OPM promulgated the proposed final suitability regulations with a request for comments inFederal Register, Vol. 64, No. 18, p. 4336. Comments were received from 13 sources, including Federal agencies, individuals, and a labor organization. The following summarizes the principal comments and suggestions received and actions that were taken.

An agency commenter suggested that OPM cross-reference 5 CFR 339.201, which authorizes OPM to disqualify an applicant based on mental or physical unfitness. We conclude that a revision to Part 731 in the manner suggested is unnecessary. We will cross-reference Part 339 and include some clarification of this issue in our supplemental guidance.

An agency suggested that OPM establish a time limit for investigation and/or adjudication of suitability cases to ensure completion a minimum of 90-120 days before expiration of the probationary period.

Certain time frames to ensure timely processing are already in the regulations (for example, section 731.106 provides that investigations should be initiated before appointment or, at most, within 14 calendar days of placement in the position). The variances that are a natural part of investigation and adjudication make it difficult to require specific time limits. Agencies can manage adjudicative time frames in a number of ways, such as by dealing with applicant suitability issues prior to appointment; by investigating prior to appointment; by submitting required case papers for investigation, completed properly, within required time frames; by requesting the appropriate investigation service timeliness levels to ensure completion of the investigation in time to take the adjudicative action before the end of the probationary period; and by processing adjudicative actions more efficiently.

A commenter recommended that the definition of “material, intentional false statement” be altered to define the term “material” rather than the term “material, intentional false statement” since the proposed definition did not include definitions for “intentional” and “false.” We agreed to the suggested wording with a slight modification.

One commenter suggested that the proposed definition of “material, intentional false statement” is excessively broad and vague in that virtually any statement would meet this definition. The commenter suggested that it was objectionable for OPM to state that reliance on a false statement is irrelevant to the test of materiality.

OPM disagrees. Virtually the same definition of materiality has been enunciated by the Supreme Court in other contexts. Seee.g., United Statesv.Gaudin, 515 U.S. 506 (1995). Clearly, the Supreme Court did not create and apply a test for materiality that was unlawfully vague. Further, it is entirely appropriate that actions be taken against falsifiers whether or not they succeed in their attempts to deceive. OPM's suitability program seeks to deter applicants from falsifying statements to gain an advantage in the appointment process, as well as to detect applicants who falsify.

Two commenters suggested agencies be afforded up to one year to implement an adjudication program to re-assess position designation, develop internal operating procedures, and undergo comprehensive training. We agreed to give agencies up to one year to modify their existing suitability adjudication program to accommodate the increased delegation of applicant suitability authority. Thus, although agencies must implement the new regulations now, OPM will continue to accept applicant suitability referrals, under our current procedures, for up to a year from the effective date of the new regulations. Additionally, OPM will provide supplemental guidance and suitability training to assist agencies.

An agency asked whether agencies to which OPM previously had delegated authority will now be required to refer any cases involving falsification to OPM for adjudication. If so, the agency commented that this would be an additional burden.

OPM's policy concerning material falsification cases has not changed. In supplemental guidance issued in 1991 with our current regulations, OPM policy stated, “OPM is responsible for adjudicating all cases (applicants, eligibles, appointees, and employees) involving material, intentional false statement, deception, or fraud in examination or appointment.” Additionally, as stated in a 1995 Federal Investigations Notice (FIN 95-1), “All agencies, including those with delegated suitability adjudication authority, should refer any competitive service applicant situation where there is evidence of intentional false statement or deception or fraud in examination or appointment process, to the same office (OPM, Federal Investigations Processing Center, Suitability Adjudications Branch).”

In employee cases (a person who has completed the first year of a subject to investigation appointment), this policy applies only to fraud in the examination or appointment process for a “subject to investigation” appointment. Our basis for maintaining adjudicative control inthese cases is basically two-fold: (1) A violation of the merit system has occurred that affects the integrity of the competitive appointment process; and (2) OPM's action can include debarment for up to three years.

A commenter objected to any use of confidential sources. The comment suggests that the proposed regulation would permit the unlimited use of corroborated confidential sources. The comment suggests that reliance on information provided by confidential sources would be contrary to due process principles.

The comment mischaracterized the intent and effect of the proposed regulations. Section 731.203(e) [now in 731.302(a) and 731.402] specifically provided that before a final suitability action is taken, an agency or OPM must provide for review, upon request, all materials relied upon in taking the action. Under the regulations, the deciding official, in taking his or her action, must consider all information made available to him or her except information furnished by confidential sources themselves. This satisfies all due process concerns. Any improperly-considered information will be subject to the statutory harmful error rule in any appeal challenging the action.

Of course, the deciding official may rely on any information, including similar or identical information, from any other source. This includes (a) non-confidential sources that are located through information provided by confidential sources or (b) information from a non-confidential source that corroborates information initially provided by a confidential source, as long as the material relied upon is made available under section available.

Upon reflection, we recognize that the reference in the last sentence of the regulation, which uses the phrase “such information,” is ambiguous and confusing. Inasmuch as this sentence was intended to summarize the entire regulation, we believe it to be redundant, and we are deleting it to eliminate any ambiguity.

A commenter believes delegation will have a workload impact on agencies, and supplemental guidance and training from OPM will be required. Although there will be an impact on agencies, we do not believe the impact will be that significant, since OPM will continue to adjudicate material, intentional falsification cases, and cases where a general extended debarment is warranted. The major agency impact occurs in the suitability examining process,i.e.,reviewing application material and deciding the appropriate action to take. The actions most commonly taken would be to favorably adjudicate the applicant's suitability, or refer to OPM for adjudication if warranted. OPM will also issue supplemental guidance, offer adjudicative products, provide assistance through training, and allow agencies up to a year to train personnel and develop processes to handle their new applicant suitability responsibilities.

An agency asked what skill level would be required for agency personnel assigned to adjudication responsibilities and whether the GS-1800 series was appropriate, as the agency was concerned about limited resources. OPM is not requiring a particular job series to handle this work; however, agencies will need to assess the inherent responsibilities associated with adjudication when determining who will do the work. They will have to ensure employees are properly trained and qualified to do the work.

One commenter suggested that OPM confused rather than clarified the length of time that employees, applicants, and appointees would be subject to investigation by deleting section 731.301(b). The commenter believes that the substitute language in sections 731.104 and 105 may accomplish the same purpose in a more complicated fashion—barring the removal of an employee as unsuitable after a year in the position based on information truthfully set forth in the application.

In the supplementary material accompanying the proposed regulations, we explained that the one-year period applies only to the time period during which OPM or an agency may take a suitability action against an applicant or appointee. It is not a time limitation on an OPM or an agency suitability investigation of an individual. However, our efforts to clarify and simplify the regulatory language have not succeeded. The text of the regulation, as opposed to the explanation in the supplementary material, remains somewhat unclear.

Therefore, we have again modified the language of section 731.104 to conform more clearly to the purpose we have articulated as follows:

• The right of OPM or an agency with delegated authority to conduct a suitability investigation has no time limit even though in some cases, enumerated in section 104, OPM or an agency with delegated authority is not required to conduct a suitability investigation.

• OPM's authority to take a suitability action for fraud in examination or appointment also has no time limit.

• An agency with delegated suitability authority may not take a suitability action of any kind against an “employee” as defined in 5 CFR 731.101 of the regulations.

For suitability action purposes, an agency that has discerned evidence of material, intentional false statement or deception or fraud in examination or appointment may refer evidence to OPM for possible action.

We have also modified the title of section 731.105 to read “Authority to take suitability actions” instead of “Jurisdiction” to clarify that this regulation concerns only authority to take suitability actions and has nothing to do with an agency or OPM's authority to conduct investigations.

Commenters felt this section needed clarification to eliminate the perception that if the investigation is not conducted within the first year, it can never be conducted. To address this concern we added language to 731.104(b) and also modified 731.106(c).

An agency requested further clarification of this section to avoid the interpretation that agencies are restricted from conducting investigations on transfers for individuals serving continuously for less than one year.

The agency misreads the regulation. A transfer is not subject to investigation unless investigation is required by a change in risk level or because an investigation required by law did not occur. Therefore, we have not changed the proposed regulation.

A commenter requested that we clarify whether investigation and negative suitability action are permitted when an individual moves from a position that is not subject to investigation to one with a higher risk designation. We revised 731.106(e) to require an investigation at the appropriate level when an individual moves to a position with a higher risk designation. We also added a new section, 731.106(f), to explain that how these investigations are adjudicated depends on the person's employment status.

One commenter found the language in 731.105(d) regarding the authority for agency actions on employees unclear. Another suggested adding specific clarifying language, and that reference to “efficiency of the service” be deleted since all 752 actions, by definition, must promote the efficiency of the service.

We agreed to clarify the language, which could be interpreted as intermingling adverse actions and suitability actions. The minor changes in the language ensure that readers understand that suitability actions and adverse actions arise under different authorities and that adverse actions are to be taken under the substantive standards of part 752, as well as its procedures. Although an agency may take an adverse action based upon conduct that would also form the basis for a suitability action, part 752 standards and jurisprudence govern an adverse action rather than the substantive standards set forth in part 731.

One commenter stated that OPM has significantly broadened the definition of a public trust position. The commenter conceded that the differences between the proposed regulation and existing regulations are subtle. The commenter asserts that this subtle modification will encourage agencies to indulge in what is deemed their natural tendencies to exaggerate the sensitivity of positions.

There is no indication that this change will create a significant increase in the number of investigations conducted. Further, we reject the unsupported assertion that agencies are naturally impelled to exaggerate the sensitivity of positions. Rather, agencies are entitled to a presumption of good faith, and OPM expects that they will not abuse any authority arising from these regulations. Of course, agency implementation of any OPM regulation is subject to periodic OPM oversight.

A suggestion to simplify designation to coincide with the three investigative forms (SF85, SF85P, and SF86), eliminate the levels of public trust and the requirement that agencies evaluate all their positions to determine risk levels and decide which of the positions meet public trust definitions, was not adopted. In the comments we previously received to the proposed regulations published in theFederal Registeron January 5, 1996, a number of agencies expressed concern that OPM had eliminated risk level designations and left too much agency discretion in determining what constituted “Public Trust” positions.

We agreed and made appropriate revisions. We also believe agencies should look closely at all their positions to determine the level of risk involved, and since public trust responsibilities vary in their impact on the integrity or on the efficiency of the service, investigative requirements should also vary commensurate with the risk level. Furthermore, public trust and national security need to be appropriately considered in tandem when evaluating position responsibilities and investigative levels. A national security case (SF-86) where an individual only needs a secret clearance (relatively low level of investigation) might also be a high risk public trust position (higher level of investigation). A person in a low risk public trust position (low level investigation) might require access to top secret information (high level investigation).

One commenter stated that the proposed regulations imply that where there is no existing authority for agencies to conduct periodic investigations of public trust employees, agencies may grant themselves this authority by promulgating their own regulations. The comment describes this as inconsistent with the position that OPM took in its 1996 proposed regulations, namely, that there was no statutory authority for agencies to conduct reinvestigations.

There is no inconsistency. Read in its entirety, the supplementary material accompanying the 1996 proposed regulations makes clear that OPM does not possess statutory authority to require that reinvestigations be conducted unless employees occupy positions affecting national security. The 1999 proposed regulations clarify that agencies may possess their own authority to require periodic reinvestigations for employees occupying certain public trust positions. These final regulations do not purport to create any additional authority for agencies to conduct this type of reinvestigation.

Two commenters found “731.106(e) Risk level changes” language confusing. We agreed and changed the wording.

One commenter suggested that the revised language in section 731.201 represents a significant change in the suitability standard and that the “integrity and efficiency” language was too vague and gave deciding officials too much discretion. The commenter suggested that deletion of language in section 731.202 would mean there is no limitation on criminal misconduct deemed to be unsuitable. The commenter suggested not revising the existing regulation.

The comment is not accepted. The revised regulation is designed primarily to be a rewording and reordering of the regulation in order to place affected applicants and employees on even clearer notice of the suitability standards.

The current efficiency of the service language might inadvertently lead some to believe that efficiency and effectiveness are limited to their dictionary definitions, namely, the capacity to produce desired results with a minimum expenditure of energy, time or money, or the ability to produce results. In fact, the efficiency of the service standard as used by OPM in a suitability context always has been a broader concept that involves, among other things, the integrity of the competitive examination system. To give one example, decisional law correctly recognizes when an applicant obtains an appointment through falsifying an application, he or she is unsuitable and may be removed from his or her position even if he or she efficiently carries out tasks in the job he or she has obtained.McCrearyv.OPM,27 M.S.P.R. 459 (1985);DeAngelisv.OPM,28 M.S.P.R. 456 (1985). Adding the word integrity makes it even clearer that integrity and honest conduct always have been an important part of the existing efficiency of the service standard.

The revised standard is not vague. Indeed, it is somewhat more specific than the existing efficiency of the service standard. The courts have upheld similar language against legal challenges of constitutional vagueness, for example, inArnettv.Kennedy,416 U.S. 134 (1974); see alsoMeehanv.Macy,392 F.2d 822 (D.C. Cir. 1968).

The suggestion that the revised regulations recognize no limit on the type of misconduct or criminal misconduct that will justify a suitability action is incorrect. The additional considerations set forth in section 731.202(c) make clear that a suitability determination may be made after considering the nature of the position, the nature and seriousness of the conduct and the circumstances surrounding the conduct, among other things.

An agency asked whether the specific factor at 731.201(b)(4) “Refusal to furnish testimony as required by § 5.4 of this chapter” referred to section 5.4 of 731. It does not. The proposed regulation as written was confusing. Federal regulations are organized by Title in the Code of Federal Regulation rather than by “chapters.”

Therefore, we have modified the proposed regulation by substituting the word “title” for “chapter” to clarify that this provision refers to section 5.4 of title 5, Code of Federal Regulations, one of the Civil Service Rules.

The same agency suggested that we add, in accordance with section 5.4, that this suitability factor also pertains to the requirement to provide forms, releases, answers to questions of investigators, and security adjudicators, among others. We have not adopted this suggestion. Although section 5.4 does list other requirements, the suitability factor is limited to the requirement in section 5.4 to provide testimony when required by OPM. We decline to expand the scope of the disqualifying factor.

One commenter suggested that there appeared to be a conflict between the procedures set forth in section 731.203(e) and those at subpart C of the regulations.

OPM did not intend a conflict between the two provisions. Section 203(e) was intended to provide general procedures for both agencies and OPM to follow when taking a suitability action. Subpart C was designed to provide the specific procedures OPM was to follow when taking an action.

We acknowledge this could cause some confusion. Therefore, we have eliminated the subsection on general procedures and have substituted a subpart D that applies when agencies take an action.

Because we have expanded agencies' authority in the areas of debarment and applicant adjudication, we decided to set forth several of the procedures applicable to them with greater specificity. We have modified both the regulatory provisions applying to OPM and agencies to make clear that whenever OPM or an agency takes an action, a written notice must be provided of the specific reasons for the action, a written response must be permitted, and notice must be provided of the time limit for the response and appeal rights.

Still, to give agencies a bit more flexibility, we have retained some differences in the provisions. We have not set forth a specific time limit for agency notice. Rather, we clarified that reasonable notice must be afforded. For OPM actions, we have retained a 30-day notice period. Of course, if an action is appealed, the harmful error rule at 5 U.S.C. § 7701(c)(2)(A) applies both to agency and OPM actions.

For clarity, we have added subsection 731.203(a) defining the term “action” for suitability purposes.

Two commenters questioned whether 731.203(f) [now 731.203(e)] represents an additional reporting requirement since agencies are already required to report actions on OPM investigations via INV form 79A,Report of Adjudicative Action on OPM Personnel Investigations.This section does contain a new reporting requirement. All negative adjudications based on delegated 5 CFR 731 authority must now be reported to OPM, even when those actions are not based on an OPM conducted investigation. This is necessary to permit OPM to adequately oversee the suitability adjudication responsibilities we have delegated to agencies. A new form is being created for this purpose, but agencies will not need to provide a duplicate report if the action is based on an OPM investigation and they are already reporting the action on the INV form 79A.

An agency requested that agencies be given the ability to appeal an OPM-imposed debarment when the position is critical and difficult to fill and there are no other suitable applicants. We made no change since agencies already have the right to respond to an OPM proposed action under section 731.303(b), and may provide evidence upon request in any MSPB appeal.

An agency welcomed the opportunity to bar unsuitable employees. Another found the agency debarment language unclear. We believe the language satisfactory, and made no change. The language in this section states that agencies may impose a period of debarment of “no more than” one year, and that the agency has sole discretion to determine length of debarment “under this section.” It is within their discretion to determine the duration of the bar, up to the maximum period of one year.

A commenter objected to the provision “shall be entitled to be retained in a pay status during the notice period” because the individual may be involved in misconduct apart from the reasons for the suitability action which would warrant an agency action.

We have retained the proposed language. But, we emphasize that this provision does not preclude an agency from taking any other appropriate action during the suitability action notice period. Appropriate actions may include an adverse action under chapter 75 U.S. Code or a termination under part 315, title 5, Code of Federal Regulations.

One commenter suggested the agency be permitted to determine the time and place of an oral response. Another suggested that reference to agency actions should be added to paragraph (a). No change was made since this section now only applies to OPM. Furthermore, only OPM, not agencies, may take action against “employees” under 731. The reference to the oral response here appliesonlyto employees.

A commenter felt the agency should have discretion to allow the employee to remain in an active duty status pending results of an appeal. We made no change for several reasons. OPM directs removal primarily in cases involving fraud in the application or appointment process, and an individual generally should not retain a position obtained fraudulently. Further, OPM gives agencies an opportunity to comment and express their views before OPM takes the action.

One commenter stated that section 731.401 (now 731.501) should make clear that the Board lacks the authority to reverse a removal action, as well as lacking the authority to modify a debarment period, when it affirms a determination of unsuitability. It noted correctly that under OPM regulation, an agency could remove the employee and not impose a debarment. OPM has adopted this suggestion, which is entirely in keeping with OPM's intent to clarify that once the Board has found that any of the charges of unsuitability is supported by preponderance of the evidence, it lacks authority to modify the action taken.

Another commenter took issue with OPM's section 731.401 (now 731.501), asserting that, in the past, the courts have rejected OPM's attempts to limit the Board's authority to hear appeals.

The comment does not acknowledge the difference between an appeal right to the Board granted by Congress, such as an adverse action appeal under Chapter 75, title 5, United States Code, which OPM may not limit, and one granted solely by OPM through regulation. The comment also does not recognize that when Congress or OPM authorizes the Board to hear a particular kind of appeal, the Board's grant of authority is limited by the terms of the statute or OPM regulation and its underlying intent.

The Board's authority to decide matters is strictly limited to thoseagency decisions placed within its jurisdiction by law or regulation. See, for example,Kingv.Jerome, 42 F.3d 1371 (Fed. Cir. 1994). An OPM suitability action is not taken under the same authority as an adverse action. Unlike adverse action appeals, suitability appeals to MSPB are not created by an act of Congress but by OPM regulations under substantive standards promulgated by OPM in Part 731. These standards need not be the same as those in Chapter 75, just as those contained in Chapter 43, title 5, United States Code pertaining to performance-based actions are not the same as those in Chapter 75.Lisieckiv.Merit Systems Protection Board, 769 F.2d 1558 (Fed. Cir. 1985).

The new regulation seeks to demarcate the differences between suitability actions and adverse actions so that no one will confuse them in the future. Specifically, the regulation is designed to clarify that the Board's role in reviewing OPM or agency unsuitability decisions always has been a limited one. The Board may determine only whether a charge of unsuitability is sustained by a preponderance of the evidence in accordance with the substantive standard set forth in section 731.202.

In addition, the proposed regulation provides OPM or the agency with an additional opportunity to amend the action taken if the Board sustains fewer than all of the suitability charges, something that the existing regulations do not provide for. Therefore, rather than limiting the Board's authority, as the comment suggests, the new regulation allows the agency or OPM to review the action taken after taking into account only the charges that the Board sustained.

I certify that this rule will not have significant economic impact on a substantial number of small entities because it affects only Federal applicants, employees and agencies.

The Summer Food Service Program (SFSP) is authorized under section 13 of the Richard B. Russell National School Lunch Act (NSLA) (42 U.S.C. 1761). Its primary purpose is to provide nutritious meals to children from low-income areas during periods when schools are closed for vacation.

In 1994, 1996, and 1998, substantive changes to the SFSP were made with the enactment of three public laws. Readers can find information about these laws and details on the corresponding changes we made to the SFSP regulations in the interim rule (64 FR 72474) that was published on December 28, 1999, in theFederal Register.

The 180-day comment period on the interim rule ended June 25, 2000. One comment was received on the interim rule. The commenter supported the changes made to the SFSP regulations by the interim rulemaking and suggested that we continue the process of reducing paperwork burdens and streamlining requirements. This commenter provided a number of recommendations that we may consider in a future rulemaking. The specific comments made, however, did not apply directly to the language in the interim rulemaking.

We want to emphasize that the interim rule primarily brought the SFSP regulations up to date with the statutory requirements. Since these changes were implemented by State agencies based on Department guidance in a timely fashion after the enactment of each public law, there were essentially no new policy proposals in the rule to engender comments.

Following is a chart that lists by program area the provisions contained in the December 28, 1999, interim rule; we also provide regulatory citations in the chart for the reader's convenience in locating the changes within the SFSP regulations at 7 CFR part 225.

This rule is issued under Marketing Agreement and Order No. 930 (7 CFR part 930) regulating the handling of tart cherries grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin, hereinafter referred to as the “order.” This order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

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

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

This rule continues to authorize shipments of tart cherries to Japan to qualify as exempt use shipments and to be eligible for diversion credit. Currently, exports to countries other than Canada or Mexico may receive diversion credit, and may qualify as exempt shipments. Prior to the issuance of the interim final rule published June 2, 2000 (65 FR 35265), Japan was not eligible for diversion and exemption in the past because, according to the Board, tart cherry markets were well established in that country. The Board, at its March 2, 2000, meeting, recommended allowing Japan to become an eligible export outlet for diversion credit and exempt uses in order to stimulate sales to that country. This was because exports to Japan have greatly decreased industry-wide.

The order authorizes the use of volume regulation. In years when volume regulation is implemented to stabilize supplies, a certain percentage of the cherry crop is required to be set aside as restricted tonnage, and the balance may be marketed freely as free tonnage. The restricted tonnage is required to be maintained in handler-owned inventory reserve pools. Handlers in volume regulated States may fulfill their restricted tonnage requirements with diversion credits earned by diverting cherries or cherry products. Handlers are permitted to divert (at plant or with grower-diversion certificates from growers choosing not to deliver their crop) as much of their restricted percentage (reserve pool) requirements as they deem appropriate. Handlers also may divert cherries by using cherries or cherry products for exempt purposes, including the development of export markets. Presently, these markets do not include Canada and Mexico.

Section 920.62 of the order (Exemptions) provides that cherries which are diverted in accordance with § 930.59, which are used for new product and new market development, which are used for experimental purposes, or which are used for any other purposes designated by the Board, including cherries processed into products for markets for which less than 5 percent of the preceding 5-year average production of cherries was utilized, may be exempt from the assessment, quality control, volume regulation, and reserve provisions of the order.

Currently, § 930.162 of the rules and regulations under the order authorizes the sale of cherries and cherry products, including the development of sales for new and different tart cherry products or the expansion of sales for existing tart cherry products, to countries other than Canada and Mexico.

When the Board initially recommended regulations for exempt uses and handler diversion in 1997-98, exports to Japan were averaging about 3.0 million pounds per season. The industry considered Japan, as well as Canada and Mexico, to be a premium markets for tart cherries, not outlets for which exemptions and diversion credit should be given. With regard to Canada and Mexico, the industry also was concerned about transshipments of lower-priced cherries because of their close proximity to the primary domestic market. In 1998-99, sales to Japan fell to 1.6 million pounds, and in 1999-00 sales further dropped to 943,000 pounds. The Board, therefore, recommended that exports to Japan be eligible for diversion and exemption. This, in the Board's opinion, would provide an incentive for handlers throughout the industry to make shipments to that country and stimulate activity.

The Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities and has prepared this final regulatory flexibility analysis. The Regulatory Flexibility Act (RFA) will allow AMS to certify that regulations do not have a significant economic impact on a substantial number of small entities. However, as a matter of general policy, AMS' Fruit and Vegetable Programs (Programs) no longer opt for such certification, but rather perform regulatory flexibility analyses for any rulemaking that would generate the interest of a significant number of small entities. Performing such analyses shifts the Programs' efforts from determining whether regulatory flexibility analyses are required to the consideration of regulatory options and economic or regulatory impacts.

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

There are approximately 40 handlers of tart cherries who are subject to regulation under the order and approximately 900 producers of tart cherries in the regulated area. Small agricultural service firms, which include handlers, have been defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $500,000.

The principal demand for tart cherries is in the form of processed products. Tart cherries are dried, frozen, canned, juiced, and pureed. During the period 1995/96 through 1999/00, approximately 90 percent of the U.S. tart cherry crop, or 280.3 million pounds, was processed annually. Of the 280.3 million pounds of tart cherries processed, 63 percent were frozen, 29 percent canned and 8 percent utilized for juice. Exports to Japan in 1999-00 were 943,000 pounds.

This rule continues to authorize tart cherry shipments to Japan to qualify as exempt use shipments and to be eligible for diversion credit. The objective of this action is to stimulate and expand sales of tart cherries

This rule is expected to benefit growers and handlers by assisting growers market a greater proportion of their crop to handlers having access to export markets. Handlers, instead of diverting at-plant or in-orchard or placing product in reserves, could ship product to Japan and receive diversion certificates that could be used to offset any restricted percentage obligations. Handlers also would benefit from this action as they would be able to process greater amounts of tart cherries, as a result of receiving more product from growers for shipment to Japan, through their facilities, thus spreading their operation costs and increasing returns to growers.

One alternative to this action considered by the Board was to disallow exemptions and diversion credit for shipments to Japan. However, this was not expected to be favorable to cherry growers and handlers throughout the production area because it might cause a further decline in the Japanese market, as occurred in 1999-00.

The Board's meetings were widely publicized throughout the tart cherry industry and all interested persons were invited to attend them and participate in Board deliberations. Like all Board meetings, the March 2000 meeting was a public meeting and all entities, both large and small, were able to express their views on these issues. The Board itself is composed of 18 members, of which 17 members are growers and handlers and one represents the public. Also, the Board has a number of appointed committees to review certain issues and make recommendations.

This rule will not impose any additional recordkeeping requirements on either small or large tart cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sectors. In addition, the Department has not identified any relevant Federal rules which duplicate, overlap or conflict with this rule.

In compliance with Office of Management and Budget (OMB) regulations (5 CFR part 1320) which implement the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection and recordkeeping requirements imposed by this order have been previously approved by OMB and assigned OMB Number 0581-0177.

An interim final rule concerning this action was published in theFederal Registeron June 2, 2000 (65 FR 35265). Copies of the rule were mailed by the Board's staff to all Board members and cherry handlers. In addition, the rule was made available through the Internet by the Office of the Federal Register. That rule provided a 60-day comment period which ended August 1, 2000. Two comments were received. One comment was received from the Oregon Farm Bureau and the other was received from a tart cherry grower and handler in Oregon.

The two commenters opposed making Japan an eligible export market under the diversion and exemption provisions of the order. Prior to the issuance of the interim final rule, shipments to Canada, Mexico, or Japan did not qualify for diversion credit and could not be approved as exempt uses. Japan was considered a premium market similar to the domestic market. The markets in Canada and Mexico also were considered similar to the domestic market. This was because these markets were in close proximity to the United States and the industry was concerned about transshipments of lower-priced cherries if shipments to these markets were eligible for diversion credit in meeting volume control obligations.

Under the volume control mechanism, the industry has established a price system with diversion credit shipments commanding lower prices than those shipped domestically. Handlers purchase the free percentage portion of the grower deliveries which can be marketed, and pay low prices for the excess cherries which are disposed of under the diversion and exemption provisions of the order. The cherries that are not disposed of in this manner are held in reserve. Some States in the production area, like Oregon, are not subject to volume regulation and handlers purchase all of the marketable production delivered by their growers. Generally, higher quality and condition cherries return more money to the grower.

Total U.S. exports to Japan have fallen from 3.2 million pounds in 1996-97 to 1.6 million pounds in 1998-99. During the 1999-00 crop year, total exports to Japan fell further to 943,000 pounds. This represents a 70 percent decrease in exports from 1996-97. Under the interim final rule, shipments to Japan qualify as exempt use shipments and are eligible for diversion credit. This is expected to stimulate shipments to Japan industry-wide.

Both commenters claim that Japan is a well-established and premium market which should not be eligible for diversion credit. The buyers in Japan are willing to pay a premium for cherries of the quality and condition they desire. One of the commenters, stated that its customers consistently pay top-dollar, and are rewarded with the very best his firm can offer. This commenter indicated that his firm has not experienced a comparable sense of “premium” in its exports to Canada. Nonetheless, the industry concerns on the transshipment of lower-priced cherries to the United States weigh heavily in considering Canada a primary market under the order. Oregon comprised about 1.4 percent of the domestic production during the last three shipping seasons (1997-1999).

Both commenters agree that exports to Japan have fluctuated over the years, but contend that the fluctuations are a function of the size of the Oregon crop and not a softening of the market. The goal of the Board in recommending this action was to stimulate shipments to Japan by providing growers and handlers from other parts of the production area with a means of competing in Japan. The intent of the action is not to negatively impact the Oregon growers and handlers shipping to Japanese markets, but to expand markets in Japan in the interest of the entire U.S. tart cherry industry. Although the action is expected to enable firms from the other parts of the production area to gain a foothold in theprice conscious markets in Japan, it is not expected to prevent the firms in Oregon from supplying the needs of their quality conscious customers, willing to pay premium prices.

Shipments to markets under the diversion and exemption provisions of the order can be sold at lower prices than those shipped domestically because growers are paid less for the tart cherries subject to the diversion and exemption provisions. Because cherries produced in Oregon are not subject to volume regulation under the order, tart cherries are not subject to the diversion credit and exemption provisions of the order, and growers are paid for all of the cherries delivered.

The primary purpose of the order is to strengthen marketing conditions in the primary domestic market through volume regulation. In implementing volume controls and the related procedures, the Department's goal is to apply the requirements uniformly in as equitable a manner as possible, and to assure that any regulatory action is in the interest of the entire industry covered under the order, not just one segment or part of the industry. Authorizing Japan as an eligible export market under the diversion and exemption provisions of the order is expected to help the industry further develop the Japanese market. This is in the long term interest of all growers and handlers of tart cherries covered under the order.

In view of this, these comments are denied.

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

After consideration of all relevant material presented, including the information and recommendation submitted by the Board and other available information, it is found that finalizing this interim final rule, without modifications, as published in theFederal Register(65 FR 35265), will tend to effectuate the declared policy of the Act.

Section 212(d)(5)(A) of the Immigration and Nationality Act (Act) gives the Attorney General discretion to parole into the United States, temporarily, for urgent humanitarian reasons or significant public benefit, any alien applying for admission to the United States. While the power to delegate this authority clearly flows from the Attorney General through the Commissioner to her designees, § 212.5 appears to delegate this parole authority solely to the district director (DD) and the chief patrol agent (CPA). This rule amends § 212.5 to bring it into conformity a with the delegation of authority provisions contained in §§ 2.1 and 103.1. This rule adds a new paragraph (a) to § 212.5 which specifically states that the scope of the authority to grant parole flows from the Commissioner through her designees, so that the Deputy Commissioner, the Executive Associate Commissioner (EAC) for Field Operations, regional directors (RD) and other designees have the power to grant parole.

This rule is intended to clarify the existing authority of Service officials to grant parole. Some have interpreted § 212.5 to mean that the authority to grant parole is limited to the DD and the CPA. This interpretation is erroneous. SeeMatter of ACCARDI,14 I. N. Dec. 367 (BIA 1973). Under section 212(d)(5) of the Act, parole authority is vested with the Attorney General. It is well established under both precedent decisions and § 2.1 that the Attorney General has delegated authority to the Commissioner to implement and enforce the provisions of the Act, but that the Attorney General retains that authority. Section 103.1 further establishes the power of the Commissioner to delegate her authority to subordinate officials, so that the authority to enforce the Act flows from the Commissioner to her designees, but without divesting the Commissioner or her subordinates of the delegated authority. The specific reference to the DD and the CPA in § 212.5 presumes a delegation of authority from the Commissioner through the chain of command set forth in § 103.1. To clarify this delegation of authority and to avoid an erroneous interpretation, § 212.5 will be amended to specifically recognize that authority. Therefore, the authority to parole aliens under § 212.5 isclarified to include the Commissioner and officers within the Commissioner's chain of command, including the Deputy Commissioner, the EAC for Field Operations, the RD, the DD and the CPA.

The Service's implementation of this rule as an interim rule with provisions for post-promulgation public comment is based upon the exceptions to notice and comment found at 5 U.S.C. 553(a)(2) and 553(b)(3)(A) for the following reason: this rule relates to agency management and the rules of agency organization. It does not create a new authority, but merely clarifies the delegation of an existing authority.

The Commission of the Immigration and Naturalization Service, in accordance with 5 U.S.C. 605(b), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities because this rule merely provides authority to Service officials to grant parole of aliens from Service custody. The aliens in Service custody are not considered small entities as that term is defined in 5 U.S.C. 601(6).

This rule will not result in the expenditure by State, local and tribal governments in the aggregate, or by the private sector, of $100 million or more in any 1 year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

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

This rule is not considered by the Department of Justice, Immigration and Naturalization Service, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and the Office of Management and Budget has waived its review process under section 6(a)(3)(A).

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

This rule meets the applicable standards provided in section 3(a) and 3(b)(2) of Executive Order 12988.

On February 1, 1999, the Service published an interim rule in theFederal Registerat 64 FR 4780. The interim rule:

(1) Amended § 244.6 to remove outdated language requiring that only certain El Salvadorans must pay a fee for TPS-related applications for EADs. Section 244.6 previously stated that “* * * the fee for Form I-765 will be charged only for those aliens who are nationals of El Salvador, and are between the ages of 14 and 65 (inclusive), and are requesting work authorization.” This language pertained to the statutory designation of El Salvador for TPS (under section 303 of the Immigration Act of 1990) that expired June 30, 1992.

The El Salvador specific fee language was superseded by the fee requirements contained on the instructions to the Form I-765, Application for Employment Authorization. The Form I-765 instructs applicants filing for initial TPS to pay the fee if they wish to receive employment authorization. The Service generally charges fees for persons who apply for TPS on Form I-821, Application for Temporary Protected Status, and who want employment authorization regardless of nationality. Applicants also have the option of requesting a fee waiver for one or both of these fees in accordance with § 244.20. The Service does not charge a fee when a TPS applicant files the Form I-765 to comply with Service data collection purposes only and does not wish to receive employment authorization.

(2) Amended 8 CFR part 244 to remove the word “district” when used in a reference to a “district director.” This change provides the Service with the flexibility to determine where an applicant should submit an application for TPS and which Service personnel will adjudicate the application.

(3) Amended § 244.12 to allow the Service to issue EADs which are valid for a period of up to 18 months to be commensurate with the entire designation period of TPS. Undersection 244(b)(2) of the Act, the Attorney General can authorize an initial designation period for TPS from 6 to 18 months. Previously, § 244.12 limited the validity period of TPS-related EADs to 12 months.

The comment period expired April 2, 1999. The Service did not receive any comments regarding the promulgation of the interim rule. Since there were no comments relating to the interim rule, the Service is adopting the interim rule as a final rule without any changes.

In accordance with 5 U.S.C. 605(b), the Commissioner certifies that this final rule does not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is that this rule does not make any changes to the regulations. It merely adopts the interim rule, published on February 1, 1999, as final without change.

This rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

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

This rule is not considered by the Department of Justice, Immigration and Naturalization Service, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and the Office of Management and Budget has waived its review process under section 6(a)(3)(A).

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

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

The FAA has determined that good cause exists for making these special conditions effective upon issuance; however, interested persons are invited to submit such written data, views, or arguments, as they may desire. Communications should identify the regulatory docket number and be submitted in duplicate to the address specified above. The Administrator will consider all communications received on or before the closing date for comments. These special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to these special conditions must include a self-addressed, stamped postcard on whichthe following statement is made: “Comments to Docket No. NM180.” The postcard will be date stamped and returned to the commenter.

On February 25, 2000, Honeywell International Inc., 21111 N. 19th Avenue, Phoenix, AZ 85027, applied for a Supplemental Type Certificate (STC) to modify the Cessna Model 560, Citation V, airplane approved under Type Certificate No. A22CE. The subject Cessna Model 560, Citation V, airplane is a straight wing, small transport category airplane. These airplanes, serial numbers 560-001 through 560-0259, are powered by two Pratt Whitney JT15D-51 turbofans, with a maximum takeoff weight of 15,900 pounds. Serial numbers 560-0260 through 560-0538 are powered by two Pratt Whitney JT15D-5D turbofans, with a maximum takeoff weight of 16,300 pounds. This series of airplanes operates with a 2-pilot crew and can hold up to 11 passengers.

The Model 560, Citation V, will incorporate integrated electronic PRIMUS EPIC Cockpit Display Systems (CDS), manufactured by Honeywell International Inc., which display attitude and heading information. The PRIMUS EPIC CDS performs a critical function associated with the display of attitude and heading information to the pilot, and must be designed and installed to ensure that its operation is not adversely affected by high intensity radiated fields (HIRF). This critical function can be susceptible to disruption of both command and response signals as a result of electrical and magnetic interference caused by HIRF external to the airplane. This disruption of signals could result in loss of critical flight displays and annunciations, or could present misleading information to the pilot.

Under the provisions of 14 CFR 21.101, Honeywell International Inc. must show that the Cessna Model 560, Citation V, series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A22CE, or the applicable regulations in effect on the date of application for the change. 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 Cessna Model 560, Citation V, series airplanes include Title 14, Code of Federal Regulations (14 CFR) part 25, as amended by Amendments 25-1 through 25-8, plus 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 Cessna Model 560, Citation V, series airplanes 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, the Cessna Model 560, Citation V, series airplanes must comply with the fuel vent and exhaust emission requirements of part 34 and the noise certification requirements of part 36.

Special conditions, as appropriate, are issued in accordance with § 11.49, as required by §§ 11.28 and 11.29, and become part of the airplane's type certification basis in accordance with § 21.101(b)(2).

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design features, these special conditions would also apply to the other model under the provisions of § 21.101(a)(1).

As stated earlier, the Cessna Model 560, Citation V, series airplanes modified by Honeywell International Inc. will incorporate the PRIMUS EPIC CDS, which performs critical functions. This system contains electronic equipment for which 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. The CDS may be vulnerable to HIRF external to the airplane. Accordingly, this system is considered to be a novel or unusual design feature.

There is no specific regulation that addresses the requirements for protection of electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive electrical and electronic 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 Cessna Model 560, Citation V, airplanes modified to include the PRIMUS EPIC CDS. These special conditions will require that this system, which performs 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 digital avionics 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 with either paragraph 1 OR 2 below:

1. A minimum threat of 100 volts rms 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 following field strengths for the frequency ranges indicated. Both peak and average field strength components from the Table are to be demonstrated.

The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.

As discussed above, these special conditions are applicable to Cessna Model 560, Citation V, series airplanes modified by Honeywell International Inc. to include the PRIMUS EPIC CDS. Should Honeywell International Inc. apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate A22CE to incorporate the same novel or unusual design features, these special conditions would apply to that model as well under the provisions of § 21.101(a)(1).

This action affects only certain novel or unusual design features on the Cessna Model 560, Citation V, series airplanes modified by Honeywell Inc. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplanes.

The substance of the special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. For this reason, and because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

On December 9, 2000, the FAA issued emergency AD 2000-25-53, which is applicable to certain Airbus Model A330 series airplanes. That action was prompted by issuance of mandatory continuing airworthiness information by the Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France.

The DGAC recently notified the FAA that an unsafe condition may exist on certain Airbus Model A330 series airplanes. The DGAC advises that there have been at least 5 occurrences of cracked aft engine mount nuts with two found broken (having a crack from the top to the bottom of the nut). Analysis of failed aft engine mount nuts has not yet identified the root cause; however, the cracks resulted from tensile overstress. The DGAC further advises that use of an anti-seize compound, rather than engine oil, for bolt/nut lubrication decreases the frictional loads on the threads of the bolt and nut, and significantly increases the preload for a given torque value. If excessive torque is applied to the bolt, the resultant preload on the bolt and nut can cause overstress and failure of the nut. This condition, if not corrected, could result in reduced structural integrity of the engine-to-pylon aft mount assembly, or, in the case of multiple cracked nuts, possible loss of an engine.

Airbus has issued All Operators Telex (AOT) A330-71A3014, dated December 8, 2000, which describes procedures for repetitive detailed visual or borescopic inspections to detect cracking and other damage of the barrel nuts of the engine aft mount. Corrective actions include replacing any damaged nut and its associated bolt with a new nut and bolt having the same part number. If two or more nuts on the same engine mount are found broken (i.e., having a crack from the top to the bottom of the nut), the AOT prescribes replacement of all four nuts and their associated bolts. The DGAC classified this AOT as mandatory and issued French telegraphic airworthiness directive T2000-523-134(B), dated December 8, 2000, to ensure the continued airworthiness of these airplanes in France.

Airbus AOT A330-71A3014, dated December 8, 2000, refers to Pratt Whitney Service Bulletin PW4G-100-71-16, Revision 1, dated September 15, 1999, as an additional source of service information for replacing the nuts and bolts.

This airplane model is manufactured in France and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, 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 the unsafe condition described is likely to exist or develop on other airplanes of the same type design registered in the United States, the FAA issued emergency AD 2000-25-53 to detect and correct cracking of the aft engine mount nut, which could result in reduced structural integrity of the engine-to-pylon aft mount assembly, or, in the case of multiple cracked nuts, possible loss of an engine. The AD requires either repetitive detailed visual inspections or repetitive borescopic inspections to detect cracking or other damage of the barrel nuts of the engine aft mount; and replacement of any cracked nut and its associated bolt with a new nut and bolt, or replacement of all 4 nuts and their associated bolts if two or more nuts on the same engine mount are found cracked. The actions are required to be accomplished in accordance with the AOT previously described.

This AD is applicable to Airbus Model A330 series airplanes equipped with Pratt Whitney 4000 series engines fitted with engine aft mount nuts and bolts installed in accordance with Airbus Modification 46948 (installed on in-service airplanes per Airbus Service Bulletin A330-71-3012). The modification involves installing bolts and nuts made of MP159 material, to replace nuts and bolts made of the INCO718 material previously used. The Pratt Whitney service bulletin, described previously, describes instructions for installing these parts, as referenced by Airbus Service BulletinA330-71-3012.

Certain typographical errors were discovered in the version of AD 2000-25-53 that was sent previously to U.S. owners and operators of Airbus Model A330 series airplanes. Specifically, there were two notes identified as Note “2” and two notes identified as Note “3.” The notes have been correctly identified in this AD.

This is considered to be interim action. The manufacturer reports that further analysis is required to identify the root cause of the barrel nut failure. Continued inspections will provide better insight into the nature, cause, and prevalence of the cracking. If further action is identified to address the unsafe condition, the FAA may consider further rulemaking.

Since it was found that immediate corrective action was required, notice and opportunity for prior public comment thereon were impracticable and contrary to the public interest, and good cause existed to make the AD effective immediately by individual notices issued on December 9, 2000, to all known U.S. owners and operators of Airbus Model A330 series airplanes. These conditions still exist, and the AD is hereby published in theFederal Registeras an amendment to section 39.13 of the FederalAviation Regulations (14 CFR 39.13) to make it effective as to all persons.

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 captionADDRESSES.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 byinterested 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 2000-NM-399-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 underExecutive 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 captionADDRESSES.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 99-27-10, amendment 39-11491 (65 FR 204, January 4, 2000), which is applicable to certain Airbus Model A310 and A300-600 series airplanes, was published in theFederal Registeron August 2, 2000 (65 FR 47356). The action proposed to require new wiring modifications to the engine and auxiliary power unit (APU) fire detection system.

Since the issuance of the proposed AD, the FAA has changed the manner in which it identifies the airplane models referred to as “Airbus Model A300 and A300-600 series airplanes” to reflect the model designation specified on the type certificate data sheet. This final rule has been revised to show the appropriate model designations for those airplanes.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

There are approximately 113 Model A300 B2 and B4 and A300-600 series airplanes of U.S. registry that will be affected by this AD.

The actions required by this AD will take approximately 26 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts will cost approximately $484 per airplane. Based on these figures, the cost impact of the requirements of this AD on U.S. operators is estimated to be $230,972, or $2,044 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 captionADDRESSES.

The FAA is taking this action to create a uniform Class E airspace floor. Colored Federal airways are published in paragraph 6009 of FAA Order 7400.9H dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The colored Federal airways listed in this document will be published subsequently in the order.

This action amends title 14 CFR part 71 (part 71) by modifying the description of two Colored Federal airways, G-1 and R-2, in Offshore Airspace Area 1234L, Alaska. Specifically, this action adjusts the floor of G-1 and R-2 to be consistent with the 2,000-foot AGL floor of Offshore Control Area 1234L.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On October 25, 2000, a proposal to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to revise the Class E airspace at Iliamna, AK, was published in theFederal Register(65 FR 63821). The proposal was necessary due to the establishment of four new RNAV instrument approaches to RWY 7, RWY 25, RWY 17, and RWY 35 at Iliamna, AK.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments to the proposal were received, thus, the rule is adopted as written.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as surface areas are published in paragraph 6002 and the Class E airspace areas designated as 700/1200 foot transition areas are published in paragraph 6005 in FAA Order 7400.9H,Airspace Designations and Reporting Points,dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 revises the Class E airspace at Iliamna, AK, through the establishment of four new RNAV instrument approaches to RWY 7, RWY 25, RWY 17, and RWY 35 at Iliamna, AK. The intended effect of this proposal is to provide adequate controlled airspace for IFR operations at Iliamna, AK.

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

On October 25, 2000, a proposal to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to revise the Class E airspace at Gulkana, AK, was published in theFederal Register(65 FR 63820). The proposal was necessary due to the establishment of two new RNAV instrument approaches and revision of the VOR and NDB instrument approach procedures to RWY 14 and RWY 32 at Gulkana, AK.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments to the proposal were received, thus, the rule is adopted as written.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as surface areas are published in paragraph 6002 and the Class E airspace areas designated as 700/1200 foot transition areas are published in paragraph 6005 in FAA Order 7400.9H,Airspace Designations and Reporting Points,dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 revises the Class E airspace at Gulkana, AK, through the establishment of two new RNAV instrument approaches and revision of the VOR and NDB instrument approach procedures to RWY 14 and RWY 32 at Gulkana, AK. The intended effect of this proposal is to provide adequate controlled airspace for IFR operations at Gulkana, AK.

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

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

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

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

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

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

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

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description of each SIAP is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 522(a), 1 CFR part 51, and § 97.20 of the Federal Aviation Regulations (FAR). The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, and 8260-5. Materials incorporated by reference are available for examination or purchase as stated above.

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

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

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

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

The Fur Products Labeling Act (Fur Act), 15 U.S.C. 69, and Commission rules pursuant to the Act, 16 CFR Part 301, require that sellers of covered fur products mark each product to show:(1) The name of the animal that produced the fur;(2) that the fur product contains or is composed of used fur, if such is the fact;(3) that the fur product contains or is composed of artificially colored fur, if such is the fact;(4) that the fur product is composed in whole or in substantial part of paws, tails, bellies, or waste fur, if such is the fact;(5) the name under which the manufacturer or other responsible company does business, or in lieu thereof, the RN issued to the company by the Commission; and(6) the country of origin of imported furs. The statute and rules also include advertising and recordkeeping requirements. The Fur Act authorizes the Commission to exempt products containing a relatively small amount or value of fur. Accordingly, section 301.39(a) of the Fur Rules exempts from rule requirements fur products for which either the cost to the manufacturer of the fur contained in the product or the manufacturer's selling price of the product does not exceed $150.1

The Dog and Cat Protection Act of 2000, Pub. L. 106-476, prohibits importing, exporting, manufacturing, selling, advertising, transporting, or distributing any dog or cat fur product. Violations may result in the imposition of civil penalties ranging from $3,000 to $10,000 for each separate violation; forfeiture of the illegal products; and debarment from importing, exporting, manufacturing, transporting, distributing, or selling any fur product in the U.S.

In addition, the Dog and Cat Protection Act amends the Fur Act, 16 U.S.C. 69(d), to exclude dog and cat fur products from those items the Commission is authorized to exempt from the labeling and other requirements of the Fur Act and implementing regulations. The amendments to the Fur Rules announced herein implement this amendment to the Fur Act.

On December 13, 2000, the Commission published final rules and rule amendments in theFederal Registerrevising its rules relating to intermediation of commodity futures and commodity options (commodity interest) transactions.1 As part of the new rules and rule amendments, the Commission has amended Rule 1.25 to expand the range of instruments in which FCMs and clearing organizations may invest customer funds to include such highly liquid and readily marketable instruments as certain sovereign debt, agency debt, money market mutual funds, and corporate notes (permitted investments). Additional provisions to minimize credit, volatility and liquidity risk have also been adopted. Previously, investments of customer funds had been limited to U.S. government securities, municipal securities, and instruments fully guaranteed as to principal and interest by the U.S. government. When the Commission proposed the amendments to Rule 1.25, it stated that “an expanded list of permitted investments could enhance the yield available to FCMs, clearing organizations and their customers without compromising the safety of customer funds.”2

As provided in the adopting release, the new rules and rule amendments relating to intermediaries, including the changes to Rule 1.25, are to become effective on February 12, 2001.3 The Commission established an effective date 60 days following publication in theFederal Registerfor the new rules and rule amendments relating to intermediaries, as well as for the other elements of regulatory reform adopted simultaneously by the Commission,4 to allow time for entities affected by the rule changes to make the necessary adjustments to their operations. The Commission has been apprised by the futures industry, however, that the implementation of new Rule 1.25 does not require such a lengthy delay, and that it may be more efficient if FCMs are permitted to implement the rule revisions relating to Rule 1.25 on an earlier date.5 The Commission agrees with the industry request and has determined to move forward the effective date for the amendments to Rule 1.25 to December 28, 2000. The Commission has further determined to move forward the effective date of related amendments to Rules 1.20 and 1.26-1.29.6

Paragraph (a) of Rule 1.25 sets forth the types of permissible investments of customer funds,e.g., U.S. Treasury obligations, commercial paper, corporate notes. Each type of investment must meet certain quality requirements, including requirements for marketability, credit ratings, restrictive features and concentration limitations. Currently, these quality requirements are all contained in separate provisions of paragraph (b) of the rule, except for the requirements regarding sovereign debt, which are contained in paragraph (a)(1)(vii). The Commission believes that this placement could be confusing. Therefore, in order to clarify Rule 1,25, the requirements for all types of permitted investments are now placed together, in the same paragraphs, as follows: (i) the requirement that foreign sovereign debt be rated in the highest category by at least one nationally recognized statistical rating organization has been moved from paragraph (a)(1)(vii) to paragraph (b)(2)(i)(D) and, concurrently, the reference to permit sovereign debt contained in paragraph (b)(2)(i)(A) is no longer necessary and, therefore, has been deleted; and (ii) the requirement that investments in a particular country's sovereign debt be limited to amounts owed in that currency has been moved from paragraph (a)(1)(vii) to paragraph (b)(4)(i)(D).

The Commission has determined that there is good cause to move forward the effective date of the amendments to Rule 1.25, as well as the amendments to Rules 1.20 and 1.26-1.29, and to make the clarifying revisions discussed above to Rule 1.25 because it is not contrary to the public interest to permit FCMs and clearing organizations to invest customer funds in an expanded range of permissible investments. Such investments could potentially provide a higher yield to those FCMs and clearing organizations without compromising the safety of customer funds. The Commission has further determined that these rules may be made effective less than 30 days following their date of publication in theFederal Registerbecause these are substantive rules that relieve a restriction on those FCMs and clearing organizations seeking to invest customer funds in a wider range of financial instruments.7

In consideration of the foregoing, and pursuant to the authority contained in the Commodity Exchange Act, and in particular, Sections 4(c), 4d(2) and 8a(5) thereof, 7 U.S.C. 6(c), 6d(2) and 12a(5), the Commission hereby makes the amendments to rules 1.20 and 1.25 through 1.29 that were published on December 13, 2000 at 65 FR 77993, 78009-13 as further amended in this release, effective December 28, 2000.

District Commanders and Captains of the Port (COTP) must be immediately responsive to the safety needs of the waters withintheir jurisdiction; therefore, District Commanders and COTPs have been delegated the authority to issue certain local regulations. Safety zones may be established for safety or environmental purposes. A safety zone may be stationary and described by fixed limits or it may be described as a zone around a vessel in motion. Security zones limit access to vessels, ports, or waterfront facilities to prevent injury or damage. Special local regulations are issued to enhance the safety of participants and spectators at regattas and other marine events. Timely publication of these regulations in theFederal Registeris often precluded when a regulation responds to an emergency, or when an event occurs without sufficient advance notice. However, the affected public is informed of these regulations through Local Notices to Mariners, press releases, and other means. Moreover, actual notification is provided by Coast Guard patrol vessels enforcing the restrictions imposed by the regulation. Because mariners are notified by Coast Guard officials on-scene prior to enforcement action,Federal Registernotice is not required to place the special local regulation, security zone, or safety zone in effect. However, the Coast Guard, by law, must publish in theFederal Registernotice of substantive rules adopted. To meet this obligation without imposing undue expense on the public, the Coast Guard periodically publishes a list of these temporary special local regulations, security zones, and safety zones. Permanent regulations are not included in this list because they are published in their entirety in theFederal Register. Temporary regulations may also be published in their entirety if sufficient time is available to do so before they are placed in effect or terminated. The safety zones, special local regulations and security zones listed in this notice have been exempted from review under Executive Order 12866 because of their emergency nature, or limited scope and temporary effectiveness.

The following regulations were placed in effect temporarily during the period April 1, 2000 and September 30, 2000, unless otherwise indicated.

The LA 77 bridge across the Lower Grand River, mile 47.0 (Alternate Route) at Grosse Tete, Iberville Parish, Louisiana, has a vertical clearance of 2 feet above high water in the closed-to-navigation position and unlimited clearance in the open-to-navigation position. Navigation on the waterway consists mainly of tows with barges and some recreational craft. The Louisiana Department of Transportation and Development requested a temporary deviation from the normal operation of the bridge in order to accommodate the final repairs to the bridge caused by an allision in June of 2000.

This deviation allows the draw of the LA 77 pontoon drawbridge across the Lower Grand River, mile 47.0 (Alternate Route), at Grosse Tete, Iberville Parish, Louisiana, to remain in the closed-to-navigation position from 6 a.m. until 11 a.m. and from 1 p.m. to 6 p.m., Monday through Friday, from January 8, 2001 until January 26, 2001. Presently, the draw of the LA 77 bridge, mile 47.0 (Alternate Route) at Grosse Tete, shall open on signal; except that, from about August 15 to about June 5 (the school year), the draw need not be opened from 6 a.m. to 8 a.m. and from 2:30 p.m. to 4:30 p.m., Monday through Friday except Federal holidays. The draw shall open on signal at any time for an emergency aboard a vessel.

On June 21, 2000, we published a notice of proposed rulemaking entitled “Anchorage Regulation; Sabine Pass, TX, Gulf of Mexico” in theFederal Register(65 FR 38474). We received no letters commenting on the proposed rule. No public hearing was requested and none was held. For the Semi-Annual Agenda, we changed the RIN and title of this rule to “Shipping Safety Fairways and Anchorage Areas, Gulf of Mexico, 2115-AG02”, to correctly reflect the CFR part that we are affecting.

In 1997, the in-bound tank vessel CROSBY ran aground just outside theSabine Bank Offshore (North) Anchorage area located in the Gulf of Mexico, approximately 13 miles south of Sabine Pass, TX. This vessel was carrying over 650,000 barrels of crude oil. Although no oil was spilled, the result could have been disastrous.

The subsequent investigation revealed that the vessel's master crossed the safety fairway and attempted to navigate into the North anchorage. However, a strong westerly current pushed the CROSBY toward the shallow area southeast of the anchorage area. The master was unable to maneuver away from the shallows and the vessel grounded. Four tugboats took 15 hours to refloat the CROSBY.

In-bound petroleum laden deep draft vessels invariably have a need to anchor and wait for daylight transit. The new anchorage east of the Sabine Bank Offshore (North) Anchorage eliminates the need for these vessels to cross the safety fairway and navigate the surrounding shallow areas to reach anchorage. The new anchorage is also free of shallow areas immediately surrounding it. This significantly reduces navigational risks to in-bound deep draft vessels.

No comments were received regarding the notice of proposed rulemaking and no changes were made.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, l979). We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

There are no fees, permits, or specialized requirements for the maritime industry to utilize this anchorage area. Use of the Sabine Bank Offshore (East) Anchorage Area is voluntary. This regulation is solely for the purpose of advancing safety of maritime commerce.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant economic impact on a substantial number of small entities. 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.

Since there are no fees, permits, or specialized requirements for the maritime industry to utilize this anchorage, and the use of the anchorage is voluntary, the Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 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. No assistance was requested or provided.

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

We have analyzed this rule under Executive Order 13132, Federalism, and have determined that it 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 regulatory actions not specifically required by law. 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 effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

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

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

We considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph (34)(f), of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation. Implementation of this action will not result in any—

• Significant cumulative impacts on the human environment;

• Substantial controversy or substantial change to existing environmental conditions;

• Impacts which are more than minimal on properties protected under 4(f) of the DOT Act as superceded by Public Law 97-449, and Section 106 of the National Historic Preservation Act; and

• Inconsistencies with any Federal, State, or local laws or administrative determinations relating to the environment.

A “Categorical Exclusion Determination” is available in the docket where indicated underADDRESSES.

Global Express Guaranteed (GXG) is the U.S. Postal Service's premium international mail service. GXG is an expedited delivery service that is the product of a business alliance between the U.S. Postal Service and DHL Worldwide Express, Inc. It provides time-definite service from designated U.S. ZIP Code areas to locations in over 200 destination countries and territories. Global Express Guaranteed consists of two mail classifications: Global Express Guaranteed Document Service and Global Express Guaranteed Non-Document Service. Regulations for Global Express Guaranteed service are currently set forth in section 215 of the International Mail Manual (IMM). These regulations will be moved to IMM 210 pursuant to the notice published inFederal Registeron September 26, 2000. Numerous and successive expansions and changes to the service have been listed in previousFederal Registernotices and were summarized in the final ruleFederal Registerpublished on December 6, 2000 (65 FR 76154).

The GXG rates, set forth below, are based on experience gained with providing the service and more accurately reflect the actual costs of providing this service across the various rate groups.

Although the Postal Service is exempted by 39 U.S.C. 410(a) from the advance notice requirements of the Administrative Procedure Act regarding proposed rulemaking (5 U.S.C. 553), the Postal Service invites public comment on the interim rule at the above address.

The Postal Service is implementing the following rates and amending the International Mail Manual, which is incorporated by reference in the Code of Federal Regulations. See 39 CFR 20.1.

Throughout this document whenever “we, us, or our” is used, we mean EPA. This section provides additional information by addressing the following questions:

Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state must submit these regulations and control strategies to EPA for approval and incorporation into the Federally enforceable SIP.

Each Federally approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

In order for state regulations to be incorporated into the Federallyenforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.

All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at Title 40, Part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.

Enforcement of the state regulation before and after it is incorporated into the Federally approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.

We are taking final action to approve, as an amendment to Missouri's SIP, rule 10 CSR 10-6.350, “Emissions Limitations and Emissions Trading of Oxides of Nitrogen,” submitted to us on November 15, 2000. The Missouri rule was adopted by the Missouri Air Conservation Commission on May 25, 2000, and submitted to EPA for parallel processing on June 29, 2000. The rule became effective under state law on August 30, 2000. The November 15, 2000, submittal included the adopted rule, the comments on the rule during the state's adoption process, and the state's response to comments, and other information necessary to meet EPA's completeness criteria. For additional information on the completeness criteria and on parallel processing, the reader should refer to EPA's August 24, 2000, proposal, 65 FR 51564, and to 40 CFR Part 51, Appendix V.

The rule requires reductions in NOXemissions by establishing NOXemissions limitations for large electric generating units (EGU) which includes any EGU with a nameplate capacity greater than 25 megawatts across the state, beginning May 1, 2003. EGUs located in the eastern third of the state are limited to an emission rate of 0.25 lbs. NOXper million British thermal units per hour (mmBtu/hr) of heat input during the control period. The EGUs located in the western two-thirds of the state are limited to the less stringent rate of 0.35 lbs. NOXmmBtu/hr of heat input during the control period. The control period begins on May 1 and ends on September 30 of the same calendar year, which is when ozone formation is most likely to occur at unhealthful levels.

The rule also establishes a trading program for the state of Missouri to allow the affected EGUs' flexibility in meeting the requirements of this rule.

For more background information and further discussion of the Missouri rule, please refer to the proposal for this rulemaking published on August 24, 2000, at 65 FR 51564. No comments were received during the public comment period regarding this rule action. EPA proposed action through parallel processing because the rule was not yet effective under state law. The final effective rule is the same as the rule submitted to us on June 29, 2000, on which the proposal was based.

This rule is a critical element in the state's plan to attain the ozone standard in the St. Louis ozone nonattainment area. The state of Missouri has assessed the statewide impacts of NOXemissions and has imposed the reductions specified in this rule to demonstrate attainment of the ozone NAAQS in the St. Louis nonattainment area. EPA's proposal on the attainment demonstration, in 65 FR 20404, April 17, 2000, includes a detailed discussion of the role of regional NOXemission reductions in attainment of the ozone standard in the St. Louis area.

As explained in EPA's proposal, the state is committed to evaluating the effectiveness of the rule in achieving necessary NOXreductions. The commitment is reflected in a letter submitted by Missouri to EPA on August 8, 2000. We intend to review the annual demonstration submitted by Missouri. If necessary, we may exercise our authorities under sections 110 and 179 of the Act to require further action to remedy shortfalls, if any, in the NOXreduction program, when it is implemented.

As also explained in the proposal, our evaluation of the statewide NOXrule is not related to the obligations which Missouri may subsequently have under EPA's regional NOXreduction rule (the NOXSIP call). That rule requires that certain states develop regional NOXcontrols to address contributions to downwind nonattainment of the ozone standard in the eastern portion of the country. In response to a recent judicial remand of the SIP call as it relates to Missouri, EPA intends to undertake rulemaking to establish regional NOXrequirements for a portion of Missouri. When that rulemaking is completed, we anticipate that it will establish separate NOXreduction requirements to address contributions by Missouri sources to ozone nonattainment in other areas. The state would then be required to take subsequent action, pursuant to the NOXSIP call, to ensure NOXemissions address long-range transport, and we would then take separate rulemaking action on Missouri's response to the NOXSIP call.

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR Part 51, Appendix V. In addition, as explained above and in more detail in the technical support document which is part of this document, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

We are taking final action to approve as an amendment to the Missouri SIP rule 10 CSR 10-6.350, “Emissions Limitations and Emissions Trading of Oxides of Nitrogen,” submitted to us on November 15, 2000. This rule is a critical element in the state's plan to attain the ozone standard in the St. Louis ozone nonattainment area.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves preexisting requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, our role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), we have no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, we have taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings” implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 26, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affectedcategories 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 the table could also be affected. The North American Industrial Classification System (NAICS) codes have been 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 underFOR 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/. To access this document, 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 canalso go directly to theFederal Registerlistings athttp://www.epa.gov/fedrgstr/.

2.In person. The Agency has established an official record for this action under docket control number OPP-301089. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). Thisofficial 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 applicablecomment 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.

EPA issued a final rule, published in theFederal Registerof June 30, 1999 (64 FR 35032) (FRL-6086-3), which announced that on its own initiative under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) it established a time-limited tolerance for the residues of cyprodinil in or on caneberries at 10 ppm, with an expiration date of December 31, 2000. EPA established the tolerance because section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemicalresidues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Such tolerances can be established without providing notice or period for public comment.

EPA received a request to extend the use of cyprodinil on caneberries for this year's growing season due to the widespread development of pest resistance to previously-used standard fungicides benomyl, iprodione and vinclozolin; no currently available alternatives appear to provide suitable disease control and significant economic losses are expected with moderate to severe disease pressure. After having reviewed the submission, EPA concurs that emergency conditions exist. EPA has authorized under FIFRA section 18 theuse of cyprodinil on caneberries for control of gray mold in Oregon and Washington.

EPA assessed the potential risks presented by residues of cyprodinil in or on caneberries. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and decided that the necessary tolerance under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. The data and other relevant material have been evaluated and discussed in the final rule of June 30, 1999 (64 FR 35032) (FRL-6086-3). Based on that data and information considered, the Agency reaffirms that extension of the time-limited tolerance will continue to meet the requirements of section 408(l)(6). Therefore, the time-limited tolerance is extended for an additional 1-year period.EPA will publish a document in theFederal Registerto remove the revoked tolerance from the Code of Federal Regulations (CFR). Although this tolerance will expire and is revoked on December 31, 2001, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on caneberriesafter that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA and the application occurred prior to the revocation of the tolerance. EPA will take action to revoke this tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCA sections 408 and 409. However, the period for filing objections is now 60 days, rather than 30days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301089 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before February 26, 2001.

1.Filing the request. Your objection must specify thespecific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submittedin connection with an objection or hearingrequest may be claimed confidential 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. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. C400, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of theHearing Clerk is (202) 260-4865.

2.Tolerance fee payment. If you file an objection or request a hearing, you must also pay the fee prescribed by 40 CFR 180.33(i) or request a waiver of that fee pursuant to 40 CFR 180.33(m). You must mail the fee to: EPA Headquarters Accounting Operations Branch, Office of Pesticide Programs, P.O. Box 360277M, Pittsburgh, PA 15251. Please identify the fee submission by labeling it “Tolerance Petition Fees.”

EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov, or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency,1200 Pennsylvania Ave., NW., Washington, DC 20460.

If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

3.Copies for the Docket. In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit III.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301089, to:Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mailto: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format.Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if establishedresolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

This final rule extends the expiration date of a time-limited tolerance under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitledRegulatory Planning and Review(58 FR 51735, October 4, 1993). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501et seq., or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any prior consultation as specified by Executive Order 13084, entitledConsultation and Coordination with Indian Tribal Governments(63 FR 27655, May 19, 1998); special considerations as required by Executive Order 12898, entitledFederal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations(59 FR 7629, February 16, 1994); or require OMB review or any Agency action under Executive Order 13045, entitledProtection of Children from Environmental Health Risks and Safety Risks(62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions thatare established on the basis of a FIFRA section 18 petition under FFDCA section 408, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601et seq.) do not apply. In addition, the Agency has determined that this action will not have a substantial directeffect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitledFederalism(64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that havefederalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4).

The Congressional Review Act, 5 U.S.C. 801et seq., asadded by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other requiredinformation to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in theFederal Register. This finalrule is not a “major rule” as defined by 5 U.S.C. 804(2).

You may be 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 the table could also be affected. The North American Industrial Classification System (NAICS) codes have been 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 underFOR FURTHER INFORMATION CONTACT.

1.Electronically. You may obtain electronic copies of thisdocument, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, 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 theFederal Registerlistings at http://www.epa.gov/fedrgstr/.

2.In person. The Agency has established an official record for this action under docket control number OPP-301090. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). Thisofficial 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 applicablecomment 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.

EPA issued a final rule, published in theFederal RegisterofAugust 29, 1997 (62 FR 45741) (FRL-5738-5), which announced that on its own initiative under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) it established time-limited tolerances for the residues of desmedipham in or on red beet roots at 0.2 ppm and red beet tops at 15 ppm, with an expiration date of August 31, 1998. EPA extended this expiration date to December 31, 2000 in a final rule published in theFederal Registerof August 25, 1999. EPA established these tolerances because section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance forpesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Such tolerances can be established without providing notice or period for public comment.

EPA received a request to extend the use of desmedipham on red beets for this year's growing season due to the continued non-routine situation facing red beet growers in New York; the voluntary cancellation of diethatyl-ethyl in 1993 has left growers with no registered alternatives which provide adequate or dependable weed control. After having reviewed the submission, EPA concurs that emergency conditions exist. EPA has authorized under FIFRA section 18 the use of desmedipham on red beets for control of broadleaf weeds in New York.

EPA assessed the potential risks presented by residues of desmedipham in or on red beets. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and decided that the necessary tolerances under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. The data and other relevant material have been evaluated and discussed in the final rule of August 29, 1997 (62 FR 45741) (FRL-5738-5). Based on that data and information considered, the Agency reaffirms that extension of the time-limited tolerances will continue to meet the requirements of section 408(l)(6). Therefore, the time-limited tolerances are extended for an additional 1-year period. EPA will publish a document in theFederal Registerto removethe revoked tolerances from the Code of Federal Regulations (CFR). Although these tolerances will expire and are revoked on December 31, 2001, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerances remaining in or on red beet roots or tops after that date will not be unlawful, provided the pesticide is applied in amanner that was lawful under FIFRA and the application occurred prior to the revocation of the tolerances. EPA will take action to revoke these tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are notsafe.

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCAsections 408 and 409. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301090 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before February 26, 2001.

1.Filing the request. Your objection must specify thespecific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submittedin connection with an objection or hearing request may be claimed confidential 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. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. C400, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of theHearing Clerk is (202) 260-4865.

2.Tolerance fee payment. If you file an objection or request a hearing, you must also pay the fee prescribed by 40 CFR 180.33(i) or request a waiver of that fee pursuant to 40 CFR 180.33(m). You must mail the fee to: EPA Headquarters Accounting Operations Branch, Office of Pesticide Programs, P.O. Box 360277M, Pittsburgh, PA 15251. Please identify the fee submission by labeling it “Tolerance Petition Fees.”

EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov, or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

3.Copies for the Docket. In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit III.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301090, to:Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mailto: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format.Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

A request for a hearing will be granted if the Administrator determines that thematerial submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if establishedresolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

This final rule extends the expiration date of time-limited tolerances under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitledRegulatory Planning and Review(58 FR 51735, October 4, 1993). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501et seq., or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any prior consultation as specified by Executive Order 13084, entitledConsultation and Coordination with Indian Tribal Governments(63 FR 27655, May 19, 1998); special considerations as required by Executive Order 12898, entitledFederal Actions to Address Environmental Justicein Minority Populations and Low-Income Populations(59 FR 7629, February 16, 1994); or require OMB review or any Agency action under Executive Order 13045, entitledProtection of Children from Environmental Health Risks and Safety Risks(62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a FIFRA section 18 petition under FFDCA section 408, such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601et seq.) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified inExecutive Order 13132, entitledFederalism(64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships ordistribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4).

The Congressional Review Act, 5 U.S.C. 801et seq., asadded by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in theFederal Register. This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

This is a summary of the Commission's Fourth Report and Order (Fourth RO) in CC Docket No. 94-102; FCC 00-436, adopted December 11, 2000, and released December 14, 2000. Thecomplete text of this Fourth RO is available for inspection and copying during normal business hours in the FCC Reference Information Center, Courtyard Level, 445 12th Street, SW., Washington, DC, and also may be purchased from the Commission's copy contractor, International Transcription Services (ITS, Inc.), CY-B400, 445 12th Street, SW., Washington, DC.

1. In this Fourth Report and Order (Fourth RO), the Commission takes steps to ensure that persons with hearing and speech disabilities using text telephone (TTY) devices will be able to make 911 emergency calls over digital wireless systems. In light of recent technological advances related to TTY/digital compatibility, the Commission establishes June 30, 2002, as the deadline by which digital wireless service providers must be capable of transmitting 911 calls made using TTY devices. In order to monitor the development and implementation of this capability within carrier networks, the Commission imposes a reporting requirement on carriers, which may be fulfilled by reporting through an industry forum that has been actively involved in resolving TTY/digital compatibility problems.

2. As indicated in paragraphs 8, 9, and 10 of the full text of the Fourth RO, the Commission establishes December 31, 2001, as the deadline for carriers operating digital wireless systems to have obtained all software upgrades and equipment necessary to make their systems capable of transmitting 911 calls from TTY devices. However, the Commission allows carriers an additional six-month period, until June 30, 2002, to integrate, test, and deploy the technology in their systems in conjunction with the public safety community.

3. In addition to amending the Commission's rules to reflect the modified implementation deadline for digital wireless systems to be capable of transmitting 911 calls using TTY devices, the Fourth RO also addresses pending petitions seeking waiver of the TTY regulations of 47 CFR 20.18(c). As indicated in paragraph 11 of the Fourth RO, the majority of these petitions were filed on or before December 4, 1998, and, due to technological advances that have occurred since that time, and the revised implementation schedule adopted in the Fourth RO, the Commission finds that these waiver petitions are moot and thus dismisses them.

4. Paragraphs 12 through 18 of the Fourth R O considers methods that the Commission could use to monitor the carriers' progress toward attaining digital TTY accessibility, as well as the progress of technological developments and the adoption of standards. The Fourth RO, in response to this need, adopts a requirement that carriers submit quarterly reports, but to allow them to fulfill this requirement by reporting through the TTY Forum. As detailed in paragraph 14 of the Fourth RO, wireless carriers formed the TTY Forum for the purpose of sharing information and developing solutions to the TTY/digital incompatibility problem. The TTY Forum has done an excellent job of helping carriers move toward the goal of making digital wireless systems widely accessible to TTY devices. Most carrier and equipment manufacturer commenters agree that reports by the TTY Forum should be required in lieu of individual reports by carriers. The Commission finds that providing carriers with the flexibility to either file an individual quarterly report or to fulfill this requirement by reporting through the TTY Forum. The quarterly reports must be filed either by the individual carrier or by the carrier though the TTY Forum 15 days after the end of each quarter, beginning on April 15, 2001, with a report for the quarter ending March 31, 2001, and continuing through the implementation deadline of June 30, 2002. This requirement contains information collection requirements that are not effective until approved by the Office of Management and Budget. The FCC will publish a document in theFederal Registerannouncing the effective date for this requirement. Public comment on the information collection is due February 26, 2001.

5. The quarterly reports should contain updates on the status of the various solutions and should distinguish between different air interfaces. The reports should provide information concerning deployment “milestones” and issues as detailed in paragraph 17 of the Fourth RO. Paragraph 18 of the Fourth RO provides information on how and where to file the quarterly reports.

6. The Fourth RO, in paragraphs 20 through 32, notes several additional consumer issues related to the solutions, including the effect of the solutions on TTYs with proprietary enhanced protocols, the support of voice carry over in the solutions, and concerns about the capability of certain handsets to allow for simultaneous connections to the audio jack and the power cord input. With respect to these issues, the Commission encourages handset and TTY manufacturers and carriers to work toward resolution of these issues. In response to consumer concerns about the availability and cost of analog wireless services, the Commission encourages carriers to work with TTY users to provide an analog service plan comparable to what is offered to digital customers.

7. The Commission hereby certifies pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), that the progress monitoring reporting requirement adopted in this Fourth RO will not have a significant economic impact on a substantial number of small entities. The report is much like the reporting requirements the Commission previously adopted in the E911 proceeding. The Commission is only requiring the filing of these reports for a limited period of time. Finally, the Commission has adopted (at the suggestion of the industry) a mechanism for filing the reports that minimizes any burdens on small entities. The Commission therefore concludes that there will not be a significant economic impact as a result of this reporting requirement.

8.Report to Congress:The Commission will send a copy of the Fourth RO, including the Final Regulatory Flexibility Act Certification, in a report to Congress pursuant to the Congressional Review Act,see5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of the Fourth RO, including the Final Regulatory Flexibility Act Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

Ordering Clauses:

9. Part 20 of the Commission's Rules is amended as set forth in the Rule Changes section of this summary.

The rule amendments made by this Fourth RO shall become effective February 26, 2001.

10. The information collections contained in this order will become effective following approval by the Office of Management and Budget. The Commission will publish a document in theFederal Registerat a later date establishing the effective date for these collections.

11. All petitions for waiver of section 20.18(c) of the Commission's rules are dismissed as moot in light of the rule changes adopted in this Fourth RO.

12. The Commission's Consumer Information Bureau, Reference Information Center shall send a copy of this Fourth RO, including the FinalRegulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

13. This Fourth RO contains a new information collection. As part of the Commission's continuing effort to reduce paperwork burdens, the Commission invites the general public and the Office of Management and Budget to take this opportunity to comment on the information collections contained in this Fourth RO, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due February 26, 2001. Comments should address: (a) Whether the new 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; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) 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 Approval Number:N.A.

Title:Revision of the Commission's Rules To Ensure Compatibility with Enhanced 911 Emergency Calling Systems, Fourth RO.

Form No.N.A.

Type of Review:New information collection.

Respondents:Business or other for profit.

Number of Respondents:4,000.

Estimated Time Per Response:2 Hours.

Total Annual Burden:32,000 Hours.

Cost to Respondents:.0.

Needs and Uses:The information submitted in the quarterly reports will be used by the Commission to keep track of the carriers' progress in complying with E911 TTY requirements and also to monitor the progress technology is making towards compatibility with TTY devices.

This is a synopsis of the Commission's Report and Order, MM Docket No., adopted December 13, 2000, and released December 22, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

This is a synopsis of the Commission's Report and Order, MM Docket No. 98-155, adopted December 13, 2000, and released December 22, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036.

This final rule (1) provides guidance on what should be addressed in NASA's Governmentwide purchase card training for purchase cardholders and approving officials; (2) deletes the NASA coverage for addressing contract bundling in acquisition plans which is duplicative of FAR coverage contained in FederalAcquisition Circular 97-15; (3) clarifies guidance on NASA's external audit follow-up system; and (4) makes technical corrections in Parts 1816, 1835, 1842, 1845, 1852, and 1872.

This final rule does not constitute a significant revision within the meaning of FAR 1.501 and Pub. L. 98-577, and publication for comments is not required. However, comments from small business entities concerning the affected NFS coverage will be considered in accordance with 5 U.S.C. 610. Such comments may be submitted separately and should cite 5 U.S.C. 601,et seq.

The Paperwork Reduction Act does not apply because the changes to the NFS do not impose any recordkeeping or information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,et seq.

Government procurement.

NMFS manages the U.S. groundfish fisheries in the EEZ of the Bering Sea and Aleutian Islands Management Area (BSAI) and Gulf of Alaska (GOA) under the fishery management plans (FMPs) for groundfish in the respective areas. The North Pacific Fishery Management Council (Council) prepared, and NMFS approved, the FMPs under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801et seq.Regulations implementing the FMPs appear at 50 CFR part 679. General regulations governing U.S. fisheries appear at 50 CFR part 600. -

NMFS also has statutory authority to promulgate regulations governing the groundfish fisheries under the Endangered Species Act (ESA), 16 U.S.C. 1531 et seq. The ESA requires that each Federal agency ensure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered or threatened species or to result in the destruction or adverse modification of critical habitat of such species. -

On August 7, 2000, the United States District Court for the Western District of Washington issued an order that granted a motion for a partial injunction on the North Pacific groundfish fisheries.Greenpeacev.NMFS, No. C98—4922 (W.D. Wash.). This motion requested injunctive relief until NMFS issues a legally adequate BiOp addressing the combined, overall effects of the North Pacific groundfish fisheries on Steller sea lions and their critical habitat pursuant to the ESA. The population of Steller sea lions west of 144° W. long. (hereafter western population) is listed under the ESA as endangered, while the population of Steller sea lions east of 144° W. long. is listed as threatened. -

To comply with the Court’s August 7, 2000, Order, NMFS, pursuant to the ESA, issued an interim rule prohibiting fishing for groundfish with trawl gear in Steller sea lion critical habitat (65 FR 49766, August 15, 2000). The critical habitat areas closed by the interim rule were defined in regulations codified at 50 CFR 226.202, and in Tables 1 and 2 to 50 CFR part 226. -

On November 30, 2000, NMFS issued a BiOp, which is comprehensive in scope and considers the fisheries and the overall management framework established by the BSAI and GOA FMPs. After analyzing the cumulative, direct and indirect effects of the groundfish fisheries authorized by the BSAI and GOA FMPs on listed species, NMFS concluded in the BiOp that the fisheries for pollock, Pacific cod, and Atka mackerel, as currently prosecuted, jeopardize the continued existence of the western population of Steller sea lions and adversely modify their critical habitat. NMFS reached this conclusion based on information that the pollock, Pacific cod, and Atka mackerel fisheries and the Steller sea lions compete for the same species, that this competition causes reduced availability of prey for the Steller sea lions, that reduced availability of prey leads to nutritional stress, and that nutritional stress, especially of juveniles and to a lesser extent adult females, is the leading hypothesis to explain the continued decline of the western population of Steller sea lions. -

On December 5, 2000, the United States District Court for the Western District of Washington issued an order dissolving the injunction issued on August 7, 2000. Based on that Order, NMFS issued a final rule on December 14, 2000 (65 FR 79784, December 20, 2000) revoking the closure of all groundfish trawl fishing in designated critical habitat that was published on August 15, 2000 (65 FR 49766). However, because the BiOp concluded that the fisheries for Pacific cod, along with pollock and Atka mackerel, as currently prosecuted, jeopardize the continued existence of the western population of Steller sea lions and adversely modify their critical habitat, and because only Pacific cod was still available for harvest in certain fisheries, the December 20, 2000, final rule prohibited commercial fishing for Pacific cod in designated critical habitat through December 31, 2000. Commercial fisheries for pollock and Atka mackerel were not included in the final rule because fisheries for those species already were prohibited throughDecember 31, 2000, pursuant to other regulatory requirements. -

This final rule revises the December 14, 2000, final rule by permitting directed fishing for Pacific cod by vessels using non-trawl gear and continuing the prohibition on directed fishing for Pacific cod by vessels using trawl gear in designated critical habitat. This action is being taken to allow three previously authorized fisheries for Pacific cod with non-trawl gear to continue through the end of the fishing year (i.e., December 31, 2000) or until otherwise closed sooner due to attainment of catch or bycatch limits. The three previously authorized Pacific cod fisheries include: (1) fishing in the BSAI under the Community Development Quota (CDQ) Program, (2) fishing in the BSAI by vessels less than 60 ft (18.3 m) length overall (LOA), and (3) fishing in the GOA by vessels using pot gear for processing by the offshore component. -

The number of vessels that were participating in these three fisheries and the remaining catch quota of Pacific cod to be harvested is small relative to the BSAI and GOA groundfish fisheries generally. Based on current participation and harvest information, the CDQ fishery could have about 10 vessels using hook-and-line gear to harvest a remaining quota of 1,800 mt of Pacific cod in critical habitat in the BSAI. The under 60 ft (18.3 m) LOA fishery could have about 4 vessels using non-trawl gear to harvest a remaining quota of 1,200 mt of Pacific cod in critical habitat in the BSAI. Through December 15, 2000, this fishery harvested only 62 mt of this quota and, based on previous harvest rates, NMFS anticipates that another 33 mt will be harvested before January 1, 2001. No vessels were operating in the GOA “offshore” fishery for Pacific cod as of December 15, 2000. Only vessels using pot gear can operate in this fishery because restrictions on Pacific halibut bycatch prevent vessels using hook-and-line gear from participating in the GOA “offshore” fishery for Pacific cod through December 31, 2000. Hence, these are relatively small-scale fisheries and NMFS has determined that allowing them to continue within designated critical habitat would not contravene the Reasonable and Prudent Alternative described in Section 9 of the BiOp. In addition, this action expires on December 31, 2000, thereby severely limiting the potential effect of this action on Steller sea lions. -

The Assistant Administrator for Fisheries, NOAA (AA), has determined that this final rule is consistent with the Court’s Order and is authorized by the ESA. -

Because prior notice and opportunity for public comment are not required for this final rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601et seq., do not apply to this action. -

This final rule has been determined to be not significant under section 3(f)(1) of E.O. 12866. -

The AA, under 5 U.S.C. 553(b)(B), finds there is good cause to waive providing prior notice and an opportunity for public comment for the partial removal of the existing closure. This removal stems from a United States District Court Order dissolving, as of December 5, 2000, the injunction requiring the closure. Delaying this action to provide prior notice and opportunity for comment would cause unnecessary economic harm to the affected fishermen and thus would be contrary to the public interest. Because this action relieves a restriction, under 5 U.S.C. 553(d)(1) it is not subject to a 30-day delay in the effective date.