.htm

The Agency provided a 60-day comment period, which was scheduled to end August 19, 2002. In response to the request for an extension, the Agency is extending the comment period on the NRDC tolerance objections to September 17, 2002.

The site to be partially deleted from the NPL is: Joslyn Manufacturing and Supply Superfund Site located in Brooklyn Center, Minnesota. A Notice of Intent to Delete for this site was published February 19, 2002 (67 FR 7326). The closing date for comments on the Notice of Intent to Delete was March 21, 2002. EPA received comments and therefore a Responsiveness Summary was prepared. The Responsiveness Summary was placed in the repository and with the Regional Docket Office.

A direct final notice of deletion was published on February 19, 2002 (67 FR 7279) which included the details of the partial deletion. While the direct final notice amendment is being removed in today's Federal Register , the details contained in the February 19, 2002 direct final deletion amendment describe the portion of the site being deleted by this notice.

The EPA identifies sites which appear to present a significant risk to public health, welfare, or the environment and it maintains the NPL as the list of those sites. Sites on the NPL may be the subject of Hazardous Substance Response Trust Fund (Fund-) financed remedial actions. Any site deleted from the NPL remains eligible for Fund-financed remedial actions in the unlikely event that conditions at the site warrant such action. Section 300.425(e)(3) of the NCP states that Fund-financed actions may be taken at sites deleted from the NPL in the unlikely event that conditions at the site warrant such action. Deletion of a site from the NPL does not affect responsible party liability or impede agency efforts to recover costs associated with response efforts.

40 CFR part 300 is amended as follows:

Information Repositories: Repositories have been established to provide detailed information concerning this decision at the following address: U.S. EPA Region V Library, 77 W. Jackson, Chicago, IL 60604, (312) 353-5821, Monday through Friday 8 a.m. to 4 p.m.; Minnesota Pollution Control Agency 520 Lafayette, Saint Paul, Minnesota, Monday Through Friday, 8:00 to 4:30 p. m., (651) 296-6300.

For the reasons set out in this document, 40 CFR part 300 is amended as follows:

This is a summary of the Commission's Report and Order in IB Docket No. 01-96, FCC 02-123, adopted April 18, 2002 and released April 26, 2002. The complete text of this Report and Order is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW. Room CY-B402, Washington, DC 20554, telephone (202) 863-2893, facsimile (202) 863-2898 or via e-mail qualexint@aol.com. It is also available on the Commission's Web site at http://www.fcc.gov.

1. The Federal Communications Commission has adopted sharing and service rules for the non-geostationary satellite orbit, fixed satellite service (NGSO FSS) in the Ku-Band frequencies. These systems will provide a variety of data, video and telephone services to U.S. consumers, for communications in the United States and around the world.

2. The Commission adopted an innovative sharing technique that can accommodate all seven pending applications for this service in the available frequency bands. The Commission calls this technique avoidance of in-line interference events. Under this technique, each applicant, once licensed, will be authorized to operate its system in the entire available service spectrum, so long as it avoids causing harmful interference to other NGSO FSS systems.

3. The Commission anticipates that there will be predictable instances when the space station of one NGSO FSS system and the earth station of another system are arranged in a perfect line of communication, an occurrence called an in-line interference event. The sharing technique allows and encourages the two system operators to exchange space station orbit data in order to predict and avoid these events by any mitigation means preferred. In the event the systems cannot agree on a preferred avoidance method, the Commission requires that they split the available NGSO FSS service spectrum in the Ku-Band equally between the systems involved in the event, for the duration of the event. The Report and Order allows the first launched NGSO FSS system to choose its preferred equal portion of the spectrum to which its space station will resort when an in-line interference event arises.

4. The Report and Order adopts a technical definition of an in-line interference event so that systems can coordinate their orbits in advance. The Commission adopted an Earth-surface based (topocentric) angular separation standard, with a 10-degree-avoidance angle between satellites of different networks.

5. The Report and Order adopted blanket licensing procedures for NGSO FSS user Earth stations in the 11.7-12.2 GHz and 12.2-12.7 GHz downlink bands, and the 14.0-14.5 GHz uplink bands.

6. The Report and Order adopted service rules for the NGSO FSS service, including required coverage latitudes on Earth and an implementation milestones schedule. Licensees will be required to file an annual report describing the status of satellite construction and launch dates and a description of the use made of each satellite in obit. The Report and Order also requires that applicants disclose orbital debris mitigation plans before licensing.

7. Applicants for NGSO FSS in the Ku-Band are required to amend their applications to comply with the rules adopted, on or before September 16, 2002. Following a public comment period, qualified systems will be authorized to operate.

8. This Report and Order contains new information collections. The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection(s) contained in this Report and Order, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. This Report and Order has been submitted to OMB for review under the emergency clearance provisions of the PRA. The Commission, under the normal provisions of the PRA, invites the general public, and other Federal agencies to comment on the information collections contained in this proceeding prior to submitting it to OMB for review. Public and agency comments are due October 15, 2002. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

OMB Control Number: 3060-1014 (New Collection).

Title: Ku-Band NGSO FSS Satellite Service.

Form No.: Not applicable.

Type of Review: New collection.

Respondents: Business or other for-profit entities.

Number of Respondents: 6.

Estimated Time Per Response: 1-4 hours.

Frequency of Response: On occasion.

Total Annual Burden: 84 hours.

Total Annual Costs: $87,395.

Needs and Uses: The information collected will be used by the Federal Communications Commission and interested members of the public to ensure compliance with the rules adopted for the NGSO FSS in the Ku-Band. Specifically, applicants for this new service will be required to file amendments to their applications to conform to the newly-adopted service rules. Without the required conforming amendments, the pending applications would not meet the NGSO FSS rules. The applicants will also be required to file applications for blanket Earth station authorization for multiple, technically identical Earth stations. These applications will allow the Commission and concerned co-frequency services to ensure that NGSO FSS Earth stations do not exceed power limits that protect other services. Licensees authorized in the NGSO FSS will be required to filed certifications that they meet scheduled milestones for constructing and launching their space stations. This information is required to ensure that licensees who do not build their licensed systems do not waste valuable public frequency resources. Finally, licensees will be required to file annual reports, which are also needed to ensure that valuable public frequencies resources are not wasted.

9. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that a regulatory flexibility analysis be prepared for notice and comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (a) Is independently owned and operated; (b) is not dominant in its field of operation; and (c) satisfies any additional criteria established by the Small Business Administration (SBA).

10. The objective of the Report and Order and of this proceeding is to assign the NGSO FSS spectrum to satellite systems operators who can implement their proposals in a manner that serves the public interest. The final rules in the Report and Order will reduce regulatory burdens and, with minimal disruption to existing FCC permittees and licensees, result in the continued development of NGSO FSS and other satellite services to the public.

11. Neither the Commission nor the U.S. Small Business Administration has developed a small business size standard specifically for NGSO FSS licensees. The appropriate size standard is therefore the SBA standard for Satellite Telecommunications, which provides that such entities are small if they have $12.5 million or less in annual revenues.

12. The rules adopted in this Report and Order apply only to entities providing NGSO FSS. Small businesses will not have the financial ability to become NGSO FSS system operators because of the high implementation costs, including construction of satellite space stations and rocket launch, associated with satellite systems and services. Since the spectrum and orbital resources available for assignment are not open to new entrants, we estimate that only the seven applicants whose applications are pending will be authorized by the Commission to provide these services. None of the seven applicants is a small business because each has revenues in excess of $11 million annually or has parent companies or investors that have revenues in excess of $11 million annually.

13. Therefore, we certify that the rules adopted in this Report and Order will not have a significant economic impact on a substantial number of small entities. The Commission will send a copy of this Report and Order, including this Final Regulatory Flexibility Certification, in a report to Congress pursuant to the Congressional Review Act. In addition, the Report and Order and this final certification will be sent to the Chief Counsel for Advocacy of the Small Business Administration, and will be published in the Federal Register .

14. Pursuant to sections 4(i), 7(a), 303(c), 303(f), 303(g), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 157(a), 303(c), 303(f), 303(g), and 303(r), this Report and Order is adopted, and part 25 of the Commission's Rules is amended.

15. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Certification, in a report to Congress pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A); and shall also send a copy of this Report and Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration. See 5 U.S.C. 605(b).

By the beginning of the twentieth century, this nation began to witness the depletion of many species of migratory birds. Commercial or “market” hunting took a significant toll as restaurant owners paid top dollar for wild birds and the millinery industry demanded large numbers of feathers for hats. Individual States did not establish regulations or other management programs to adequately protect the migratory bird resources.

In 1916, the United States and Great Britain (on behalf of Canada) signed the Convention for the Protection of Migratory Birds in Canada and the United States. The treaty prohibited market hunting and specified a closed season on taking migratory game birds between March 10 and September 1 of each year. In 1936, the United States and Mexico signed the Convention for the Protection of Migratory Birds and Game Mammals. The Mexico treaty prohibited the taking of wild ducks between March 10 and September 1. Neither treaty, however, took into account and allowed for the traditional harvest of migratory birds by northern indigenous people during the spring and summer months. This harvest, which had occurred for centuries, was necessary to the subsistence lifestyle of the northern people and thus continued despite the closed season.

The Canada treaty and the Mexico treaty, as well as the other migratory bird treaties with Japan (1972) and Russia (1976), have been implemented in the United States through the Migratory Bird Treaty Act (MBTA). The courts have construed the MBTA as prohibiting the Federal Government from permitting any harvest of migratory birds that is inconsistent with the terms of any of the migratory bird treaties. The restrictive terms of the Canada and Mexico treaties thus prevented the Federal Government from permitting the traditional subsistence harvest of migratory birds during spring and summer in Alaska. To remedy this situation, the United States negotiated Protocols amending both the Canada and Mexico treaties to allow for spring/summer subsistence harvest of migratory birds by indigenous inhabitants of identified subsistence harvest areas in Alaska. The U.S. Senate approved the amendments to both treaties in 1997.

The major goals of the amended treaty with Canada are to allow for traditional subsistence harvest and to improve conservation of migratory birds by allowing effective regulation of this harvest. The amended treaty with Canada allows permanent residents of villages within subsistence harvest areas, regardless of race, to continue harvesting migratory birds between March 10 and September 1 as they have done for thousands of years. The Letter of Submittal from the Department of State to the White House states that lands north and west of the Alaska Range and within the Alaska Peninsula, Kodiak Archipelago, and the Aleutian Islands generally qualify as subsistence harvest areas. Treaty language provides for further refinement of this determination by management bodies.

The amendments, however, are not intended to cause significant increases in the take of migratory birds relative to their continental population sizes. Therefore, the Letter of Submittal places limitations on who is eligible to harvest and where they can harvest migratory birds. Anchorage, the Matanuska-Susitna and Fairbanks North Star Boroughs, the Kenai Peninsula roaded area, the Gulf of Alaska roaded area, and Southeast Alaska generally do not qualify as subsistence harvest areas. Limited exceptions may be made so that some individual communities within these excluded areas could qualify for designation as subsistence harvest areas for specific purposes. For example, future regulations could allow some villages in Southeast Alaska to collect gull eggs.

The amended treaty with Canada calls for creation of management bodies to ensure an effective and meaningful role for Alaska's indigenous inhabitants in the conservation of migratory birds. According to the Letter of Submittal, management bodies are to include Alaska Native, Federal, and State of Alaska representatives as equals. They will develop recommendations for, among other things: Seasons and bag limits, methods and means of take, law enforcement policies, population and harvest monitoring, education programs, research and use of traditional knowledge, and habitat protection. The management bodies will involve village councils to the maximum extent possible in all aspects of management.

Relevant recommendations developed by the management bodies will be submitted to the Service and to the Flyway Councils. Restrictions in harvest levels for the purpose of conservation will be shared equitably by users in Alaska and users in other States, taking into account nutritional needs of subsistence users in Alaska. The treaty amendments are not intended to create a preference in favor of any group of users in the United States or to modify any preference that may exist. Neither do they create any private rights of action under U.S. law.

In 1998, we began a public involvement process to determine how to structure management bodies in order to provide the most effective and efficient involvement for subsistence users. We began by publishing a notice in the Federal Register stating that we intended to establish management bodies to implement the spring and summer subsistence harvest (63 FR 49707, September 17, 1998). Public forums attended by the Service, the Alaska Department of Fish and Game, and the Native Migratory Bird Working Group were held to provide information regarding the amended treaties and to listen to the needs of subsistence users. The Native Migratory Bird Working Group was a consortium of Alaska Natives formed by the Rural Alaska Community Action Program to represent Alaska Native subsistence hunters of migratory birds during the treaty negotiations. We held forums in Nome, Kotzebue, Fort Yukon, Allakaket, Naknek, Bethel, Dillingham, Barrow, and Copper Center. We led additional briefings and discussions at the annual meeting of the Association of Village Council Presidents in Hooper Bay and for the Central Council of Tlingit & Haida Indian Tribes in Juneau. Staff members from Alaska national wildlife refuges conducted public meetings in the villages within their refuge areas and discussed the amended treaties at those meetings.

On July 1, 1999, we published in the Federal Register (64 FR 35674) a notice of availability of an options document, entitled “Forming management bodies to implement legal spring and summer migratory bird subsistence hunting in Alaska.” This document described four possible models for establishing management bodies and was released to the public for review and comment. We mailed copies of the document to approximately 1,350 individuals and organizations, including all tribal councils and municipal governments in Alaska, Native regional corporations and their associated nonprofit organizations, the Alaska Department of Fish and Game, Federal land management agencies, representatives of the four Flyway Councils, conservation and other affected organizations, and interested businesses and individuals. We distributed an additional 600 copies at public meetings held in Alaska to discuss the four models. We also made the document available on the U.S. Fish and Wildlife Service web page.

During the public comment period, we received 60 written comments addressing the formation of management bodies. Of those 60 comments, 26 were from tribal governments, 20 from individuals, 10 from non-government organizations, 2 from the Federal Government, 1 from the State of Alaska, and 1 from the Native Migratory Bird Working Group. In addition to the 60 written comments, 9 of the 10 Federal Subsistence Regional Advisory Councils passed resolutions regarding the four models presented.

On March 28, 2000, we published in the Federal Register (65 FR 16405) the Notice of Decision, “Establishment of Management Bodies in Alaska To Develop Recommendations Related to the Spring/Summer Subsistence Harvest of Migratory Birds.” This notice described the way in which management bodies would be established and organized.

Based on the wide range of views expressed on the options document, the decision incorporated key aspects of two of the models. The decision established one statewide management body consisting of 1 Federal member, 1 State member, and 7-12 Alaska Native members, with each component serving as equals. Decisions and recommendations of the Council will be by consensus wherever possible; however, if a vote becomes necessary, each component, Federal, State, and Native, will have one vote. This body will set a framework for annual regulations for spring and summer subsistence harvest of migratory birds. Seven regional bodies, consisting of local subsistence users working within the framework, will forward their recommendations to the statewide management body. That body will act on those recommendations and forward its recommendations to the Service and to the Flyway Councils.

In April 2000, we met with the Alaska Department of Fish and Game and the Native Migratory Bird Working Group to discuss bylaws for the statewide management body. At that meeting, we decided to name the statewide management body the “Alaska Migratory Bird Co-management Council.” On October 30, 2000, the Co-management Council convened for the first time and began preparation for the development of recommendations for regulations to be implemented in spring of 2003. The regulations in this document will: (1) Provide the authority for the Co-management Council to operate; (2) establish the procedures by which the Co-management Council will conduct its business; (3) provide authority to the Co-management Council to make recommendations regarding applicability and scope of subsistence harvest and who is eligible to participate in subsistence harvest; (4) give the Co-management Council the authority to set up a process by which migratory birds can be used and possessed under subsistence harvest regulations; (5) define Regional management areas; (6) describe the relationship the rule has to the process for developing national hunting regulations for migratory birds, and (7) allow for future development of regulations pertaining to methods and means of harvest traditionally used for subsistence purposes. At future meetings, the Co-management Council will continue to develop recommendations on harvest and methods and means of harvest as necessary to protect the migratory bird resource.

This rule places into regulation many of the decisions that were published in the March 28, 2000, Federal Register Notice (65 FR 16405). Prior to that Decision Notice being published, we conducted an extensive public involvement process consisting of public meetings in many regions of Alaska. On April 8, 2002, we published in the Federal Register (67 FR 16709) a proposed rule to establish procedures for implementing a spring/summer migratory bird subsistence harvest in Alaska. The proposed rule provided for a public comment period of 46 days. We mailed copies of the proposed rule to more than 1,200 individuals and organizations that were on the project mailing list. We conducted two public meetings in Anchorage where people could ask questions or provide formal comment.

By the close of the public comment period on May 24, 2002, we had received written responses from 11 entities. Four of the responses were from individuals, five from organizations, one from the Alaska Legislature, and one from the Alaska Department of Fish and Game. Several of the comments were of an editorial nature or suggesting alternative wording for clarification. We completed those changes when appropriate. Many comments requested or suggested changes to statements that came directly from the Protocol, the Senate Report, or the Letter of Submittal from the State Department to the White House. We declined to alter what we believed to be the intent of the Protocol. The following analysis addresses those comments that directly address the content of the proposed rule, and that do not conflict with the Protocol language.

Most sections of the proposed rule were addressed by commenters. This discussion addresses comments section by section beginning with those of a general nature.

A respondent requested that the regulations require research and monitoring and publication of an annual report on the findings. The ability to monitor the harvest is a major advantage of legalizing spring and summer subsistence harvesting of migratory birds and their eggs. Harvest monitoring will be expanded. The regulations state that the Alaska Migratory Bird Co-management Council (AMBCC) will make recommendations concerning research and use of traditional knowledge. Such recommendations will supplement research efforts currently being conducted. Research results will be published upon completion. Subsistence harvest data are published annually in the Service's Pacific Flyway Data Book. Accomplishing such activities continues to be a matter of policy. Regulating them appears unnecessary and restrictive.

An individual requested that the word “Native” be replaced throughout the regulations with the term “indigenous inhabitant.” The Letter of Submittal differentiates between the two terms and, therefore, we chose to be consistent with the use of those terms as they are applied in the Letter. In order to be consistent with the Letter of Submittal, the term “Native” is used to identify the composition of the management bodies. The term “indigenous inhabitants” refers to the eligibility of residents in a designated harvest area as defined in the Letter of Submittal. The elimination of one term or use of one term over another would misconstrue the explicit intent of Congress when they ratified the Treaty amendments. The same commenter also requested that the definition of “Native” be removed from the definitions in § 92.4. Because the term “Native” will remain in the final rule, we will not delete the definition.

A respondent stated that the heading of subpart C, Methods and Means, was too limiting in scope, because other types of regulations not needing to be published annually would be in this subpart. We agree and have changed the heading in the final rule to read “General Regulations Governing Subsistence Harvest.”

A commenter noted that the Supplementary Information referenced sources other than the Protocol language. A Letter of Submittal prepared by the State Department accompanied the Protocol to the White House. Some of the language in this section referencing the Protocol actually is in the Letter of Submittal. Referencing in the final rule is clarified.

A commenter stated that the scope of these regulations would be clearer if they used the term “spring and summer hunting” rather than the word “subsistence.” We believe that the language in the proposed rule clearly stated that these regulations apply only to the spring and summer subsistence harvest of migratory birds between the dates of March 10 and September 1. We have made the change, however, in those situations where it seemed to add clarification.

In the Supplementary Information we stated that the treaty amendments are not intended to create a preference in favor of any group of users in the United States. A commenter noted that the amendments do not create any rights to harvest birds. Both these points are stated in the Letter of Submittal. In the final rule, we have, therefore, added a statement that no private rights of action under U.S. law are created by the amended treaty.

In the section titled, “What Events Led to This Action?” we referred to subsistence zones. The Alaska Department of Fish and Game correctly noted that the term “zones” has a specific regulatory definition in part 20. To avoid confusion, we have referred to “subsistence harvest areas” in the final rule, and no longer use the term “zones.”

In the paragraph addressing the Unfunded Mandates Reform Act, we stated that the cost to the partner organizations for coordinating the regional programs would be approximately $300,000 for travel and associated costs for regional meetings. One comment stated that the cost would exceed that amount and requested that the figure be increased. As stated in this section, the Service has entered into grant agreements to help offset those costs. During the first year of this project, the regional partners charged less than $150,000 to those grant agreements. No evidence exists at this time that the cost estimate quoted should be increased.

In the paragraph addressing Regulatory Planning and Review, we certified that this rule will not have an annual economic effect of $100 million. Using figures from a published report, we estimated that the maximum economic value derived from the consumption of harvested migratory birds in the spring and summer would be approximately $6 million. The Alaska Department of Fish and Game commented that we made assumptions in the calculations that led to an elevated value. We agree. The point of this paragraph is to demonstrate that the value is less than $100 million. Therefore, we attempted to demonstrate that the highest estimate would be substantially less than $100 million. Because of variations in data quality and quantity, and in species harvested throughout the State, statewide economic value estimates are not reliable. We therefore have added wording to the paragraph making clear that these figures are of little value for any purpose other than demonstrating a high-end economic impact for this project.

One commenter said this section would allow the State of Alaska to regulate the spring and summer subsistence hunt without regard for the provisions of the Treaties and regulations. We do not agree. In section 92.3(e), the regulations clearly state that any laws and regulations enacted by the State under its other authorities must be consistent with the applicable international conventions, including the Protocol, the Migratory Bird Treaty Act, and the regulations adopted under this part. The State could not implement subsistence hunting regulations that would conflict with this Federal rule.

Another commenter noted an error in the dates of the open season regulated by part 20. We stated that the open season is between September 1 through March 10. It has been corrected in the final rule to reflect that the open season is from September 1 through March 10 and, therefore, includes both dates.

Two commenters requested changes to the definition of “immediate family.” One noted that the definition included grandparents, but did not include grandchildren. “Immediate family” as described in the Letter of Submittal includes grandparents but not grandchildren. We agree that this is an oversight and have made the change to the definition in the final rule. The second commenter stated that the definition should include aunts, uncles, and cousins because extended family is important and is a part of Native traditions. Although the extended family may be important in traditional activities, the Letter of Submittal emphasizes the need to include immediate family members in the traditional migratory bird harvest, while meeting the purpose of the Protocol that states “* * * it is not the intent of this Protocol to cause significant increases in the take of species of migratory birds relative to their continental population sizes.” Expanding the definition of immediate family to include extended family would not be consistent with that intent.

A commenter stated that a definition of “permanent resident” would be helpful to the understanding of eligibility under § 92.5. This is a term that was not defined in the Protocol language or in the accompanying documents. Since the writing of the proposed rule, the term has been defined by the AMBCC in a public meeting. We are, therefore, including that definition in the final rule. The same commenter stated that the regulation should be clear that the local tribal government is the entity that is responsible for identifying the permanent residents in their respective communities. No entity has yet been given the responsibility for determining who qualifies as a permanent resident. Each individual is expected to apply the definition to his or her own situation. If questioned by an enforcement officer, proof of residency must be available.

A commenter requested that the term “tribal” be eliminated from the definition of “partner organization or regional partner.” The commenter referenced a dispute regarding tribal status of Alaska Natives other than for certain statutory purposes. The commenter stated that there is no purpose for specifying tribal involvement in this rule and that “federally recognized tribes” will be included within the purview of the phrase “regional or local organization, or local government.” Although “federally recognized tribes” or “tribal organizations” are not specifically identified in the Protocol language or the accompanying language, it is not clear that those terms would be considered included within the purview of the phrase “regional or local organization, or a local government.” It is our intention that tribes and tribal organizations have the same opportunity as local governments and regional and local organizations to be partner organizations. It should be clear, however, that none of these entities has preference in being so designated.

One commenter felt that the definition of “non-wasteful taking” was not adequate because the definition had no requirement for preserving harvested birds that were not immediately consumed. The definition has been changed to read, “* * * consumed or preserved for food.”

A commenter stated a concern that the term, “for their own” in the definition of “subsistence” did not allow for traditional sharing and exchanging of birds among eligible subsistence users. Article II4(b)(i) of the amended Treaty states that harvesting “* * * shall be consistent with customary and traditional uses by such indigenous inhabitants for their own nutritional and other essential needs.” The use of this term is essential for understanding that harvest is to be for certain subsistence needs only. The term, however, is intended to apply to eligible indigenous inhabitants collectively and not solely to individual users. The use of the term, therefore, does not restrict traditional sharing among eligible users. For further clarification we have changed “traditional harvest and use” to “traditional harvest or use.”

At the request of a commenter, and for the purpose of clarification, we have added the words “during the spring and summer” to the end of the definition of the term “eligible person”.

One commenter suggested additional wording in paragraph (a). The proposed rule states that any person may submit a petition to exclude a previously included community. Although the proposed rule states that the AMBCC will make recommendations regarding the petition, it is not clearly stated who is to receive the petition. Wording has been added to the final rule stating that petitions will first be considered by the appropriate regional management body before being acted on by the AMBCC.

The suggestion was made that in paragraph (b) we add the words “spring and summer” before the words “subsistence harvest area.” The sentence now reads “* * * may petition the Co-management Council through their designated regional management body for designation as a spring and summer subsistence harvest area.”

We received several comments regarding paragraph (c). Several of those comments indicated that the paragraph was vague and that it did not adequately address the requirements of the amended Treaty, that we are to accommodate traditional spring and summer harvests without creating new traditions or increasing harvests. We have re-written the entire paragraph to accommodate those concerns. We also responded to a request for clarity by adding the words “spring and summer” to the heading of paragraph (c).

Numerous other comments addressed the five criteria in paragraph (c). Comments expressed concern that the 1916 date used in criterion (1) was too far back for data to be available when determining traditional use patterns. Also, some communities have moved and been renamed, and have developed a traditional use of migratory birds since 1916. They would be unable to successfully petition for inclusion. We agree that the earlier date, which was based upon the signing of the original migratory bird treaty with Canada, was too restrictive. The argument could certainly be made that communities with a demonstrated use pattern prior to the effective date of the amended treaty should be able to petition for inclusion. We have, therefore, changed the date from 1916 to 1999.

Several commenters stated that those criteria used to establish a traditional subsistence harvest should not be limited to migratory birds, and that a subsistence use of other fish and wildlife species should be sufficient to qualify for a future subsistence harvest of migratory birds. We believe that eligibility for future subsistence harvest of migratory birds should be dependent upon past reliance on that same resource. One of the purposes of the amended treaty is to allow for the regulated continuation of past practices within designated subsistence harvest areas. We, therefore, will not add other fish and wildlife species to the list of criteria.

A request was made to change criterion (3) by adding the words “through oral traditions, family training, and cultural community activities or events.” The purpose of the recommended change would be to better tailor the criteria to define the cultures and traditions of Alaska Native people. We believe, however, that the additional wording unnecessarily limits the manner in which such knowledge could be handed down through the generations. Criterion (3) remains unchanged in the final rule.

A commenter stated that paragraph (d) does not clearly identify where invited family members may participate. We feel the paragraph is clear on that point, but did need to state that participation requires the permission of the Village Council. Wording has been added accordingly.

A commenter stated that this rule should allow for the purchase of feathers for dance regalia, because that is part of the tradition of some Native cultures. Because the purchase and sale of migratory birds and their parts is a violation of the Migratory Bird Treaty Act, it is not in the purview of this rule to allow for the purchase of feathers.

A respondent asked that we add to the list of AMBCC roles and responsibilities the facilitation of the development of inter-regional conservation plans, harvest strategies, and management programs for shared populations of migratory birds. We believe this function is adequately stated in paragraph (c)(7).

Paragraph (c)(8) has been re-worded as suggested by a commenter in order to make it less awkward and to be clear that we are referring to the AMBCC regional representatives.

A commenter wanted more specific language in paragraph (d)(3) that all AMBCC meetings are open to the public. Language has been added to the final rule to accommodate that request.

A commenter stated that identified partner organizations must be willing and able to coordinate the regional programs on behalf of all subsistence hunters within the region. We have added the word “all” to accommodate that request.

A commenter stated that paragraph (b) was not clear in the intention that the annual regulations in subpart D would be published separately and apart from part 20 of title 50 of the Code of Federal Regulations (CFR). Wording has been added to this paragraph to help clarify the issue. We intend that annual regulations published pursuant to part 20 and those published pursuant to part 92 will be subject to the same review process and submitted to the Federal Register at approximately the same time. They will be published, however, within their respective parts in the CFR. Section 92.30, paragraph (d), states that §§ 92.31-92.39 provide for the annual harvest of migratory birds and their eggs during spring and summer for subsistence users in Alaska. Text for those sections will be published in the Federal Register this fall, to be in place for the spring and summer of 2003.

We derive our authority to issue these regulations from the Migratory Bird Treaty Act of 1918 (16 U.S.C. 703 et seq. ), which implements the 1916 Convention, as amended, between the United States and Great Britain (for Canada) for the protection of migratory birds.

Specifically, these regulations are issued pursuant to 16 U.S.C. 712(1), which authorizes the Secretary of the Interior to “issue such regulations as may be necessary to assure that the taking of migratory birds and the collection of their eggs, by the indigenous inhabitants of the State of Alaska, shall be permitted for their own nutritional and other essential needs, as determined by the Secretary of the Interior, during seasons established so as to provide for the preservation and maintenance of stocks of migratory birds.”

Under the Administrative Procedure Act, our normal practice is to publish rules with a 30-day delay in effective date. But in this case, we are using the “good cause” exemption under 5 U.S.C. 553(d)(3) to make this rule effective upon publication in order to ensure conservation of the resource for the upcoming spring/summer subsistence harvest. The rule needs to be made effective immediately for the following reasons: (1) The AMBCC has spent a considerable amount of time developing recommendations to the SRC to legalize the spring/summer harvest of migratory birds in Alaska. The last meeting of the SRC for the 2002-03 season is scheduled to meet on July 31 and August 1, 2002, to consider these and other recommendations. These procedural regulations give the AMBCC the authority to provide recommendations. If this rule is not in effect when the SRC meets, a question of whether or not the recommendations are legal will arise and leave the AMBCC vulnerable to legal challenges; and (2) although it is very difficult to get three different and distinct groups of people together (state, federal and Alaska Native) with a common goal and be able to move forward as they have, all three parties to the AMBCC have a commitment to develop a management system that will provide conservation measures for the spring/summer harvest of migratory birds in Alaska. That commitment to conservation is the foundation for the AMBCC and success will be measured by the harmony that has been created. Anything to jeopardize it at this early stage of development could impact the structure of the AMBCC. The expediency of the publication of the procedural regulations will ensure that the AMBCC recommendations are heard and acted upon by the Service.

The Office of Management and Budget (OMB) has determined that this document is not a significant rule subject to OMB review under E.O. 12866.

a. This rule will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. A cost-benefit and economic analysis is not required. This rule is administrative, technical, and procedural in nature, establishing the procedures for implementing spring and summer harvest of migratory birds as provided for in the amended Convention with Canada. The rule does not provide for new or additional hunting opportunities and therefore will have minimal economic or environmental impact.

This rule benefits those participants who engage in the subsistence harvest of migratory birds in Alaska in two identifiable ways: first, participants receive the consumptive value of the birds harvested and second, participants get the cultural benefit associated with the maintenance of a subsistence economy and way of life. The Service can estimate the consumptive value for birds harvested under this rule but does not have a dollar value for the cultural benefit of maintaining a subsistence economy and way of life.

The economic value derived from the consumption of the harvested migratory birds has been estimated using the results of a paper by Robert J. Wolfe titled “Subsistence Food Harvests in Rural Alaska, and Food Safety Issues,” August 13, 1996.” Using data from Wolfe's paper and applying it to the areas that will be included in this process, a maximum economic value of $6 million is determined. This is the estimated economic benefit of the consumptive part of this rule for participants in subsistence hunting. The cultural benefits of maintaining a subsistence economy and way of life can be of considerable value to the participants, and is not included in this figure.

b. This rule will not create inconsistencies with other agencies' actions. We are the Federal agency responsible for the management of migratory birds, coordinating with the Alaska Department of Fish and Game on management programs within the State of Alaska. The State of Alaska is a member of the AMBCC.

c. This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. The rule does not affect entitlement programs.

d. This rule will not raise novel legal or policy issues. The annual subsistence harvest regulations will go through the same National regulatory process as the existing annual migratory bird hunting regulations in 50 CFR part 20.

The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). An initial regulatory flexibility analysis is not required. Accordingly, a Small Entity Compliance Guide is not required. The rule legalizes a pre-existing subsistence activity, and the resources harvested will be consumed by the harvesters or persons within their local community.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act, as discussed in the Regulatory Planning and Review section above.

a. This rule does not have an annual effect on the economy of $100 million or more. It will legalize and regulate a traditional subsistence activity. It will not result in a substantial increase in subsistence harvest or a significant change in harvesting patterns.

The commodities being regulated under this rule are migratory birds. This rule deals with legalizing the subsistence harvest of migratory birds and, as such, does not involve commodities traded in the marketplace. A small economic benefit from this rule derives from the sale of equipment and ammunition to carry out subsistence hunting. Most, if not all, businesses that sell hunting equipment in rural Alaska would qualify as small businesses. The Service has no reason to believe that this rule will lead to a disproportionate distribution of benefits.

b. This rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. This rule does not deal with traded commodities and, therefore, does not have an impact on prices for consumers.

c. This rule does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This rule deals with the harvesting of wildlife for personal consumption. It does not regulate the marketplace in any way to generate effects on the economy or the ability of businesses to compete.

We have determined and certify pursuant to the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ) that this rule will not impose a cost of $100 million or more in any given year on local, State, or tribal governments or private entities. A statement containing the information required by this Act is therefore not necessary.

Participation on regional management bodies and the Co-management Council will require travel expenses for some Alaska Native organizations and local governments. In addition they will assume some expenses related to coordinating involvement of village councils in the regulatory process. Total coordination and travel expenses for all Alaska Native organizations are estimated to be less than $300,000 per year. In the Notice of Decision, 65 FR 16405, March 28, 2000, we identified 12 partner organizations to be responsible for administering the regional programs. When possible, we will make annual grant agreements available to the partner organizations to help offset their expenses. The Alaska Department of Fish and Game will incur expenses for travel to the Co-management Council meetings and to meetings of the regional management bodies. In addition, the State will be required to provide technical staff support to each of the regional management bodies and to the Co-management Council. Expenses for the State's involvement may exceed $100,000 per year, but should not exceed $150,000 per year.

This rule has been examined under the Paperwork Reduction Act of 1995, and has been found to contain no information collection requirements. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

As discussed in the Regulatory Planning and Review and Unfunded Mandates Reform Act sections above, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment under Executive Order 13132. We worked with the State of Alaska on development of these regulations.

In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of Section 3 of the Order.

This rule is not specific to particular land ownership, but applies to the harvesting of migratory bird resources throughout Alaska. Therefore, in accordance with Executive Order 12630, this rule does not have significant takings implications.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations With Native American Tribal Governments” (59 FR 22951), and Executive Order 13175, 65 FR 67249 (November 6, 2000), concerning consultation and coordination with Indian Tribal Governments, we have consulted with Alaska tribes, evaluated the rule for possible effects on them and have determined that there are no significant effects. This rule establishes procedures by which the individual tribes in Alaska will be able to become significantly involved in the annual regulatory process for spring and summer subsistence harvesting of migratory birds and their eggs. The rule will legalize the subsistence harvest for tribal members, as well as for other indigenous inhabitants.

Prior to issuance of annual spring and summer subsistence regulations, we will consider provisions of the Endangered Species Act of 1973, as amended, (16 U.S.C. 1531-1543; hereinafter the Act) to ensure that harvesting is not likely to jeopardize the continued existence of any species designated as endangered or threatened or modify or destroy their critical habitats, and that it is consistent with conservation programs for those species. Consultations under Section 7 of this Act may cause us to change recommendations for annual regulations.

We determined that establishing the procedures for future development of subsistence harvest regulations does not require an environmental assessment because the impacts to the environment are negligible. We therefore filed a categorical exclusion dated April 30, 1999. Copies of the categorical exclusion are available at the address shown in the section of this document entitled, ADDRESSES . An environmental assessment will be prepared for the annual subsistence take regulations due to be published later as a proposed rule in the summer of 2002.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Because this rule only allows for traditional subsistence harvest and improves conservation of migratory birds by allowing effective regulation of this harvest, it is not a significant regulatory action under Executive Order 12866 and is not expected to significantly affect energy supplies, distribution, and use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

Regulations governing the Loligo squid fishery are found at 50 CFR part 648. The regulations require specifications for maximum sustainable yield, initial optimum yield, allowable biological catch, domestic annual harvest (DAH), domestic annual processing, joint venture processing and total allowable levels of foreign fishing for the species managed under the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan. The procedures for setting the annual initial specifications are described in § 648.21.

The 2002 specification of DAH for Loligo squid was set at 16,898 mt (67 FR 3623, January 25, 2002). This amount is allocated by quarter, as shown below.

Section 648.22 requires NMFS to close the directed Loligo squid fishery in the EEZ when 80 percent of the quarterly allocation is harvested in Quarters I, II and III, and when 95 percent of the total annual DAH has been harvested. NMFS is further required to notify, in advance of the closure, the Executive Directors of the Mid-Atlantic, New England, and South Atlantic Fishery Management Councils; mail notification of the closure to all holders of Loligo squid permits at least 72 hours before the effective date of the closure; provide adequate notice of the closure to recreational participants in the fishery; and publish notification of the closure in the Federal Register . The Administrator, Northeast Region, NMFS, based on dealer reports and other available information, has determined that 80 percent of the DAH for Loligo squid in Quarter III, will be harvested. Therefore, effective 0001 hours, August 16, 2002, the directed fishery for Loligo squid is closed and vessels issued Federal permits for Loligo squid may not retain or land more than 2,500 lb (1.13 mt) of Loligo . Such vessels may not land more than 2,500 lb (1.13 mt) of Loligo during a calendar day. The directed fishery will reopen effective 0001 hours, October 1, 2002, when the Quarter IV quota becomes available.

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